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[2007] QCA 199
Court of Appeal (Qld)
2007-06-15
Williams and Jerrard JJA and White J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with his reasoning and with the orders proposed. There are however some matters which I feel should be emphasised.
[2] The duty imposed upon a claimant by s 22 of the Personal Injuries Proceedings Act 2002 ("the Act") and the duty imposed on a respondent by s 27 thereof are consequent upon a notice of claim having been given pursuant to s 9 of the Act. Section 9(2)(a) provides that the notice must contain the information required under a section, and section 3(3) of the Personal Injuries Proceedings Regulation 2002 (Qld) requires details of how the incident alleged to have caused the personal injury happened to be set out in the notice. Further, in the Schedule Dictionary to the Act the term "incident" is defined in relation to personal injury as meaning "the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury."
[3] Against that background when s 27(1)(a)(i) of the Act requires a respondent to provide copies of reports and documents "material about the incident alleged to have given rise to the personal injury to which the claim relates" that must be a reference to the "incident" described and particularised in the notice of claim.
[4] Similarly, when s 27(1)(b)(i) of the Act requires a respondent to provide information "about the circumstances of, or the reasons for, the incident" that must be a reference to the "incident" described and particularised in the notice of claim.
[5] One of the purposes of the Act as set out in s 4(2)(c) is to ensure "that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial", and another stated purpose is to provide a procedure for speedy resolution of claims for damages for personal injury. Against that background provisions such as s 27 should be given a broad, remedial construction; but that does not mean words of limitation found in the section can be ignored. A respondent is only obliged pursuant to s 27(1)(a)(i) to give a claimant copies of a report or document which is "directly relevant to a matter in issue in the claim" and which also is "about the incident alleged to have given rise to the personal injury". As Jerrard JA has amply demonstrated in his reasons the request for copies of reports and documents in this case was far broader than was permitted by the legislation.
[6] As already indicated I agree with the orders proposed by Jerrard JA.
[7] JERRARD JA: This appeal is from interlocutory orders made on 26 March 2007 in the Trial Division of this Court. The challenged orders, made under s 27(1)(a)(i) and s 27(1)(b)(i) of the Personal Injuries Proceedings Act 2002 (Qld) ("the PIPA"), required the appellant to provide copies of documents and to give information to the respondent. The appellant contends there was an inconsistency between orders the learned judge made for the production of documents, and orders which the judge declined to make; and that in any event the orders for production of documents went beyond the terms of s 27(1)(a). The appellant also contends the learned judge failed to acknowledge that legal professional privilege may attach to some of the documents of which copies were ordered to be produced. Finally, regarding the order for the provision of information, the appellant complains that one order made failed to give consideration to the security requirements of the appellant, and ordered the provision of information irrelevant to the circumstances of the incident, and adverse to the appellant's security.
[8] The learned trial judge was persuaded to take a broad view of s 27(1)(a)(i) of the PIPA, in part by the contents of the explanatory notes to the Personal Injuries Proceedings Bill 2002 (Qld). Those explanatory notes include the statement that the clear purpose of the division of the PIPA in which s 27 appears, is to put the parties in the position where they have enough information to assess liability and quantum in relation to a claim; and that it imposes an obligation on a respondent to co-operate with the claimant by providing that information. On this appeal Mr R Myers of counsel for the respondent strongly defended that approach, and urged that courts should construe the obligations imposed on respondents (particularly the obligation to provide copies of documents) under the PIPA in much the same manner as courts have construed the obligations imposed on claimants (to provide copies of documents) under the Motor Accident Insurance Act 1994 (Qld). The learned trial judge, in a careful judgment, had acceded to a similar argument. Both Mr Myers, and Mr R Douglas SC for the appellant, drew the Court's attention to the explanatory notes accompanying the Personal Injuries Proceedings Bill 2002, and to the observation therein that the Bill was based on the pre-court processes in the Motor Insurance Act 1994 [sic]:
"...which has been successful in reducing claims costs and legal costs associated with personal injuries arising out of motor vehicle accidents."
