Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2019] VSCA 69

TAXATION - Land Tax - Definition of 'greater Melbourne' in s 64 Land Tax Act 2005 - Definition of 'metropolitan area' in s 201 Melbourne Metropolitan Board of Works Act 1958 as in force immediately before repeal - Cities and Shires described in Third Schedule of Melbourne Metropolitan Board of Works Act 1958 having ceased to exist.

STATUTORY INTERPRETATION - Principles - Context - Ascertaining legislative intention - Relevance of legislative history - Circumstances in which courts can read words into statute - Construction of taxation legislation - Interpretation of exemptions in tax legislation.

1 The applicant owns land located at 2-180 Davis Road, Diggers Rest ('Land') and has done so for a number of years. The Commissioner of State Revenue assessed the applicant for land tax in respect of the Land for each of the 2009 to 2013 years.

2 The applicant lodged objections against the assessments, including the assessment for the 2013 year. The Commissioner disallowed the objections. The applicant sought review of the Commissioner's decisions to disallow the objections in the Victorian Civil and Administrative Tribunal ('Tribunal').

3 In the Tribunal, the applicant contended that, in each of the five tax years, the Land was used primarily for primary production and was exempt under ss 65, 66 or 67 of the Land Tax Act 2005 ('Act'). The Tribunal decided that the Land was exempt under s 66 of the Act in the 2011 tax year, but otherwise confirmed the assessments for the 2009, 2010, 2012 and 2013 tax years.

4 The land tax assessed on the Land for the 2013 year is the subject of the present application for leave to appeal.

5 Under s 65 of the Act, land is exempt from land tax if it is 'outside greater Melbourne' and is 'used primarily for primary production'. In the Tribunal, the applicant's primary contention was that the Land was exempt from land tax under s 65 of the Act because the Land was located 'outside greater Melbourne' and was 'used primarily for primary production'.

6 At the time relevant to the assessment of land tax for the 2013 tax year, 'greater Melbourne' was defined in s 64 of the Act to mean:

(a) 'metropolitan area' within the meaning of s 201 of the Melbourne and Metropolitan Board of Works Act 1958 (as in force immediately before its repeal); or

(b) any area declared by the Governor-in-Council under subsection (3) to be the metropolitan area.

7 Section 201 of the Melbourne and Metropolitan Board of Works Act 1958 ('MMBW Act'), as in force immediately before its repeal on 1 July 2007, defined 'metropolitan area', relevantly, to mean 'the area described in the Third Schedule'.

8 The Third Schedule to the MMBW Act relevantly provided as follows:

The metropolitan area consists of the following areas:

(a) the municipal districts of the Cities of ... and of the Shires of ... Melton ... and Whittlesea.

9 On 15 December 1994, the Shire of Melton was abolished and 'ceased to exist'[1] and there was constituted a 'body corporate constituted as a Shire Council by the name of the Melton Shire Council'.[2]

10 The applicant led expert evidence in the Tribunal that 'at 30 June 2007 the [Land was] in the municipal district of Melton Shire Council', and that 'the Shire of Melton did not exist as at 30 June 2007'. It contended that, as a result, the Land did not fall within any of the areas identified as the 'metropolitan area' in the Third Schedule and was therefore outside 'greater Melbourne' for the purposes of s 65 of the Act.

11 However, insofar as the applicant sought to rely on the exemption in s 65 of the Act on the basis that the Land was 'outside greater Melbourne', the Tribunal held that it was bound by the authority of this Court in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd,[3] wherein the Court held, in substance, that references in the Third Schedule to defunct Cities and Shires were references to the land areas covered by those Cities and Shires on the day before they ceased to exist. The Land was in the land area that comprised the Shire of Melton on the day before it ceased to exist. As a result, the Tribunal held that the Land was not 'outside greater Melbourne' and was therefore not exempt from land tax under s 65 of the Act.[4]

12 The applicant sought leave to appeal the Tribunal's orders to the Supreme Court under s 148 of the Victorian Civil and Administrative Appeals Tribunal Act 1998 ('VCAT Act'). The principal question of law and associated ground of appeal was whether the Tribunal erred by deciding that the exemption in s 65 of the Act did not apply in respect of the 2013 tax year because the Land was not 'outside greater Melbourne'. The Court below refused the application for leave to appeal on the basis that Burgess 'definitively establishes the legal position and must be followed unless and until the Court of Appeal says otherwise'.[5]

13 The judge below rejected the applicant's submission that the appropriate orders were to grant leave to appeal and dismiss the appeal. The judge stated that the applicant could 'agitate the correctness' of the decision in Burgess in the course of any application for leave to appeal to this Court from his decision to refuse leave to appeal under s 148 of the VCAT Act.[6]

14 The applicant now seeks leave to appeal from the refusal of leave to appeal below on the ground that Burgess was wrongly decided, 'greater Melbourne' did not include the land in the defunct Cities and Shires listed in the Third Schedule, the Land was therefore 'outside greater Melbourne' and the Tribunal should have so found, and that leave to appeal the Tribunal's decision should not have been refused based on the authority in Burgess.

15 The applicant has raised two grounds of appeal, both described in the Application for Leave to Appeal dated 11 May 2018 as 'Ground 1 [and only ground]'. The grounds appear under paragraph (a) and paragraph (b) respectively.

16 Paragraph (a) concerns the trial judge's exercise of his discretion to refuse leave to appeal and whether the exercise of that discretion miscarried. Paragraph (b) raises the correctness of Burgess.

17 In oral submissions, the applicant pursued only paragraph (b), submitting that if the ground in paragraph (b) was made out, the proceeding should be remitted directly to the Tribunal to determine whether the Land falls within the exemption in s 65 of the Act having regard to the correct meaning of 'greater Melbourne' in the Act.

18 The applicant contends that Burgess was wrongly decided and that 'greater Melbourne' did not include the Cities and Shires that had ceased to exist by 1 July 2007 when the MMBW Act was repealed. It was submitted that upon reconsidering the meaning of 'greater Melbourne' in the Act, this Court should find that the Land was not located in 'greater Melbourne', as defined, and that the exemption in s 65 was available for the Land providing that, on a remitter to the Tribunal, the applicant could show that the Land was 'used primarily for primary production'.

