Bellevarde Constructions Pty Ltd v L'Officina by Vincenzo Australia Pty Limited

Liability of L'Officina

1. L'Officina submits that no one for whom it could be liable was present, aware of, or involved in the moving of the door. It challenges the finding that Mr Malucci and Mr Espimaris were present, and says that it is not vicariously liable for the acts of Mr Acuri and his employees, who were not its employees but subcontractors.
2. Those submissions require scrutiny of the relevant evidence, which was as follows.
3. Mr Monahan gave the following evidence: [20] "Q. So, did you manage to move the door to a new location? A. Yes. It would have been just at the footpath outside. Q. You mentioned the truck before. Where was the truck in relation to where you first moved the door to? A. It was parked pretty close to the kerb on the road just outside this doorway. Q. So, you've got the truck. It's now laying sideways, so to speak, and it's on the footpath. What happened next? A. Two people, Sebastian [Rolfe] and I wouldn't be able to recall, it could have been somebody from the door company, went onto the truck to help receive it, and three of us tried to lift it; one either end and myself in the middle. Q. When you said somebody from the door company. How do you know or why do you assume somebody from the door company was the person who jumped on the truck? A. I knew most people on the site. I'd never really talked to the door people. But, I knew they were all Italian or something like that. But, they, they never spoke much English around the site. That's the reason I wouldn't have known them well. Q. And the person, or one of the people on the truck, again, why did you identify that person in your answer as a person from the door company? A. Just because I, I knew it wasn't any of the people that were onsite that worked for Bellevarde directly, because I knew them all. Q. Right. You've mentioned something about them speaking Italian. Did that have anything to do with your answer? A. Yes. Q. In what way did that have something to do with your answer? A. Because the two employees that I would recognise at the door company were having conversations with themselves in Italian. Again, I, I wouldn't be able to tell you exactly what they were saying, or at all, really."
4. That evidence amounts to no more than speculation that it was somebody from "the door company" - a description which in itself could as easily relate to the installers (Mr Acuri and his employees), as to L'Officina - based on the fact that he did not recognise them and they spoke Italian.
5. Mr Rolfe said that he was not completely sure what was the reason for moving the door, but that it had to be altered by the manufacturer. [21] He did not know what had to be altered, but only that it needed to be moved. [22] He could not recall who asked him to move it. [23] He was asked by his Honour for whose benefit the moving was occurring, that is to say who would have benefitted, and answered "both parties, I suppose". [24] Asked to explain the respective benefits he said: [25] "Well, the door needed to be installed so it had to be, it had to be taken away to be fixed up so it would benefit us because we needed to get the job done but also at the same time they needed to take it away to, to work on it..."
6. When asked whether he enlisted someone else to help, he said: [26] "There was a, a few of us that lifted the door but, no, I didn't tell anyone else to."
7. He remembered those involved as including Mr Monahan, Adam Chiu (from Bellevarde), Mr Morgan (Mr Monahan's co-worker) and two others; he could not recall whether they spoke English. [27] Nor could he remember who devised the method of lifting and coordinated it. [28]
8. Mr Rolfe gave the only evidence of what the driver is said to have done: [29] "Q. The two men who you didn't recognise, what part or role did they play in the whole scenario? A. I think one was to take the door away, and another was an employee of the, the other company that was - … Q. There were two men involved. What was the first man doing? A. He was the driver of the truck. Q. Does he play any role in the lifting or the-- A. From what I recall, he did, yes. Q. What role did he play? A. He lifted, helped, helped us lift the door into the truck."
9. And then: [30] "Q. The driver of the truck, did he do something with the truck once the door was loaded onto it? A. I can't, I can't remember. I, I just remember the lifting of the door onto the back of the truck. Q. Did you see it drive away? A. No, I didn't."
10. When asked why it fell upon him "to go and line up people to do this lift" in circumstances where he was not a leading hand but a carpenter, he answered: [31] "A. I didn't line anyone up to, to lift, lift the door. We had to lift the door because there weren't enough people there to remove the door. Q. Were you asked by somebody to lift the door? A. Well, I don't know, I can't remember."
11. When asked whether there was any reason why the door had to be moved from the perspective of his completing his work he said: [32] "Not that I recall, no."