To consider the merits of Mr Myers' submission on the approach of the learned trial judge, it is necessary to examine the terms of the PIPA, and the Motor Accident Insurance Act 1994 (Qld); it is also appropriate to consider the corresponding provisions of the WorkCover Queensland Act 1996 (Qld), and the Workers' Compensation and Rehabilitation Act 2003 (Qld).
[9] Section 27 relevantly provides:
"Duty of respondent to give documents and information to
(a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim -
(i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;
(ii) reports about the claimant's medical condition or prospects of rehabilitation;
(iii) reports about the claimant's cognitive, functional or vocational capacity; and
(i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or
(ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.
(a) give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and
(b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.
(3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.
(4) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure."
[10] There is also s 30 which provides:
(1) A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.
(2) However, investigative reports, medical reports and reports relevant to the claimant's rehabilitation must be disclosed even though otherwise protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.
(3) If a respondent has reasonable grounds to suspect a claimant of fraud, the respondent may apply, ex parte, to the court for approval to withhold from disclosure under division 1 or this division information or documentary material, including a class of documents, that -
(4) If the court gives approval on application under subsection (3), the respondent may withhold from disclosure the information or documentary material in accordance with the approval.
investigative reports does not include any document prepared in relation to an application for, an opinion on or a decision about, indemnity against the claim from the State."
[11] Section 27(1)(a) only obliges a respondent to give a claimant copies of documents in the respondent's possession, that are directly relevant to a matter in issue in the claim, in the three circumstances described in s 27(1)(a)(i), (ii) and (iii). The first circumstance, the one relevant on this appeal, limits that to an obligation to give a claimant copies of reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates ("documents about the incident"). The statutory obligation is not as broad as an obligation to give a claimant copies of documents that are directly relevant to a matter in issue in the claim, where those are not documents about the incident. That broader obligation is imposed by Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") r 211 on a party after a proceeding has begun in a court. That limitation in s 27(1)(a)(i) is relevant to the outcome of this appeal.
[12] Mr R Douglas SC contrasted the obligations imposed on a respondent by s 27 of the PIPA, with those imposed by s 22 of the PIPA on a claimant. The claimant's obligation in s 22(1)(a), corresponding to a respondent's obligation in s 27(1)(a), is to provide copies of documents in the claimant's possession answering the descriptions of those in s 27(1)(a)(i), (ii), and (iii). There is no qualifying or limiting requirement that the documents be directly relevant to a matter in issue in the claim. Mr Douglas SC submitted that a claimant's obligation to give disclosure of documents may therefore be narrower under the UCPR, and broader under the PIPA; the opposite of a respondent's position. Another difference is that the obligation on a claimant to provide information, described in s 22(1)(b), is to provide information reasonably requested by the respondent on specified topics, which include the "incident". A respondent's obligation under s 27(1)(b)(i) to provide information to the claimant is not limited by the requirement that the information be "reasonably requested".
[13] Section 6 of the PIPA provides that it applies in relation to all personal injuries arising out of an "incident". The requirement in s 9 of the PIPA that a claimant, before starting a proceeding in a court based on a claim, must give written notice of the claim in the approved form to the person against whom the proceeding is proposed to be started, is enlarged upon in the Personal Injuries Proceedings Regulation 2002 (Qld), ("the Regulation"). In s 3(3) the Regulation requires a claimant to provide extensive particulars in the notice about the "incident" alleged to have caused the personal injury to which the claim relates. That focus on the "incident" to which the claim relates is repeated in both s 22(1)(a)(i) and s 27(1)(a)(i).
[14] The PIPA provisions do not provide any obvious reason why the obligations on claimants and respondents in that Act are so differently worded. Section 22(5) requires that a claimant provide copies of the documents described in s 22(1)(a)(i) within one month after giving notice of a claim. The provisions in s 3(3) of the Regulation require that details of how the incident happened be provided, and also the reason the claimant attributes responsibility to the person or persons served with the notice. The respondent must give copies of its documents described in s 27(1)(a)(i) within one month of receiving a complying notice of claim. It is not clear why the matters in issue in the claim will be any better established when the respondent provides copies of its required documents, than when the claimant does; when a complying notice of claim is served, both parties will have the same one month within which to provide the copies.
