Strata Voting Pty Ltd v Axios IT Pty Ltd
[2022] QSC 32
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- Unreported Judgment
- Strata Voting Pty Ltd v Axios IT Pty Ltd[2022] QSC 32
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Strata Voting Pty Ltd v Axios IT Pty Ltd[2022] QSC 32
Strata Voting Pty Ltd v Axios IT Pty Ltd[2022] QSC 32
SUPREME COURT OF QUEENSLAND
CITATION: | Strata Voting Pty Ltd v Axios IT Pty Ltd & Anor [2022] QSC 32 |
PARTIES: | STRATA VOTING PTY LTD ACN 161 143 853 (IN LIQUIDATION) (respondent/plaintiff) v AXIOS IT PTY LTD ACN 114 708 753 (applicant/first defendant) STRATASAURUS PTY LTD ACN 626 393 379 (applicant/second defendant) |
FILE NO/S: | 14162 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Cross-vesting application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 14 March 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 February 2022 |
JUDGE: | Applegarth J |
ORDER: |
|
CATCHWORDS: | COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – CONCURRENT JURISDICTION OF DIFFERENT COURTS – TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION – WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE – GENERALLY – where the plaintiff issued proceedings in the Supreme Court of Queensland – where a key witness for the plaintiff requires medical treatment in Queensland – whether South Australia is the appropriate forum in all the circumstances – whether the balance of convenience to parties and witnesses makes it in the interests of justice to transfer the proceeding to South Australia Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 5 Uniform Civil Procedure Rules 1999 (Qld), rule 57 Bankinvest AG v Seabrook (1988) 14 NSWLR 711, cited Bourke v State Bank of New South Wales (1988) 22 FCR 378, cited R v Sutton (2015) 253 A Crim R 457; [2015] QSC 110, cited River Gum Homes Pty Ltd v Meridian Pty Ltd [2010] QCA 293, cited Valceski v Valceski (2007) 70 NSWLR 36, cited World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc (2001) 161 FLR 355; [2001] QSC 164, cited |
COUNSEL: | M K Callanan, counsel for the plaintiff R Ross-Smith, counsel for the defendants |
SOLICITORS: | Piper Alderman for the plaintiff Kenseo for the first and second defendants |
- [1]The plaintiff sues for money owing under a contract and also seeks a raft of equitable relief, alleging equitable fraud in respect of a contract between the first defendant and the second defendant. The essence of its case is that by mid-2018, the software that was the subject of an agreement between the plaintiff and the first defendant had been commercialised and had a value of between $1.2 million and $1.5 million. The plaintiff alleges that two directors of the first defendant arranged for the second defendant to be incorporated and had the software sold by the first defendant to the second defendant at an undervalue. This is alleged to have involved a breach of an express term of good faith and to have been an equitable fraud to the knowledge of each of the first defendant and the second defendant who had common directors.
- [2]The plaintiff is now in liquidation. It filed its claim on 26 November 2021, choosing to issue the proceedings in this Court because the plaintiff’s director, and also three other lay witnesses who may need to be called by the plaintiff, are domiciled in Queensland; the solicitors with the carriage of the matter are based in Queensland; and because the plaintiff’s sole director has a serious illness and an ongoing need for treatment from her three specialists in Queensland. She is an important witness and believes that her health would be prejudiced by having to travel interstate to give evidence at a trial.
- [3]The defendants submit that South Australia is the appropriate forum and apply to transfer the proceeding to the Supreme Court of South Australia pursuant to s 5(2)(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) (“the Act”) and rule 57 of the Uniform Civil Procedure Rules 1999 (Qld).
- [4]The plaintiff opposes the application and submits that a decisive factor is the health of its key witness and what may befall her if she were required to travel to Adelaide to give evidence.
- [5]The essential issue is whether the Supreme Court of South Australia is the “more appropriate” court to hear the case. This aligns with the issue whether it is in “the interests of justice” to transfer the proceeding to that court.
Background
- [6]The plaintiff’s sole director and shareholder came up with an idea to develop online voting software for the Australian strata title industry. She planned to develop the prototype for the Queensland strata industry with which she had decades of experience. She knew of the first defendant and had meetings with one of its representatives. Most of these meetings occurred in Queensland. Over the following years she worked collaboratively with employees of the first defendant. The plaintiff undertook its activities from the Sunshine Coast in Queensland and the first defendant undertook its activities from Adelaide.