12. Elements of Mr Rolfe's evidence have the appearance of reconstruction as distinct from recollection. There is no objective support for the proposition that the door needed to be modified; it was the footings that required modification. That he could not recall any reason for the door to be moved, from his perspective as a carpenter working elsewhere on the site, does not mean that there was no reason for his superiors in Bellevarde to want it moved. His denial that he enlisted anyone else to assist was contrary to the evidence of Mr Monahan, which was preferred by his Honour. Nonetheless, he gave some albeit slight evidence that the truck driver was involved in the lifting of the door.
13. Mr Luciano Botte, the Operations Manager for L'Officina, said that to his knowledge, following the delivery of the door to the site, it never returned to either of L'Officina's workshops, and that as Operations Manager he would have expected to have been informed had that occurred. [33] As the primary judge observed, that does not exclude the possibility that the door could have been removed from the site and stored elsewhere, including on the truck.
14. Mr Vincenzo Botte was the designer and creator of the special patina finishes for which L'Officina is known, and had crafted the specialised finish on the door - which he described as steel framed with internal plywood components and encased in zinc sheeting that was polished and then patinated in an antique blackened finish. He gave the following evidence concerning the driver Dimitri Espimaris: [34] "Q. Have you ever conversed with Jimmy in Italian? A. No. Jimmy doesn't speak Italian at all. Q. Do you know what nationality he is? A. He's Greek. Q. What was he employed as by the company as at November 2018? A. Truck driver. Q. How many truck drivers did the company employ? A. Only one. Q. What days of the week did Jimmy work? A. Only five days and sometimes half day because he doesn't want to work long hours. Q. So, what five days? What days of the week are we talking about? A. From Monday to Friday. Q. Did Jimmy ever work on a Saturday? A. Never."
15. That last answer was neither elaborated nor challenged. Nonetheless, I would not take the bald statement that Mr Espimaris worked Monday to Friday and never on a Saturday to exclude the possibility that he might for a special reason or emergency have driven the truck on a Saturday if asked to do so. Otherwise, his evidence does tend to show that Mr Espimaris was not a speaker of Italian.
16. Mr Botte also gave evidence that Mr Malucci was responsible for overseeing the installation, and that he had returned to Italy a couple of years previously, after working for L'Officina for five or six months. [35] He said that if there was a requirement for the door to be removed from the site, it would be Mr Malucci who would have made that decision: [36] "Q. If the door did need to be moved from the site, it would be Mr Malucci who would have made that decision at the site, correct? A. That's correct."
17. Given the multiple components of the question and the manner in which it was framed, I would not regard the answer "that's correct" as necessarily including assent to the proposition that Mr Malucci would have been at the site when he made the decision.
18. In cross-examination, Mr Botte gave this evidence: [37] "Q. I think I also understood you correctly to say that if a door had to be removed from site, it would be fully wrapped? A. Yep. Q. There'd be a need for enough people, five or six people, to be involved in lifting it? A. Correct. Q. You would not let anyone else move it? A. No. Q. Because, apart from anything else, if it was damaged in any way during the removal only you should be responsible and no one else? A. Correct."
19. Like Mr Luciano Botte, Mr Vincenzo Botte gave evidence that, to his knowledge, the door was never returned to L'Officina's premises. [38]
20. It is clear enough that Mr Acuri was on site, as is evidenced by an email sent by Luciano Botte of L'Officina to Phyllis Fisher on 7 October 2020, as follows (emphasis added): "…we still maintain that no door was removed from site on Saturday 17 November 2018 and according to our records we only had one person work onsite, our subcontractor Pasquale Arcuri…"
21. His Honour found that it was most likely Mr Acuri who "on behalf of L'Officina" advised a Bellevarde employee that the door could not be installed as planned. [39] His Honour reasoned that it was unlikely that Mr Acuri would have attended alone, as the sole installer on behalf of L'Officina: [40] "[137] The circumstances suggest that his employees, Piero and Mateo were also on the site, notwithstanding that their names had not been entered on Mr Acuri's timesheets for that day. In my view the timesheets do not represent an attendance diary as they are not signed. Instead, I infer from the form and content that they were simply prepared for use as a basis for Mr Acuri billing L'Officina for installation work on the site. That explanation is consistent with the fact that no installation was carried out by Mr Acuri's workers on that date."
