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[2026] NSWSC 839
Supreme Court of NSW
2026-07-15
Slattery J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kollin v Metropolitan Memorial Parks Land Manager (No. 2) [2026] NSWSC 839
Hearing dates: 11 March 2026
Date of orders: 25 May 2026
Decision date: 15 July 2026
Jurisdiction: Equity
Before: Slattery J
Decision: The respondent/third Party ordered to pay 75% of the defendants’ costs of the proceedings and the second plaintiff ordered to pay 25% of the defendants’ costs of the proceedings, both on the ordinary basis. Orders made for a lump sum costs order calculated at 70% of the defendants’ actual professional costs.
Catchwords: COSTS — Party/Party - Costs incurred by non-party – plaintiffs commence proceedings to enforce rights of burial in an exclusive section of the first defendant’s cemetery that is set aside for the burial of orthodox and practising members of the Jewish faith – plaintiffs unsuccessful in the principal proceedings in obtaining the requested orders for burial – the first plaintiff is impecunious and the second plaintiff was outside the jurisdiction when proceedings were commenced – the first and second defendants seek orders against the respondent,/non-party on the basis that the non-party was the real impetus behind these proceedings. COSTS — Party/Party — Bases of quantification — costs on an indemnity basis sought by the First and Second Defendants – whether a basis for indemnity costs established – whether a specified gross sum should be fixed instead of assessed costs under Civil Procedure Act s 98(4)(c).
Original judgment source is linked above.
Legislation Cited: Civil Procedure Act 2005, ss 98(1)(b)-(c) and 98(4)(c)
Cases Cited: Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119; (1995) 135 ALR 160
Bischof v Adams [1992] 2 VR 198
Cabport Pty Ltd v Marincheck (No 2) (2013) NSWCA 131
Chaina v Alvaro Homes Pty Ltd (2008) NSWCA 353
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp [2001] NSWCA 13
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) NSWLR 358 at 370
Huntsman Chemical Co Aust Ltd v International Pools Aust Pty Ltd (1995) 36 NSWLR 242
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2003) NSWSC 1102
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Kollin v Metropolitan Memorial Parks Land Manager
Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121
Category: Costs
Parties: First Plaintiff: Robert Thomas Kollin as the Executor of the Estate of the late Debby Karen Kollin
Second Plaintiff: Victor Berk
First Defendant: Metropolitan Memorial Parks Land Manager
Second Defendant: Sydney Chevra Kadisha
Representation: Counsel:
Plaintiffs: D O’Connor
First Defendant: J Jaffrey
Second Defendant: D Baran
Solicitors:
Plaintiffs: Origo Law
First Defendant: McCullough Robertson Lawyers
Second Defendant: Y Bloom Legal
File Number(s): 2025/168996
Publication restriction: No
This is the Court's second judgment in these proceedings. In the Court's first judgment the Court dismissed the plaintiff's summons for relief, which sought the burial of the late Debby Karen Kollin in the Orthodox Jewish section of the Rookwood Cemetery: Kollin v Metropolitan Memorial Parks Land Manager [2025] NSWSC 565 (“the first judgment”). Debby Kollin on 30 April 2025 and the proceedings were heard in the Equity duty list immediately thereafter.
The parties to the proceedings and the issues are fully set out in the first judgment (at [1] – [13]) and do not need to be repeated here. Persons, events and things are all referred to in both judgments the same way. This judgment assumes a reading of the Court's first judgment.
In the first judgment the Court, after dismissing the summons, directed the parties to agree on a timetable for submissions in relation to any outstanding issues including costs.
A costs application was made pursuant to that direction by the successful parties, the first defendant (“MMP”) and the second defendant (“SCK”). Each of MMP and SCK sought costs against a third party, a Mr Yankel Koncepolski, on the grounds that he was the true author and driver of the proceedings which they both intend would probably not have been initiated and prosecuted without the efforts of Mr Koncepolski.
