Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd

Background

1. The present application arises in relation to a building dispute between parties other than Litigation Fund (namely, Homebuilding, on the one hand, and Mr and Mrs Cappello, on the other). It is outlined in the primary judgment (see at [1]-[35]) by reference to a judgment in this Court last year (Cappello v Homebuilding Pty Ltd [2024] NSWCA 88) and need only briefly be recounted here.
2. In 2020, Homebuilding, a construction company, obtained a monetary judgment in its favour against Mr and Mrs Cappello in relation to building works carried out on their property (Capello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021). The amount of the sum awarded in Homebuilding's favour was subsequently varied on appeal (Capello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57). Since then, Homebuilding has been attempting to enforce costs judgments made in its favour in the proceedings at first instance and on Mr and Mrs Cappello's unsuccessful appeal therefrom. Homebuilding invoked the usual costs assessment process and obtained two certificates of determination of costs, which were filed in the Local Court and District Court respectively (the process by which a judgment is obtained as to the amount of the costs as assessed). Mr and Mrs Cappello were unsuccessful in their application for a review of the respective costs assessments, as they were in their appeal from the review panel's decision and from the District Court's decision dismissing that appeal.
3. On 13 November 2023, a Writ for Levy of Property (Writ) was issued on the application of Homebuilding. On 12 February 2024 (after an unsuccessful attempt by the Sheriff's office to execute the Writ), the primary judge made an order authorising the Sheriff to enter Mr and Mrs Cappello's premises for the purpose of taking goods under a writ of execution. Mr and Mrs Cappello unsuccessfully appealed against that order (see Court of Appeal judgment referred to above, handed down on 23 April 2024 ([2024] NSWCA 88)).
4. Homebuilding then filed a notice of motion in the District Court on 2 July 2024, seeking orders akin to those that had been granted by Abadee DCJ on 12 February 2024 (as required by the Sheriff's Office).
5. It was at this point that Litigation Fund became involved in the proceedings. On 22 July 2024, Mr Coshott filed in the District Court a notice under r 43.3 of the UCPR on behalf of Litigation Fund, claiming ownership of all of Mr and Mrs Cappello's assets (real and personal), including the contents of their Haberfield home and motor vehicles registered in their names. The Notice to Sheriff of Disputed Property and Affidavit Verifying identified the basis for the claim of equitable ownership of all that property as being by virtue of a deed dated 31 October 2023 (Deed).
6. The Deed between Mr and Mrs Cappello and Litigation Fund provides for a "line of credit" in the amount of $500,000 by Litigation Fund in favour of Mr and Mrs Cappello (see Recital and cl 1) and provides for the advance and interest thereon to be secured by way of a charge over and on the assets of Mr and Mrs Cappello (cl 2). The term of the advance is stated as being five years from the date of the Deed (cl 3, where second appearing). There was no evidence before the primary judge as to whether any amount was actually advanced to Mr and Mrs Cappello under that line of credit, nor, if there was such an advance (or advances), what amount is outstanding under the Deed.
7. The 22 July 2024 notice was received by the Sheriff on 29 July 2024 and was duly provided by the Sheriff to Homebuilding. Homebuilding did not admit the claim the subject of the notice.
8. On 26 August 2024, by way of interpleader, a notice of motion was filed in the District Court at Parramatta on behalf of the "NSW Sheriff's Office", seeking the determination by the court of the ownership of the goods listed in Litigation Fund's notice. The notice of motion was supported by an affidavit affirmed on 26 August 2024 by Senior Sergeant Natasha Cubric. It is not disputed that Senior Sergeant Cubric is a Sheriff's officer.
9. Both the interpleader notice of motion and Homebuilding's 2 July 2024 notice of motion (referred to at [8] above) came before the primary judge, who made various directions as to the motions, culminating in a hearing before his Honour on 6 September 2024. Litigation Fund chose not to attend that hearing. Rather, Litigation Fund (through Mr Coshott) forwarded submissions in writing, dated 31 August 2024, to the primary judge, contending that the court had no power or jurisdiction to make any order in relation to the interpleader application (by virtue of alleged deficiencies in the form, execution, and serving of the application) and stating that, as there was no application by the Sheriff before the court, it would not be appearing. That was clearly a forensic decision on the part of Litigation Fund, which thereby took the risk that orders would be made determining the respective motions in its absence.
10. The bases on which Litigation Fund contended in its written submissions to the primary judge that there was no application validly before the court were twofold. First, as indicated above, Litigation Fund identified various deficiencies in the interpleader notice of motion (that it was unsigned; that it was not sealed by the court as having been filed; and that it had not been served personally on the claimant (Litigation Fund) nor on the parties to the proceedings (presumably a reference to Mr and Mrs Cappello)). Second, it was contended that s 6 of the Sheriff Act 2005 (NSW) (Sheriff Act) (set out below) required the interpleader application to be brought by the "Sheriff's alternate" or, if no person was declared by the regulations to be the Sheriff's alternate for the purposes of the Sheriff Act, the Secretary of the Department administering the Sheriff Act (the Department of Communities and Justice) and the interpleader application had not been signed by the requisite person.
11. Litigation Fund's submissions also (expressed to be for abundant caution) addressed what Litigation Fund (as it turns out incorrectly) understood to be Homebuilding's only objection to its claim, that being that the Deed did not create a trust over the judgment debtor's property. Litigation Fund made clear that its contention was that the Deed created an enforceable charge over the property.