19 The Commissioner filed a Notice of Contention submitting that the Tribunal made findings of fact about the use of the Land that are fatal to any contention that the Land was used primarily for primary production in the 2013 tax year. Accordingly, even if the Land was 'outside greater Melbourne', the requirements of s 65 could not be satisfied and the exemption did not apply.

20 For the reasons that follow, we will grant leave to appeal on Ground 1(b) but dismiss the appeal. Had it been necessary to do so, we would have upheld the submission in the Notice of Contention, rendering futile any remitter to the Tribunal even if the Land was 'outside greater Melbourne'.

21 The Act was enacted in 2005 and come into operation on 1 January 2006, replacing the Land Tax Act 1958. At the time of its enactment and coming into operation, the Third Schedule of the MMBW Act defined the metropolitan area by reference to Cities and Shires that had, in most cases, long since ceased to exist. The MMBW Act was in force, but it was repealed on 1 July 2007. Following the repeal of the MMBW Act, the definition of 'greater Melbourne' in s 64 of the Act was amended to add after the words 'within the meaning of section 201 of the Melbourne and Metropolitan Board of Works Act 1958', the words that appear in parentheses, 'as in force immediately before its repeal'.[7]

22 Part 4 of the Act contains exemptions and concessions. Division 2 of Part 4 provides for exemptions from land tax for certain primary production land and includes ss 64 to 67.

1. Exemption of primary production land outside greater Melbourne

(1) Land outside greater Melbourne that is used for primary production is exempt land.

(2) If a part of any land outside greater Melbourne is used primarily for primary production that part is exempt land even if a business other than the business of primary production is carried on on any other part of the land.

24 Section 64 contains the definition of 'greater Melbourne':

greater Melbourne means -

(a) metropolitan area within the meaning of section 201 of the Metropolitan and Metropolitan Board of Works Act 1958 (as in force immediately before its repeal); or

(b) any area declared by the Governor in Council under sub-section (3) to be the metropolitan area;

25 For the purposes of Part 4 of the Act, 'greater Melbourne' means the metropolitan area as it was defined in the MMBW Act, which, for the purposes of Part 4, is frozen in time. The definition of 'metropolitan area' remains the definition that was contained in s 201 and the Third Schedule of the MMBW Act on 30 June 2007.

26 Section 201 of the MMBW Act (as in force immediately before its repeal) defined 'metropolitan area' as follows:

(1) In this Part "metropolitan area" means the area described in the Third Schedule and any other area which the Governor in Council declares pursuant to this section to be added to the metropolitan area but does not include any area which the Governor in Council declares pursuant to this section to be excised from the metropolitan area.

(2) The Governor in Council may from time to time by Order published in the Government Gazette ―

(a) declare any area of land to be added to the metropolitan area for the purposes of this Part; or

(b) excise from the metropolitan area any area of land included in the metropolitan area for the time being.

27 There was no relevant declaration by the Governor in Council. Accordingly, 'metropolitan area' and, in turn, 'greater Melbourne', is the area described in the Third Schedule as it appeared in the MMBW Act on the day before its repeal on 1 July 2007.

28 On 30 June 2007, the day before the repeal of the MMBW Act, the Third Schedule took the following form:

THIRD SCHEDULE

The Metropolitan Area comprises of the following areas:

(a) The municipal districts of the Cities of Altona, Berwick, Box Hill, Brighton, Broadmeadows, Brunswick, Camberwell, Caulfield, Chelsea, Coburg, Collingwood, Croydon, Dandenong, Doncaster and Templestowe, Essendon, Fitzroy, Footscray, Frankston, Hawthorn, Heidelberg, Keilor, Kew, Knox, Malvern, Melbourne, Moorabbin, Mordialloc, Northcote, Nunawading, Oakleigh, Port Melbourne, Prahran, Preston, Richmond, Ringwood, Sandringham, South Melbourne, Springvale, St Kilda, Sunshine, Waverley, and Williamstown, and of the Shires of Bulla, Diamond Valley, Eltham, Melton, Werribee and Whittlesea.

(b) The following portion of the Shire of Cranbourne:

That portion commencing at a point on the municipal boundary at the north-eastern angle of Allotment 71C, Parish of Cranbourne; thence southerly by a road on the eastern boundary of that allotment to Bullarto-road; thence westerly by that road to the north-eastern angle of the Parish of Langwarrin; thence southerly by a road on the eastern boundary of that parish to the south-eastern angle of allotment 11; thence westerly by a road to the north-western angle of allotment 58; thence southerly by a road to the south-eastern angle of allotment 62; thence westerly to a road to the north-western angle of allotment 81; thence southerly by a road to the southern boundary of the said parish being a point on the municipal boundary; and thence generally westerly, generally northerly and generally south-easterly by that boundary to the point of commencement.

(c) The following portion of the Shire of Pakenham:

That portion west of a line commencing at a point on the municipal boundary being the north-eastern corner of Crown Allotment 21, Section F, Parish of Gembrook, County of Evelyn; thence southerly by the eastern boundary of that allotment and the western boundary of Crown Allotment 73 to the northern boundary of the County of Mornington; thence generally southerly by that boundary and the eastern boundary of Crown Allotment 97 to the north-eastern angle of Crown Allotment 97A; thence westerly by the southern boundary of that allotment to Bourkes Creek; thence southerly by that creek to the northern boundary of Crown Allotment 67, Section C; thence southerly and westerly by that allotment and the southern boundary of Crown Allotment 68, Section C, to the north-west corner of Crown Allotment 65, Section C; thence generally southerly and easterly by that allotment to Toomuc Creek; thence generally southerly by that creek to the southern boundary of the municipality.

(d) All the lands which are vested in, or purchased or acquired by, or under the management of, the Melbourne Port Corporation under the Port Services Act 1995.

