Appellant v Respondent

1 Update Pty Ltd ("the taxpayer") has two applications before the Court:

(1) an application under s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act") for an extension of time in which to apply for leave to appeal from the decision of the Victorian Civil and Administrative Tribunal ("the Tribunal") affirming the taxpayer's liability for the Growth Areas Infrastructure Contribution ("GAIC"); and

(2) an application under s 148(1) of the VCAT Act for leave to appeal from the Tribunal's decision, if the extension of time is granted.

2 As the substantive merits of the proposed appeal are relevant to both applications, the parties agreed to present full argument on whether the appeal should be allowed on the basis that the appeal should be treated as heard instanter with the applications, if successful.

3 The GAIC is a levy imposed on the purchase, subdivision or development of land in designated growth areas ("the contribution area") around Melbourne and is used to fund the provision of State infrastructure to new communities. The GAIC is administered under Part 9B of the Planning and Environment Act 1987 (Vic) ("the Act") and is a taxation law for the purposes of the Taxation Administration Act 1997 (Vic).

4 Liability for the GAIC depends on whether there was a "GAIC event". A "GAIC event" is defined in s 201RA of the Act to include:

(c) the occurrence of a dutiable transaction relating to land in the contribution area-

but does not include an excluded event.

5 "Excluded events" are defined in s 201RB of the Act and include in s 201RB(d)(iii):

a dutiable transaction relating to the land (other than a significant acquisition), if a contract relating to that transaction was entered into before the relevant day.

6 "The relevant day" for the purposes of s 201RB was 2 December 2008, the day that the GAIC was announced.

The issue determined by the Tribunal: no "excluded event"

7 The issue for the Tribunal was whether there was "an excluded event" within the meaning of s 201RB(d)(iii) of the Act.

8 It was not in controversy that the taxpayer made an offer in November 2008 to purchase land situated in the contribution area and that on 1 December 2008, the vendors' agent advised the taxpayer that its offer had been accepted. On 2 December 2008, the taxpayer signed a written contract of sale, which was counter-signed by the vendors on 9 December 2008. The question for the Tribunal was whether a contract of the kind referred in s 201RB(d)(iii) of the Act came into existence on 1 December 2008 upon communication of acceptance of the offer. The Tribunal held that s 201RB(d)(iii) did not apply because:

(a) "contract" in s 201RB(d)(iii) meant a "binding" contract and, in order for the contract for the sale of the land to be "binding", the contract needed to be in writing, in compliance with s 126 of the Instruments Act 1958 (Vic) and s 53 of the Property Law Act 1958 (Vic), which did not occur until after 1 December 2008;[1]

(b) in any event, the parties did not intend that a contract should come into existence until the written contract had been signed by both parties;[2] and

(c) if there was any earlier oral contract, that contract was merged or integrated into the written contract, therefore it cannot be said that there was a contract between the parties prior to 2 December 2008.[3]

9 The right of appeal from the Tribunal is qualified not only by the requirement to obtain leave but also by the requirement that an appeal lies only on a pure question of law.[4] The proposed questions of law on which the taxpayer seeks the right to appeal are:

(1) Whether there was a "contract relating to" the transfer of land for the purposes of s 201RB(d)(iii) of [the Act] where the parties orally agreed on 1 December 2008 to sell and purchase land on terms set out in writing that was before both parties.

(2) Whether it is necessary, where a party seeks to satisfy the requirement in s 201RB(d)(iii) of the Act that a "contract relating to the transaction was entered into before the relevant day" by relying on a contract for the sale of land, that the requirements of s 126 of the Instruments Act and s 53 of the Property Law Act have been satisfied before the relevant day.[5]

10 Counsel for the Commissioner of State Revenue ("the SRO") correctly accepted that the second question ("Question 2") raises a pure question of law on the construction of s 201RB(d)(iii) of the Act but challenged the subject matter of first question ("Question 1") as a pure question of law, contending that it raises a question of fact or a question of mixed fact and law.

11 The proposed questions are a useful starting point for the consideration of the two applications and Question 2 should logically be considered before Question 1, as the proper construction of s 201RB(d)(iii) of the Act bears upon the taxpayer's challenge to the Tribunal's decision raised by Question 1.

12 Before the Tribunal, the SRO argued that s 201RB(d)(iii) of the Act applied only where there was a formal written contract for the sale of land entered into prior to 2 December 2008. The SRO supported this submission by reference to the Explanatory Memorandum ("EM") to the Bill that introduced Part 9B of Act[6] and to the Minister's Second Reading Speech.