[15] In the Motor Accident Insurance Act 1994 the obligation on each of a claimant, and a respondent to a claim, the insurer, to provide copies of documents, is expressed in similar terms in both s 45(1)(a) (claimant) and in s 47(1)(a) (insurer) of that Act. It is an obligation to co-operate, and to provide copies of reports and other documentary material about the circumstances of the accident, or the claimant's medical condition, or prospects of rehabilitation. That obligation is expressed differently from the obligation to provide copies of documents placed on either the claimant or the respondent under the PIPA. In the Motor Accident Insurance Act 1994, the insurer's obligation under s 47(1)(b), to provide information to the claimant about the circumstances of, or the reasons for, the accident is similar to the obligation placed on a claimant by s 45(1)(b) of that Act, although the claimant is only obliged to give information which is "reasonably requested" by the insurer. Despite that difference, there is a far greater correspondence in the duties imposed on each of a claimant and an insurer, under the Motor Accident Insurance Act, regarding both giving copies of documents and giving information, than in the differently worded obligations imposed on a claimant and a respondent respectively under the PIPA.
[16] Mr Douglas SC reminded the Court that both the WorkCover Queensland Act 1996 in s 283 of that Act, and the Workers' Compensation and Rehabilitation Act 2003, in s 279 of the latter Act, imposed the same obligation on both parties to co-operate in relation to a claim, in particular by giving each other copies of relevant documents about the circumstances of the event resulting in the injury etc., and giving information reasonably requested by the other about those circumstances and other specified matters. It follows that what the legislature has not done is to impose common obligations about the production of documents and giving of information upon claimants and respondents in personal injury claims, regardless of the source of the injury (that is, in a motor vehicle accident, in the work place, or in some other manner). That could have been done, but has not been. The various statutes are too dissimilar to allow the provisions in the PIPA, regarding the production of documents and giving information, to be construed as achieving the same outcome as in the other statutes dealing with personal injury claims. The result of this diversity of obligation is that this collection of legislation about personal injury proceedings leads to a multiplicity of proceedings in court, rather than achieving the stated object in each statute of reducing the incidence of court proceedings.
[17] Since no benefit results in this matter from examining the terminology of the other personal injury proceeding statutes, it is necessary simply to examine the specific circumstances of this application, and the specific language of s 27(1)(a)(i) and (b)(i) of the PIPA. The incident giving rise to this litigation happened on 22 February 2006 when Mr Haug was removed from the Conrad Treasury Casino in Brisbane, operated by the appellant. He provided the appellant with a Part 1 Notice of Claim under the Act (dated 30 August 2006) on 5 September 2006, in which he gave the following description of the incident:
"On 22 February, 2006 the Claimant attending at the Treasury Casino with a friend, following earlier birthday celebrations, at a restaurant at Highgate Hill.
At approximately 4.15 am another patron, unknown to the claimant, lashed out at the claimant without warning or good reason.
At approximately 4.20 am, despite posing no danger to himself or others, the claimant was secured in a wrist lock hold by two security guards with another guard positioned to the claimant's rear and subsequent thereto the claimant was forcibly marched along a corridor down an escalator and ousted from the Casino door on Elizabeth Street. The Claimant's wrists were bent, twisted and restrained with significant pressure and force throughout. Excessive pressure and force was applied and maintained. The claimant's pleas for the restraint to be loosened in light of extreme pain were ignored. In desperation the plaintiff [sic] feigned dizziness and imbalance in the hope that this may cause the guards to ease the restraint. Despite doing so the excessive restraint remained intact on each wrist, with the hold by each guard being subtly adjusted to increase the pressure and ensuing pain.
