Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria [2006] VSCA 89

CONSTITUTIONAL LAW - Crown - Crown in right of Victoria - Whether State of Victoria is the Crown in right of Victoria - Relationship between terms "Crown", "State", "Governor", "Executive Government".

1 On 8 February 2006, the Victorian Civil and Administrative Tribunal ("the Tribunal"), constituted by the Vice-President, his Honour Judge Bowman, granted interlocutory injunctions against each of the applicants ("Tymbook" and "Bradto" respectively), on the application of the respondent ("the State").

2 Each of the applicants seeks leave to appeal from the order of the Tribunal made against it. Leave is required by s.148(1) of the VCAT Act, which provides as follows:

"A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding -

(a) to the Court of Appeal, if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others; or

(b) to the Trial Division of the Supreme Court in any other case -

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal."

3 The Tribunal's order in each case being interlocutory, the respective applicants must show that -

(a) the order was wrong or attended with sufficient doubt to justify a grant of leave; and

(b) substantial injustice would be done if the decision was allowed to stand.[1]

4 Further, since the decision whether or not to grant an interlocutory injunction is an exercise of discretion, the application for leave must be considered by reference to the well-settled principles of law which must be applied by an appellate court when reviewing the exercise of judicial discretion.[2] The applicants must, in short, identify error of law[3]. Given that (as we discuss below) the critical issues on an injunction application are -

(a) whether there is a serious question to be tried; and

(b) whether the balance of convenience favours the grant of the injunction,

the task of identifying error of law is a formidable one indeed.

Factual background

5 The basic facts were succinctly summarised in the Tribunal's reasons, as follows. Bradto and Tymbook are lessees of premises known collectively as "the Triangle Site", pursuant to Crown leases of some 50 years duration which the State alleges terminate on 31 March 2006. Bradto is the lessee of "The Palace", a nightclub; Tymbook is the lessee of the Palais Theatre.

6 The State has plans to develop the Triangle Site. Expressions of interest were called for in relation to such development, and a shortlist of three possible developers has been announced. In order to provide what it alleges to be relevant information to the tenderers for the development, the State claims that, pursuant to the leases in question, it is entitled to obtain, for certain of its servants and agents, access to the relevant premises for the purpose of examination in relation to the possible presence of asbestos or other hazardous materials. It is conceded that such examination may involve the drilling of holes, the taking of samples and the like. Such access is opposed by Bradto and Tymbook.

7 In the proceedings the State seeks both interlocutory and permanent injunctions, against both Bradto and Tymbook, to restrain them from obstructing access.

The Tribunal's decision

8 The power of the Tribunal to grant injunctions is to be found in s.123 of the Victorian Civil and Administrative Tribunal Act 1998, which provides:

"(1) The Tribunal may by order grant an injunction, including an interim injunction, in any proceeding if it is just and convenient to do so."

9 The Tribunal adopted an orthodox approach to the applications for interlocutory injunctions. His Honour said:

"... I must consider whether or not there is a serious question to be tried and consider whether the balance of convenience favours the granting of the interlocutory relief sought. Of course, these two requirements are not entirely separate and independent, but must be examined together."[4]

10 No issue is taken on these applications with the approach adopted. His Honour was satisfied that there was a serious question to be tried, and concluded that the balance of convenience favoured the granting of the injunctions sought.

11 The applicants contend that his Honour fell into error on both counts. We deal first with whether there was a serious question to be tried. In order to get leave to appeal, they need to show that his Honour erred in law in concluding that there was any "serious question to be tried", or at least that sufficient doubt attends his Honour's conclusion (that there was a serious question to be tried) to justify the grant of leave.

12 The "serious question to be tried" test has been applied throughout Australia for more than 20 years.[5] It has been found, in countless cases, to afford an appropriate criterion for determining - at the threshold - whether the claims of the party seeking injunctive relief are of sufficient substance to justify the court's consideration of the exercise of its injunctive power pending trial. (In the same way, a "reasonably arguable" test operates in this Court to filter out unmeritorious applications for leave to appeal against sentence.[6])

13 Whether there is a "serious question to be tried" requires a judgment to be made, for the purpose of which the Court or Tribunal will examine both the legal foundations of the claim(s) made in the proceeding and such of the evidence in support as is exposed on the interlocutory application. Unless upon such examination the court concludes that the applicant's claims are not reasonably arguable, that is, they do not have "any real prospect of succeeding", then the court will ordinarily be satisfied that there is a serious question to be tried.[7]

14 This state of satisfaction will be all the more quickly and confidently arrived at in a case where the applicant's claims are met by cogent counter-arguments from the respondent to the application. In this way, vigorous opposition to an injunction application, intended to show that the applicant's claim is untenable in law and/or on the evidence, will very often do no more than reinforce the court's impression that there are serious questions to be investigated at the trial. It appears from his Honour's reasons[8] that some of the arguments advanced below had precisely this effect. The same occurred on the hearing of these applications.

Prohibitory or mandatory relief?

15 While conceding that there was and is a serious question to be tried, Tymbook argues that the Tribunal was obliged to apply a more stringent test because the injunction sought, although prohibitory in its terms, is mandatory in its effect. This was said to require the Tribunal before granting injunctive relief to feel a "high degree of assurance that at trial it will appear that the injunction was rightly granted."[9]

16 In our view, this submission fails in both respects. That is, we think the injunction was properly characterised as prohibitory. But, even if it was right to say that the injunction was mandatory in substance, this could not have affected the approach to be adopted by the Tribunal. Our reasons are as follows.

17 The full text of the Tribunal's order, including the terms of the undertakings given by the State in each case, is set out as an annexure to these reasons. The relevant part of the order in each case was in the following terms:

"1. Until further order, the [lessee] ... be restrained:

(1) from impeding, obstructing, refusing, or denying access at reasonable times to the demised premises ... to the following persons:

(a) ...

(b) ...

for the purpose of examining the state and condition of the demised premises, limited to access on weekdays between 8:00 am and 5:00 pm on 24 hours' written notice;

(2) from otherwise acting in breach of clause 2(h) of the Crown Lease dated 1 April 1956 by impeding, obstructing, refusing or denying access at reasonable times to servants or agents of the State of Victoria to the demised premises ... for the purpose of examining the state and condition of the demised premises, limited to access on weekdays between 8:00 am and 5:00 pm on 24 hours' written notice;

(3) from hindering or impeding the examination of the state or condition of the demised premises by any of the persons listed in paragraph (1)(a)."