Paragraph (d)(iii) [of s 201RB] deals with a dutiable transaction where a contract relating to that transaction was entered into before the relevant day. This is to ensure fairness in application by excluding transactions that had already been formalised in the transitional period. [Italics added for emphasis.][7]

The SRO argued in that it is a formal requirement for a contract for the sale of land to be in writing and until that is done, the contract is not formalised.

14 In his Second Reading Speech, the Minister stated:

Proposed section 201RA defines the GAIC events that trigger the liability to pay a contribution. [...] A series of excluded events that do not trigger a liability to pay a contribution are set out in the bill. The excluded events also apply to circumstances where actions in relation to an event have occurred prior to the announcement of the GAIC or land coming within a contribution area. Such circumstances include [...] where a binding contract relating to a dutiable transaction [...] was entered into before the relevant day.[8] [Italics added for emphasis.]

The SRO argued that the Minister's of use the words "binding contract" indicated that the contract envisaged by s 201RB(d)(iii) is a contract in writing signed by the parties.

15 The taxpayer argued, on the other hand, that the word "contract" should be given its ordinary meaning of "an agreement between two (or more) parties".

16 The Tribunal preferred the SRO's construction, reasoning as follows:

In my view, the word "contract" as used in the section is quite ambiguous. Does it mean a contract per se, ie, unenforceable or does it mean an enforceable contract? Part 9B of the Act deals with the acquisition of land and the GAIC payment. It would seem to me that for the word "contract" to be used in the ordinary sense rather than in the sense relating to land could create quite ridiculous results. For instance, it could create liability for a party to some form of oral understanding. It is unlikely in a statute, such as the present, that that would be the case. Given these circumstances, in my view, [counsel for the SRO] was quite correct in referring to the explanatory memorandum and the Minister's Second Reading Speech in relation to the statute in order to assist in interpretation. Those documents make it abundantly clear that the section refers to a "binding" contract. In order for a contract to be binding in Victoria, in relation to the sale of land, the provisions of s 126 of the Instruments Act and s 53 of the Property Law Act must be complied with. In this particular instance, those provisions were not complied with until 9 December 2008 when the contract was executed by the vendor. It necessarily follows that the exception in s 201RB(d)(iii) cannot apply in this situation because it was after the "relevant day".[9]

17 In my view there is legal error in the Tribunal's reasoning, both in the approach to the construction of s 201RB(d)(iii) and in the construction of that provision.

18 First, the starting point for the proper construction of s 201RB(d)(iii) must be the text itself, not the extrinsic materials.[10] It is undoubted that both the context and purpose of s 201RB(d)(iii) are important to its proper construction because the primary object of statutory construction is to construe the provision so that it is consistent with the language and purpose of the legislation viewed as a whole.[11] It is legitimate to have regard to the extrinsic materials to assist in elucidating the purpose of the legislation,[12] but resort to extrinsic materials must not displace the language of the text, nor is the examination of those materials "an end in itself".[13] The Tribunal's reliance upon the extrinsic materials to conclude that s 201RB(d)(iii) refers to a "binding" contract in the sense of a formal written contract was "to assume the answer to the question of construction",[14] not to engage in the process of construction.

19 Secondly, the reasoning of the Tribunal does not withstand scrutiny. The Tribunal said that to give the word contract its ordinary meaning "rather than the sense relating to land could create ridiculous results" because "it could create liability for a party to some form of oral understanding".[15] But the trigger for the liability to pay the GAIC is "the occurrence of a dutiable transaction relating to land in the contribution area",[16] not the formation of the contract. The phrase "dutiable transaction relating to land" is a defined expression for the purposes of s 201RB(d)(iii) and means, relevantly:

A dutiable transaction within the meaning of section 7(2) of the Duties Act 2000 relating to dutiable property referred to in sections 10(1)(a) and 10(1)(ab) of that Act.[17]

A "dutiable transaction" within the meaning of s 7(2) of the Duties Act 2000 (Vic) is also a defined term and means, relevantly "a transfer of dutiable property".[18] "Dutiable property", in turn, is defined in s 10(1) of the Duties Act 2000 (Vic) and includes, relevantly, an estate in fee-simple.[19] Section 201S(1) of the Act then puts beyond doubt that the liability to pay the GAIC arises because of that dutiable transaction, not by reason of the underlying contract. Section 201S(1) provides that a GAIC:

... is imposed in respect of the first GAIC event to occur in relation to any land in the contribution area...

