Burk v Commonwealth [2002] VSC 453

5. On 28 May 1999 the plaintiff issued a writ out of this Court naming the Commonwealth of Australia as defendant. He claimed damages for nervous shock-type injuries (scil. psychological injuries and their sequelae) suffered by him as a result of the collision which, he alleges, was caused by the negligence of the defendant, its servants or agents. He specifies those servants or agents as being the officers and crew of HMAS Voyager, the officers and crew of HMAS Melbourne and "other Officers and servants of the Commonwealth or some of such Officers and servants". By way of particulars the plaintiff makes fifteen allegations of negligence against the officers of HMAS Voyager, thirteen of which allege acts or omissions on the part of those officers which appear to be alleged to have occurred at or in the vicinity of the point of collision, although this cannot be stated with certainty in every case. The other two allegations were of failures to ensure that Voyager and its equipment were in a seaworthy and safe condition and failure to ensure that all persons on the Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe.

8. With respect to the officers of HMAS Melbourne the plaintiff makes nine allegations of acts or omissions on their part which were committed at or in the vicinity of the point of collision and adds the same two allegations with respect to equipment and training as are made against the officers of Voyager.

11. In a separate set of particulars directed to the actions of "Other officers and servants of the Commonwealth of Australia" the plaintiff makes six allegations relating to alleged deficiencies in the equipment on board each of the Voyager and Melbourne and in the training of the crews of each of those ships.

14. So far as his injuries are concerned the plaintiff pleaded in his statement of claim that they were "... a disorder within the meaning of s. 5(1A) of the Limitation of Actions Act 1958 ...". He alleged that he first knew that he suffered such injuries and that they were caused by and resulted from the collision in or about 1997. On 14 October 2002 pursuant to leave granted by the Court (without objection from the defendant) the plaintiff amended the date upon which he alleges he first knew the facts referred to to "in or about March 1999".

17. By its original defence filed on 12 July 1999, as well as admitting formal matters, the Commonwealth admitted that the collision was caused by the negligence of the officers of HMAS Voyager and/or the officers of HMAS Melbourne in so far as that negligence was particularised by the plaintiff as consisting of acts or omissions of such officers which was alleged to have occurred at or in the immediate vicinity of the point of collision. It denied any negligence in those officers or in any other officers and servants of the Commonwealth where such negligence was particularised by the plaintiff as consisting of acts or omissions relating to the equipment of either ship and the training of its officers and crew. It also admitted that post-traumatic stress disorder is a disorder within the meaning of s. 5(1A) of the Limitation of Actions Act 1958.

20. The effect of the admissions of negligence by the defendant, limited as they are, is to entitle the plaintiff to succeed in his action if and in so far as he proves that the injuries he alleges were caused by the collision of the two ships. As the only remedy he seeks is damages for those injuries, his allegations in the statement of claim which relate to the equipment of the ships and the training of their officers are probably rendered redundant by the defendant's admissions. There would seem to be no point to their ever being litigated, as a finding in the plaintiff's favour in respect of them would not add to the relief to which he is already entitled. However, despite an invitation by the Court to do so, the plaintiff has declined to amend his statement of claim to delete those allegations so that they still remain as allegations on the record against the defendant. In as much as they may relate to acts or omissions of the defendant's servants and agents which occurred at places on mainland Australia it will be necessary to return to them when discussing the content of the law applicable on the trial of this proceeding.

23. The plaintiff's statement of claim makes no specific allegation that in deciding the case the Court should apply the law of Victoria. However, by not doing so and pleading reliance on s. 5(1A) of the Limitation of Actions Act 1958 by way of apparent anticipatory reply to a defence relying on s. 5(1)(a) of that Act as barring the plaintiff's remedy, the statement of claim implies that the plaintiff alleges the law of Victoria to be the law to be applied in deciding all issues between him and the Commonwealth. That this is so can be further deduced from the fact that at the date of the writ the statute law of Victoria provided that if the substantive law of another place within Australasia was to govern a claim before a Victorian court a limitation law of that place was to be regarded as part of the substantive law of that place and applied accordingly by the Victorian court.[1] It seems to follow that by pleading the Victorian Act the plaintiff is impliedly asserting that no other law applies to his case.