Primary judgment

1. It is only necessary here to address the primary judge's reasons for rejecting the contention that the interpleader motion was not validly before the court, since there is no challenge to his Honour's conclusion as to the merits of the claim made by Litigation Fund in its 22 July 2024 notice. Those reasons, after a summary of the submissions by each of Litigation Fund and the Sheriff, commence at [72].
2. The primary judge addressed first what he referred to as the "somewhat technical arguments" raised by Mr Coshott about the UCPR, before turning to the jurisdictional challenge based on s 6 of the Sheriff Act.
3. As to the "somewhat technical" arguments, at [73] his Honour referred to the contentions by Litigation Fund that the interpleader notice of motion was required to bear the signature of the person who brought the application, that it was not "sealed" and that it was not personally served on Litigation Fund. His Honour accepted on the probabilities that there was a requirement for the notice of motion to be signed but said that this was an irregularity which could be cured in due course by making a direction for the filing of an amended notice of motion; rejected the argument that the motion was not sealed (assuming, without deciding, that there was a requirement for the Court seal to be applied to the motion); and noted that, while the notice of motion was not personally served on Litigation Fund, the company was well aware of it and had responded to it (his Honour saying that a direction for informal service should be made). This effectively disposed of the first basis on which Litigation Fund contended that the application was not validly before the court and there is now no challenge to his Honour's decision in this regard (see for example AT 11.5; AT 12.45).
4. As to the second basis on which Litigation Fund challenged the jurisdiction of the court to determine the interpleader motion (based on s 6 of the Sheriff Act), his Honour (at [74]) accepted the Sheriff's submissions on this issue. In summary, those submissions were that the application before his Honour was not a legal proceeding "to which the Sheriff was a party" for the purpose of s 6(1)(a) of the Sheriff Act and nor was it a proceeding the subject of an order under s 6(2) for the purpose of s 6(1)(b) of the Sheriff Act (i.e., an order that the Sheriff's functions be exercised by the Sheriff's alternate); and that Senior Sergeant Cubric, a Sheriff's officer, had the authority or power to bring the motion (referring to ss 4(1)(c) and 5(1)(a) of the Sheriff Act). His Honour thus concluded that the Sheriff's notice of motion was valid ([75]).

Grounds of Review

1. The summons identifies the following two grounds of review: 1. His Honour erred in finding that there was validly before him an interpleader Notice of Motion by the Sheriff for NSW. 2. His Honour acted ultra vires.
2. It was made clear in oral submissions that both grounds in effect raise the same jurisdictional challenge, that being based on the contention that s 6 of the Sheriff Act required the application to be brought by the Secretary of the Department of Communities and Justice (it being accepted that the relevant regulations do not declare a person to be the "Sheriff's alternate" for the purpose of this application). Mr Coshott described this as the crux of the case (AT 10.49), saying that the argument came down to whether the Sheriff was a "party in the real sense" (AT 11.21), the Sheriff not having been formally joined as a party to the proceedings. It was not suggested that the impugned decision was ultra vires for any other reason. Therefore, Grounds 1 and 2 will be considered together.