The GAIC event in relation to the land is the dutiable transaction and it is the dutiable transaction that fixes liability for GAIC. Without the occurrence of a dutiable transaction relating to land, no GAIC is imposed. In the present case, the "dutiable transaction" was the transfer of the property to the taxpayer. It was the transfer of the property to the taxpayer, not the entry into a contract for the purchase of that property, which triggered the taxpayer's liability to the GAIC.

20 Thirdly, it is undoubted that parties can make an oral contract for the sale of land that is binding on them in the sense that they have a concluded agreement,[20] albeit that the contract is not enforceable because of non-compliance with s 126 of the Instruments Act 1958 (Vic) and s 53 of the Property Law Act 1958 (Vic).[21] Although the contract may be unenforceable for want of writing, there is still a contract and the contract is not void.[22] The Tribunal's reasoning wrongly elided the existence of a concluded contract with the enforceability of that contract.

21 Fourthly, there is no textual basis in s 201RB(d)(iii) for imposing the requirement that the contract must be enforceable at the time that it is entered into. Since the state of affairs upon which s 201RB(d)(iii) operates is a dutiable transaction pursuant to a contract, the premise of the section is that the contract has been given effect to by the occurrence of a dutiable transaction. The application of the section is not made to depend on enforceability of the contract, but upon when that contract was made. When the contract was made is important because the discernible legislative intention is that actions prior to the announcement of the levy on 2 December 2008 giving rise to a GAIC event in respect of land should not trigger a liability to the GAIC. This legislative intention is manifested in the terms of three of the four excluded events contained in

s 201RB(d) itself, which fix on actions prior to 2 December 2008:[23]

• if the GAIC event is the issue of a statement of compliance relating to a plan of subdivision of the land,[24] the GAIC event is an excluded event if a planning permit relating to the subdivision was granted before the relevant day and had not expired at the time of issue of the statement of compliance;[25]

• if the GAIC event is the making of an application for a building permit to carry out building work on the land,[26] the GAIC event is an excluded event if a planning permit relating to that building work was granted before the relevant day and had not expired at the time of the making of the application;[27] and

• relevantly in this case, if the GAIC event is a "dutiable transaction" relating to land,[28] a contract relating to that transaction was entered into before 2 December 2008.[29] The relevant inquiry is when the contract was made, which falls to be determined by common law principles.

22 In my opinion, the Tribunal erred in construing s 201RB(d)(iii) to apply only to written contracts for the sale of land entered into prior to 2 December 2008. I would allow an appeal on this question of law.

23 Before the Tribunal, the taxpayer had argued that that an oral contract for the sale of the land was concluded by 1 December 2008 when the vendors communicated their acceptance of the taxpayer's offer. The SRO argued that no binding contract was intended by the parties until the written contract was entered into. The Tribunal agreed with the SRO, finding that "at all times the parties [...] did not intend the contract to come into being until 9 December 2008"[30] and accordingly, that the date of the contract for the purposes of s 201RB(d)(iii) was 9 December 2008. This finding was based upon:

• a consideration of the terms of the written contract;

• the use by the parties of the standard form REIV contract;

• the fact of payment of the deposit on the date that the vendors counter-signed the contract; and

• the Tribunal's view that "the cases... make it clear that there needed... to be a signed contract and an exchange" [31].

24 The question of the intention of the parties was a question of fact for the Tribunal's determination but I accept the taxpayer's contention that the Tribunal erred in law in concluding that the parties did not intend to be bound until the formal contract was signed and that question 1 raises a pure question of law.

25 The issue for the Tribunal was whether the written contract constituted the contract between the parties or whether the oral communications of offer and acceptance constituted the contract. The inquiry engaged in by the Tribunal established that the parties intended to contract on the terms contained in the written contract but this did not resolve the matter. The Tribunal reached its conclusion that there was no binding contract until the formal contract was signed without considering whether the parties intended to be bound by those terms immediately upon reaching agreement on 1 December 2008. The contract did not have to be in writing to be binding nor, because a written contract was entered into, did it follow necessarily that the parties did not intend to enter into contractual relations until the formal contract was signed. As the High Court said in Masters v Cameron[32]:

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. [...]

Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own... The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summergreene v. Parker[33] or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed.[34]

The Tribunal misapprehended the scope of the inquiry that it should have made and because it did so, it failed to have regard to the whole of the evidence that would materially bear upon the determination of the matter.