18 Clearly, the order prevents the lessee from doing anything which would have the effect of "impeding, obstructing, refusing or denying access" to the premises. It is not difficult to think of steps which might - but for the order - be taken to obstruct or prevent access, such as the erection of a barricade or the boarding-up of a door. In this sense, the order is truly prohibitory. It prevents action. It does not require it.

19 At the same time, there is one positive act which the lessee company will be called on to perform in order to comply with the injunction. It is the act of opening the door, or gate, to the premises when requested to do so. To fail to do so would be to refuse or deny access, in breach of the order.

20 Senior counsel for Tymbook was asked by the Court, more than once, to identify any other positive action which the order would require his client to take. He was unable to identify any. Senior counsel for the State confirmed that no other action was required.

21 A mandatory injunction is -

"an injunction which directly orders the person to whom it is addressed to do something, as opposed to the much more usual prohibitory injunction which restrains the person to whom it is addressed from doing something."[10]

22 In our view, the injunction sought was prohibitory both in form and in substance. The fact that, in one limited respect, the order issued necessarily requires an active response to a request for access could not alter the true characterisation of the injunction. By contrast, an injunction to restrain a party from terminating a service agreement is properly characterised as mandatory in substance.[11]

23 It follows that his Honour was correct to conclude that the injunction sought was prohibitory. His Honour took the precaution, however, of considering - on the assumption (contrary to his conclusion) that the injunction was mandatory - whether he felt a "high degree of assurance" that at the final hearing the injunction would be held to have been rightly granted. He concluded that he did.

24 In view of our conclusion that the injunction was correctly characterised as prohibitory, it is unnecessary for us to decide whether the "high degree of assurance" test applies in Victoria when a mandatory interlocutory injunction is sought. It is nevertheless appropriate that we say something briefly on that topic. (We have been much assisted in this task by the extensive references to relevant authority provided by counsel for Tymbook and their instructing solicitors.)

Two alternative approaches

25 The "high degree of assurance" test was first enunciated by Megarry, J. in Shepherd Homes Ltd. v. Sandham[12], in the following terms:

" ... [T]he Court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction."[13]

This statement was adopted by the English Court of Appeal in Locabail International Finance v. Agroexport,[14] where the court declined to order a mandatory injunction.

26 Soon after, however, in the case of Films Rover International Ltd. v. Cannon Film Sales Ltd.[15], Hoffman, J. reformulated the "high degree of assurance" test and in effect formulated a new test, based on "lower risk of injustice". His Lordship said:

"The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the "wrong" decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong" in the sense I have described.

The passage quoted from Megarry, J. in Shepherd Homes Ltd. v. Sandham, qualified as it was by the words "in a normal case", was plainly intended as a guideline rather than an independent principle. It is another way of saying that the features which justify describing an injunction as 'mandatory' will usually also have the consequence of creating a greater risk of injustice if it is granted rather than withheld at the interlocutory stage unless the court feels a 'high degree of assurance' that the plaintiff would be able to establish his right at a trial.

I have taken the liberty of reformulating the proposition in this way in order to bring out two points. The first is to show that semantic arguments over whether the injunction as formulated can properly be classified as mandatory or prohibitory are barren. The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction.

The second point is that in cases in which there can be no dispute about the use of the term 'mandatory' to describe the injunction, the same question of substance will determine whether the case is 'normal' and therefore within the guideline of 'exceptional' and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice then granting it even though the court does not feel a 'high degree of assurance' about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction."[16]

27 Hoffman, J. held that the reasoning in Locabail turned on the fact that the defendant would be put in an 'irretrievable' position if the injunction were granted. His Lordship went on to say:

"Just as the Cyanamid[17] guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required ... so the guideline approved for mandatory injunctions in the Locabail case recognises that there may be cases in which less is sufficient."[18]

28 The approach of Hoffman, J. was adopted by Collins, J. in the case of Edwin Shirley Productions Ltd. v. Workspace Management Ltd.,[19] where his Lordship said:

"I therefore proceed on the basis that the merits threshold is a flexible one, which is designed to take account of the fact that its grant, depending on the circumstances, may involve a higher degree of risk of injustice if it turns out to have been wrongly granted, and that the greater the degree of assurance that the claimant will succeed, the less will be the risk of injustice to the defendant. Thus there may be very little difference between prohibiting eviction the day before it is due to take place, and requiring re-instatement on the day after it has taken place, but all will depend on the circumstances."[20]

The position in Australia

29 The "high degree of assurance" test was followed by Gibbs, J. in State of Queensland v. Australian Telecommunications Commission[21] and has been applied by single judges of the Federal Court[22]. Not long after those decisions, however, the test was expressly rejected by Gummow, J. (then of the Federal Court) in Businessworld Computers Pty. Ltd. v. Australian Telecommunications Commission[23]. His Honour declined to follow the decision of Gibbs, J., preferring the approach of Hoffman, J. in Films Rover as being "consistent with what is to be gleaned from consideration of the historical development of this remedy."[24] In particular -

" ... whilst there has been a natural reluctance to decree burdensome relief without a full hearing, prohibitory injunctions may have that tendency just as much as mandatory relief, and there has never been general acceptance of any precise verbal formula controlling the grant of interlocutory mandatory relief."[25]

Gummow, J.'s decision has been followed in the Federal Court[26] and in New South Wales[27].

30 In Victoria, the "high degree of assurance" test has been applied frequently[28], though in more recent years judges have recognised the alternative (Hoffman) test as potentially applicable.[29] It is not uncommon for judges to test an application for a mandatory injunction by reference to both tests.[30] Indeed, Tymbook's own submission to the Tribunal relied on both tests in the alternative, arguing that in the circumstances -

"the Tribunal must be satisfied to a high degree of assurance that the claim is well founded or else it must appear to the Tribunal that withholding the interlocutory injunction would carry a greater risk of injustice than granting it."