26. In its defence the Commonwealth made no allegation that any law other than that of Victoria should be applied to this case and, by a parity of reasoning to that applied to the statement of claim above, its pleading reliance upon s. 5(1)(a) of the Limitation of Actions Act 1958 appears to accept the plaintiff's implied assertion that the case was to be governed and determined by Victorian law.

29. By a summons issued on 15 June 2001 the defendant seeks to amend its defence in a number of significant ways. It seeks to withdraw its admission that post-traumatic stress disorder is a disorder within the meaning of s. 5(1A) of the Limitation of Actions Act 1958 and it seeks to plead the limitation statutes applicable to causes of action governed by the law of the ACT and New South Wales. If allowed, these amendments would permit the Commonwealth to argue that the plaintiff's claim was statute-barred regardless of what law was applied by the court hearing it, except in the case where the chosen law was the law of Victoria and, contrary to the contention the defendant now desires to advance, the plaintiff was entitled to the benefit of s. 5(1A) of the Limitation of Actions Act 1958. If the case is to be determined according to Victorian law and if the plaintiff is not entitled to the benefit of that section (as to which there must be at least some doubt having regard to the judgment of Chernov, JA in Mazzeo v Caleandro Guastalegname & Co[2]) he must fail in the action as he did not seek leave to institute it prior to doing so pursuant to s. 23A of the Limitation of Actions Act 1958 in the form that section took as it applied to a cause of action which arose in February 1964. The plaintiff has never contended that his cause of action arose at any later time and, in argument, his counsel conceded that if Victorian law was the law to be applied (as he contended) then the plaintiff could succeed in this action only if either the defendant's concession that post-traumatic stress disorder was a disorder within the meaning of s. 5(1A) of the Limitation of Actions Act 1958 was not permitted to be withdrawn or, if it was, the Court was not obliged to and did not follow Chernov, JA's judgment in Mazzeo's case. Notwithstanding these difficulties the plaintiff continues to assert that Victorian law applies to this case.

32. It follows from the discussion above that the question as to the law to be applied in determining this case and, in particular, the application of any relevant statute of limitations could have a determinative effect on the outcome of this litigation. On their face the defendant's proposed amendments leave the choice of law question open. They are put forward on the basis that if granted the answer to the choice of law question would determine which of them governed the case.

35. In interlocutory directions given in the Major Torts List this case was set down for trial on 10 October last together with the defendant's summons seeking the amendments referred to. The order fixing the trial and the determination of the interlocutory application together was made on the basis that it would be convenient to have the trial judge deal with all issues at the same time. Indeed, if the choice of law question is determined first it becomes necessary to consider only those amendments to the defendant's defence which are relevant to the law chosen.

39. The plaintiff contends that his entitlement to damages from the defendant should be ascertained by reference to the lex fori, which he describes as the law of Victoria. The defendant's contention is that its liability to the plaintiff should be determined according to the common law of Australia being, it submits, the lex loci delicti commissi. It further submits that in determining the content of the common law for the purpose of this case the Court must look to the "law area" of Australia with which the alleged tort has the closest connection. It contends that this law area is the Australian Capital Territory, alternatively New South Wales. The Commonwealth's position is that the appropriate law is certainly not the law of Victoria.

42. In John Pfeiffer Pty Ltd v Rogerson[3] the High Court extensively reviewed the choice of law rules with respect to intranational torts which applied, at common law, in Australian courts. Those rules derived from the English case of Philips v Eyre[4] as subsequently developed in the High Court by cases such as Koop v Bebb,[5] Anderson v Eric Anderson Radio and TV Pty Ltd,[6] McKain v R W Miller & Co (SA) Pty Ltd[7] and Stevens v Head.[8] They generally required that the choice of law question be decided according to the "double actionability" principle.

45. The Court in Pfeiffer considered that the choice of law rules to be applied in Australian courts should provide certainty and uniformity of outcome no matter where in the Australian federation a matter is litigated and whether it is litigated in federal or non-federal jurisdiction. It re-examined the double actionability principle and the usefulness of it within the Australia federal system.