Retainer/delegation issue

1. At the outset, however, I note that in its written submissions in this Court, Litigation Fund raises what seems to be a challenge to the retainer of the Crown Solicitor to act for the Sheriff in the judicial review proceedings in this Court based on correspondence in which the Crown Solicitor noted that if there was no Sheriff's alternate declared under the regulations then that person is the Secretary of the Department and stated that the Secretary "will be providing" instructions in relation to the matter (see email dated 20 September 2024) and then that "[t]he Secretary is and has been instructing the Crown Solicitor since 20 September 2024" (see email dated 8 October 2024). Litigation Fund notes that an appearance had been filed by the Crown Solicitor's office on 16 September 2024.
2. It appears that there is also a challenge made as to the basis on which (or for whom) counsel appeared on behalf of the Sheriff at the hearing before the primary judge (in the absence of evidence as to any delegation to Senior Sergeant Cubric). No such issue as to delegation was raised before the primary judge - Mr Coshott explaining that this was because his submissions "went on" before the Sheriff became involved and there was no written submission by the Sheriff to say that there had been a delegation; Mr Coshott saying that it was not a point in issue when he prepared the written submissions forwarded to the primary judge before the hearing (see AT 17ff) and only became a point in issue in his reply of 18 November 2024 to the submissions dated 14 November 2024 filed for the Sheriff (see AT 24.32-37).
3. There was some elision between the complaint as to lack of evidence of delegation and the challenge to the retainer of the Crown Solicitor's office (see the discussion at AT 9.9-50). In any event, neither of those challenges (see [5] and [6] of the reply submissions of 18 November 2024) is the subject of a ground of review in the present proceedings.
4. Those complaints can quickly be disposed of. The filing of a notice of appearance before the receipt of formal instructions from the Secretary to appear or act for the Sheriff in the proceedings (assuming that those instructions were not received until 20 September 2024 as the email of 8 October 2024 suggests) goes nowhere because there is nothing to suggest that the Crown Solicitor's office did not have instructions to represent the Sheriff by the time of the hearing of the judicial review application. Moreover, a challenge to the validity of a solicitor's retainer should be brought by a separate motion prior to the relevant hearing, though it is possible that such an issue is determined during the course of the hearing (see the discussion of Campbell JA, with whom Giles and Macfarlan JJA agreed, in Douglas v Daher (2009) 253 ALR 627; [2009] NSWCA 58, [76]-[161]). It is clear from the email correspondence between the Crown Solicitor's office and Mr Coshott prior to the hearing of the judicial review application that Mr Coshott was well aware of the procedure for challenging the Crown Solicitor's retainer if so minded to do so (see for example his email of 30 September 2024) and he seems to have chosen not to do so. In any event, no ground of review directed to a challenge of this kind.

Alleged jurisdictional error

1. I turn then to the substantive issue raised by Grounds 1 and 2 (namely, the jurisdiction of the District Court to determine the interpleader application in circumstances where the interpleader notice of motion was not signed by the Secretary of the Department of Communities and Justice).