31 The "lower risk of injustice" test has commended itself both to this Court and to VCAT in the context of prohibitory injunctions. In 1996, in Optus Networks Pty. Ltd. v. Stonnington City Council[31] Brooking and Hayne, JJ.A. said:

"It was fundamental that the [Administrative Appeals Tribunal] should take whatever course appeared to carry the lower risk of injustice if the tribunal should turn out to have been "wrong"."[32]

Again, in Optus v. Boroondara (supra), Charles, J.A. (with whom Ormiston, J.A. agreed) referred with approval to what Hoffman, J. had said in Films Rover, as set out above. [33]

32 In the present case, his Honour stated that the Tribunal was -

"influenced by equitable principles when determining whether it is 'just and convenient' to grant an injunction pursuant to s.123."

He referred to the approach adopted by Morris, J., the President of the Tribunal, in Smith v. Football Victoria Limited[34], where his Honour said that Hoffman, J.'s judgment in Films Rover was "the most helpful guide" in considering whether or not to grant interlocutory relief. As characterised by the Judge in the present case, the approach is:

" ... essentially that the Tribunal in granting interlocutory injunctions should take whichever course appears to carry the lower risk of injustice if it should turn out to have granted an injunction to a party who fails to establish its right at the trial, or would fail if there was a trial, or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial." (emphasis added)[35].

33 In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one sub-category of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman, J. in Films Rover[36], the grant of a mandatory interlocutory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite "high degree of assurance".

34 As Lord Woolf, M.R. said in Broadmoor Special Health Authority v. Robinson[37], adopting the words of Lord Cooke in TV3 Network Ltd. v. Eveready New Zealand Ltd.[38]:

"The remedy of injunction should be available whenever required by justice."[39]

35 In our view, the flexibility and adaptability of the remedy of injunction as an instrument of justice will be best served by the adoption of the Hoffman approach. That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

Injunction amounting to final relief

36 Tymbook also argued - in this Court as it had before the Tribunal - that the grant of the injunction sought by the State was tantamount to giving final judgment against Tymbook. That being so, it was submitted, the Tribunal should not have granted the injunction unless it felt the "high degree of assurance" discussed above.

37 For its part, the State implicitly conceded before the Tribunal that it needed to establish "something more than that there [was] a serious question to be tried", because the interlocutory relief it sought was - at least to a substantial degree - the same as the final relief sought. (As noted earlier, the State seeks permanent injunctions restraining the lessees from preventing the State from gaining access to the Triangle site). The State acknowledged that, in such a case, the Court (or Tribunal) should consider the likelihood of the plaintiff/applicant succeeding at trial.

38 Reference was made (in the State's submission to the Tribunal) to the decision of Gillard, J. in Hartleys Limited v. Martin[40], where his Honour cited what was said by Lord Diplock in NWL Ltd. v. Woods[41] and by the English Court of Appeal in Cayne v. Global Resources Pty. Ltd. [42] and, more recently, in Douglas v. Hello! Ltd. [43]. In Hartleys, where "the practical result of [the] injunction being granted would be that the plaintiff would obtain the whole of its relief"[44], Gillard, J. held that the plaintiff must establish that there was "a degree of likelihood that it will be successful at trial in obtaining a permanent injunction."[45]

39 Once again, we see no necessity for the recognition of a special "rule" for this - different - sub-category of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost always be a factor in the evaluation of the balance of convenience.[46]

40 Thus, in Magna Alloys and Research Pty. Ltd. v. Coffey[47] the Full Court of the Supreme Court of Victoria adopted as "a correct and useful statement of the law"[48] the following passage from the judgment of Lush, J. in Slater Walker Superannuation Pty. Ltd. v. Great Boulder Gold Mines Limited[49]:

"The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. ... There will be situations in which the plaintiff cannot be expected to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them. There will be other situations in which though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited."[50]

41 Obviously enough, a consideration of the plaintiff's prospects of success must be part of the analysis of where the least risk of injustice lies. In NWL Ltd. v. Woods[51], Lord Diplock said that where -

" ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other." (Emphasis added).[52]

42 In the present case, his Honour dealt with the "final relief" point as follows:

" ... Firstly, I am not satisfied that, if the relief sought was granted, that would effectively constitute the granting of final relief. Whilst the [State] is undertaking that it and its agents will not dig more than 4 bore holes in the demised premises before 31st March 2006, the relief sought is otherwise open-ended. If it ultimately be determined that this interlocutory injunction was wrongly granted, the [State] would then be prevented from gaining further access for its relevant servants and agents. It is also to be remembered that, in relation to any access and examination which would have occurred, the [State] has given the usual undertaking as to damages. It is prepared to give additional undertakings which would have the effect of minimising damage and inconvenience. As previously stated, the granting of the relief sought in the form of an interlocutory injunction will not impinge upon general questions of leasehold and tenure, and the nature of the relief sought is a long way removed from something such as a demolition order or the permanent closure of a business.

Furthermore, as I understand it, Bradto and Tymbook have argued and shall be arguing that their leasehold interests in fact extend for many years into the future. If they succeed in that argument, questions of access and examination pursuant to the key clause may well extend far beyond 1st April 2006, which is currently the ostensible date pursuant to the leases by which they must vacate the premises. If they are incorrect in their argument and the leases expire on 31st March 2006, so that the passage of time would mean that the interlocutory relief practically became final relief, then the likelihood of ultimate success by the [State] may well have to be considered. On the other hand, if that be so, and bearing in mind the balance of convenience, it is very difficult to see what if any damage would occur as a result of examinations of the type sought which would be carried out during the death throes of 50 year leases with 2 months to run. This is particularly so when the undertakings are borne in mind.

Secondly, if the practical effect of granting the interlocutory injunction is in fact to afford final relief and to end the proceeding, the likelihood of the [State] succeeding in the proceeding should be considered. Throughout this ruling I have referred many times to the high degree of assurance of success which, whether or not that be the test, I possess in relation to the various arguments raised on behalf of the [State]. Obviously that is also the case in relation to the application generally. Should it be required, I possess that high degree of assurance that this is a proceeding which shall succeed at trial."