48. With respect to litigation in federal jurisdiction, as in this case, the Court in Pfeiffer emphasised the proposition that the jurisdiction of courts (including State courts) invested with federal jurisdiction is Australia-wide when that jurisdiction is exercised. Thus, the Court observed, the question that arises in matters of federal jurisdiction does not involve any choice between laws of competing jurisdictions (because the law to be applied is the law of Australia) but identification of the content of the applicable law in accordance with ss. 79 and 80 of the Judiciary Act 1903. In a case concerning a tort committed in Australia and in respect of which a Federal, State or Territory court is exercising federal jurisdiction, the existence, extent and enforceability of the rights and obligations of the parties may be affected significantly by where the court sits. This is because ss. 79 and 80 of the Judiciary Act both require reference to the statute law of the State or Territory in which the court concerned is exercising Federal jurisdiction so far as that statute law is applicable. The Court considered that such a situation could be "properly called odd or unusual" and considered that the situation warranted reconsideration of the question of the applicable law in matters involving federal jurisdiction. It did this by developing the common law to take account of federal jurisdiction as delineated in Chapter III of the Constitution and to take account of the federal system in which sovereignty is shared between the Commonwealth and the member States of the federation.

51. In considering the choice of law rules which ought to determine the law to be applied in cases involving intrastate torts the Court looked at and discussed each of the commonly accepted theories which emerge from the cases and academic writings on this question. It considered the lex fori, the lex loci delicti and the "proper law of the tort", in each case with or without a flexible exception. In its discussion of the proper law theory it noted the difficulties in determining consistently whether a particular case has a "real and substantial" or "most significant" connection with a particular jurisdiction. Whilst it did not completely shut out the possibility of the proper law theory being applied in the case of international torts it considered that its practical disadvantages are such that it ought not to apply with respect to Australian torts which involve an interstate element.

54. Whilst acknowledging that the place in which a tort is committed may be ambiguous or diverse and that difficulty will sometimes arise in locating it properly, particularly in those cases such as product liability where a product is sold in many States or defamatory publication where the publication occurs in many States, the Court considered that the advantages in favour of applying the lex loci delicti outweighed its disadvantages and the advantages of any other available law such as the lex fori. The majority said:[9]

"If the lex loci delicti is applied, subject to the possible difficulty of locating the tort, liability is fixed and certain; if the lex fori is applied, the existence, extent and enforceability of liability varies according to the number of forums to which the plaintiff may resort and according to the differences between the laws of those forums and, in cases in federal jurisdiction, according to where the court sits. From the perspective of the tortfeasor (or in many cases an insurer of the tort-feasor) application of the lex loci delicti fixes liability by reference to geography and it is, to that extent, easier to promote laws giving a favourable outcome by, for example, limiting liability. If the lex fori is applied, the tort-feasor is exposed to a spectrum of laws imposing liability. From the perspective of the victim (the plaintiff), application of the lex loci delicti can be said to make compensation depend upon the accident of where the tort was committed, whereas, if the lex fori is applied the plaintiff can resort to whatever forum will give the greatest compensation. In Australia, in all its law areas, the same common law rules apply and any relevant difference in substantive law will stem from statute. Applying the lex loci delicti will apply a single choice of law rule consistently in both federal and non-federal jurisdiction in all counts and will recognise and give effect to the predominant territorial concern of the statutes of State and Territory legislatures. These factors favour giving controlling effect to the lex loci delicti rather than the lex fori."

58. Finally, the Court determined, as a matter of common law, that questions of limitation and similar statutory provisions which limit the enforceability of remedies or otherwise affect rights and obligations should be characterised as substantive and not as procedural so that they too will be applied as part of the lex loci delicti in determining the liability of a defendant in whatever forum an action is brought. Thus the common law reflects (and may even be more extensive than) the policy which underlies statutes such as the Choice of Law (Limitations of Actions) Act 1993. It discourages forum shopping and ensures that the outcome of litigation will not depend on fortuitous or accidental factors, at least with respect to the legal process.

61. The majority of the High Court summarised the position with respect to intranational torts as follows:[10]

"The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws."

65. In Regie National des Usines Renault SA & Anor v Zhang the High Court considered the question of the choice of law in respect of a foreign tort. In that case, with some important qualifications, particularly (but not solely) relating to questions going to the assessment of damages, the Court applied Pfeiffer's case so that in international as well as intranational torts the general rule is that the law to be applied in determining the liability of a defendant is the lex loci delicti commissi.