- [7]Contracts were entered into from time to time between the plaintiff and the first defendant. The so-called “Second Contract” was entered into on or about 19 November 2014. Some issues may arise about its proper interpretation including minimum instalment payments and the operation of provisions that allowed for a reversion of rights.
- [8]A significant issue at any trial will be the genesis and purpose of what is described as the “Third Contract”, that was entered into between the first defendant and the second defendant. The plaintiff pleads that, in May 2018, a body corporate services provider that was listed on the Australian Stock Exchange announced that it had entered into an exclusive technology partnership agreement with the second defendant. This is said to show that the first defendant had commercialised the software within the meaning of various clauses of the Second Contract.
- [9]Two directors of the first defendant, Mr Ayton and Mr Goodridge, arranged for the second defendant to be incorporated at around the same time and became its two directors. The first defendant sold the software and associated business to the second defendant in May 2018 for $122,500, purportedly pursuant to clause 9.8 of the Second Contract and applied the proceeds to pay the first defendant the amount that was allegedly due to it by the plaintiff.
- [10]Issues at the trial are likely to include the purpose of Mr Ayton and Mr Goodridge in acting as they did and the value of the property at the time it was sold by the first defendant to the second defendant. The defendants intend to call as witnesses a company accountant and an expert who has prepared a valuation report that supports the defendants’ case that the sale was not at an undervalue.
The applicants’ submissions on the cross-vesting application
- [11]The applicants/defendants point to a number of factors that are submitted to make it in the interests of justice to transfer the proceeding to the Supreme Court of South Australia. The proceeding is said to have minimal connection with Queensland but has connections with South Australia that make it the prima facie natural forum for the resolution of the proceeding. Reliance is placed upon the fact that the alleged breaches of contract and equitable fraud are said to have occurred in South Australia where the defendants were, and still are, located and trading. Reliance is placed upon a jurisdictional clause in a Deed of Charge that is said to be a primary instrument in dispute.
- [12]The decision to issue proceedings in Queensland is said to smack of the tactical. The balance of convenience to the parties and witnesses is submitted to favour transfer to South Australia. The defendants’ solicitors and counsel reside there, as do the defendants’ witnesses.
The respondent’s submissions on the cross-vesting application
- [13]The Second Contract was entered into by the plaintiff in Queensland and by the first defendant in South Australia. It was concluded on the basis that the first defendant would perform its side of the bargain from Adelaide and the plaintiff would perform its side of the bargain from South East Queensland. The plaintiff relies upon the fact that the business idea being developed had a substantive relationship to the Queensland strata title industry and, whilst the software was being programmed in South Australia, the initial plan was to deploy it in Queensland where the plaintiff was priming the market for the product’s launch. In any event, each party to the contract was performing its part in different states.
- [14]The plaintiff notes that the substantive law is a neutral consideration because the law governing contracts and equitable remedies is the same in each state. The critical contract (the Second Contract) provided that the law of Victoria would govern the contract. The Deed of Charge is said to have no apparent importance to the proceeding. It post-dates the Second Contract and the defendants’ solicitors declined to explain how they intend to rely upon it in their defence.
- [15]The plaintiff rejects the idea that the commencement of the proceedings in this Court was tactical. The illness of the plaintiff’s director and other matters provided a good reason to issue here.
Relevant principles
- [16]While the applicants/defendants pointed to both s 5(2)(b)(ii) and s 5(2)(b)(iii) as justifying transfer, reliance was placed principally on the latter. This allows a proceeding to be transferred where in the Court’s opinion it is in “the interests of justice” that the proceeding be determined by another court to which the cross-vesting provisions apply.