43 There is nothing in this analysis which discloses appellable error.

Serious question to be tried

44 In our view, his Honour's conclusion that there was a serious question to be tried was clearly correct. This conclusion was not challenged, but it was argued that the Tribunal could not have possessed the requisite "high degree of assurance". In our view, had it been necessary, his Honour was right to feel a "high degree of assurance" about that conclusion.

45 We note for completeness that, at the commencement of the hearing of the applications for leave to appeal, the Court conveyed to the parties its preliminary view - based on the written submissions - that most of the grounds relied on to support the application for leave had no prospect of success, given the hurdles to be overcome, as identified earlier in these reasons. Closer examination has served only to confirm our preliminary view.

46 We share his Honour's view that, properly analysed, the case is in reality a relatively simple one. As his Honour said, it is a very great pity that so much time and expense has been devoted to it.

47 As his Honour said at the beginning of his reasons.

"This matter, which comes before me by way of an application... for interlocutory injunctions, has a long and tortuous history. Given its nature, it has consumed an inordinate amount of time. ... The number of sitting days consumed by what should have been a moderately brief matter is quite extraordinary. When the merits of the application were finally addressed, after some 16 or 17 sitting days, the matter was disposed of in three and a half days, although some might consider that such a period was in itself lengthy for an application of this nature."

Even with very extensive outlines of submission, the hearing in this court lasted a day and a half.

48 Tymbook and - to a lesser extent - Bradto challenged the Tribunal's "serious question" conclusion on a number of separate grounds, arguing that the Tribunal could not have been satisfied to the requisite "high degree of assurance". Although that test had no application, for the reasons we have given, we deal with the issues in turn.

Construction of the lease

49 The core issue between the parties is whether the leases give the State the right of entry for which it contends or, more accurately, whether the leases require the respective lessees to permit entry for the stated purposes. Each lease contains a covenant in the following terms, requiring the lessee to -

"... permit Her said Majesty by her servants or agents or the servants and officers of the Board at all reasonable times to enter upon and examine the state and condition of the demised premises and will repair and make good all defects specified by written notice given to the lessee by Her said Majesty or by the Board within one calendar month after service of the notice and if the lessee shall fail so to repair and make good those defects it shall from time to time be lawful for the Board (but without prejudice in any way to the right of re-entry hereinafter contained) by its officers agents servants and workmen to enter upon the demised premises and do all works necessary for making good the said defects at the expense of the lessee and the cost thereof) in case the same shall not be repaid by the lessee within one calendar month after a notice in writing in that behalf shall have been given to the lessee by the Board) shall be a debt due by the lessee to Her said Majesty and recoverable as rent due and payable under these presents;"

50 Both applicants contend that the relevant clause authorises the State, or its agents, to enter and examine the state and condition of the respective premises for one purpose only, that is, for the repair and making good of defects in the premises. That purpose does not extend to inspecting for asbestos or taking soil samples. Tymbook goes further and argues that the purpose for which the State may enter is confined to "repairing and making good defects specified by written notice given to the lessee". (The latter construction could hardly be correct, since it is the lessee, not the lessor, on whom the relevant clause imposes the obligation to carry out repairs).

51 Much of the verbiage in the relevant clause is concerned with what occurs in the event that the lessee fails to repair defects as notified. If those words are omitted, the operative part of the clause is exposed, as follows:

"[The lessee will] permit [the lessor] ... at all reasonable times to enter upon and examine the state and condition of the demised premises and will repair and make good all defects specified by written notice given to the lessee by [the lessor]..."

It can now be seen clearly that the clause imposes on the lessee two distinct obligations, namely:

• to permit the lessor to enter the premises and "examine the state and condition of the premises"; and

• to repair and make good all defects which the lessor specifies in writing.

52 The contention for the applicant lessees is that the first limb is governed by the second, and is to be read down accordingly. The State, on the other hand, argues that the first limb should be given its ordinary meaning, namely, that it confers on the lessor a general right to enter in order to examine "the state and condition" of the premises. The second limb deals with an issue which might - or might not - arise upon the carrying out of such an examination, namely, the identification of defects which the lessee will be required to make good, but the contingency provided for by the second limb does not - cannot - have the effect of limiting the general words in the first limb.

53 It can hardly be doubted that the language of the clause is open to be read in the way the State argues it should be. Indeed, the generality of the language of the first limb would appear to favour that construction. If the construction contended for by the applicants were correct, the general words of the first limb would need to be significantly confined. It is unnecessary for us to say more on this point, save that we see the issue raised by the competing construction arguments as a quintessential "serious question to be tried".

54 Detailed argument was advanced on behalf of the applicants in support of the proposition - uncontroversial in itself - that unauthorised entry into leased premises by a landlord "breaches the covenant for quiet enjoyment and denies the tenant's paramount right of exclusive possession". But the question of the landlord's authority to enter is the serious question to be tried. If, as the State argues, the relevant clause of the lease expressly authorises the entry, those arguments necessarily fall away.

The State is not the lessor

55 Tymbook argued before the Tribunal, and again in this Court, that the State of Victoria could not avail itself of the right of entry conferred by the relevant clause because it was not the lessor. Her Majesty the Queen is the named lessor, and the State is not the Queen, so it was said. It was contended that the Crown, the Governor, the Governor in Council and the State of Victoria were all to be regarded as distinct one from the other.

56 This submission was said to be supported by the provisions of s.38 of the Interpretation of Legislation Act 1984, which provides as follows:

"In all Acts and subordinate instruments, unless the contrary intention appears -

'Crown' means the Crown in right of Victoria;

...

'Governor' means the person for the time being administering the Government of Victoria;

'Governor in Council' means the Governor with the advice of the Executive Council'

...

'State' means the State of Victoria."

Reliance was also placed on ss.6, 15 and 75 of the Constitution Act 1975.

57 This submission is plainly wrong. It is clearly contrary to basic principles of constitutional law. As Professor Hogg explains[53], since there is only one individual at any time who is the Queen (or King):

"In order to reflect [the] strange notion of a single Queen recognised by many separate jurisdictions, it is usual to speak of the Crown 'in right of' a particular jurisdiction. ... Within Australia, the federal government is the Crown in right of Australia (or the Commonwealth), and each of the state governments is the Crown in right of the State."