68. In this case the plaintiff submits that the tort of which he complains occurred on the high seas so that there is no lex loci delicti. He says, therefore, that the lex fori is the only remaining body of law which could be applicable. By default, as it were, it should be applied.

71. The defendant contends that although the collision between Voyager and Melbourne occurred on the high seas the tort sued upon occurred, either actually or notionally, within Australia. Some of the allegations persisted in by the plaintiff (particularly those relating to the equipment on the ships and the training of their officers and crew) are of acts or omissions which probably occurred on mainland Australia. In so far as some negligent acts or omissions may have occurred at sea, the fact that one or more of them resulted in a collision between two ships, each sailing under the Australian flag, means that for the purpose of determining the lex loci delicti it occurred in Australia. Thus, says the defendant, the lex loci delicti commissi is the law of Australia.

74. Having regard to the jurisprudence developed by the High Court with respect to the issue of choice of law in tort in Pfeiffer and Zhang it would be remarkable indeed if, in this case, the law required abandonment of the lex loci delicti in favour of a body of State law chosen by the plaintiff himself. The answer to the choice of law question must lie in the application of the principles enunciated in Pfeiffer and expanded in Zhang to the facts of this case as they are alleged by the plaintiff and partially admitted by the defendant.

77. In any event, the plaintiff's contention that the lex fori should be applied may yield the same result. When a State court (or for that matter a federal court) exercises federal jurisdiction it does so within Australia. The forum is Australia, not a State of Territory. The lex fori is the law of Australia subject only to the operation of ss. 79 and 80 of the Judiciary Act 1903. Since Pfeiffer, that law directs the court to the body of law which operates in the State or Territory in which the events which allegedly give rise to liability occurred (or, in this case, notionally occurred). In the instant case the same conclusion would be reached.[11] It is accordingly necessary to examine the facts put forward by the parties on the issue of which law area within Australia had the closest factual connection with the tort; that is to say with the acts or omissions said to give rise to liability.

80. Having ascertained that the applicable law is the law of Australia it is necessary for the Court, in order to give content to that law, to identify the law area within Australia from which that content should be drawn. For that purpose it is necessary to briefly examine the facts.

83. The defendant filed three affidavits on this application; the plaintiff one. They deposed to largely uncontentious facts surrounding the collision and the exercise in which the two ships were involved at the time it occurred.

86. The affidavits filed by the defendant (which were in fact filed in the Supreme Court of the Australian Capital Territory and used, by leave, in this proceeding) were sworn by Gerald Savvakis, a Lieutenant in the Royal Australian Navy, George Halley, a retired Lieutenant Commander in the Navy and now Risk Management Consultant and Dr David Stevens, the Director of Naval Historical Studies within the Sea Power Centre of the Department of Defence, who was also a former naval officer. The affidavit filed on behalf of the plaintiff was of James Alexander Bate, a retired Commander in the Royal Australian Navy. Neither party sought to cross examine the deponents of these affidavits.

89. Mr Savvakis' affidavit was sworn after he had reviewed the navigational information available as to the paths and positions of Melbourne and Voyager in the period leading up the collision. Mr Halley's affidavit deposed to the control of the Melbourne's operations and described the exercise which it and the Voyager were undertaking at the time of the collision. He also produced a document described as "Administration and Organisation of the Naval Forces" which set out the administrative and control structure of the Navy at the time the alleged tort occurred.

92. Dr Stevens produced a number of documents from naval records which described the program for the exercise in which the two unfortunate ships were engaged, various documents recovered from each of the ships themselves and a number of reports, notebooks, statements and Royal Commission transcripts containing material relevant to the collision and the circumstances surrounding it.

95. The affidavit filed on behalf of the plaintiff from Mr Bate did not join issue in any significant way with any of the material filed on behalf of the defendant but merely commented on some of it.

98. In Commonwealth v Mewett[12] two sailors were injured in an accident on board a Royal Australian Navy vessel on the high seas somewhere off the Queensland coast en route from Sydney to Surabaya in Indonesia. Gaudron, J was content, on the basis that the port the ship last left was Sydney, to select New South Wales law as the appropriate law (including a Limitation Act) to be applied to the sailors' claims in tort.[13] However, Dawson, J[14] noted that it was common ground that the proceedings commenced by the sailors were to be determined as though the events of which they complain occurred in New South Wales. It seems as if there was no issue as to the source from which the law to be applied to their claim was to be drawn. Whatever may have been the basis of Gaudron J's factual assertion, her overall approach was generally approved by Gummow and Kirby JJ.[15]

101. In the instant case the facts are somewhat more complicated and there is a dispute between the parties as to the law to be applied.