Once released onto the pavement despite posing no danger to himself, the guard patrol or others, the claimant's left and right wrist/upper limb was set upon by a group of guards and wrist/arm locks applied again with the use of excessive force. After being held for some minutes the claimant was released.
As a consequence of the excessive and unreasonable restraint employed by the accosting guards, the claimant suffered significant injury to his left wrist."[1]
[18] Elsewhere in that Part 1 Notice of Claim, Mr Haug described consuming a good deal of alcohol that night, and supplied details as to why he believed the appellant had caused the accident. Those read as follows:
As a result of the negligence of the Respondent, the Injured Person suffered personal injuries for which the respondent is liable."[2]
[19] The first dot point describes an omission by the appellant and the second and third dot points other wrong doing by the appellant. The remainder describe the use of assertedly excessive force by the security guard or guards. The second and third dot points obliquely raise an issue of the training of the guards. Those allegations in the notice of claim are not pleadings, but they suggest the pleadings which may be filed.
[20] On 20 October 2006 the appellant's solicitors served the claimant with a notice under s 12 of the Act, in compliance with s 10. On 17 January 2007 the respondent's solicitors enclosed a list of documents, pursuant to s 22 of the Act, and on the same day they wrote to the appellant's solicitors in the following terms.
YOUR CLIENT: JUPITERS LIMITED TRADING AS CONRAD TREASURY
Please provide us with a list, pursuant to Section 27 of the Personal Injuries Proceedings Act 2002 within fourteen (14) days.
Without limiting the generality of your client's duty of disclosure, we require specific disclosure of following documents (the definition of which includes computer stored documents);
1. Complete personnel and training records for each security guard involved in the incident including those persons who handled and/or 'escorted' our client from the premises and Head of Security Bob Bennett.
2. All documentation relating to the incident involving our client including letters of complaint, advices, memos, warnings, directives, file notes, incident reports, statements, investigation reports, minutes of meetings, correspondence with your insurers and others, and any other documentation relating in any way to the incident.
3. All documentation relating to training of security staff at the casino (including documents relating to the use of force) including manuals, advices, memos, workbooks, directives, file notes, incident reports, minutes of meetings, and any other documentation (including computer based records) relating in any way to training issues.
4. All documentation relating to prior complaints involving security staff at the casino including letters of complaint, advices, memos, warnings, directives, file notes, incident reports, minutes of meetings, correspondence and any other documentation (including computer based records) relating in any way to training issues.
6. A floor plan of the casino indicating camera placement.
7. Copy of all footage from every camera in the "event" vicinity that night, including the period that evening leading up the event.
8. Documents relating to previous claims brought against Jupiters Limited, Brisbane Treasury Casino, relating to excessive and/or inappropriate use of force by employees, including security personnel of the casino.
We further require the following requests for information to be answered, pursuant to Section 27 of the Personal Injuries Proceedings Act 2002, within fourteen (14) days:
9. What were the full names of all security guards involved in the incident whereby our client was handled/escorted from the premises and what role did each play?
10. Please provide a full description of the type of restraint used including what body parts were involved and what the purpose and reason was for each type of restraint which was applied.
11. What is the identifying description of all camera/s which filmed the incident and where are they located? eg. "camera number 'x' and 'y' located in the foyer".
12. Please provide full details of the type and quantity of alcohol consumed that afternoon/evening by:
(b) Any persons at the restaurant with our client that evening.
13. What was the full name and address of the other patron evicted at or about the same time as our client?
14. Please provide details of any prior complaints/problems with security guards at the Brisbane casino including:
(b) His/her role and a brief description of duties.
(c) The nature of the complaint/problem and who initiated any complaint.
(d) The date the complaint/problem was received or arose.
[21] The appellant declined to produce copies of the documents requested, or to provide the information asked for. A further request was made on 30 January 2007 and on 8 February 2007 the respondent filed an application, which as amended relevantly asked for the following orders:
"1. That the [appellant] comply with their duty to give to the [respondent] copies of documents in the [appellant's] possession that are directly relevant to a matter in issue in the claim as required by section 27 of the Personal Injuries Proceedings Act 2002, within seven (7) days of this Order.