(e) the docklands area within the meaning of the Docklands Act 1991.

29 It is the applicant's contention that most of paragraph (a), and all of paragraphs (b) and (c) of the Third Schedule have no application, as the relevant Cities and Shires had ceased to exist by 1 July 2007. According to the applicant, 'greater Melbourne' means, in substance, the City of Melbourne, the Port of Melbourne and the docklands area.

30 Sections 66 and 67 of the Act also rely on the definition of 'greater Melbourne'. They exempt from land tax land located within greater Melbourne, but outside of and inside an urban zone respectively. They provide, relevantly, as follows:

1. Exemption of primary production land in greater Melbourne but not in an urban zone

Land is exempt land if the Commissioner determines that the land comprises one parcel―

(a) that is wholly or partly in greater Melbourne; and

(b) none of which is within an urban zone; and

(c) that is used primarily for primary production.

1. Exemption of primary production land in an urban zone in greater Melbourne

(1) Land is exempt if the Commissioner determines that―

(a) the land comprises one parcel that is―

(i) wholly or partly in greater Melbourne; and

(ii) wholly or partly in an urban zone; and

(iii) used solely or primarily for the business of primary production; and

(b) the owner of the land is a person specified in subsection (2).

(2) The owner of the land must be―

(a) the natural person who is normally engaged in a substantially full time capacity in the business of primary production of the type carried on on the land; or

(b) a proprietary company (not acting in the capacity of a trustee of a trust)―

(i) in which all the shares are beneficially owned by a natural person; and

(ii) the principal business of which is primary production of the type carried on on the land; or

...

(3) For the purposes of subsection (2)(b)(ii), the principal business of a proprietary company is not primary production of the type carried on on the land unless―

(a) the main undertaking of the company is primary production of that type; and

(b) either-

(i) dividends distributed during the relevant period were made to all the holders of the issued share capital of the company in proportion to their respective paid up shareholdings and 60% of those dividends were paid to persons normally engaged in a substantially full-time capacity in the business of primary production; or

(ii) if no dividends were declared during the relevant period, ordinary shares representing more than 60% of the paid up capital of the company (excluding shares entitled to a fixed rate of dividend) have been beneficially owned for the relevant period by persons normally engaged in a substantially full-time capacity in the business of primary production.

...

31 It can be seen that, by defining the land areas that are exempt from land tax by means of the incorporation of a Schedule that, for the most part, lists areas of Shires and Cities that had ceased to exist well before its enactment, the Act generates difficult questions of construction affecting the operation of ss 65, 66 and 67.

32 Burgess also involved a dispute between a landowner and the Commissioner arising from a notice of assessment for land tax for the 2013 year. It concerned parcels of land making up a farming property known as 'Lockerbie' that was situated partly within the boundaries of the Shire of Whittlesea, as they existed on the day before the Shire ceased to exist on 15 April 1988, and partly within the boundaries of the Shire of Kilmore until 18 January 1995 and its successor after that date, the Mitchell Shire Council.[8]

33 As in the present case, the issue in contention was whether any part of the Lockerbie land was outside 'greater Melbourne' and therefore exempt from land tax.[9] The taxpayer contended that, because the City of Whittlesea had been abolished on 15 December 1994,[10] the land that was previously within its boundaries did not fall within the Third Schedule as of 31 December 2012 and, accordingly, was not within 'greater Melbourne'. The Commissioner contended that the land fell within the boundaries of the Shire of Whittlesea prior to its cessation and, by virtue of this historical fact, was an area designated by para (a) of the Third Schedule and, accordingly, formed part of 'greater Melbourne'. The trial judge held that the abolition of the Cities and Shires listed in paras (a), (b) and (c) of the Third Schedule ― other than the City of Melbourne ― prior to 31 December 2012 meant that there was no statutory criterion by which the definition of 'greater Melbourne' could extend beyond the City of Melbourne.[11] The Lockerbie land was therefore outside of greater Melbourne and exempt from land tax under s 65 of the Act.

34 This decision was overturned on appeal on the basis that the Lockerbie land was in the Shire of Whittlesea on the day before it ceased to exist on 14 April 1988. Changes to the status of the area that was within the Shire of Whittlesea after that date were irrelevant to the definition of 'metropolitan area', and therefore 'greater Melbourne'.[12]

35 In reaching this conclusion, the Court of Appeal ('the Burgess Court') canvassed, extensively, the relevant principles of statutory interpretation, commencing with the purposive approach articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[13] and tracing the arc of High Court authority to more recent statements emphasising the primacy of the words used in the statute.[14] The Burgess Court identified the following principles of statutory interpretation as relevant to the case in hand:

(a) Context may include time, place and any other circumstances that could rationally assist understanding of meaning[15] and may encompass the facts and circumstances which were within the knowledge or contemplation of the legislature.[16] Hence, regard may be had to the matrix of facts in which the statute was enacted.[17]

(b) A statutory definition cannot be construed in isolation; the words of the definition must be read into the words of the substantive provision to which it applies and the provision must then be construed having regard to its purpose and the mischief it was designed to overcome.[18]

(c) Insofar as legislative intention is to be ascertained, what is involved is an inquiry into the intention manifested by the legislation.[19] Understanding context has utility if, and only insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text and nor is there examination an end in itself.[20]

(d) A court construing the statutory provision must strive to give meaning to every word of the provision.[21]

36 The Burgess Court had regard to authority as to when, in construing a statutory provision, a court is justified in reading the provision as though it contained additional words or omitted words and to the related question of the extent to which a court may adopt a particular construction so as to avoid an absurd, unreasonable or anomalous consequence.[22] The Burgess Court considered whether a court is justified in regarding a statutory provision as meaningless because of uncertainty arising as to its proper construction.[23]

37 The Burgess Court also considered whether a statutory provision may be construed as operating on historical facts, observing that in some cases, a statutory provision may expressly confine itself to a particular date[24] and that when a statute is construed as a whole and in context, it may also appear that a reference to particular entities should be confined to those entities existing at a particular time.[25]

38 Having outlined relevant principles of statutory construction and reviewed relevant authorities, the Burgess Court began the task of construing the definition of 'greater Melbourne' by focusing on the language of ss 64(1) and 65(1) of the Act. It observed that the definition of 'greater Melbourne' in s 64(1) provided two avenues by which the boundaries of 'greater Melbourne' could be ascertained, the first being the definition of 'metropolitan area' in s 201 of the MMBW Act (as in force immediately prior to its repeal); the second being an Order in Council. The first avenue was a 'fixed time' mechanism which relied on boundaries existing at a specific point in time, while the second avenue was an ambulatory mechanism which could be used to alter the boundaries from time to time. As no Order in Council had been made, the definition of 'metropolitan area' was to be determined by reference to the Third Schedule.