22. As to Mr Malucci, his Honour inferred that he was present from an email sent by him to Mr Julian Petrie (and Mr Ben Lea) of Bellevarde: [41] "[115] Mr Malucci was an employee of L'Officina. He and Mr Petrie, who was employed by Bellevarde, had exchanged contentious emails about problematic aspects of the works. I infer from the terms of Mr Malucci's email to Mr Petrie, that Mr Malucci was on site on the day in question. This is because his email employed the expression "we", which in the context, I interpret as referring to himself and to at least another L'Officina employee being on the site."
23. The relevant email, which was sent on 20 November 2018 at 10:54 am, was as follows: "We hereby put in writing the last developments concerning the job in Esther St - Surry Hills. Last Friday (November 16th) we came on site to start the installation of the ENTRY GATE. We start marking the position of the pivot. We noticed that the top pivot would have been fixed to a 25mm timber cladding: this is not enough to bear the weight of the door (the door weight is around 200 kg). We advised JULIAN of this issue and he told us that a structure for the top pivot would have been done later on. Therefore, we proceeded with the installation of the top and bottom pivot and with the mark out for the cuts that need to be done to fit the jambs in. Today (Tuesday, November 20th) our installer came back on site to complete the installation of the Entry Gate: he has been told that both pivot has to be uninstalled in order to make a proper structure capable of bearing the weight of the door. We have also been asked to DO NOT deliver ant [sic, any] other doors (office door). Furthermore, we've been asked to make the jambs of the ENTRY GATE flush with the FFL. As per your request (please see attachment), we designed the jambs to go 50mm under the FFL. We're now cutting the Jambs profile as per your request. As you can see all of this is causing delay to the installation and is causing delay on us (we have, for example, to do the installation of the pivot for the entry gate twice) for other jobs. We kindly ask you to follow the drawings, otherwise, for any future change involving modifications of parts already done will occur in additional charges."
24. Even if the reference to "we" were interpreted in the manner in which his Honour did, as distinct from the more natural reading that it does no more than refer to the firm on whose behalf he was writing, that email recounts events of 16 November, and then of 20 November, and is entirely silent as to the removal of the door on 17 November. It provides no evidence that Mr Malucci was in any way involved in the decision to remove the door on 17 November, let alone on site when it occurred. Nor does it provide any evidence that L'Officina was involved in the removal of the door on 17 November. On the other hand, the recording of the request not to deliver any other doors provides some support for the proposition that it was Bellevarde rather than L'Officina who did not want doors on site until they could be installed.
25. The trial judge, applying Jones v Dunkel, [42] drew inferences from L'Officina's failure to call Mr Malucci and Mr Espimaris that their evidence would not have assisted L'Officina. Before us L'Officina submitted that the drawing of such inferences was unwarranted. As to Mr Malucci, it was submitted that there was no on-going relationship between him and L'Officina, as he had worked for the firm only for a few months and had returned to Italy a couple of years before the hearing. However, he was a former employee of L'Officina; L'Officina was far better positioned than Bellevarde to ascertain where he might be found; and, as is nowadays commonplace, he could have given evidence by video link. In my view, an inference that his evidence would not have assisted L'Officina was open. So far as the driver was concerned, he was or had been an employee of L'Officina, and there was no explanation at all for his absence. In circumstances where it is no longer in dispute that it was L'Officina's truck onto which the door was loaded, an inference that his evidence would not have assisted L'Officina was well available.
26. Nonetheless, a Jones v Dunkel inference is not a substitute for evidence; if there is no evidence of a matter, the inference cannot fill the void. In my view, not only was there no evidence that Mr Malucci was present on 17 November, but the email of 20 November, which does not refer to the day at all, tends to the contrary; if he had been there, one would have expected some reference to the events of that day in such an email of complaint.