26 That evidence included, relevantly, the circumstances leading to the offer and acceptance and a down payment of $10,000 on 2 December 2008. The vendors had the contract prepared in June 2008 in anticipation of the taxpayer then making an offer of $1.4m for the property. The taxpayer actually only offered $1.2m and crossed out the typewritten price of $1.4m and handwrote in $1.2m. The vendors rejected the offer but in late November 2009, the taxpayer offered the original asking price. The Tribunal's reasons record that the agent communicated that offer to the vendors who accepted the offer:

1. [...] On 1 December 2008, [the agent] spoke to Mr Mondous [a director of the taxpayer] and informed him that the offer that Mr Mondous had made to purchase the land had been accepted. Arrangements were then made between [the agent] and Mr Mondous for the contract to be signed by the [taxpayer] the following day on 2 December 2008.
2. [The agent] then altered the contract that had been prepared in June 2008 (which apparently accompanied the previous offer) in preparation for the purchaser's signature. The relevant parts that were amended are as follows:

DEPOSIT: $140,000.00 on the signing hereof of which $10,000 has been paid and the balance of the deposit is payable upon vendor signing of contract

PAYMENT OF BALANCE: On the expiration of 6 6 months from the date

DATE OF SALE: is the earlier of the date of this contract or the

acceptance date of any prior contract note; namely 11/06/2008 2/12/08

1. [...] At the time that Mr Mondous signed the contract, he gave [the agent] a cheque for $10,000. It is noted that the contract requires a deposit of $140,000.
2. In a letter written by [the agent] to Mr Mondous of 23 August 2010, [the agent] categorised the cheque given to him by Mr Mondous for $10,000 as follows:

The purpose of this (cheque for $10,000) was to show the Vendor that the purchaser was serious about securing the property for

$1.4 million.[35]

But on a fair reading of the Tribunal's reasons, the Tribunal's conclusion did not take into account the full factual matrix of this evidence. As the High Court said in Ermogenous v Greek Orthodox Community of SA Inc[36], the determination of the parties' intention to create contractual relations requires an objective assessment of the state of affairs between the parties and what would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened.[37]

27 I would therefore allow an appeal on Question 1 and remit the matter back to the Tribunal for its reconsideration.

28 I should, for the sake of completeness, also deal with the third basis on which the Tribunal affirmed the taxpayer's liability to the SRO. The Tribunal reasoned that even if an oral contract was made on 1 December 2008, the subsequent written contract had the effect of discharging at law the earlier oral contract so that at the time of application of the provisions of Part 9B of the Act, there was only the written contract and the excluded GAIC event in s 201RB(d)(iii) had no application. This is also legally incorrect because s 201RB(d)(iii) looks to the state of affairs prior to 2 December 2008. The question for determination under s 201RB(d)(iii) is whether a contract relating to the dutiable transaction was entered into prior to 2 December 2008 and the finding that an oral contract was concluded prior to 2 December 2008 would be sufficient to trigger the excluded GAIC event in s 201RB(d)(iii). The merger or integration of the earlier oral contract into the formal contract (if there was an oral contract) would not negate the existence of that earlier concluded oral agreement.

29 The overriding consideration in the taxpayer's application for an extension of time in which to file its application for leave to appeal is the interests of justice.[38] Factors that bear upon determining where the interests of justice lie are the length of delay, the reasons for delay, whether there is an arguable case and the extent of any prejudice to the respondent.[39] I am satisfied that the interests of justice favour the grant of an extension of time.

30 I have already dealt with the merits, which are in the taxpayer's favour. In my opinion, the length of delay was not inordinate, being just under three months. Furthermore, a proper explanation for the delay was given, which can be accepted. The explanation was that the taxpayer initially obtained legal advice that there were no grounds to appeal on which it acted by not pursuing its appeal rights. It later sought a second opinion on which it also acted by seeking an extension of time in which to appeal. The SRO was critical of the taxpayer not seeking a second opinion at a earlier time, referring to the fact that the second opinion was only sought after the SRO had moved to wind up the taxpayer based on the taxpayer's failure to comply with a statutory demand for the unpaid GAIC. The SRO argued that the Court should infer that the application was made to avoid or delay the winding up proceedings and was thus brought for an ulterior purpose. I reject that submission. First and foremost, I reject the notion that the taxpayer could be said to be abusing the Court's processes by making application for an extension of time for leave to appeal given that the very purpose of the application is to bring about a result for which the law provides: that is, the right to appeal the Tribunal's decision.[40] Secondly, the application was made in a timely fashion after obtaining legal advice that there were grounds for appeal and there is simply no foundation for an inference of ulterior purpose because the taxpayer did not seek a second opinion until after the SRO had moved to wind it up. Finally, it was submitted for the SRO that the interests of justice favour dismissing the application for an extension of time because the SRO has incurred costs in making the statutory demand and commencing winding up proceedings and the GAIC debt has not been paid. That submission is also wholly rejected. The prejudice to the taxpayer if shut out from pursuing a meritorious appeal against its liability to pay the GAIC outweighs any prejudice to the SRO by delay or cost occasioned in pursuing recovery of the contested GAIC debt.