39 As discussed, the Third Schedule, at the time of its incorporation in the definition of 'greater Melbourne' in the Act, listed in paras (a), (b) and (c) Cities and Shires that no longer existed as municipalities, the vast majority of which had not had that status since December 1994. In relation to this, the Burgess Court said:

It is inconceivable that Parliament would not have been aware of this fact at all relevant times since 1994. Accordingly, it is safe to assume that, when Parliament enacted the Act in 2005, it was aware that the definition of 'greater Melbourne' depended principally on areas which were described in paras (a), (b) and (c) by reference to Cities and Shires, all but one of which had long since been abolished.[26]

40 Having undertaken the exercise of inserting the relevant words from the Third Schedule into s 65 and noted the centrality of the references to the physical areas of land and to the legal entities associated with the municipal districts listed in the Third Schedule, the Burgess Court concluded that both the physical areas of land and the legal entities referred to in paras (a), (b) and (c) were capable of supplying a criterion for ascertaining what constituted the metropolitan area.[27] Two constructions of paras (a), (b) and (c) were therefore available, one focusing on the legal entities listed in those paragraphs, the second on the physical areas.[28] Furthermore, the wording and purpose of ss 64 and 65 and the provisions of the MMBW Act upon which the definition of 'greater Melbourne' relied, when read in context, supported the construction that paras (a), (b) and (c) applied to the areas covered by the legal entities of the named municipalities insofar as they existed as at 30 June 2007 and, insofar as an entity had ceased to exist prior to 1 July 2007, as at the day before it ceased to exist as a legal entity. Such a construction was consistent with a key principle of statutory interpretation, namely, the imperative to give meaning and effect to every word of the statute.[29] It was also consistent with the 'fixed time' nature of the definition of 'greater Melbourne'. The point in time to be applied to enable the areas in the Third Schedule to be ascertained was identified by reference to the words 'as in force immediately before its repeal' that were inserted in s 64 of the Act on 1 July 2007, that is, the day before the repeal of the MMBW Act, 30 June 2007.[30]

41 Two competing constructions of the term 'greater Melbourne' being available, the Burgess Court considered that s 35(a) of the Interpretation of Legislation Act 1984 required it to prefer a construction that would promote the purpose or object of s 65(1) of the Act over a construction which would not do so.[31] The purpose or object was to confer an exemption from land tax for land outside the main urban areas of Melbourne that was used primarily for primary production.[32] A geographical limitation to the exemption had been introduced in 1973 and there had been no change in the language of the Act and its predecessors or to any provisions of other legislation upon which the exemption relied indicating an intention to dramatically broaden the geographical reach of the exemption.[33] Moreover, Parliament, knowing when it enacted the Act in 2005 that the majority of the entities in paras (a), (b) and (c) had ceased to exist, could only have been assigning a meaning to 'greater Melbourne' by reference to the Third Schedule on the basis that the areas within the boundaries of the Cities and Shires specified had continuing relevance to the definition of 'metropolitan area', and, in turn, to the definition of 'greater Melbourne'.[34]

42 The Burgess Court stressed that its preferred construction did not involve the insertion into the Act or the MMBW Act of words that were not there and it did not involve a failure to give meaning or effect to words that were there.[35] The construction was based on an interpretation of the language that Parliament used to express its legislative intention about the geographical limitation of the exemption in s 65(1) of the Act.[36]

43 The Burgess Court rejected the submission that the preferred construction was not open because it was too uncertain. The criterion or formula upon which the construction relies ― the area of land falling within a municipal district as at 30 June 2007 or, if the legal entity for a district ceased to exist prior to 1 July 2007, the day before it ceased to exist ― was capable of producing a precise delineation of land.[37]

44 The applicant makes a general criticism of the process of construction undertaken in Burgess and a more specific one, alleging failure to refer to two important lines of authority concerning the construction of taxation legislation.

45 Generally, the applicant submits that the Burgess Court impermissibly settled on a construction of the definition of 'greater Melbourne' based on an assumption about the intention of Parliament that was not grounded in the statutory text and did not give effect to the text of the definition in s 64 as amended, which required the identification of the land described in the Third Schedule by reference to 30 June 2007. Instead, the Burgess Court interpreted the 2007 definition as if it required the identification of the land as at multiple other, earlier dates by reference to an extra-statutory assumption about the intention of the legislature. In so doing, the Burgess Court 'read out' of the definition the words 'immediately before its repeal' and 'read in' additional words, with the result that land that would otherwise have been exempt from land tax on the ordinary meaning of the words in the Third Schedule, became taxable.

46 The applicant relies on authorities that warn against the 'moulding' of the language of a statute so as to produce the result which it might be thought the Parliament may have intended to achieve, though not expressed in the actual language employed,[38] the 'modification' of the meaning of the statute inconsistently with the language used by the legislature,[39] and the expansion of the meaning of the statutory text to remedy gaps disclosed in it or to repair it.[40] If the language of the statute is clear, consistent and harmonious with other provisions, and can be intelligibly applied, it must be given its ordinary grammatical meaning.[41] Mere inconvenience is not a ground for departure from that meaning.[42]

47 The applicant further submits that the Burgess Court failed to refer to important lines of authority establishing that:

(a) a tax must be imposed by plain words; and

(b) exemption provisions in tax legislation which are designed to encourage activities should be given a liberal, not a narrow, construction.