The respondent also required that the information be provided in the form of a statutory declaration, in accordance with s 27(3) of the Act.
[22] The amended application asserted a duty in the appellant to produce documents, which was broader than the actual requirement in s 27(1)(a)(i). The appellant's obligation under the PIPA was to provide copies of documents about the incident, that were directly relevant to a matter in issue. The appellant complained that the learned judge made an order that was even broader than the terms of the application, in that the order by the judge required the production of the documents specified in paragraphs 1, 2, 5, 6, and 7 of the respondent's solicitor's letter of 17 January 2007. The appellant complained that made an order that was too wide and too imprecise. The more substantive point is that the application and the order, like the letter, requested the production of documents, that, whether or not they were directly relevant to a matter in issue in the claim, went well beyond documents about the incident. Only the documents requested in paragraph 2 of the letter of 17 January 2007 would fall within the terms of s 27(1)(a)(i).
[23] The requirement that the directly relevant documents be "about the incident" should be understood as meaning reports and other documentary material about the incident described in the notice of claim. That accords with the description of the application of the Act in s 6, and the obligations in s 9 to give a notice as described in the Regulation. It is a limiting requirement. Mr Myers referred the Court to the Oxford English Dictionary definition of "about", and the explanation in that that "about" includes in its meaning "in connection with", "on the subject" of, or "in relation to". Mr R Douglas SC was prepared to concede that, for example, reports written before an incident and predicting its occurrence could be said to be "about" the incident, and copies of those would have to be produced. Accepting that concession as sensible, it does not follow that the documents described in paragraphs 1-8, other than paragraph 2, of the respondent solicitor's letter of 17 January 2007 are in any sense documents "about the incident". Most of them are demonstrably not.
[24] While the notice of claim suggests that a subsequent pleading might allege inadequate training, the documents asked for in paragraphs 1, 3, 4, 5, 6, 7, and 8, are not about the incident in the notice of claim, or in connection with it, or in relation to it. This is a fishing exercise, although it is not objectionable for that reason; it is objectionable because it goes beyond the statutory obligations of the appellant. To satisfy those it would be sufficient for paragraph number 2 simply to require production of copies of "all documents relating to the incident involving our client". The fuller description provided by the respondent's solicitors may assist the appellant in identifying relevant documents, but goes too far in demanding "any other documentation relating in any way to the incident". That last variety would not qualify as "directly relevant".
[25] The appellant also complains of inconsistency between the learned judge excluding the documents asked for in paragraphs 3 and 4, but ordering production of the documents in paragraph 1. The appellants say the learned judge had correctly concluded that documents relating to the training of security staff were not directly relevant to the incident, yet those are included in the documents requested in paragraph number 1, of which copies were ordered to be produced. Likewise documents in paragraph 4, which the learned judge also held not directly relevant to the incident, would also fall within those to be produced in accordance with paragraphs 1 and 2. Those submissions may be correct, but there is the more substantial objection to the orders.
[26] Regarding the orders made in accordance with s 27(1)(b)(i) of the Act, the obligation in that sub-section to provide information in the appellant's possession about the circumstances of, or the reasons for, the incident is much broader than the obligation to produce copies of documents. That phraseology in s 27(1)(b)(i) reflects the terms in s 45(1)(b)(i) of the Motor Accident Insurance Act (an obligation to give information reasonably asked "about the circumstances of the accident") as it was drafted when considered by Ambrose J in RACQ/GIO Insurance Limited v Ogilvie [2001] QSC 36; [2002] 1 Qd R 536 at 541 and 542. His Honour considered that an object of the legislation was to have the claimant place the insurer, to the best of his or her ability, in the best position to determine whether to admit or contest liability, (at p 541), and His Honour went on: (at p 542)
"[26] In my view, 'circumstances of the accident' are not limited to events contemporaneous with the accident observable perhaps by an independent witness having an opportunity to view it. A circumstance of the accident is any fact to which the occurrence of the accident may be attributed. In my view, upon its proper construction, 'circumstances of the accident' within the meaning of s 45(1)(a) encompass all events which appertain to or are causes of the accident in which a claimant suffers personal injury."