In the alternative, each of MMP and SCK contended that the responsibility for payment of the costs of the proceedings should be split in the ratio of 25 percent by the second plaintiff, Mr Victor Berk, and 75 percent by Mr Koncepolski.
SCK also sought an indemnity costs order against Mr Koncepolski. Both MMP and SCK sought a lump sum costs order under Civil Procedure Act 2005, s 98(4)(c) instead of assessed costs. The Court made costs orders in this matter on 25 May 2026, but Mr Koncepolski sought reasons for those orders, which were delivered orally on 15 July 2026.
The principles that apply to determine whether a Court can make a costs order against a third party, who is said to be responsible for initiating and driving litigation, are well known and are briefly set out here in summary form.
It has long been settled that the court’s general statutory discretion to determine costs extends to the making of costs orders against non-parties, where the circumstances so warrant it, and where it is in the interests of justice to do so: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193 (“Knight”). In NSW, that power is now reflected in Civil Procedure Act 2005, s 98(1)(b), which confers on the Court the discretion to determine “by whom…costs are to be paid”.
The Court’s discretion to order costs against non-parties is not limited: see Xabregas v Owners – Strata Plan No 79205 (2014) NSWSC 1027 at [87]. Several “criteria” are common to proceedings in which courts have made costs orders against non-parties. One such consideration is the extent to which a non-party initiates or controls or has played an active part in the litigation: Knight*,* at 193*.* The extent to which a non-party has an interest (financial or otherwise) in the outcome of the proceedings is also relevant, particularly where that interest is equal to or greater than that of a party: FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 at [210]. The Court should generally conduct a causal inquiry into whether the costs would not have been incurred, but for the non-party’s involvement. The non-party’s “connection must be real and direct, and it must be material to the issue of costs; the mere fact that a person may benefit from the litigation will not, without more, suffice”: Bischof v Adams [1992] 2 VR 198 at 204-205.
The application of these principles is very fact dependent. In this case, like many others, it depends upon an analysis of what occurred in the background during the litigation, before the Court can determine whether Mr Berk or Mr Koncepolski should pay the defendants costs.
One matter was common ground. It was understood by all parties who lodged submissions that Mr Robert Kollin, the first plaintiff and the husband of the deceased, was a pensioner and impecunious. Both defendants took the practical view that there was no point in obtaining a costs order against him, and so they did not pursue such an order.
Before commencing the factual narrative of events during the litigation, the overall procedural course since the hearing should be briefly described.
The hearing occurred in the Duty List in May of last year. As earlier indicated Ms Kollin died on 30 April 2025. The matter came before myself as Duty Judge on 5 May 2025 and after a hearing that day, and consideration overnight, I made orders the following day, on 6 May 2025, indicating at that time that the Court would give its reasons later. Those reasons were delivered on 2 June 2025.
After that the parties agreed upon a timetable for the delivery of submissions and further evidence relating to issues of costs. That material was put on in August and September of 2025. The proceedings were then set down for hearing on 15 December 2025 to accommodate Mr Koncepolski, who was in New York and unable to attend in person.
Everyone involved in these proceedings is a member of Sydney's Jewish community. The tragic events of Sunday 14 December 2025 at Bondi Beach caused the Court to offer all the parties an adjournment of the proceedings for as much time as the parties wished. The parties all joined in a request for an adjournment and the proceedings were re-fixed for hearing on 11 March 2026, at a time when Mr Koncepolski was said to be likely to be in Australia.
The matter came on for hearing at 9.30am on 11 March 2026 and the matter was called. Mr S Forbes appeared for the second plaintiff, Mr Berk, Ms J Jaffray for MMP, the first defendant, Mr D Baran for the second defendant. Mr Koncepolski was called outside Court at about 9.40am but he did not appear. Correspondence between Mr Koncepolski and my Associate before 11 March 2026 establishes that Mr Koncepolski was aware of the adjourned date, a date which had been fixed in part for his convenience.