27. On the other hand, it is no longer in dispute that it was L'Officina's truck onto which the door was loaded on 17 November. The probable explanation for the presence of the truck is that someone in authority at L'Officina, and most likely Mr Malucci (according to the evidence referred to above, that it was he who would make such a decision at the time), had arranged or authorised for it to be present. L'Officina submitted that the truck might have been left in situ at the site after delivering the door on 16 November, and remained there with the door reloaded on it after 17 November for some days. However, this seems far-fetched: why it would have been left there is not at all apparent; there is no evidence of anyone in L'Officina having authorised such a course or having any reason to do so; and the confines of the site and the street were such that it appears practically impossible. On the probabilities, it was present on 17 November with the knowledge and approval of L'Officina for the purpose of receiving the door. If it was present, then so was a driver, although it does not necessarily follow that the driver was involved in the lift.
28. If, as I would be prepared to infer, Mr Espimaris (or possibly some other employee of L'Officina on this occasion) drove the truck to the site and was present, the only evidence that he did anything beyond driving the truck was the faint evidence of Mr Rolfe referred to above. [43] The evidence that the two unidentified men involved in the lifting enterprise spoke Italian to each other tells against one of them being Mr Espimaris, who did not speak Italian. On the probabilities, those speaking Italian and assisting with the lift on 17 November were Mr Acuri and his employee or employees.
29. The primary judge reasoned, as has been seen, that the moving and stowing of the door was an enterprise jointly undertaken between employees of Bellevarde (Mr Rolfe and Mr Chui) and "persons acting on behalf of L'Officina" (Mr Malucci, one if not more of Mr Acuri and his employees, and Mr Espimaris). His Honour treated Mr Malucci, Mr Espimaris, and Mr Acuri and his employees as L'Officina's "representatives", without distinction. As a result, his Honour did not closely consider which of them was present. For reasons already given, there was no evidence to support the finding that Mr Malucci was present. Assuming, as I would, that Mr Acuri was involved, he was a subcontractor and not an employee of L'Officina. [44] He was so described by his Honour, [45] and that status is consistent with his Honour's explanation, referred to above, that Mr Acuri was billing L'Officina for installation work done on site. [46] This status is crucial, because vicarious responsibility is not incurred for the negligence of an independent contractor. [47] Describing those present generally as "the L'Officina representatives" [48] and as "persons acting on behalf of L'Officina" [49] as his Honour did, without differentiation between Mr Malucci, Mr Espirmaris and Mr Acuri, does not assist because, as was said by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Sweeney v Boylan Nominees Pty Limited: [50] "… like "agent", the word "representative" and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the "representative" of A does not reveal, without definition of what is meant, what was the relationship between the parties".
30. Their Honours proceeded to explain why, at least ordinarily, vicarious liability does not attend the negligent acts of an independent contractor (footnotes omitted): [51] "[30] It is as well to add something further about Hollis. Hollis hinged about whether the person whose conduct was negligent was to be identified as an employee of the principal. Seven considerations were identified in the facts of that case as bearing upon the question. They included that the courier wore the principal's livery, that he was subject to close direction by the principal about not only the manner of performing the work (work which required only limited skills), but also both the financial dealings generated by the work and the times at which the work was done. [31] The circumstances of the present case are very different. The mechanic was not an employee of the respondent. He conducted his own business. It may be that it could be inferred that he did that through, and as an employee of, the company whose name provided the name advertised on his vehicle. But this was not a matter to which close attention was given in evidence at trial and it is not necessary to pursue it to its conclusion. That the mechanic was engaged in a business other than that of the respondent was demonstrated by a number of circumstances, but chief among them were his invoicing the respondent for each job he did and the respondent's concern to verify that the mechanic had proper workers' compensation and public liability insurance. The interposition of the mechanic's company would, of course, give further support to the conclusion that he was engaged in a business other than that of the respondent. [32] The mechanic or, if it were the case, his company, was engaged from time to time as a contractor to perform maintenance work for the respondent. Unlike the principal in Hollis, the respondent did not control the way in which the mechanic worked. The mechanic supplied his own tools and equipment, as well as bringing his skills to bear upon the work that was to be done. And unlike the case in Hollis, the mechanic was not presented to the public as an emanation of the respondent. The two documents to which the trial judge, as mentioned earlier, attached great weight neither require nor support the conclusion that he was. Neither says anything of the nature of the relationship between the mechanic and the respondent, beyond the fact that the mechanic was acting at the request of the respondent. As previously stated, that presents the question to be answered in this case, it does not answer it. [33] Whatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out. And without discarding at least the first, and perhaps even the second, the appellant's claim against the respondent must fail. The mechanic was an independent contractor. He did what he did for the benefit of the respondent and in attempted discharge of its contractual obligations. But he did what he did not as an employee of the respondent, but as a principal pursuing his own business or as an employee of his own company pursuing its business."