[27] The learned trial judge in this matter considered that the construction of "circumstances of the accident" in that legislation was relevant to the obligation imposed by s 27(1)(a)(i) of the PIPA. The judge thus concluded that the obligation to produce directly relevant documents about the incident therefore extended to production of reports and other documents about (all events) which appertain to or relate to causes of the incident.[3] I respectfully disagree; the reasoning of Ambrose J explains why there is a significant difference between, on the one hand, the obligation in 27(1)(a)(i) to provide copies of documents which are both directly relevant and are also documents about the incident, and on the other hand, an obligation to give information "about the circumstances of the accident" (the Motor Accident Insurance Act provision). It is much the same as the difference between the obligations in 27(1)(a)(i) and in 27(1)(b)(i). The latter obligation is much closer to s 45(1) (as it was) than is the former. The respondent's argument tries to find the same breadth of meaning in "about the incident" as Ambrose J found in "about the circumstances of the accident", but the difference in terminology is highlighted by the wording of s 27(1)(a)(i) and s 27(1)(b)(i). Courts are obliged to apply the language of the differently worded obligations as worded, and that means different outcomes.
[28] The appellant complains only about the order to provide the information requested in paragraph 11. It argues that that request cannot be for information about the circumstances of the incident or the reasons for it, and that the areas can be identified from the tape which it has provided already, without the necessity for identification of the camera locations. Those are said to be matters of security relevant to its proper functioning. I agree with that complaint - that it seeks more than information about the circumstances of the incident or the reasons for it.
[29] The appellant complains that the learned judge's orders did not expressly exclude from production documents for which legal professional privilege could be claimed. But the learned judge did not need to include that in the order, because s 30 relieves the appellant of that obligation in any event, as does the common law.[4]
[30] I would allow the appeal, set aside the reference in order number 1 of 22 March 2007 to paragraphs numbered 1, 5, 6, and 7, of the respondent solicitor's letter of 17 January 2007, and the reference in order number 2 to paragraph 11. The description in paragraph 2 of the respondent's solicitor's letter of 17 January 2007, referred to in order of the learned judge, does not include documents which are not directly relevant to the matters in issue in the claim, nor documents protected by legal professional privilege. The respondent should pay the appellant's costs of this application assessed on the standard basis.
1. The appeal is allowed and order No 1 of 22 March 2007 varied to exclude the references therein to paragraphs 1, 5, 6, and 7 of the solicitor's letter of 17 January 2007, and order No 2 of that same day is varied by the deletion therein of the reference to paragraph 11 of the solicitor's letter.
2. The respondent is to pay the appellant's costs assessed on the standard basis.
[32] WHITE J: I have read the reasons for judgment of Jerrard JA and agree with his Honour for the reasons that he gives that this appeal must be allowed.
[33] I have also read Williams JA's observations on the scope and purpose of the Personal Injuries Proceedings Act 2002 (Qld) particularly as they relate to the obligations imposed on the parties by ss 22 and 27 respectively. I agree with his Honour that although the purposive approach to statutory construction must be preferred to any other interpretation, s 14A of the Acts Interpretation Act 1954 (Qld), it may not prevail over the clear words of the provisions of the Act. Accordingly, the broad construction sought to be advanced by Mr Myers for the respondent must give way to the actual words employed by the legislature which have the effect of limiting the categories of material that must be disclosed and produced by the appellant.
[3] At [47] of the reasons for judgment, at AR 140.
[4] Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 564 and 566 per Gummow J, as cited by Byrne J in Mercantile Mutual Custodians Pty Ltd v Village Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at 287, and 288.
Haug
Jupiters Limited Trading as Conrad Treasury Brisbane
(1997) 188 CLR 501