58 In short, the State of Victoria is the Crown in right of Victoria. So, of course, is Her Majesty, in her capacity as recognised by Victoria. The terms are interchangeable. They describe the same body politic. Thus, the phrase "Her Majesty in right of the State of Victoria" is to be found in ss.54, 55(a) and 56(1) of the Constitution Act 1975 (Vic). Section 56(1) defines the phrase -

"any bargain or contract entered into by or on behalf of Her Majesty in right of the State of Victoria",

as used in ss.54 and 55, as including a reference to -

"(a) any contract entered into by any Government department or by any Minister of the Crown in his capacity as such ..."

So to state is merely to reflect the position at common law.

59 Other propositions relevant to the interchangeability of the terms and concepts may be stated shortly. The Governor represents the Queen in Victoria[54]. Decisions of the Governor in Council are decisions of the executive Government[55]. The Crown in right of Victoria means -

"the executive as distinct from the legislative branch of Government, represented by the ministry and the administrative bureaucracy which attends to its business."[56]

60 The following propositions were advanced before the Tribunal by senior counsel for the State, and were accepted by his Honour as correct. His Honour was plainly right to do so.

• The State of Victoria is the landlord. Rent is payable to it.

• The lessor pursuant to Crown leases is the Crown (Her Majesty) in right of the State of Victoria.

• Ministers of the Crown are agents of the Crown in right of the State of Victoria.

• Members of the public service are similarly agents of the Crown and are able to act with the authority of the Crown in right of the State of Victoria.

61 His Honour also accepted - quite rightly - the assurance given by senior counsel for the State of Victoria that each person who would enter upon the demised premises had been, or would be, appointed an agent or officer of the Crown in right of Victoria. Indeed, sub-paragraph 1(1)(a) of the order expressly required, as a condition of access, that the driller, the services locator and the electrician first be authorised in writing by the State.

62 Tymbook argued that the relevant clause of the lease required those of Her Majesty's "servants or agents" who were to enter the premises to be appointed personally by the Governor-in-Council. This point is also without merit. There is nothing in the relevant clause to support the proposition, and it is contrary to every consideration of law and practicality. As the Tribunal correctly found, Ministers and public servants - the entire executive branch of government in Victoria - represent the Queen in right of Victoria. They are her "agents" for this purpose and they can undoubtedly act through agents themselves, as any person can[57].

63 His Honour considered that the propositions advanced on behalf of the State were "certainly arguable, and, at an ultimate hearing, would have high prospects of success." We would go further and say that there is no serious question to be tried on this issue, the points raised by Tymbook under this heading not being reasonably arguable.

The meaning of the word "examine" in the relevant clause

64 Tymbook argued that, on its proper construction, the word "examine" in the relevant clause was limited to visual inspection. If this were correct, the relevant clause would not authorise the State to undertake the soil sampling which is proposed.

65 His Honour did not accept that the right to examine was so limited. He said:

"It seems to me to be unlikely that the landlord could enter upon and examine the premises and, if, for example, it found that structures were collapsing because of possible wood-rot or white ant infestations, then [the landlord] could not take samples or carry out tests in order to ascertain the cause of the malady."

66 His Honour referred to cases such as R v. Franklin[58] and Gibson v. Skibs A/S Mariner[59], where - albeit in quite different contexts - judges had expressed views about the meaning of the word "examination", none of which would support a narrow reading. For example, in Franklin, Wells, J. said:

"For example, an expert on documents or paintings may examine a disputed document, or painting, not only by the naked eye or through a magnifying glass, but also by performing certain limited chemical tests upon its fabric. The same may be said of experts who examine a proposed building site: survey may be supplemented by an examination of cores obtained by test drilling."

67 Once again it is unnecessary for us to express a final view. Suffice it to say that we agree with his Honour that the construction contended for by the State is, at least, "strongly arguable". That this further construction argument raises a serious question to be tried cannot be doubted.

The Palais Theatre buildings are not part of the "demised premises" under the lease

68 Tymbook argues, as it did before the Tribunal, that - whatever the scope of the State's right of entry to the premises - the Palais Theatre buildings themselves do not form part of those premises. This is said to be because -

(a) Tymbook, and not the lessor, owns the theatre buildings, which is said to have the consequence that the buildings could not be demised by the lessor to Tymbook; and

(b) as a matter of construction of the lease, the "demised premises" are limited to the surface and down to a depth of 50 feet below the surface of the land upon which the Palais Theatre buildings are built.

69 As to ownership, Tymbook claims to own the theatre buildings because -

(a) in 1956, Palais Theatre Pty Ltd owned the Palais Theatre buildings immediately prior to the purported revocation of the reservation of the Palais land as a site for public recreation; and

(b) in 1985, Tymbook purchased, inter alia, the theatre buildings from Palais Theatre Pty Ltd.

70 The State argues that the reference to "demised premises" in the relevant clause necessarily includes both the land and the structures on it. Applying the general rule that fixtures become part of the property demised,[60] the theatre buildings as fixtures are the property of the Crown.

71 The State then relies on the Revocation and Excision of Crown Reservations Act 1955.[61] Relevantly, s. 2(2)(c) of that Act provided in relation to the land constituting the demised premises - as well as to all the other land the subject of the Act - that:

"Notwithstanding anything in any Act the said land shall become and be unalienated land of the Crown freed and discharged from all trusts encumbrances reservations limitations and restrictions whatsoever and from every estate or interest therein."

72 At the time the 1955 Act came into force, its interpretation was governed by the Acts Interpretation Act 1928. Under s.17 of that Act, the expression "land" was defined to include -

"messuages tenements and hereditaments houses and buildings, unless there are words to exclude houses and buildings or to restrict the meaning to tenements of some particular nature."

73 There being no such words of exclusion, the State argues, the effect of the 1955 Act was that the land and buildings on the Palais Theatre site as at 1 February 1956 became - and remain - the unalienated property of the Crown, "freed and discharged" from all other interests whatsoever.