31. As L'Officina does not incur vicarious liability for any negligence of Mr Acuri and his employees, and as Mr Malucci was not present, L'Officina's liability must depend on the presence of the driver, and any anterior role of Mr Malucci in authorising it.
32. Ultimately, I am unpersuaded that there was sufficient evidence to conclude that L'Officina owed any relevant duty of care to Mr Monahan. His Honour found it unnecessary to determine who it was who made the decision to move the door, but found that its movement was for the benefit of both Bellevarde and L'Officina, to ensure that the door was kept safe from damage whilst it remained on site and uninstalled. In my respectful view, the evidence such as it is favours the view that it was Bellevarde who determined that the door had to be moved. The requirement for it be moved arose from Bellevarde's failure to have adequate footings in place for its installation, and desire for space on site. Some support for this is provided, as has been indicated, by the 20 November email, referred to above. [52] But even if there were some benefit to L'Officina in the enterprise, essentially by way of reducing the risk of damage to the door before it was installed, and L'Officina was motivated to cooperate in its temporary removal, it does not follow that L'Officina owed a duty of care to whomever Bellevarde might through Mr Rolfe enlist.
33. More significantly, no one from L'Officina invited Mr Monahan to participate in the activity. There is no evidence that anyone from L'Officina was involved in planning or directing the carrying and lifting of the door. Even if Mr Espimaris or some other driver on behalf of L'Officina was involved in assisting with the lift, there is no evidence that he was involved in requesting, directing or orchestrating the activity. His position was not apparently different from that of Mr Monahan, who was found not to be guilty of contributory negligence. [53]
34. As it seems to me, the activity was performed on a site which Bellevarde controlled, at the instigation of Bellevarde, under the supervision of a Bellevarde employee, by personnel recruited for the purpose by that Bellevarde employee, and was orchestrated and directed by Bellevarde's employee. The evidence does not establish that L'Officina did more than provide the truck and driver, who may have been one of those recruited to assist in the lift.

The Contract Point

1. Bellevarde submitted that L'Officina's interest and responsibility was accentuated by the contractual arrangements between Bellevarde and L'Officina, whereby L'Officina was obliged to ensure that safe work procedures were established and maintained for any works carried out under their subcontract, and in particular to provide all materials handling equipment required for execution of their works, including horizontal (but not vertical) movement, transport, unloading and hoisting. However, so far as can be ascertained, L'Officina's responsibility was to supply and install various fittings, including the door. It had delivered the door, which was unable to be installed. It is by no means clear that the temporary removal of the door was part of "the execution of their work". Moreover, the negligence found was not in failing to provide necessary materials handling equipment.
2. In any event, the contractual arrangements between the head contractor Bellevarde and its subcontractor L'Officina would be of slight if any relevance to the duty of care owed by either of them to Mr Monahan.

Conclusion

1. For the foregoing reasons, I have concluded that the evidence does not support a finding that L'Officina owed or breached a relevant duty of care to Mr Monahan. Mr Monahan was injured when working on a site controlled by Bellevarde, in an activity instigated by Bellevarde, at the request of Bellevarde's employee, in an operation orchestrated by Bellevarde's employee, for the temporary removal of the door from the site, for the purposes of which L'Officina provided a truck and driver, but in the conduct of which it is not shown otherwise to have been implicated. Probably, the two unidentified personnel assisting were Mr Acuri and his employee, who were independent subcontractors, for whose negligence if any L'Officina is not vicariously liable. In circumstances where L'Officina did not owe Mr Monahan a relevant a duty of care, it follows that Bellevarde - who did - must alone be liable.
2. It follows that in my opinion L'Officina's cross-appeal should be allowed, the judgment against L'Officina set aside, and the judgment on the cross-claim against L'Officina also set aside. Bellevarde's appeal must be dismissed. Bellevarde should pay L'Officina's costs at first instance and of the appeal and cross-appeal.