The Court decided to proceed with the hearing in Mr Koncepolski’s absence. The principal argument advanced by SCK and adopted by MMP was for costs orders against Mr Koncepolski, based on the contention that Mr Koncepolski had initiated and driven the proceedings.
The Court concludes based on the evidence analysed below that Mr Koncepolski was the principal instigator of these proceedings. But the Court does not accept SCK’s submission that Mr Koncepolski was solely responsible for the proceedings. Rather the Court has accepted the alternative submission that Mr Berk, the second plaintiff, also bears some responsibility for initiating the proceedings and for driving them forward. This outcome is reflected in the Court's orders ordering Mr Koncepolski to pay 75% of the defendants’ costs of the proceedings and Mr Berk 25% of the defendants’ costs.
The Court will now consider the chronology of relevant events. The Court accepts SCK’s case that on the evidence Mr Koncepolski, to become the channel of communications between Mr Kollin and SCK. SCK says it was attempting to settle the proceedings, and Mr Koncepolski would not permit his clients to have any contact either with Mr Berk or Mr Kollin.
The available materials support an inference which is not be as negative about Mr Koncepolski as SCK submits. Mr Koncepolski’s motivation in offering himself as the channel of communication, was probably him seeking to protect Mr Kollin and Mr Berk shortly after the death of their sister. But well-intentioned though this may have been, his conduct nevertheless had the effect of making communication between SCK and the plaintiffs more difficult.
When Ms Kollin died communications took place between Mr Koncepolski and Origo Law, about litigation concerning her burial. On 1 May 2025 Mr Koncepolski signed a costs agreement with Origo Law, in which he was described as “the client”. The 1 May 2025 costs agreement authorised that firm to commence proceedings before the Duty Judge in the Supreme Court of NSW for urgent relief in relation to MMP and SCK and to seek relief for the deceased to be buried next to her parents.
The costs agreement describes Mr Koncepolski as the “client” and the author of the instructions, well supporting the inference that Mr Koncepolski held and maintained a directing role in the proceedings, and was giving instructions to the firm. That inference is well supported by the email exchanges between Origo Law and Mr Koncepolski which followed.
It is said that Mr Koncepolski signed this costs agreement pursuant to a Power of Attorney. When Mr Koncepolski received the costs agreement on 1 May 2025, he responded to Mr David Fan, the solicitor handling the matter at Origo Law:
"Dear David, I have read the costs agreement, and I agree to the terms. I will sign it based on the POA [Power of Attorney] I hold for Robert Kollin acting on his behalf and Yankel Koncepolski."
“Hi Victor,
This is David from Origo Law. As mentioned, could you please authorise me by reply to this text message to commence proceedings on your behalf against the Rookwood Cemetery for Debby Kollin’s right of interment at lot 561A, Rookwood Cemetery?
As mentioned, I have a costs agreement with Yankel Koncepolski who kindly paid for the legal proceedings, and you will not be held liable by my firm for the legal costs. However, in the unlikely event that we lose against the Cemetery, the lawyers for the Cemetery may ask you as one of the plaintiffs to pay their costs on a party/party basis.
Could you please reply and confirm you understand and accept this?”
“…I understand and accept this!”
This text message answers the arguments that Mr Berk advanced that these proceedings were wholly driven by Mr Koncepolski. That submission cannot be accepted in the face of this communication. Mr Berk was aware that he was at risk as to costs, as the second plaintiff in the proceedings. He was overseas at the time which partly explains why a power of attorney was deployed. But with modern Internet communications had Mr Berk sought to engage Origo Law he could have done so, wherever he was in the world.
The POA that Mr Koncepolski had mentioned in his correspondence with Origo Law is informal and in two parts. There had been a grant of agency of sorts on 8 April 2025 in an email from Mr Robert Kollin to a Mr Chimon Davidowitz, which reads as follows:
“URGENT
Hi Shimon Davidowitz,
I hereby appoint Yankel Koncepolski as my power of attorney limited to acting on my behalf for
All negotiations and discussions about the burial of my wife Deborah and burial fees.