- [17]The term the “interests of justice” is to be read widely.[1] The legislation exists so that if a proceeding is instituted in a court that is not “the appropriate court” the proceeding will be transferred to the appropriate court.[2] This aligns the “interests of justice” with a consideration of whether another court is “the appropriate court” in all the relevant circumstances.[3]
- [18]The exercise of the power to transfer on the basis that it is in the interests of justice to do so does not depend on completing a checklist of factors. However, the authorities identify factors that may be relevant. They include:
- “(a)the application of the substantive law, if it is peculiar to a particular jurisdiction;
- (b)forensic advantages or disadvantages conferred by the competing procedural laws;
- (c)the plaintiff’s choice of forum and the reasons for that choice;
- (d)substantive connections with the forum (for example, residence, domicile, place of occurrence and choice of law);
- (e)balance of convenience to parties and witnesses;
- (f)comparative cost and delay;
- (g)convenience of the court system.”[4]
- [19]There must be objective factors in support of a change of venue.[5]
- [20]The defendants cite BHP Billiton Ltd v Schultz[6] for the proposition that significant weight should not be ascribed to the plaintiff’s choice of forum. However, in a particular case the reasons for the plaintiff’s choice may identify matters of substantial convenience to the parties and witnesses that informs the plaintiff’s choice and which tip the balance in favour of the proceeding remaining in the chosen forum.
- [21]The presence of an exclusive jurisdiction clause is a relevant consideration because the “interests of justice” require that proper regard be given to the need to hold parties to their bargain.[7] However, the weight to be given to such a clause will vary, depending on the other surrounding and countervailing circumstances.[8] In River Gum Homes Pty Ltd v Meridian Pty Ltd [9] the Court of Appeal stated:
“In the cross-vesting context, there is no “bias” … in favour of the contractually agreed jurisdiction where considerations of convenience and efficiency militate in favour of another jurisdiction.”
Applicable law and jurisdiction clauses
- [22]Australia has only one common law and so the plaintiff’s contract claim is governed in Queensland and South Australia by the same substantive law. The same principles governing equitable remedies apply in each state.
- [23]The Second Contract states:
“This Agreement is governed by the laws of the [sic] Victoria, Australia and each Party submits to the jurisdiction of the courts of that State and of the Commonwealth of Australia.”
Therefore, it is neutral in deciding whether Queensland or South Australia is the more appropriate forum, with neither party seeking to litigate in Victoria.
- [24]The applicants/defendants point to a Deed of Charge that is said to be “a primary document in the proceedings” and upon which they intend to rely on in their defence. However, despite requests, they did not explain prior to the hearing how it will feature in any defence. The Deed is not relied upon by the plaintiff, which speculates that it may have a bearing upon set-off but that was not an important point and that otherwise the Deed had served its purpose.
- [25]In oral submissions, counsel for the applicants/defendants maintained that the Deed of Charge was a transactional document and set out the first defendant’s right to deal with the plaintiff’s property. In a case in which the plaintiff seeks equitable remedies to undo transactions, and reconstruct relationship, it was submitted to have an obvious relevance to the granting of remedies.[10]
- [26]Clause 38 of the Deed of Charge provides that it is governed by and shall be construed in accordance with the laws of South Australia. It goes on to state:
“The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of [South Australia] and any courts which have jurisdiction to hear appeals of those courts and the parties waive any right to object to any proceedings being brought in those courts.”
(emphasis added)
- [27]I have regard to the governing law and to the non-exclusive jurisdiction clause in the Deed of Charge, but do not consider that either is an important factor in determining the interests of justice.
Procedural law
- [28]South Australian law has pre-claim procedures. By filing its proceeding in Queensland the plaintiff did not have to comply with them. The defendants contend that the plaintiff has not provided meaningful particulars of the claim, evidence about the sale of the business being at an undervalue or a proper calculation of the quantum of its claim. In fact, in pleading that as at 25 May 2018 the relevant things had a value in the vicinity of $1.2 million to $1.5 million, the plaintiff does not give particulars or even reference to an expert valuation. Instead it says that particulars of the value will be provided after the first defendant has complied with contractual obligations or, if it does not do so, after relevant documents have been obtained through disclosure under the court rules. It seems likely that had the pre-claim procedures in South Australia been followed there would have been a similar assertion.
Places the contract was made and performed
- [29]The plaintiff company and its director were and remain located in Queensland. The first defendant and its directors were and remain located in South Australia. I agree with the plaintiff’s submission that there is an air of artificiality in placing much weight on where the contracts were signed and who signed them last. I also accept the submission that the pleaded place shows that the relevant contract was to be performed in Brisbane by one party and in Adelaide by another.