31 I will grant the taxpayer an extension of time in which to make application for leave to appeal.

32 I will also grant the taxpayer leave to appeal as the two questions raised are pure questions of law that are meritorious.[41] The appeal should also be allowed for the reasons given and the matter remitted to the Tribunal for determination in accordance with the law.

[1] Update Pty Ltd v Commissioner of State Revenue (Taxation) [2012] VCAT 1166, [53].

[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1).

[6] Planning and Environment Amendment (Growth Areas Infrastructure Contribution) Bill 2009 (Vic).

[7] Explanatory Memorandum, Planning and Environment Amendment (Growth Areas Infrastructure Contribution) Bill 2009 (Vic) 7.

[8] Victoria, Parliamentary Debates, Legislative Assembly, 11 November 2009, 3932-3 (Tim Pallas, Minister for Roads and Ports).

[9] Update Pty Ltd v Commissioner of State Revenue (Taxation) [2012] VCAT 1166 [53].

[10] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ), most recently cited with approval by the High Court in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 293 ALR 412, 417-8 (French CJ and Hayne J) and Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257, 268 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[11] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ), cited with approval in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 293 ALR 412, 418 [24] (French CJ and Hayne J), 436 [88]

[12] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 592 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 293 ALR 493, 511 [70] (Crennan and Kiefel JJ).

[13] Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257, 269 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[14] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 293 ALR 412, 423 [40] (French CJ and Hayne J).

[15] Update Pty Ltd v Commissioner of State Revenue (Taxation) [2012] VCAT 1166 [53].

[16] Planning and Environment Act 1987 (Vic), s 201RA(c).

[17] Ibid s 201R.

[18] Duties Act 2000 (Vic), s 7(1)(a) and (2).

[20] Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, 330 (Mahoney JA); McDonald v Commissioner of Taxation [2001] FCA 305; (2001) 109 FCR 207, 213 [20] (Stone J); Futuretronics International Pty Ltd v Gadzhis [1992] VicRp 63; [1992] 2 VR 217, 229 (Ormiston J); Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528, 532 (Stephen, Mason and Murphy JJ); Chen v Tullamarine Estate Pty Ltd (unreported, Supreme Court of Victoria, Tadgell J, 26 June 1989).

[21] Neismann v Colligridge [1921] HCA 19; (1921) 29 CLR 177; Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629; Popiw v Popiw [1959] VicRp 32; [1959] VR 197, 200 (Hudson J); McDonald v Commissioner of Taxation (1998) 80 FCR 248, upheld on appeal: McDonald v Commissioner of Taxation [2001] FCA 305; (2001) 109 FCR 207.

[22] McMahon v National Foods (2009) 25 VR 251, 286 [89] (Nettle JA).

[23] The remaining excluded event in s 201RB(d)(iv) of the Act fixes on actions before the commencement of Part 9B.

[24] Planning and Environment Act 1987 (Vic), s 201RA(a).

[25] Ibid s 201RB(d)(i).

[26] Ibid s 201RA(b).

[27] Ibid s 201RB(d)(ii).

[28] Ibid s 201RA(c).

[29] Ibid s 201RB(d)(iii).

[30] Update Pty Ltd v Commissioner of State Revenue (Taxation) [2012] VCAT 1166, [69].

[32] [1954] HCA 72; (1954) 91 CLR 353.

[33] [1950] HCA 13; (1950) 80 CLR 304.

[34] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 360-1 (Dixon CJ, McTiernan and Kitto JJ).

[36] (2002) 209 CLR 95.

[37] Ibid 105 [25] (Gaudron, McHugh, Hayne and Callinan JJ).

[38] Technical Team Projects v Noble Dunn Pty Ltd (1990) 20 NSWLR 221, 229 (Cole J).

[39] Klement v Randles [2012] VSCA 73, [14] (Cavanough AJA).

[40] Williams v Spautz [1992] HCA 34; (1991) 174 CLR 509, 526-7 (Mason CJ, Dawson, Toohey and McHugh JJ).

[41] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-6 (Phillips JA).