All discussions about burial including to ensure that my wife is buried in the plot that my brother-in-law Victor Berk has purchased for her in either 561a and 561b
The nurse at POW called my daughter at 1am this morning to say that my wife’s condition is very critical, so I would please ask you to deal with this on an urgent basis
Please call Yankel
Thank you
Robert
PS Yankel has organised the payment of the internment fee”
“Power of Attorney
Appointment of attorney by the Principal
I Professor Victor Martin Berk of 3/132 Victoria Road, Bellevue Hill, Sydney, NSW, 2023 appoint
Yankel Koncepolski of 28 Bon Accord Avenue, Bondi Junction, Sydney, NSW, 2022
to be my attorney for the items expressly identified below in section 2 (Powers) during the period set forth in section 4 (Commencement) below.
Powers
My attorney may act on my behalf in the following Din Torah: Victor Berk versus Sydney Chevra Kadisha regarding Plot 561A and Plot 561B at Rookwood General Cemetery.
Conditions and Limitations
I place the following conditions and limitations on the authority of my attorney:
My attorney may not incur any financial costs or obligations on my behalf or exercise any financial authority on my behalf.
Commencement
This power of attorney commences in effect on 1 April 2025 and will end on 15 May 2025.”
This document was signed by Mr Berk as the principal on 17 April 2025.
These prior authorities seem to be related to earlier action on behalf of Mr Kollin in a Jewish Court. Neither of these documents is an authority to commence these proceedings and no formal Power of Attorney has been pointed to by any party. The lack of any formal Power of Attorney, and the consequent informality of the arrangements between the plaintiffs and Mr Koncepolski, is another indication of Mr Koncepolski's role as a driving force behind the proceedings. He was pressing forward on his own initiative and leaving the legal formalities behind.
After Ms Kollin's death her Will shows that Mr Kollin was her executor and was certainly the appropriate nominal authority to commence these proceedings, if he had authorised them. But it seems to be uncontentious that from 1 May 2025 onwards Mr Koncepolski is the one who gave direct instructions to Mr Fan and met with the solicitors and the plaintiff’s barrister, Mr O'Connor, and even advanced $5,000 on an interim basis to put in the trust account of Origo Law to commence proceedings. Had Mr Koncepolski not advanced the $5000 it is unlikely that Mr O’Connor of counsel would have been briefed to appear for the plaintiffs.
The communications available to the Court between Origo Law and persons instructing in relation to the conduct of the proceedings seem overwhelmingly to be with Mr Koncepolski and not with Mr Kollin or Mr Berk. Mr Koncepolski continues to be referred to as “the client” in those communications, the detail of which need not be detailed in these reasons.
But how did this situation come about? When Ms Kollin died, Mr Kollin, as I said, was impecunious, and Mr Berk, her brother, was in Egypt.
The communications between Mr Koncepolski and Mr Berk are important in assessing their relative responsibility for costs. Mr Berk says, and the Court accepts, that he was misled by Mr Koncepolski. He says the following:
“29. While I was away overseas in around late April 2025, YK suggested to me that he was going to the Supreme Court for an Interim decision to have the Beit Din hear the matter urgently. He told me, “I have a friend who is a barrister who will help with the Supreme Court application at no cost to you”.
- I trusted YK to manage the dispute, so I agreed with YK’s proposal. However, I did not understand that I would be made a plaintiff in any legal proceedings. I understood from YK’s words that he would take care of any legal proceedings, and I would not have any involvement with them. I understood from his words “at no cost to you” that I would not suffer any costs or risks in any legal proceedings.
- I was not at all aware that I would be joined as a plaintiff to these proceedings. YK did not tell me about, or ask me for instructions in relation to, these proceedings.”