Comparative costs and convenience of the court systems
- [30]Neither party advances evidence or submits that the proceeding will be case managed more efficiently or be tried sooner in either Brisbane or Adelaide.
- [31]The plaintiff’s legal team is situated in Brisbane. The defendant’s legal team is situated in Adelaide. If the entire trial is conducted in one of those cities (a matter addressed further below) then, to quote the plaintiff’s submissions the trial will be an “away game” for one side or the other.
Balance of convenience to parties and witnesses
- [32]This is a critical factor.
- [33]The plaintiff decided to issue proceedings in this court in circumstances in which the plaintiff and its solicitors were domiciled in Queensland. Some of the relevant events bearing upon entry into the relevant contracts occurred in Queensland, the plaintiff says that it performed the relevant contracts in Queensland and that the software was anticipated to be rolled out in this state.
- [34]The decision to issue proceedings in Queensland was made in circumstances in which the plaintiff’s director and up to three lay witnesses that the plaintiff may need to call are domiciled in Queensland. The solicitors with the carriage of the matter for the plaintiff are based in Brisbane. The partner of the plaintiff’s firm who is responsible for the conduct of the proceeding is based in Queensland as are the Special Counsel and the lawyer who have the day to day conduct of the proceeding. Although that firm has offices in Adelaide, the entire legal team retained by the plaintiff is based in Brisbane and, if the proceeding were transferred to the Supreme Court of South Australia, the firm’s existing team would retain carriage of the file remotely from Brisbane. The plaintiff would not wish to incur the additional cost of an entirely new interstate legal team familiarising itself with and taking over the proceeding.
- [35]An important factor in the decision to issue proceedings in this Court is that the plaintiff’s sole director, who resides in Queensland, has been diagnosed with a serious condition. In the interests of her privacy I will not detail it. However, for the purpose of deciding this application and giving reasons, I need to refer to the fact that she is under the care of three inter-related specialists whom she has to see regularly. Understandably, she regards it as extremely important to be near those specialists as, on occasion, she experiences unexpected side effects that require emergency treatment. One such episode occurred three weeks ago. The plaintiff’s director has been told that she has a heightened risk of experiencing complications from COVID-19 due to her weakened immune system. Her condition has significantly limited her ability to safely travel and she has only travelled interstate once since her diagnosis. This was in the middle of 2021 for a mediation. There was a COVID-19 scare in a building she attended in Melbourne and she found this experience terrifying, given what her doctors had told her.
- [36]The real and substantial issues at any trial of the proceeding have yet to be precisely identified. This is because no defence has been filed and the proceeding is at an early stage. Any provisional trial plan would be inexact. I was assisted by speaking notes of the defendants’ counsel which were filed on 17 February 2022 as to issues arising from the plaintiff’s claim and areas of likely factual contention. The plaintiff identifies three individuals who assisted its director in developing the proposed business. She says the work conducted by the plaintiff pursuant to the Second Contract was conducted almost exclusively in South East Queensland and that these three people also may be witnesses for the plaintiff in the case.
- [37]The defendants have identified five potential witnesses. The allegations made in the proceeding are likely to require Mr Ayton and Mr Goodridge (and perhaps others) to give evidence about the circumstances under which the second defendant was incorporated and a sale contract entered into between the first and second defendants on or about 31 May 2018 (the Third Contract). The first defendant has engaged an expert to prepare a report in relation to the matters in dispute. The expert report is dated 16 June 2021 and the defendants say they will rely on the expert report, with its author likely to be a material witness. That expert is resident in Adelaide.
- [38]At this stage one cannot say for how long the plaintiff’s director will be required to give evidence at any trial. The same applies to the plaintiff’s other witnesses and the defendants’ witnesses. One cannot say the extent to which issues of credit will loom large with lay witnesses, including the plaintiff’s director. However, the allegations of equitable fraud are likely to remain a central issue at any trial. A defence and what the defendants’ witnesses may preview in witness summaries or witness statements may narrow that issue. However, even if this does not occur, an effective cross-examination of these witnesses need not necessarily be protracted, occupying days.