48 The applicant submits that the principle that a tax must be imposed by plain words was clearly stated by the High Court in Anderson v Commissioner of Taxes (Vict).[43] It was subsequently applied in a number of cases, notably, by Deane J in Hepples v Federal Commissioner of Taxation (Cth)[44] and more recently by the Full Federal Court in Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation.[45]

49 The passage in Anderson relied upon by the applicant for the principle that a tax must be imposed by plain words is to be found in the joint judgment of Rich and Dixon JJ, where their Honours summarised the suite of English authority establishing the principle:

In Brunton v. Commissioner of Stamp Duties, Lord Parker of Waddington, speaking for the Privy Council, says: "The intention to impose a tax or duty, or to increase a tax or duty already imposed, must be shown by clear and unambiguous language and cannot be inferred from ambiguous words." This rule he again emphasised in Attorney-General v. Milne, where he said, in the House of Lords: "The Finance Act is a taxing statute, and if the Crown claims a duty thereunder it must show that such a duty is imposed by clear and unambiguous words." In Ormond Investment Co. v. Betts, Lord Buckmaster, although differing from the majority of their Lordships and holding that in the particular case the Crown had satisfied the burden lying upon it, described the rule as a "cardinal principle ... a principle well known to the common law that has not been and ought not to be weakened ― namely, that the imposition of a tax must be in plain terms." He added: "The subject ought not to be involved in these liabilities by an elaborate process of hair-splitting arguments." Lord Atkinson, who agreed in the decision of the House, expressed the rule as follows: "It is well established that one is bound, in construing Revenue Acts, to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by an Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of the statute must be adhered to, and that so-called equitable constructions of them are not permissible."[46]

...where the substance of relevant transactions is not concealed by artificialities of form, the basic "principles of statutory construction" of taxing provisions remain those identified and explained by Rich and Dixon JJ in their joint judgment in Anderson v Commissioner of Taxes (Vict).[47]

51 According to Deane J, Anderson contains a general statement of the 'principles of construction applicable to an Act which imposes a tax or duty'. These principles are supported by strong reasons in both law and common sense: statutes imposing taxation derogate from the ordinary rights of the citizen in that they represent a compulsory extraction of money and the framing of the provisions for such legislation is essentially within the control of government.[48] His Honour continued:

In circumstances where the heavy burden of legal costs is likely to constitute an insurmountable obstacle to the challenge by the average taxpayer of an assessment in the courts and where successive administrations have allowed the Act to become a legislative jungle in which even the non-specialist lawyer and accountant are likely to lose their way in the search to identify the provisions relevant to a particular case, the least that such a taxpayer is entitled to demand of government is that, once the relevant provisions are finally identified, a legislative intent to impose a tax upon him or her in respect of a commonplace transaction will be expressed in clear words.[49]

52 In addition, the applicant points out, in Western Australian Trustee Executor and Agency Company Ltd v Commissioner of State Taxation (WA),[50] Gibbs J stated that 'no tax can be imposed on a subject by an Act of Parliament without words which clearly show an intention to lay the burden upon him',[51] and in Westraders, Barwick J stated that it was for the Parliament to specify, as far as language will permit, 'with unambiguous clarity', the circumstances which will attract an obligation on the part of the citizen to pay tax.[52]

53 The applicant also relies on what it says was the non-acceptance by the High Court of the Commissioner's submission in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[53] that Anderson could not stand with the purposive approach to statutory interpretation which had emerged. According to the applicant, in so doing, the High Court recognised that Anderson remains good law.

54 More recently, in Virgin Blue,[54] Edmonds and Gilmore JJ, referring to Anderson, Hepples and Western Australian Trustee Executor, stated:

[T]he ambit of the application of the tax should extend no further than that which can be taken from the clear words of the statute.[55]

55 In oral submissions, senior counsel for the applicant submitted that the effect of these authorities is not only that any liability to taxation must be clear on the face of the legislation at the time the liability arises but, where there is uncertainty, the construction adopted must favour the taxpayer. In this case, so it was contended, the legislation can be given effect in a way that favours the taxpayer by applying it only to the Cities and Shires existing on 30 June 2007 - in fact, only the City of Melbourne - and to the areas in paras (d) and (e).

56 The applicant further submits that it is a separate and long established principle of statutory construction that exemptions in tax legislation that are introduced to encourage certain forms of activity should be given a liberal interpretation. A number of authorities were cited for this proposition, in particular Totaliser Agency Board v Federal Commission of Taxation,[56] where Hill J described as an 'unexceptionable proposition' that where Parliament has enacted legislation to encourage a particular activity, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose.[57]

57 According to the applicant, the Burgess Court made no reference to this 'rule' of statutory construction and must therefore be taken to have failed to apply it. Instead, it spoke of s 65 as being addressed to a mischief that was never identified.

58 These matters, so the applicant contends, establish that the construction of the term 'greater Melbourne' in Burgess is plainly wrong.

59 The applicant faces a high barrier to persuade this Court to depart from the authority of Burgess and adopt a construction of the definition of 'greater Melbourne' that excludes most of the areas identified in the Third Schedule. This Court will only reconsider one of its previous decisions if it is plainly wrong.[58] This has been said to go 'well beyond merely considering an earlier judgment to have been erroneously decided'.[59] In considering whether to reopen a previous decision, an appellate court must proceed cautiously because the occasions for departure from a previous decision are infrequent and exceptional.[60]

60 In our view, the Burgess Court did not fail to apply the relevant principles of statutory construction. After a detailed survey of the applicable principles, the Court adopted an orthodox approach to construction based on ascertaining legislative intention from the words used in the definition, having regard to statutory context and purpose. We reject the submission that the Burgess Court embarked on a process of construction that was not grounded in the statutory text and that it settled instead on a construction based on an assumption about the intention of Parliament. The Burgess Court paid careful attention to the text of the relevant provisions and considered carefully how, textually, the provisions could work together. Having identified from the text two possible constructions, the Burgess Court favoured the construction that gave meaning to all of the words in the Third Schedule and advanced the purpose of the exemption. This construction also reflected the fact that Parliament had to be taken to have known, when it enacted s 64 of the Act to incorporate in the definition of 'greater Melbourne' the words in the Third Schedule, that most of the Cities and Shires referred to in the Third Schedule had long since ceased to exist as legal entities. This would also have been the case when the definition was amended in 2007 to add the words in parentheses.