104. The affidavit material to which I have referred makes it clear that at the time of collision, at about 2056 hours on 10 February 1964 HMAS Melbourne and HMAS Voyager were engaged in "Summer Melbex", an exercise planned by personnel from HMAS Melbourne and the Carrier Air Group, and approved by Admiral Becher, Flag Officer commanding Her Majesty's Australian Fleet. Admiral Becher had operational control of "Summer Melbex". He was physically in Canberra at the time of the collision although his staff were on HMAS Sydney, docked in Sydney.

107. For the purposes of Operation Melbex HMAS Melbourne was under the tactical command of Captain Robertson who was subordinate to Admiral Becher who in turn was subordinate to the Chief of Naval Staff who, as the documents tendered revealed, was the first naval member of the Naval Board. The Naval Board controls and administers the Navy under the Naval Defence Act 1910 and the Naval Forces Regulations. It is under the general supervision of the Minister for the Navy. It is physically located in the Australian Capital Territory.

110. So far as the ships themselves were concerned they had each proceeded from Sydney to Jervis Bay before embarking on the exercise during which the collision occurred. There is no equivalent for naval ships of a merchant ship's place of registration. Naval ships do not have a "home port" although, somewhat curiously, and only for electoral purposes, the Navy divides its officers and ratings between an electorate in Victoria and an electorate in New South Wales if they have no other fixed or relatively fixed place of residence.

113. Mr Savvakis' affidavit enables one to trace the path of each of these ships in the days and hours immediately prior to the collision relatively accurately but, little turns on this. For example, the area in which HMAS Melbourne was moored in Jervis Bay before putting to sea was in fact part of New South Wales and not part of the ACT. That fact together with the fact that before embarking on the exercise both ships had departed from Sydney might suggest, superficially, that New South Wales law had a greater connection with the tort than did the law of the ACT. But the paths the ships took before reaching the area where the collision occurred and their points of origin had no bearing on the tort which the plaintiff alleges one or more servants or agents of the Commonwealth committed. This tort originated in the planning and execution of an exercise the ultimate responsibility for which rested with the Naval Board.

116. It is connection between the tort alleged and a law area of Australia that is important for the purpose of determining the lex loci delicti. The enquiry to be undertaken by the Court is to find the closest such connection. The exercise in which the two ships were engaged was approved by the Flag Officer commanding Her Majesty's Australian Fleet, an officer of the Commonwealth responsible directly to the Naval Board. It is through the Naval Board that the plaintiff will establish the vicarious liability of the Commonwealth if he is successful. Whilst the Commonwealth has no presence in any part of Australia in any physical sense, the Naval Board does. The undisputed evidence was that at the relevant time it was located in Canberra. It had overall responsibility for the actions of all officers of the Commonwealth against whom allegations of tortious acts or omissions are made. Further, the plaintiff has persisted in maintaining allegations of negligence which involved land based decision making. The Naval Board was ultimately responsible for these decisions also.

119. In determining the law area of Australia with the closest connection to the tort of which the plaintiff complains enquiry must be made, not in respect of accidental or fortuitous connections such as the closest State or Territory to the point of collision, the port from which either or both ships last sailed, the port or dockyard at which either or both ships were last serviced or refitted or, for that matter, matters going to the plaintiff himself such as his place of enlistment, his ordinary place of abode or the electorate in respect of which he casts a vote. The connection must be a relevant connection; that is to say it must be a connection between a law area and the acts or omissions which were a cause of the plaintiff's alleged injury. No matter where any act or omission which caused the collision occurred (at sea or on land) the Naval Board remained responsible for it. Through the Naval Board the Commonwealth is fixed with liability. The Naval Board was, at the relevant time situated in Canberra.

122. The law to be applied in determining all of the substantive issues in this case, including issues going to questions of limitation and the like, is Australian law, the content of which is to be derived from the law of the Australian Capital Territory.