- [39]The plaintiff does not indicate that it has engaged forensic accounting or other specialists to value the business. Its inability to properly particularise the basis upon which it arrives at a value of between $1.2 million and $1.5 million and its request to access documents in the possession of the defendants in order to particularise its claim suggest that it has not done so.
- [40]The balance of convenience to the parties and the witnesses is not determined by a head-count of potential witnesses for each side. Naturally, witnesses, including the directors of the parties, would prefer to attend the trial and give evidence in their home city, and will find it inconvenient and costly to attend hearings in person in another state. The inconvenience and cost would be less if they gave their evidence by video-link or teleconference. However, they may prefer for legitimate forensic reasons to give their evidence in person before the judge.
- [41]All other things being equal, the balance of convenience to the parties and the witnesses, including expert witnesses, in conducting interlocutory hearings and a trial in either Adelaide or Brisbane would appear to be roughly balanced. All things are not, however, equal because of the health issues affecting the plaintiff’s most important witness.
- [42]The interests of justice are not served by adopting a course of action that places an unnecessary burden upon a party or a witness. The plaintiff argues that this is what would occur if the proceeding were to be transferred to Adelaide and tried there. The things that could potentially go wrong for the plaintiff’s director on account of her state of health are submitted to be serious enough to conclude that Brisbane is the more appropriate forum and that it is in the interests of justice for the proceeding to be heard here.
- [43]The serious health condition of the plaintiff’s director is submitted to tip the balance in favour of the trial being in Brisbane.
- [44]There is considerable force in that submission. However, it assumes that the Supreme Court of South Australia will require the plaintiff’s director to give evidence in person at a trial in Adelaide or that the plaintiff will be at a significant and unfair disadvantage if she gives her evidence by video-link. Presently, I am not persuaded of either of those things. If reliable video-conferencing can be arranged, along with suitable management of documents to which the plaintiff’s director may be taken in her evidence, then I would not readily assume that the Supreme Court of South Australia would require her evidence to be given in person in Adelaide.
- [45]That leaves the question of whether the plaintiff’s director as a witness or the plaintiff as a party would be disadvantaged by her giving evidence from her home, her lawyers’ offices in Brisbane or from a courtroom in Brisbane to which a video-link is established with the court in Adelaide. I should assume in the plaintiff’s favour that parts, perhaps significant parts, of its director’s evidence will be contentious and the subject of cross-examination. As presently advised, her evidence is likely to be directed to her initial dealings with the first defendant, subsequent meetings, the work which she and others did on developing and commercialising the Strata Voting software and other issues. It is not suggested that she was a party to discussions with representatives of the defendants in May 2018 about the commercialisation of the software by the second defendant in conjunction with a company that was listed on the Australian Stock Exchange, or that she was privy to discussions about the incorporation and purpose of the second defendant, and the sale of the software and the business by the first defendant to the second defendant.
- [46]I have regard to the emotional and time demands that are likely to be placed upon the plaintiff’s director as the proceeding advances, in preparing for trial and in giving evidence at trial. However, because the plaintiff’s legal team will remain in Brisbane she will be able to confer with them in Brisbane or at her home, rather than be required to travel interstate to do so.
Disposition
- [47]The proceeding is at an early stage and some uncertainty exists around the course of interlocutory applications, the process of case management, the substantial issues that will remain to be tried, the witnesses who will be required to give evidence at trial and the duration of their evidence. I am not in a position to make an informed prediction about the extent to which the cross-examination of important witnesses will involve a large number of documents or whether the proceeding will be most efficiently conducted by an eTrial.
- [48]Had it been apparent to me that there was a strong likelihood that the plaintiff’s director would be required to travel to Adelaide in order to give her evidence at a trial there because, if she did not do so, the plaintiff would be at a substantial forensic disadvantage, then I would have acceded to the plaintiff’s submission that her state of health, including her anxiety about having to be away from her treating specialists, makes the Supreme Court sitting at Brisbane the more appropriate forum. However, I am not persuaded that the plaintiff or its director will be unfairly disadvantaged if arrangements are made for her to give her evidence from a courtroom in Brisbane.