Submissions

1. In its written submissions of 14 October 2024, Litigation Fund repeats the matters raised before the primary judge - namely, that there was no compliance with the relevant provisions of the UCPR and that there was no application complying with s 6(1) of the Sheriff Act. However, as noted above, only the latter was pressed in oral submissions.
2. On that issue, the Sheriff submits, as at first instance, that s 6 of the Sheriff Act has no application to the proceedings before the primary judge because those proceedings are not legal proceedings to which the Sheriff is a party within the meaning of s 6. Further, the Sheriff submits that, even if s 6 of the Sheriff Act did apply, a failure to comply with that provision would not make the interpleader motion a nullity. I consider this fall-back argument in due course.
3. As to the Sheriff's primary contention, while accepting that the expression "party" is capable of different meanings in different contexts, the Sheriff submits that, in the context where the expression appears in the phrase "legal proceedings to which the Sheriff is a party" in s 6(1)(a) of the Sheriff Act, it has the meaning that the Sheriff would be a "party" to legal proceedings where the Sheriff has been joined to those proceedings. It is noted that no order was made joining the Sheriff as a party to the proceedings before the primary judge.
4. The Sheriff submits that this construction of s 6 of the Sheriff Act is consistent with (obiter) observations made by Beazley P, in JP Morgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 (JP Morgan) (at [101], [104]), when considering the meaning of "party" as that term is used in r 36.16(2)(b) of the UCPR. Those comments were to the effect that in some instances the word "party" means a "party to the proceedings" (that is, a person formally joined as a party) but in other contexts it has a broader meaning, to mean a person who has an interest in the proceedings. Reference is also made to what was said by her Honour at [143], as to there being relevantly three expressions in the procedural legislation ("party [or parties] to proceedings"; "party" and "person").
5. The Sheriff submits that the phrase in s 6(1)(a) of the Sheriff Act ("legal proceedings to which the Sheriff is a party") is similar to the expression "party to proceedings", and hence that the expression "legal proceedings to which the Sheriff is a party" has a similar meaning (i.e., referring to proceedings to which the Sheriff has been formally joined).

Determination

1. Part 43 of the UCPR prescribes the procedures for interpleader proceedings. The procedures specifically applicable to a Sheriff's interpleader are at rr 43.3-43.6 of the UCPR. Rule r 43.3(1) provides that "[i]f the Sheriff takes or intends to take possession of any disputed property under a writ of execution, a claimant in respect of the property, or the proceeds of sale or value of the property, may give notice of his or her claim to the Sheriff". Relevantly, r 43.6 provides that: (1) If an execution creditor on whom a notice of claim is served does not, within 7 days after service of the notice, serve a notice of admission on the Sheriff, and the claim is not withdrawn, the court may make an order granting relief by way of interpleader. (2) The Sheriff may apply for such an order by motion in the proceedings in which the writ of execution was issued.
2. The "Sheriff" is not defined in the UCPR. The Interpretation Act 1987 (NSW) defines the Sheriff as "the Sheriff under the Sheriff Act 2005". Section 3(1) of the Sheriff Act defines the Sheriff as "the person employed in the Public Service as Sheriff".
3. Section 4 of the Sheriff Act specifies various functions of the Sheriff, including "civil law enforcement functions given to the Sheriff by or under this Act and other Acts" (s 4(1)(c)), as well as "any other function given to the Sheriff by or under this Act or another Act or law" (s 4(1)(e)). As Leeming JA notes (see [77]), the Sheriff did not suggest that the bringing of an interpleader motion did not fall within the civil law enforcement function in s 4 of the Sheriff Act.
4. Section 5 of the Sheriff Act empowers the Sheriff to delegate the Sheriff's functions. The Sheriff may delegate to, inter alios, "any sheriff's officer" (s 5(1)(a)). There is no dispute that Senior Sergeant Cubric is a Sheriff's officer.
5. Section 6 of the Sheriff Act, the critical provision on which Litigation Fund here relies, provides that: (1) The Sheriff's functions in relation to - (a) any legal proceedings to which the Sheriff is a party, and (b) any legal proceedings the subject of an order in force under subsection (2), are to be exercised by the Sheriff's alternate, and not by the Sheriff. (2) If satisfied that any legal proceedings may affect the Sheriff's interests, the court before which, or coroner before whom, the proceedings are being taken may order that the Sheriff's functions in relation to the proceedings be exercised by the Sheriff's alternate. (3) In this section, legal proceedings includes proceedings to enforce a judgment or order of a court and proceedings of an inquest or inquiry under the Coroners Act 2009.