126. As already noted, the defendant seeks to amend its defence to plead the Limitation Acts of New South Wales and the ACT in the alternative and to withdraw a concession which it made concerning a section of the Victorian Limitation of Actions Act 1958. Having regard to the decision I have reached with respect to the choice of law question there is now no need to consider the defendant's application to plead the New South Wales limitation statute or to withdraw its concession in respect of the Victorian limitation statute. It is necessary, however, to consider the defendant's application for leave to amend its defence to rely upon the imperial statute of James I and the Limitations Act 1985 of the ACT.

129. That the amendment to its defence sought by the defendant raises an arguable defence is beyond argument. Indeed Mr Kaufman QC for the plaintiff does not suggest that it does not. Accordingly, subject only to the question of any irremediable prejudice suffered by the plaintiff as a result of such amendment it ought to be allowed[16]. In fact, in his written outline the plaintiff does not claim any prejudice should the defendant be permitted to plead the ACT limitations statutes. In oral argument he conceded that the only possible prejudice suffered by the plaintiff would relate to the fact that he did not issue an application pursuant to s 26 of the Limitations Act 1985 (ACT) until 10 October 2001 when, if the defendant had pleaded the ACT statutes in his original defence he would have issued the application immediately after that defence was served, that is to say in July 1999. Theoretically, this would enable the defendant to rely upon a period of delay between July 1999 and October 2001 as producing some prejudice to it in respect of an extension application brought by the plaintiff, when, had it pleaded the ACT limitations statutes at the time of its original defence it would not have had that possible forensic advantage.

132. There is, in my view, no need to analyse this problem further. Within the last few days the New South Wales Court of Appeal has dealt with a similar application to amend its defence by the Commonwealth in another Melbourne/Voyager case[17]. The Court of Appeal avoided any possible prejudice to the plaintiff in that case by giving the Commonwealth conditional leave to amend; the condition being that the defendant accept that the plaintiff's application to extend time (in that case under the New South Wales statute) be taken to have been issued immediately after the defendant served its original defence. There will be a similar order in this case.

135. In light of the decision I have made with respect to the choice of law question the defendant's concession that post-traumatic stress disorder is a disorder within the meaning of s.5(1A) of the Limitation of Actions Act 1958 will now simply be an irrelevant admission of a now irrelevant fact pleaded by the plaintiff. There is no need to consider further the defendant's application to plead the New South Wales Limitation Statute.

139. On Monday 21 October 2002 the Court will make the following orders:-

1. That the question of the law by which this proceeding is to be decided be determined as a separate issue before the trial of the proceeding pursuant to Rule 47.04 of the Rules of the Supreme Court.

2. That, upon the determination of that issue, it be declared that all questions of substance in this proceeding be determined according to the law of the Australian Capital Territory.

3. That the costs of the litigation of this separate issue be reserved for further consideration.

1. That the defendant have leave to amend its defence filed on 12 July 1999 by deleting paragraph 9 thereof and substituting therefor the following:-

"9. Further, it says that the plaintiff's action is barred by virtue of s. 3 of Imperial Act 21 James I, c.16, alternatively is not maintainable by virtue of s. 11 of the Limitations Act 1985 (ACT);"

PROVIDED THAT the defendant undertakes to treat the plaintiff's application for an extension of time pursuant to s. 36 of the said Act filed on 10 October 2001 as if it had been filed on 12 July 1999.

2. That otherwise the defendant's summons of 15 June 2001 be dismissed.

3. That the costs of the defendant's summons be reserved for further consideration.

[1] s. 5 Choice of Law (Limitation Periods) Act 1993.

[2] [2000] VSCA 230.

[3] [2000] HCA 36; (2000) 203 CLR 503.

[4] (1870) LR 6 QB 1.

[5] [1951] HCA 77; (1951) 84 CLR 629.

[6] [1965] HCA 61; (1965) 114 CLR 20.

[7] [1991] HCA 56; (1991) 174 CLR 1.

[8] [1993] HCA 19; (1993) 176 CLR 433.

[11] Commonwealth v Mewett (1997) 191 CLR 471 per Gaudron, J at 522, 524-5.

[12] (1997) 191 CLR 471, per Dawson J at 506.

[16] Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 155

[17] Commonwealth of Australia v Stankowski; Commonwealth of Australia v May [2002] NSWCA 348 (8 October 2002)