“I would like to introduce myself
I hold a POA for Victor Berk who is overseas and is the brother of Debbie Kollin, the deceased
I will send you what I believe to be the relevant documents that formed part of a bundle of 81 pages that I tried to rely upon on Monday before Judge Rothman. He ruled with the Barrister for the Sydney Chevra Kadisha, that inspite of a valid POA, I could not represent Victor Berk, as it was in breach of Rule 7.1
Thank you for your assistance
Yankel Koncepolski
Mr Koncepolski has provided to the Court further communications in his submission on costs by email to my Associate on 1 March 2026, which has been tendered before the Court and has been considered despite Mr Koncepolski’s absence during the costs hearing.
Mr Koncepolski refers in his material to Mr Kollin encouraging him to pursue the proceedings, particularly when Mr Kollin was in Egypt. In summary, Mr Koncepolski says Mr Berk requested him to commence the proceedings and agreed to have the $5,000 deposited with the solicitors on his behalf and promised to pay Mr Koncepolski back, and Mr Koncepolski says that Mr Berk referred to him as Mr Berk's “champion”.
Mr Koncepolski is partly right. This material shows that Mr Berk supported the general idea of Mr Koncepolski initiating the proceedings. But in the Court’s view the tone and content of this correspondence is shows that it is unlikely these proceedings would ever have been commenced without Mr Koncepolski’s intervention. And once he intervened, he was the principal person giving instructions to Origo Law to advance the proceedings and was treated in substance as “the client”.
But in assessing the relative responsibility for commencement of these proceedings, the fact that Mr Koncepolski became the client, entered a costs agreement, gave instructions and actively drove the proceedings in consultation with the lawyers makes him, in the Court's view, primarily responsible for incurring costs in the proceedings. But Mr Berk cannot escape responsibility. With his eyes open he lent his name to these proceedings and accepted the risk as to costs in his communications with Origo Law.
The Court will therefore order that the defendants’ costs should be paid as to 25 percent by the second plaintiff, Mr Victor Berk, and as to 75 percent by Mr Koncepolski the respondent on the cost motion.
SCK also seeks costs on the indemnity basis. MMP does not. SCK says that indemnity costs are warranted because of the flagrant breach of a prior mediation order of Rothman J in other proceedings, which would have resolved everything. SCK also relies on the fact that communications between SCK and Mr Kollin and Mr Berk were banned by Mr Koncepolski.
Civil Procedure Act 2005, s 98(1)(c) empowers the Court to order costs on an indemnity basis. The Court will not lightly depart from awarding costs on the ordinary basis (see Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) NSWLR 358 at 370; Huntsman Chemical Co Aust Ltd v International Pools Aust Pty Ltd (1995) 36 NSWLR 242), and accordingly there generally must be some special or peculiar feature or circumstance (Harrison v Schipp [2001] NSWCA 13 at [139] (“Harrison v Schipp”), or “blameworthy conduct” (Chaina v Alvaro Homes Pty Ltd (2008) NSWCA 353 at [113]) demonstrated in the proceedings.
Inordinate delay and unnecessary prolonging of the proceedings may, for example, warrant an order of indemnity costs: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2003) NSWSC 1102 at [26]; Cabport Pty Ltd v Marincheck (No 2) (2013) NSWCA 131 at [6]. Here SCK argues that Mr Koncepolski deliberately frustrated the possibility of resolving this dispute by taking advantage of the procedures offered by a Jewish Court.
In the Court's view an indemnity costs order is not warranted here. The proceedings were conducted efficiently on behalf of the plaintiffs and failure to take account of alternative dispute resolution procedures will often only result in an indemnity costs order after procedures were followed which were not deployed by the defendants here. Moreover, any lack of communication between SCK and Mr Berk and Mr Kollin is readily explicable by the absence of the former from Australia and the need to protect the latter as he grieved.
All that remains is whether a lump sum costs order should be made here. The principles for the making of specified gross sum costs orders instead of assessed costs are well settled. Civil Procedure Act, s 98(4)(c) is expressed in general terms and is not limited to cases of a particular type: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006 (Burchett J). The power to award a Civil Procedure Act, s 98(4)(c) specified gross sum instead of assessed costs is exercised whenever circumstances warrant its exercise; the purpose of the rule is to avoid the expense, delay and aggravation arising out of taxation: Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119; (1995) 135 ALR 160 (von Doussa J) (“Beach Petroleum”).