74 In response Tymbook argues that the 1955 Act does not have that effect, by reason that -

(a) Parliament and/or the relevant Minister and/or the Governor-in-Council did not intend the 1955 Act to have that effect;

(b) the then owner, Palais Theatre Pty. Ltd., was not given a hearing before the decision was made to revoke its proprietary interest in the Palais Theatre buildings;

(c) no such contention has been advanced by the State during the first 48 years of the lease;

(d) by its conduct the State is estopped from relying on "the purported restriction"; and/or

(e) subsequent to the revocation, the State and Palais Theatre Pty. Ltd. agreed that the company owned the buildings.

75 His Honour accepted the arguments advanced on behalf of the State. It was not, of course, necessary for his Honour to decide the questions finally, nor are we called upon to do so. His Honour was entitled, in our view, to form the view that there was very considerable force in the State's arguments. Whatever strength might be attributed to the counter-arguments advanced by Tymbook, they self-evidently raise questions of fact and law which would require investigation at the final hearing.

76 This was - once again - a quintessential "serious question to be tried".

Section 62(1) of the Property Law Act 1958

77 The State relied on s.62(1) of the Property Law Act 1958 in support of its submission regarding the scope of the phrase "demised premises". That subsection provides as follows:

"(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any pert[sic] thereof, or, at the time of conveyance, demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof."

Under s.18(1) of that Act, the word "conveyance" is defined to include a lease.

78 Tymbook draws attention to s.62(3), which provides as follows:

"(3) This section shall apply only if and as far as a contrary intention is not expressed in the conveyance, and shall have effect subject to the terms of the conveyance and to the provisions therein contained."

Tymbook argues that a contrary intention is expressed in the lease.

79 This point may be disposed of shortly. As is apparent from the outline of submissions filed with the Tribunal on behalf of the State, and from his Honour's reasons, the State's reliance on s.62(1) was but one part - and a subsidiary part - of the "demised premises" argument. The points discussed above - about fixtures and about the effect of the Revocation Act - are unaffected by the s.62(1) argument and would fall to be considered even if, as Tymbook argues, s.62(1) had no application. As to that specific question, it is apparent from the submissions advanced on both sides in this Court that there is room for argument about whether the lease does, or does not, evince a contrary intention, so as to exclude the operation of the deeming provision in s. 62(1).

Balance of convenience

80 Tymbook argues that the balance of convenience favours it, not the State, on the following grounds:

(a) the State delayed unreasonably in bringing the application for interlocutory relief;

(b) the situation is not as urgent as the State claims, and, if there is any urgency, it is the result of the State's own action/inaction;

(c) in truth, there is no real urgency in the situation;

(d) the interference with Tymbook's quiet enjoyment of the demised premises and the Palais Theatre building will be "substantial, very inconvenient and likely to cause Tymbook financial loss."

81 It is not, of course, for this Court on these applications to decide where the balance of convenience lies. The question is whether any doubt is cast on the conclusion arrived at by his Honour. Before moving to that question, however, we point out that the issue of delay is usually regarded as a matter going to the court's discretion once the grounds for the grant of an interlocutory injunction (including balance of convenience) have been made out.

82 That was the approach which his Honour adopted. Under the heading "Other Discretionary Matters", he dealt at some length with the arguments about delay and lack of urgency. With respect, we think his Honour's analysis of these issues was exemplary.

83 His Honour concluded that the balance of convenience favoured the granting of the injunctions sought. His reasons were as follows:

" ... [The State] has given the usual undertaking. In addition, as part of the orders which it seeks, it gives further undertakings limiting the number of bore holes at each demised premises to 4 prior to the date on which it alleges the leases terminate. It is prepared to undertake to cause as little damage as may be possible and to make good any damage within 8 hours of any examination. It is limiting the hours during which it will seek access on the part of the examiners to between 8.00 am. and 5.00 pm. (It is to be recalled that the businesses operating on each site, and particularly on the Bradto site, are frequently conducted during the evening and night hours). It will give 24 hours written notice of any proposed access. The proposed testing period is "in the order of a week or more" as conceded by Bradto in its written submissions. There is no cogent evidence before me of any loss which is likely to be sustained in relation to either premises. [The State] is not seeking to assert absolute ownership or entitlement in relation to the subject premises. It is not as if it is seeking something in the nature of a demolition order. It is not seeking that its servants or agents enter and burn, pillage and destroy. The contrary is the situation. It is seeking that its servants and agents enter for very limited testing purposes and is giving undertakings and seeking orders which would minimise any inconvenience. As stated, this is in addition to the usual undertaking in relation to damages.

I also accept that there is ample evidence of potential financial detriment to [the State], which detriment might extend to some third parties. This is a substantial project of some importance to [the State]. Delay in the completion of a major project such as this can be expected to be productive of significant loss, and I accept the affidavit material in this regard. I also accept that detriment, and loss of confidence, may be caused to the third parties who are part of the tendering process in relation to the demised premises.

In summary, when the issues of a serious question to be tried and the balance of convenience are considered, the scales seem to me to swing in a most pronounced fashion in favour of the granting of an injunction of the type sought."

84 In our view, this analysis discloses no error, and the conclusions which his Honour arrived at were clearly open on the material before him. His Honour had earlier pointed out, by reference to Optus v. Boroondara[62], that the two requirements (serious question to be tried and balance of convenience) needed to be examined together.

Unreasonableness

85 Finally, Tymbook contends that the injunction -

"is so unreasonable or unjust that the Court of Appeal should infer that there has been a failure to exercise the Tribunal's discretion."

It will be apparent from what we have said in relation to the specific issues that this submission is simply untenable.

The form of the order

86 Bradto argues that the Tribunal's order -

"fails to express clearly and precisely what [Bradto] is required to do".

The particular complaints in this regard are set out in the draft notice of appeal, as follows:

"(a) [the order] does not identify the driller, the services locator or the electrician referred to in paragraph 1(1)(a) and requires the respondent to identify and authorise those persons in writing;

(b) [the order] does not state precisely and with clarity what is meant by the term 'examining the state and condition of the demised premises' in paragraph 1(1) and in 1(2) or 'examination of the state and condition of the demised premises' in para 1(3);

(c) [the order] does not state precisely and with clarity what the respondent, its servants or agents, and Noel Arnold, its servants and agents or other persons authorised by the respondent are permitted or not permitted to do under that order;

(d) the servants or agents of the respondent that are permitted under paragraph 1(2) to enter the demised premises are not identified; and

(e) paragraph 1(3) is framed to do little more than repeat the appellant's obligations under the Crown Lease, substituting for the ordinary remedies for breach the possibility of the drastic remedies for contempt in circumstances where the question of whether a breach has occurred is likely to be very debatable until settled by a contempt proceeding."