61 The Burgess Court did not accept that the areas of land referred to in the Third Schedule depended for their meaning and effect on the continued existence of the legal entities associated with the named municipal districts. Rather, it considered that both the physical areas of land and the legal entities were independently capable of supplying the criterion for ascertaining what constituted the metropolitan area and 'greater Melbourne'. This presented a constructional choice. No provision of the Act expressly resolved this choice, but a number of contextual matters favoured the construction by which 'greater Melbourne' was defined by reference to the physical areas of land, rather than the named legal entities.

62 In providing for the areas of land referred to in the Third Schedule to be identified at potentially different points in time, the Burgess Court did not 're-write' (either by moulding,[61] modification[62] or expansion[63]) the definition of 'greater Melbourne' or the definition of 'metropolitan area' as it appeared in s 201 and the Third Schedule to the MMBW Act as in force on 30 June 2007. It is not the case, as the applicant contends, that the words in parentheses required the identification of the land described in the Third Schedule by reference to 30 June 2007. 30 June 2007 is the day before the repeal of the MMBW Act. The definition of 'metropolitan area' to be applied for the purposes of identifying the boundaries of 'greater Melbourne' is the definition in the MMBW Act as it stood on that day. It is the statutory definition that is captured in time by reference to that date, not the legal entities listed in the definition. The statutory text did not require the land areas referrable to the Cities and Shires in the Third Schedule to be the land areas of Cities and Shires existing on that day.

63 Unsurprisingly, the Burgess Court was conscious of restrictions on reading additional words into legislation, and emphasised that its construction of the term 'greater Melbourne' turned on the meaning of the words used in the definition without any need for the insertion of additional words. The construction adopted by the Court provided the criterion by which the dates for identifying the boundaries of the municipal districts could be established. Such a construction is not uncertain: the criterion or formula upon which it relies ― the area of land falling within a municipal district as at 30 June 2007 or, if the legal entity for a district ceased to exist prior to 1 July 2007, the day before it ceased to exist ― is capable of producing a precise delineation of land area.

64 If the construction adopted by the Burgess Court does not involve the insertion into the definition of words that are not there, equally, it does not involve a failure to give meaning or effect to words that are there. On the applicant's construction, however, most of the words in the definition of 'metropolitan area' adopted for the purposes of the definition of 'greater Melbourne' would be given no work to do. The Burgess Court applied the principle that a court must strive to give meaning and effect to every word of a statute and adopted a construction of 'greater Melbourne' that accorded with the text and relevant statutory context, and advanced the legislative purpose. Given the two bases identified for construing the definition of 'greater Melbourne', the Burgess Court preferred the construction that promoted the purpose and object of the provisions over a construction that did not.

65 With the exception of the arguments based on Anderson and the proper construction of exemption provisions in taxation laws, all of the arguments now advanced by the applicant were fully ventilated in Burgess. There is no suggestion that the Burgess Court overlooked any of those arguments. In such circumstances, given that the definition of 'metropolitan area' adopted for the purposes of the definition of 'greater Melbourne' is not clearly drafted and gives rise to potentially difficult constructional issues, and having regard to the detailed attention given by the Burgess Court to the construction of the relevant provisions, it cannot be said that the decision was plainly wrong on the grounds that we have considered so far.

66 The question that remains is whether failure to refer to (and, arguably, to apply) the two lines of authority now raised by the applicant nonetheless resulted in a decision that was plainly wrong.

67 We are not persuaded that Anderson is authority for the proposition that a lack of clarity in tax legislation must always give rise to a construction that favours the taxpayer. There is good authority for the application of a more even-handed approach.

68 In Scott v Cawsey,[64] Isaac J said:

When it is said that penal Acts or fiscal Acts should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit in one case to restrain private action to a limited extent and penalise a contravention of its directions, and in the other to extract from individuals certain contributions to the general revenue, a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.[65]

69 In our view, it is apparent from its detailed reasons for decision that the Burgess Court strove to ascertain and enforce of the actual commands of the legislature.

70 In Western Australian Trustee Executor, Gibbs J referred to Anderson to emphasise the need for the courts to give taxation legislation 'a fair and reasonable construction' that does not 'lean' towards the taxing body or the taxpayer. His Honour said:

The principles of construction applicable to an Act which imposes a tax or duty are set out in Anderson v Commissioner of Taxes (Vict). The established rule that no tax can be imposed on a subject by an Act of Parliament without words which clearly show an intention to lay the burden upon him does not mean that the court will strive to find loopholes when none are apparent; the words of the Act must be given a fair and reasonable construction, without leaning one way or the other. However, although, if the terms of the Act plainly impose the tax they should be given effect, equally if they do not reveal a clear intention to do so the liability should not be inferred from ambiguous words. [66]

71 Again, the Burgess Court plainly strove to give the definition of 'metropolitan area' adopted for the purposes of the definition of 'greater Melbourne' a fair and reasonable construction that did not lean towards the applicant or the Commissioner.