The specified gross sum can be fixed under s 98(4)(c) by the application of what has been described as a “broad brush” approach, having regard to all the information available to the Court: Harrison v Schipp [2001] NSWCA 13 at [22] (“Harrison v Schipp”)**; Hadid v Lenfest Communications Inc [2000] FCA 628; Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121 at [7] and [25]. The approach taken to the estimation of costs must be “logical, fair and reasonable” and the powers should only be exercised when the Court considers it can do so “fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available”: Harrison v Schipp at [22] per Giles JA.
A definitive statement of the applicable law in this State appears in Hamod v State of New South Wales [2011] NSWCA 375 at [813] to [820]. Some of the relevant principles stated there are: that before exercising the power the Court should be confident that the approach taken to estimating costs is fair, logical and reasonable; that the terms of s 98(4), together with the more general considerations reflected in Civil Procedure Act, ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include the degree of any disproportion between the issue litigated and the costs claimed and the complexity of proceedings in relation to their cost; that the power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceeding; that the assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing; that in the exercise of its discretion, the Court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment; that the costs ordered should be based on an informed assessment of the actual costs, having regard to the information before the Court (for example, by relying on costs estimates or bills); and that the approach taken to estimate the costs to be ordered may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment.
A specified gross sum lump costs order should be made here. This case has been very aggravating for the parties so far and is important for the parties, so can begin to put the events of last year and their grieving behind them that a drawn-out negotiation about costs or a costs assessment should be avoided. The Court will therefore order a lump sum be paid to the defendants instead of assessed costs.
Doing the best it can, the Court has reviewed the defendants’ costs materials which have been supplied and are before the Court. It is not necessary for the Court to do the relevant mathematics in this judgment having seen the materials. The Court expects the defendants to do the final calculations themselves and to submit those calculations to the plaintiffs and Mr Koncepolski for agreement. The directions made below provide for this. If there is no agreement Court will fix the final amount of costs in chambers. But the calculation should be done on the basis that given that costs are assessed on the ordinary basis, the second plaintiff and Mr Koncepolski must pay 70% of all the defendants’ professional costs (including counsel’s fees). Only disbursements other than counsel’s fees will be excluded from the 70% discount. This approach will reasonably bring to account all the uncertainties of the costs assessment which has not been undertaken.
Accordingly, the Court makes the following orders and directions:
ORDER that all previous orders capping the parties' costs in these proceedings are lifted.
ORDER that the second plaintiff pay 25% of each of the first and second defendants’ costs of these proceedings on the ordinary basis.
ORDER that Yankel Koncepolski pay 75% of each of the first and second defendants’ costs of these proceedings on the ordinary basis.
ORDER under Civil Procedure Act 2005 s 98(4)(c) that the first and second defendants may recover as a lump sum from Yankel Koncepolski instead of assessed costs pursuant to ORDERS 2 and 3, 70% of their actual costs of these proceedings.
DIRECT that due to the making of ORDER 1, each of the defendants shall within 28 days bring in a fully worked calculation (based on its existing costs evidence) of the precise quantum of its claimed lump sum instead of assessed costs, to facilitate the fixing of the lump sum in chambers in accordance with ORDER 4.
DIRECT that if any party requests reasons for the making of these orders, then they should apply to the chambers of Slattery J within 28 days of the making of these orders.
**********
[6] sentence at end of paragraph added: The Court made costs orders in this matter on 25 May 2026, but Mr Koncepolski sought reasons for those orders, which were delivered orally on 15 July 2026.
Kollin
Metropolitan Memorial Parks Land Manager (No. 2)
(1995) 57 FCR 119
(1995) 135 ALR 160
(1988) 81 ALR 397
(1995) 36 NSWLR 242
(1992) 174 CLR 178