Conclusion

1. For the reasons set out above, the summons seeking judicial review should be dismissed with costs. As the Sheriff has sought to be heard on the form of any costs order, directions should be made for brief written submissions on that issue, with a view to determining that issue on the papers. I therefore propose the following orders: 1. Summons dismissed with costs. 2. The Sheriff of New South Wales is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days. 3. Litigation Fund WCX Pty Limited is to file any brief written submissions (not exceeding 3 pages) as to the form of the costs order within 7 days thereafter. 4. Any brief written submissions by the Sheriff of New South Wales in response thereto (not exceeding 1 page) are to be filed within 3 days thereafter. 5. The form of the costs order will be determined on the papers.
2. LEEMING JA: I agree with Ward P that the summons should be dismissed with costs. I prefer to provide my own reasons on a novel question of construction which may arise in other cases. The President's judgment enables me to be concise.
3. Litigation Fund sought to set aside order 3 made by the District Court on 10 September 2024 that "The claim encapsulated in the Notice to Sheriff of Disputed Property dated 22 July 2024 is dismissed", together with a consequential costs order. The grounds of review in Litigation Fund's summons were that the primary judge "erred in finding that there was validly before him an interpleader Notice of Motion by the Sheriff for NSW" and that "His Honour acted ultra vires". Prior to Litigation Fund's service of its submissions in reply three days prior to the hearing in this Court, only two issues had been raised. 1. The first was whether there had been a contravention of s 6 of the Sheriff Act 2005 (NSW) by the filing of a notice of motion seeking relief by way of interpleader by a Sheriff's officer, on behalf of "NSW Sheriff's Office". The notice of motion was filed in proceedings commenced by Homebuilding Pty Ltd and its principal Mr Re against the judgment debtors Mr and Mrs Cappello in accordance with directions made on 16 August 2024 after Litigation Fund had filed a notice in those proceedings claiming ownership of all of Mr and Mrs Cappello's assets. 2. The second, which was exposed by the Sheriff's submissions in opposition, was whether, even if s 6 had been contravened, that in any way affected the orders dismissing Litigation Fund's claim.

First issue - was there a contravention of s 6 of the Sheriff Act?

1. Section 6 of the Sheriff Act provides: 6 Exercise of Sheriff's functions by Sheriff's alternate (1) The Sheriff's functions in relation to - (a) any legal proceedings to which the Sheriff is a party, and (b) any legal proceedings the subject of an order in force under subsection (2), are to be exercised by the Sheriff's alternate, and not by the Sheriff. (2) If satisfied that any legal proceedings may affect the Sheriff's interests, the court before which, or coroner before whom, the proceedings are being taken may order that the Sheriff's functions in relation to the proceedings be exercised by the Sheriff's alternate. (3) In this section, legal proceedings includes proceedings to enforce a judgment or order of a court and proceedings of an inquest or inquiry under the Coroners Act 2009.
2. The "Sheriff's alternate" is defined as a person so declared by regulations, in default of which it is the Secretary of the department in which the Sheriff Act is administered. Prior to the abolition of the Attorney-General's Department, the statute defined the "Sheriff's alternate" to be the Director-General of that department in the absence of any regulations. No regulations seem ever to have been made concerning the Sheriff's alternate.
3. The office of Sheriff is ancient. It pre-dates the Norman Conquest: see W Prest (ed), Blackstone's Commentaries on the Laws of England (Oxford University Press, 2016), Vol IV, p 266. But it did not exist in New South Wales between 1788 and 1823, where instead similar functions were performed by the Provost Marshall. The office was created by the Third Charter of Justice (ie the letters patent issued on 13 October 1823 under the imperial enactment 4 Geo IV c 96), as explained by J Bennett, "The Office of Sheriff: Historical Notes on its Evolution in New South Wales" (1976) 7 Sydney Law Review 360. Colonial legislation which was consolidated in the Sheriff Act 1900 (NSW) thereafter elaborated the terms of the office and in part purported to alter the power of appointment. But there is at least a question as to the power of the local colonial and State legislature, prior to the commencement of the Australia Acts 1986 (Cth) and (UK), to amend the Third Charter, which had the force of imperial law (but cf Ex parte Chung (1861) 2 Legge 1458 at 1459), and it may have been with that in mind that s 18 of the Sheriff Act 2005 repealed the provisions of the Charter of Justice providing for the appointment of the Sheriff and his or her deputies.

Second issue: does any breach of s 6 mean that there was no valid motion?