87 For its part, Tymbook argues that the order "does not comply with the requirements of an injunction". In support of this proposition, Tymbook contends that the orders -

(B) what is meant by 'reasonable times';

(C) what is meant by 'access';

(D) what acts will amount to 'refusing or denying access';

(E) apart from those persons named inclusively, who would be servants or agents of Noel Arnold & Associates Pty Ltd, Wood & Grieve Pty Ltd and Allom Lovell & Associates?; and

(F) apart from those persons named inclusively, who would be 'servants or agents of the State of Victoria'?"

88 In our view, these submissions must be rejected. The orders made are, in our view, clear and readily comprehensible. The orders are expressed in terms which use ordinary English words, in everyday use. There is nothing in the orders which should give rise to any difficulty of application.

Adequacy of the Tribunal's reasons

89 Tymbook argues that the Tribunal gave insufficient reasons for its order. It is difficult to understand how this submission came to be made. The Tribunal's reasons are very extensive. They deal clearly and carefully with each of the issues which had been debated before the Tribunal. None of the parties can have been in any doubt as to the reasoning process by which the Tribunal arrived at its conclusion.

No error

90 For these reasons, we conclude that the applications for leave to appeal fail at the first hurdle. This is, the applicants have failed to demonstrate that the Tribunal's orders were wrong or were attended with sufficient doubt to warrant a grant of leave.

91 That being so, it is unnecessary to consider whether substantial injustice would be done if the Tribunal's decision were allowed to stand. Since that question was fully argued, however, we will briefly state our conclusions.

No substantial injustice

92 Bradto argued that substantial injustice would result, by reason that -

(a) entry by the State and its agents would infringe Bradto's right to quiet enjoyment;

(b) the order amounts to final relief;

(c) following entry, the State would publish a report on the premises "which report will be irrevocable [and] contain matters unknown to and out of the control" of Bradto, this in the context of Bradto's claim to be entitled to a continuation of the lease;

(d) because of the uncertainty of the terms of the order, Bradto is exposed to a risk of contempt.

93 What we have already said on the specific grounds is sufficient to dispose of (a), (b) and (d). Point (c) involves speculation as to what kind of report might be made, and what circulation it might be given, neither matter being contemplated, let alone authorised, by the injunction. We cannot see how those uncertain circumstances could constitute any relevant "injustice" to Bradto referable to the order made.

94 The only additional argument advanced on this issue by Tymbook was that -

"the result of an appeal may have a substantial practical effect on the question of the costs involved in the VCAT proceeding.

Whilst this may well be so, it is not a consideration which, by itself, has any relevance to an application for leave to appeal.

Conclusion

95 In our view, each application for leave to appeal should be refused. We will hear the parties on costs.

UPON the applicant undertaking by its Counsel that:

(a) the applicant undertakes to abide by any order the Tribunal may make as to damages in case the Tribunal should hereafter be of opinion that the respondent shall have sustained any by reason of this order which the applicant ought to pay;

(b) the applicant, whether by itself, its servants or agents or howsoever otherwise will not dig more than four bore holes in the demised premises on or before 31 March 2006;

(c) the applicant, whether by itself, its servants or agents or howsoever otherwise will cause as little damage to the demised premises as may be possible; and

(d) the applicant will make good any damage caused to the demised premises by itself, its servants or agents or howsoever otherwise, arising from or incidental to any entry or examination of the demised premises within eight hours of such damage occurring -

THE TRIBUNAL ORDERS THAT:

1. Until further Order, the respondent, whether by itself, its servants or agents or howsoever otherwise, be restrained:

(1) from impeding, obstructing, refusing or denying access at reasonable times to the demised premises being the land situated in Lower Esplanade, St Kilda more particularly described in Crown Leasehold Vol 1206 Fol 472 to the following persons:

(a) Noel Arnold & Associates Pty Ltd ACN 006 318 101, its servants and agents, namely Steven Bos, Neil Chadwick, Malcolm Fabiny, a driller to be identified and upon being authorized in writing by the State of Victoria, a services locator to be identified and upon being authorized in writing by the State of Victoria, and an electrician to be identified and upon being authorized in writing by the State of Victoria;

(b) Wood & Grieve Pty Ltd ACN 008 808 786, its servants and agents, namely Michael Peter Grey, Joseph Walsh, David Simpson, Peter James Adcock and Ben Van Niekerk;

(c) Lovell Chen Pty Ltd ACN 005 803 494, its servants and agents, namely Katharine Fiona Gray, Peter Lovell, Jeananne Wells, Amy Wai Man Chan and Michael Galimany -

for the purpose of examining the state and condition of the demised premises, limited to access on weekdays between 8.00 a.m. and 5.00 p.m. on 24 hours' written notice;

(2) from otherwise acting in breach of clause 2(h) of the Crown Lease dated 1 April, 1956 by impeding, obstructing, refusing or denying access at reasonable times to servants or agents of the State of Victoria to the demised premises being the land situated in Lower Esplanade, St. Kilda more particularly described in Crown Leasehold Vol 1206 Fol 472 for the purpose of examining the state and condition of the demised premises, limited to access on weekdays between 8.00 a.m. and 5.00 p.m. on 24 hours' written notice;

(3) from hindering or impeding the examination of the state or condition of the demised premises by any of the persons listed in paragraph (1)(a).

2. Costs be reserved.

3. Liberty to apply be reserved.

[1] See, for example Niemann v. Electronic Industries Ltd. [1978] VicRp 44; [1978] VR 431; Australian Dairy Corporation v. Murray Goulburn Co-Operative [1990] VicRp 33; [1990] VR 355; Dodoro v. Knighting [2004] VSCA 217; (2004) 10 VR 277.