3. I propose the following orders: 1. Dismiss the appeal. 2. On the cross-appeal, set aside the orders made on 10 May 2022 and in lieu thereof: 1. Judgment for the plaintiff against the first defendant in the sum of $750,000 (judgment sum) inclusive of interest. 2. Order that the first defendant pay the plaintiff's costs of the proceedings. 3. Dismiss the first cross-claim. 4. Dismiss the second cross-claim. 5. Order that the first defendant pay the second defendant's costs of both cross-claims. 6. The plaintiff's claim against the second defendant and against the third defendant be dismissed. 7. The first defendant pay the second defendant's costs of the proceedings on an indemnity basis from 19 November 2021. 8. No order as to the costs of the notices of motion filed 18 March 2022, 23 March 2022 and the amended notice of motion filed in court on 28 April 2022 with the intention that each party bear its own costs of those motions. 1. Liberty to apply within fourteen days to vary any of the above orders, any such application to be made by written submission lodged with the Associate to Brereton JA. 2. Liberty to apply within fourteen days for any necessary direction in respect of restitution.
4. SIMPSON AJA: I agree with Brereton JA.

Endnotes

1. Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50 ("Primary judgment"). Although his Honour initially gave judgment for a total of $942,000, that was on the incorrect basis that the claims were "apportionable claims" for the purposes of Part 4 of the Civil Liability Act 2002 (NSW), and was subsequently corrected by consent.
2. Primary judgment at [135].
3. Primary judgment at [139].
4. Primary judgment at [140].
5. Primary judgment at [142]-[143].
6. Primary judgment at [143]-[144].
7. Primary judgment at [134], [143].
8. Primary judgment at [144].
9. Primary judgment at [153].
10. Primary judgment at [153].
11. Primary judgment at [137].
12. Primary judgment at [138].
13. Primary judgment at [157].
14. (2005) 221 CLR 569; [2005] HCA 26 at [59]; Primary judgment at [161].
15. Primary judgment at [162].
16. Primary judgment at [163].
17. Primary judgment at [172]-[173].
18. Primary judgment at [218]; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 at [10] (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ); Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65 at 68; [1997] HCA 52 (Hayne J; Gaudron, McHugh, Gummow and Kirby JJ agreeing); James Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425 at 429; [1999] NSWCA 314 (Meagher JA).
19. Primary judgment at [225].
20. Tcpt, 6 December 2021, pp 32(20) - 33(03).
21. Tcpt, 6 December 2021, p 63(30)-(36).
22. Tcpt, 6 December 2021, pp 63(41) - 64(01).
23. Tcpt, 6 December 2021, p 64(03)-(04).
24. Tcpt, 6 December 2021, p 64(08)-(10).
25. Tcpt, 6 December 2021, p 64(12)-(16).
26. Tcpt, 6 December 2021, p 64(48)-(50).
27. Tcpt, 6 December 2021, p 65(01)(25).
28. Tcpt, 6 December 2021, p 65(29)-(32).
29. Tcpt, 6 December 2021, pp 68(32) - 69(02).
30. Tcpt, 6 December 2021, p 69(36)-(39).
31. Tcpt, 6 December 2021, p 70(17)-(23).
32. Tcpt, 6 December 2021, p 70(29)-(31).
33. Primary judgment at [104].
34. Tcpt, 7 December 2021, pp 134(43)-135(13).
35. Tcpt, 7 December 2021, p 149(29)-(50).
36. Tcpt, 7 December 2021, p 150(05)-(15).
37. Tcpt, 7 December 2021, p 150(26)-(39).
38. Tcpt, 7 December 2021, pp 139(01)-(14); 163(48) - 164(01).
39. Primary judgment at [139]
40. Primary judgment at [136]-[137].
41. Primary judgment at [115].
42. (1959) 101 CLR 298; [1959] HCA 8.
43. See above at [19].
44. Tcpt, 7 December 2021, p 163(29).
45. Primary judgment at [87] and [89].
46. Primary judgment at [137]; see above at [32].
47. Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161; [2006] HCA 19.
48. Primary judgment at [138].
49. Primary judgment at [157].
50. (2006) 226 CLR 161; [2006] HCA 19 at [16] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
51. (2006) 226 CLR 161; [2006] HCA 19 at [30]-[33] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
52. See above at [34].
53. Primary judgment at [185]-[198]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2022