1. Let it be assumed, favourably to Litigation Fund, that s 6 was contravened. Contrary to the gravamen of its submission, the mere fact that s 6(1) was contravened is the starting point, not the conclusion, of the inquiry. As much is plain from what was held in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, on which the Sheriff relied, where the contravention of a prohibition imposed by statute on commencing proceedings was held not to render the proceedings a nullity. As explained in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 the question of construction is always what is the legal effect of a contravention of a statutory prohibition.
2. There is a range of possible constructions. The statute may operate as a condition of the court's jurisdiction. An example is s 48K of the Home Building Act 1989 (NSW) in which subsections (3), (4), (7) and (8) each provide that "The Tribunal does not have jurisdiction in respect of building claim if [the claim is lodged out of time]". The statute may alternatively impose an obligation upon a court as to the way the jurisdiction is to be exercised. An example is the obligation to transfer to a federal court an appeal in a matter arising under the Bankruptcy Act 1966 (Cth) commenced in a State court contrary to s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): see HBSY Pty Ltd v Lewis [2024] HCA 35. Alternatively, the satisfaction of the statutory condition may be an essential condition of the new right conferred by the statute (an example is the time period for applying to set aside a statutory demand in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 277; [1995] HCA 43), such that its non-satisfaction may require the dismissal of the application.
3. But there are other possibilities which fall short of the result for which Litigation Fund contends, namely, dismissal of the Sheriff's application irrespective of the merits. One is that breach of the duty imposed by s 6 does not mean that the proceedings are a nullity or must be dismissed, but instead that there is a mere irregularity which may be cured by court orders, and which does not stand in the way of the otherwise valid invocation of the Court's jurisdiction.
4. Let it be assumed, favourably to Litigation Fund, that s 6 applies to the making of an application to a court. The making of an application to a court engages a series of rules and principles, which include obligations upon the court to consider whether it has jurisdiction to hear and determine the application, and entitlements upon other litigants to apply for an amendment to or summary dismissal of the application. In such circumstances, there is little reason to conclude that a contravention of s 6 of itself insofar as it applies to the making of an application in a court results in the application being a nullity or must be dismissed.

Conclusion and orders

1. For those reasons, even if it be assumed favourably to Litigation Fund that s 6 applied to the Sheriff's interpleader application and it was breached, then there was at most a curable irregularity. The contravention did not require the Sheriff's motion to be dismissed. It follows that the summons in this Court must be dismissed.
2. I agree with the orders proposed by Ward P.
3. BASTEN AJA: As explained by the President and Leeming JA, the applicant's claim for judicial review turns on the operation of s 6(1)(a) of the Sheriff Act 2005 (NSW), set out at [44] above. I agree that the summons should be dismissed and would order the applicant to pay the costs of the second respondent (the Sheriff) in this Court. I do so on the basis that the application was misconceived, purely as a matter of statutory construction.
4. There were two assumptions underlying the applicant's case: the first was that the filing of the interpleader application in the District Court was the exercise of the Sheriff's functions in relation to "legal proceedings to which the Sheriff is a party" within s 6(1)(a) of the Sheriff Act. Self-evidently, that cannot be right: the Sheriff sought to become a party to proceedings to which she was not a party. Accepting that the interpleader motion fell within the proper functions of the Sheriff, the applicant's construction of s 6(1)(a) comes close to negating the existence of that function. That is, if the Sheriff sought to commence proceedings, she would immediately lose the power to do so, because the power would be vested in the Sheriff's alternate. If the Parliament had intended that result it could have done so by adopting the simple scheme of ss 4 and 5 of the Crown Proceedings Act 1988 (NSW) and stating that (i) where the Sheriff sought to bring proceedings, that function would vest in the "Sheriff's alternate" and (ii) any person seeking to bring proceedings against the Sheriff could do so by bringing proceedings against the Sheriff's alternate. Section 6(1)(a) says neither of those things.
5. If the contention were that, once joined, the Sheriff could no longer exercise any function in the proceedings, having become a party, a similar objection arises: that construction would negate the purpose of the Sheriff becoming a party. Although this was not the contention put forward by the applicant, it directs attention to the second assumption underlying the applicant's construction of s 6(1), namely that the prohibition is engaged "in relation to" the Sheriff's functions in conducting litigation to which he or she is a party. In my view that assumption is erroneous. To explain why that is so it is necessary to identify the purpose of s 6(1), in accordance with s 33 of the Interpretation Act 1987 (NSW).

---

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: 20 February 2025