[2] Optus Networks Pty Ltd v. City of Boroondara [1997] 2 VR 318 at 329 per Charles JA.

[3] House v. The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

[4] Reasons [47], citing Optus Networks (supra).

[5] See Australian Coarse Grain Pool Pty. Ltd. v. Barley Marketing Board of Queensland (1982) 57 ALJR 425; Tableland Peanuts Pty. Ltd. v. Peanut Marketing Board (1984) 58 ALJR 283 at 284; A. v. Hayden (1985) 59 ALJR 1 at 4-5; Murphy v. Lush [1986] HCA 37; (1986) 60 ALJR 523; Castlemaine Tooheys Ltd. v. South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153-4; Patrick Stevedores Operations No. 2 Pty. Ltd. v. Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 24 [21].

[6] Raad v. R. [2006] VSCA 67.

[7] American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] AC 396 at 408 per Lord Diplock; applied (for example) by Gibbs, C.J. in Coarse Grain (supra) at 425, and by Dawson, J. in A. v. .Hayden (supra) at 4.

[8] Para [48] - [49].

[9] Shepherd Homes Ltd. v. Sandham [1971] Ch 340 at 351 per Megarry, J.

[10] Meagher Gummow & Lehane's, "Equity Doctrines & Remedies", (4th ed., 2002) at 21-460.

[11] See Axxess Australia Pty. Ltd. v. Primus Telecommunications (Aust) Pty. Ltd. [2000] VSC 64; Imac Security Services Pty. Ltd.v. Tyco Australia Pty. Ltd. [2002] VSC 592.

[12] [1971] 1 Ch 340.

[13] Ibid at 351.

[14] [1986] 1 WLR 657.

[15] [1987] 1 WLR 670.

[16] Ibid at 680 - 681 (emphasis added).

[17] Referring to American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] AC 396.

[18] At 682.

[19] [2001] 23 EG 158.

[20] Ibid at [39] (emphasis added).

[21] [1985] HCA 25; (1985) 59 ALR 243 at 245.

[22] Australian National Airlines Commission v. Commonwealth of Australia (1986) 66 ALR 545 at 552; Midland Milk v. Victorian Dairy Industry Authority (1987) 82 ALR 279 at 291.

[23] (1988) 82 ALR 499.

[24] Ibid at 503.

[25] Ibid.

[26] McDermott v. BP Australia Ltd. (1997) ATPR 41-547 at 43, 602.

[27] See e.g., ADI v. Aerospace Systems Management Pty. Ltd. [2003] NSWSC 758 at [31] per Austin, J.; Neoinvent v. National Broadband [2005] NSWSC 1162 at [13] per Young, C.J. in Eq.

[28] Preston Football Club Inc. v. Victorian Football Association (unreported, Ormiston, J., 24 August 1988); Dataforce Pty. Ltd. v. Brambles Holdings Ltd. [1988] VicRp 73; [1988] VR 771; TR Nominees Investments Pty. Ltd. v. Multiplex Constructions Pty. Ltd. (1996) 12 BCL 219; Hi-Struct Constructions Pty. Ltd. v. ACN 064 828 520 Pty. Ltd. (unreported, McDonald, J. 18 June 1996); Treweek v. Wickenden (unreported, McDonald, J. 9 July 1997); Charing Nominees Pty. Ltd. v. Utopia Sales Pty. Ltd [2000] VSC 519 at [9]; Australian Exhibitions and Conferences Pty. Ltd. v. Australian Exhibition Services Pty. Ltd. [2001] VSC 226 at [47]; Waikato (Pty.) Ltd. v. Kaplan [2002] VSC 310 at [44].

[29] Hi-Struct (supra) at 13-15; Village Roadshow Theatres Pty. Ltd. v. Davenport [2000] VSC 332 at [11]; Elan Trading Corp. Pty. Ltd. v. Clarence Street Freeholds Pty. Ltd. [2001] VSC 339 at [11] - [16].

[30] Hi-Struct (supra) at p.17; Elan (supra) at [16]; Chen v. Chen [2003] VSC 479 at [39].

[31] [1996] VICSC 12; [1996] 2 VR 209.

[32] Ibid at 213, citing K-Mart Australia Pty. Ltd. v. Stud Park Investments Pty. Ltd. (unreported, Full Court, 14 October 1994).

[33] [1997] 2 VR 318 at 335.

[34] [2003] VCAT 936; (2003) 20 VAR 119.

[35] Reasons para [2].

[36] See para [26] supra.

[37] (2000) 2 All E.R. 727 at 732.

[38] [1993] 3 NZLR 435 at 438.

[39] Cited by Gillard, J. in Hartleys Limited v. Martin [2002] VSC 301 at [30].

[40] [2002] VSC 301 at [32] - [40].

[41] [1979] 1 WLR 1294 at 1306.

[42] [1984] 1 All E.R. 225 at 233, 236, 238.

[43] [2000] EWCA Civ 353; [2001] Q.B. 967 at 982-3.

[44] _Hartleys (_supra) at [33].

[45] Hartleys (supra) at [39].

[46] See, for example, Castlemaine Tooheys (supra) at 154 per Mason, A.C.J.

[47] [1981] VicRp 3; [1981] VR 23 at 28.

[48] Ibid.

[49] [1979] VicRp 13; [1979] VR 107 at 110.

[50] Ibid.

[51] [1979] 1 WLR 1294.

[52] At 1307.

[53] P W Hogg, "Liability of the Crown" (3rd ed, 2000) p.13.

[54] Australia Act 1986 (Cth) s.7(1).

[55] FAI v. Winneke [1982] HCA 26; (1982) 151 CLR 342 at 366, 382, 414-5.

[56] Sue v. Hill [1999] HCA 30; (1999) 199 CLR 462 at 499 [87].

[57] O'Reilly v. Commissioners of State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 at 12-13.

[58] (1979) 22 SASR 101.

[59] [1966] 2 All ER 476.

[60] Kays Leasing Corporation Pty Ltd v. CSR Provident Fund Nominees Pty Ltd [1962] VicRp 62; [1962] VR 429, at 432-4.

[61] Act No 5909 of 1955.

[62] [1997] 2 VR 318 at 329-330, citing K-Mart Australia (supra) at 15-16.