- [49]A court should not assume that evidence given by video-link has the same quality and persuasiveness as evidence given in person. Even with the best technology and collective will in the world, witnesses may not convey the same impression of credibility and reliability to a judge when they give their evidence by video. Justice Burns considered some issues and authorities about evidence given by video in a different context.[11]
- [50]I am prepared to assume that the plaintiff may be at some disadvantage if its most important witness gives evidence by video-link rather than in person. However, I should not overstate the extent of disadvantage, given the issues about which the plaintiff’s director is likely to give evidence and the things that can be done to minimise inconvenience. Incidentally, some might think that the defendants’ counsel may be at a disadvantage in cross-examining a witness who is sitting in a distant courtroom.[12] If, however, the extent of disadvantage to the plaintiff and its director is more than I presently assess, then it is open to the Supreme Court of South Australia to consider what might be done to improve the situation. One possibility, and I place it no higher than a possibility, would be for the Court to sit initially in Brisbane if the evidence of the plaintiff’s director was to occupy a substantial part of the trial, if her evidence was likely to be highly contentious or if the trial judge considered that a fair trial were best achieved by being in the same courtroom as the plaintiff’s most important witness.
- [51]As presently advised, the examination and cross-examination of the defendants’ more important witnesses is likely to take longer than the evidence of the plaintiff’s director.
- [52]An order transferring the proceeding to the Supreme Court of South Australia will not put the plaintiff to the expense of having to terminate the services of its Brisbane-based legal team and recruit a new team, based in Adelaide.
- [53]The plaintiff’s Brisbane-based team will face the inconvenience of having to conduct interlocutory hearings before a court in Adelaide, but I would expect that at least some of them could be conducted by video-conferencing. If the proceeding were to remain in Brisbane then the defendants’ Adelaide-based legal team would encounter similar costs and inconvenience. Therefore, costs and inconvenience of interlocutory hearings tend to balance out.
- [54]Overall, having considered the relevant factors, and on the assumption that the plaintiff’s director will be able to give evidence by video-link from Brisbane or elsewhere in South East Queensland at the trial and that this will not occasion substantial forensic disadvantage to the plaintiff or jeopardise its right to a fair trial, I consider that the balance of convenience to the parties and to the witnesses favours the proceeding being transferred to the Supreme Court of South Australia.
- [55]If my assumptions are falsified by developments as the proceeding progresses then the plaintiff can apply to have the proceedings transferred back to Queensland.
- [56]I considered the course of adjourning the application, having interlocutory applications that have been previewed heard in Brisbane and for the proceeding to be case-managed here up to a point at which the issues in the proceeding were better-defined and a trial-plan developed. However, it seems to me that the interests of justice are better served by deciding the application at this point. This will enable the Supreme Court of South Australia to assume case-management of the matter. This will include consideration of the health and prognosis of the plaintiff’s director and working towards trial dates and arrangements that will accommodate her needs.
- [57]Therefore I intend to order:
The proceeding be transferred to the Supreme Court of South Australia pursuant to s 5(2)(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld).
- [58]As for the costs of this application, the applicants/defendants have succeeded in obtaining a transfer order over the opposition of the respondent/plaintiff. Ordinarily costs follow the event. However, in this matter the considerations were evenly balanced and the assumptions upon which I made my decision may be falsified in the light of further developments. In the circumstances, and subject to any submissions to the contrary, I propose that the costs of the application be costs in the proceeding. Subject to any short submissions on costs, the order as to costs will be:
The costs of the proceeding, including the costs of the application filed 4 January 2022, be costs in the proceeding in the Supreme Court of South Australia.
Footnotes
[1] Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394.
[2] See the Preamble to the Act.
[3] Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 728-729; World Firefighters Games Brisbane v World Firefighters Games Western Australia Inc (2001) 161 FLR 355 at 363 [30]-[33]; [2001] QSC 164 (“World Firefighters”).
[4] World Firefighters at 363 [32].
[5] Valceski v Valceski (2007) 70 NSWLR 36 at 60 [69].
[6] (2004) 221 CLR 400 at 425, 439, 466 and 492.
[7] World Firefighters at 364 [38].
[8] Ibid.
[9] [2010] QCA 293 at [20].
[10] Transcript 1-26.
[11] R v Sutton (2015) 250 A Crim R 457; [2015] QSC 110 at [20]-[27].
[12] This matter is considered in the authorities cited in R v Sutton (supra).