72 More recently, in Alcan, the plurality (Hayne, Heydon, Crennan and Kiefel JJ) stated the applicable principles of statutory interpretation for an Act imposing taxation as follows:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[67]

73 Relevantly, the plurality considered the submission by the taxpayer that if, contrary to its main argument, the definitions in question were found to be ambiguous, the taxpayer could rely on Anderson for the proposition that the imposition of a tax must be in plain terms. The Commissioner contended that Anderson could not stand with the purposive approach to statutory interpretation which had emerged and was well settled. In response to these competing arguments, the plurality said:

Given the basis on which this appeal is to be allowed, it is not necessary to deal with these arguments beyond the making of two points. First, tax statutes do not form a class of their own to which different rules of construction apply; they are to be construed by application of the settled principles referred to above. Secondly, the fact that a statute is a taxing Act, or contains penal provisions, is part of the context and is therefore relevant to the task of construing the Act in accordance with those settled principles. Whether or when "rules" of the kind referred to in Anderson and Waugh v Kippen may be relied upon need not be decided.[68]

74 The High Court has therefore stated - albeit as dicta - that tax statutes do not form a class of their own to which special rules of construction apply.

75 For their part, however, the authors of Statutory Interpretation in Australia have opined that despite general statements such as those in Alcan minimising the distinctions between taxing and other legislation, it seems likely that the courts will maintain the view that 'it is for the Crown to show that a taxing statute that imposes a charge on a person sought to be taxed.' [69] They emphasised, in addition, that it is 'a strong thing' to read into an Act of Parliament words which are not there and it is a 'particularly strong thing' to do so when it amounts to modifying, as against the fiscal subject, words which have a plain, natural and ordinary meaning in his favour.'[70]

76 We are not persuaded that the Burgess Court did any such thing. The Burgess Court applied the settled principles of construction, that is, it applied the ordinary rules of statutory construction to ascertain the legislative intention revealed by the language of ss 64 and 65, having regard to context and purpose. There is nothing in Burgess to suggest that the Court failed to properly take into account that s 65 is contained in taxation legislation. The Burgess Court had before it the reasons for judgment of the trial judge, who identified but did not ultimately rely on the authorities put forward by the applicant.

77 Whether or not Anderson remains good law, we are not persuaded that it requires any ambiguity in the statutory language to be resolved in favour of the taxpayer, particularly where it would be contrary to the legislative intention manifested in the language of the statute and where such a resolution would require no meaning or operation to be given to large parts of the text of the legislation.

78 In any event, we do not consider the competing construction contended for by the applicant to be a construction based on the 'plain words' of the statute or, indeed, to be any more certain for the taxpayer than the construction adopted by the Burgess Court. As discussed, the applicant's construction involves ignoring large swathes of the definition. Many words are given no meaning or operation. The Third Schedule is reduced to a shadow and 'greater Melbourne' to a pocket handkerchief sized area of land in the centre of Melbourne which does not accord with the ordinary meaning of 'greater' when describing a geographical area and followed by the name of a city. Moreover, the applicant's construction, reflecting an implied legislative intention that 'greater Melbourne' comprise of only the City of Melbourne, the Port of Melbourne and the docklands, is difficult to reconcile with ss 66 and 67 of the Act, which provide exemptions for primary production land within greater Melbourne, but subject to particular conditions. If 'greater Melbourne' is effectively reduced to the CBD and parts of the inner urban core zoned for specific (non-agricultural) uses, these sections have little, if any, work to do.

79 As to the second 'rule' of construction relating to exemption provisions that encourage particular forms of activity, we observe that s 65 of the Act sits in Division 2 of Part 4, which contains other exemption provisions for land used for primary production. Those provisions have been drafted so as to limit the availability of the exemption by reference to proximity of the land in question to urban zones. The Act does not encourage primary production in urban areas, but recognises that it may occur and offers the same tax benefit as for land outside greater Melbourne if certain conditions are met. The geographical limitation on the availability of the exemption is pronounced on the face of the Act itself. The exemption provisions do not encourage primary production per se. In these circumstances, it is questionable whether the rule to which the applicant refers has any relevance at all.

80 We conclude that the existence of the two lines of authority referred to by the applicant, and their absence from the reasoning Burgess, does not mean that Burgess is plainly wrong. The only reason why this Court would now reconsider Burgess is if it were shown to be infected with some manifest error. However, the most that can be said is that the Burgess Court identified alternative constructions and preferred one based on context and purpose. In our view, the construction adopted by the Court in Burgess was 'well and truly open',[71] and certainly not plainly wrong.

81 As for the Notice of Contention, we consider that the submission upon which it is based has substance.

82 The Tribunal, in considering whether the exemptions in ss 66 and 67 of the Act were available, heard evidence and made findings of fact about the activities carried out on the Land which were said by the applicant to be primary production activities, including for the 2013 tax year.

83 Although we were not provided with transcript of the Tribunal proceeding, we were taken to the applicant's outline of closing submissions, where the relevant activities carried out on the Land were described as the propagation and cultivation of cassinia and the agistment of cattle. On the basis of the evidence that was adduced by the applicant, the Tribunal did not accept that the applicant had a plan to sell cassinia as a commercial crop. In relation to 2013 specifically, the Tribunal found that 'the evidence that all or most of the cassinia was being cultivated for sale [was] vague and unconvincing'.[72] As for the agistment of cattle, the Tribunal found that the evidence did not support the assertion by the director of the applicant that large parts of the Land were being used for the agistment of cattle that were being held for sale. The Tribunal found that the evidence for both activities was insufficient to establish that they were conducted for the purpose of sale, which is required by the definition of 'primary production'.

84 Before us, the applicant contended that the Tribunal's findings of fact made for the purposes of determining whether the exemption in s 67 of the Act was available would not be binding if the matter were to be remitted to the Tribunal to consider whether the Land was used primarily for primary production for the purposes of s 65. This was because the findings of fact made for the purpose of s 67 could not have been challenged on appeal to the Supreme Court in the way that the application of facts found for the purposes of s 65 could be challenged. In relation to s 65, a question of law would have been available on appeal as to whether the facts found fell within the statutory definition of 'primary production'. However, the determination of the Commissioner under s 67 could only be challenged by way of judicial review.

85 We do not understand this submission. The Tribunal had jurisdiction to review the assessments made by the Commissioner. It stood in the shoes of the Commissioner for the purpose of reviewing the assessments, including the 2013 assessment. The Tribunal made a determination about the availability of the exemption in s 67 as if it were the Commissioner. In so doing, it had to make findings about the use of the Land in the relevant years and whether that use constituted 'primary production'. That determination was amenable to appeal under s 148 of the VCAT Act just like the Tribunal's determination in relation to the availability of the s 65 exemption. Despite differences in the wording of ss 65 and 67, the Tribunal's fact finding in relation to the satisfaction of the 'primary production' requirement in each of s 65 and s 67 raises the same question of mixed fact and law.

86 In the circumstances, we consider that even if 'greater Melbourne' had to be construed as contended for by the applicant, there would be no point in remitting the proceeding to the Tribunal, it having made findings of fact for the purposes of the primary production requirement in s 67 that were not challenged on appeal and which would make it impossible to satisfy the primary production requirement in s 65.

87 The application for leave to appeal will be granted but the appeal will be dismissed.

[1] Victoria, Victoria Government Gazette, No S 97, 15 December 1994, 6, cl 3(2)(y).

[3] Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314 ('Burgess').

[4] Australian Investment and Development Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2017] VCAT 1418 [60] (the 'VCAT Decision').

[5] Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2018] VSC 154 [6] (the 'Supreme Court Decision'), quoting the VCAT Decision [9] (Member Tang).

[7] Water (Governance) Act 2006 s 173.

[8] Burgess (2015) 209 LGERA 314, 320 [8]-[9].

[9] Unlike in this case, however, it was common ground in that case that all of the Lockerbie land was used primarily for primary production for the purposes of the exemption in s 65(1) of the Act.

[10] Previously, the Governor in Council had proclaimed the Shire of Whittlesea to be a city under the name of the City of Whittlesea with effect on and from 15 April 1988 and the Shire of Whittlesea therefore ceased to exist on 15 April 1988. See Victoria, Victoria Government Gazette, No S 23, 30 March 1988, 1.

[11] EHL Burgess Properties Pty Ltd v Commissioner of State Revenue [2015] VSC 295 [72].

[12] Burgess (2015) 209 LGERA 314, 346 [125].

[13] [1998] HCA 28; (1998) 194 CLR 355.

[14] Burgess (2015) 209 LGERA 314, 330-1 [56]-[62], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 ('Alcan'); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 ('Saeed'); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 ('Consolidated Media'); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378.

[15] Burgess (2015) 209 LGERA 314, 329 [52], citing Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322, 332 [12].

[17] Burgess (2015) 209 LGERA 314, 329 [52].

[18] Burgess (2015) 209 LGERA 314, 329 [53], citing Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, 253 [103].

[19] Burgess (2015) 209 LGERA 314, 331 [59], citing Saeed [2010] HCA 23; (2010) 241 CLR 252, 264-5 [31].

[20] Burgess (2015) 209 LGERA 314, 331 [60], citing Consolidated Media [2012] HCA 55; (2012) 250 CLR 503, 519 [39].

[21] Burgess (2015) 209 LGERA 314, 328 [50], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71].

[22] Burgess (2015) 209 LGERA 314, 333 [70]-[71], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 ('Cooper Brookes') and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[23] Burgess (2015) 209 LGERA 314, 334 [73].

[24] Burgess (2015) 209 LGERA 314, 334 [76], citing Giannarelli v Wraith (1988) 165 CLR 543.

[25] Burgess (2015) 209 LGERA 314, 335 [77]. For example, Lord Colchester v Kewney (1866) LR No 1 Ex 368, 380; Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531, 459 [45].

[26] Burgess (2015) 209 LGERA 314, 341 [104].

[32] There was nothing in the language of the Act or its legislative history that provided any support for the proposition that Parliament intended the primary production land exemption to be capable of applying to land in the whole of Victoria other than land within the boundaries of the City of Melbourne and the land referred to in paras (d) and (e) of the Third Schedule.

[33] Burgess (2015) 209 LGERA 314, 344 [116].

[38] Federal Commissioner of Taxation v Westraders Pty Ltd [1980] HCA 24; (1980) 144 CLR 55, 60 ('Westraders').

[39] HFM043 v Republic of Nauru (2018) 359 ALR 176, 180 [24] ('HFM043').

[41] Cooper Brookes (1981) 147 CLR 297, 305.

[43] [1937] HCA 24; (1937) 57 CLR 233, 243 ('Anderson').

[44] [1992] HCA 3; (1992) 173 CLR 492, 510 ('Hepples').

[45] (2010) 190 FCR 150, 157 [30] ('Virgin Blue').

[46] Anderson [1937] HCA 24; (1937) 57 CLR 233, 243 (citations omitted).

[47] Hepples [1992] HCA 3; (1992) 173 CLR 492, 510 (citations omitted).

[50] [1980] HCA 50; (1980) 147 CLR 119 ('Western Australian Trustee Executor').

[52] Westraders [1980] HCA 24; (1980) 144 CLR 55, 59.

[53] [2009] HCA 41; (2009) 239 CLR 27.

[54] Virgin Blue (2010) 190 FCR 150, 157 [30].

[56] (1996) 69 FCR 311.

[58] Commissioner of State Revenue v Challenger Listed Investments [2011] VSCA 272; (2011) 34 VR 617, 621 [20] ('Challenger').

[59] Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81, 107 [117].

[60] Nguyen v Nguyen (1990) 169 CLR 245, 269.

[61] Westraders [1980] HCA 24; (1980) 144 CLR 55, 60.

[62] HFM043 (2018) 359 ALR 176, 180 [24].

[64] [1907] HCA 80; (1907) 5 CLR 132.

[66] Western Australian Trustee Executor [1980] HCA 50; (1980) 147 CLR 119, 126 (citations omitted).

[67] Alcan [2009] HCA 41; (2009) 239 CLR 27, 46-7 (citations omitted).

[69] D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014) 387, referring to C & J Clark Ltd v Inland Revenue Commissioners [1975] 1 WLR 413, 419 (Scarman LJ).

[70] Ibid, referring to BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 280 (Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel).

[71] Challenger [2011] VSCA 272; (2011) 34 VR 617, 622 [21], quoting Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, 100.