Commissioner of Taxation v Esso Australia Resources Pty Ltd - [2024] FCAFC 151 - FCAFC 2024 case summary — Zoe

CTHFCAFC

Commissioner of Taxation v Esso Australia Resources Pty Ltd

[2024] FCAFC 151

Federal Court of Australia (Full Court)|2024-11-22|Before: Horan JJ

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Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2024-11-22

Before

Horan JJ

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

Introduction 122 Santos agreed to pay certain amounts to the "Providers" namely Esso and BHP under cl 3.6 of the DOARR. That clause provided: Santos acknowledges receipt of Monthly Statements issued by each of the Providers for the period from 1 October 2012 to the date of this Deed, details of which are set out below, and shall pay to each Provider the amounts shown below as being due to a Provider, together with any amounts in respect of a Monthly Statement issued after 10 June 2013 and prior to the Effective Date, within thirty (30) Days of the Effective Date. Monthly Statements from 1 October 2012 to 10 June 2013 GBJV Esso GBJV BHPB Date Reference Amount Date Reference Amount 10-Oct-12 ES1012 $2,555,380.01 9-Oct-12 1800000089 $2,555,380.01 09-Nov-12 ES1112 $2,555,380.01 12-Nov-12 1800000092 $2,555,380.01 10-Dec-12 ES1212 $2,555,380.01 10-Dec-12 1800000096 $2,555,380.01 10-Jan-13 ES113 $2,555,380.01 10-Jan-13 1800000098 $2,555,380.01 08-Feb-13 ES213 $2,555,380.01 10-Feb-13 1800000101 $2,555,380.01 08-Mar-13 ES313 $2,555,380.01 8-Mar-13 1800000104 $2,555,380.01 10-Apr-13 ES413 $2,604,811.06 10-Apr-13 1800000105 $2,604,811.06 10-May-13 ES513 $2,604,811.06 10-May-13 1800000605 $2,604,811.06 7-June-13 ES613 $2,604,811.06 10-June-13 1800000906 $2,604,811.06 Payable to GBJV Esso $23,146,713.24 Payable to GBJV BHPB $23,146,713.24

[2]

[3]

The Commissioner's submissions 125 The Commissioner contended that the primary judge erred in two ways in concluding that the Settlement Sum was not an "assessable tolling receipt" within the meaning of s 24A. 126 First, the Commissioner submitted that the primary judge erred by failing to determine the character of the Settlement Sum: (a) by reference to the Original KGPA and the Monthly Statements issued in the period from 1 October 2012 to 18 July 2013 (the relevant period) to which the Settlement Sum was referable. The Commissioner submitted that the Settlement Sum for the purposes of s 24A necessarily took its character from the Original KGPA and the relevant Monthly Statements because the parties treated the Settlement Sum as payment of Monthly Statements validly issued pursuant to the Original KGPA during the relevant period, referring to cll 3.5 to 3.7 of the DOARR; (b) alternatively, by reference to the Restated KGPA and Monthly Statements for the relevant period, because: (i) Esso was entitled to the MRF from the "Start Date" of the Restated KGPA (cl 5.1(a)); (ii) the DOARR provided that the "Start Date" of the Restated KGPA was 1 October 2012, being the beginning of the relevant period (cl 4.2(a)); and (iii) the parties to the DOARR treated the payment of the Settlement Sum as satisfying Esso's entitlement to receive the MRF during the relevant period. 127 Secondly, the Commissioner submitted that the primary judge erroneously determined the character of the Settlement Sum for the purposes of s 24A by reference to factual circumstances that arose after Esso became entitled to the MRF amounts to which the Settlement Sum was referable, stating that cl 3.6 of the DOARR needed to be placed in context, namely that "as a matter of fact, processing of gas had not and could not commence": J[123], [124]. According to the Commissioner, the fact that later events impeded Esso's capacity to perform its contractual obligations did not alter the analysis of what the Settlement Sum was receivable for at the time the entitlement to receipt arose because: (i) the Settlement Sum was referable to Monthly Statements issued during the relevant period; and (ii) the parties confirmed the validity of those Monthly Statements and waived their entitlement to accrued interest, that waiver being an implicit acknowledgement of the validity of those Monthly Statements, referring to cll 3.5(a) and 3.7 of the DOARR;

[5]

Analysis 129 The Monthly Statements comprised charges for the MRFs. 130 The Settlement Sum represented the first nine monthly prepayments under cl 22.1(a) and Exhibit A1.3, plus an additional amount accrued in respect of Monthly Statements issued after 10 June 2013 and before the "Effective Date". Whilst the Monthly Statements were issued under the Original KGPA, the obligation to pay the Settlement Sum arose under the DOARR and reflected obligations to pay MRFs under the Restated KGPA which was expressed to commence on 1 October 2012. The Settlement Sum represented MRFs which, as a matter of commercial substance, represented monthly prepayments for processing petroleum into gas in Allocation Year 1, being processing services provided by Esso under cl 8.1(b) and Exhibit A1.1 of the Restated KGPA. 131 The character of the receipt is determined by the quality of the receipt in the hands of the recipient: GP International Pipecoaters Pty Ltd v Commissioner of Taxation [1990] HCA 25; 170 CLR 124 at 136 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ). In the hands of Esso, the Settlement Sum represented payment of the MRFs charged in the Monthly Statements. 132 It is true, as Esso submitted, that the Settlement Sum was paid in the context of resolving a dispute. It is also true that the obligation to pay the amount arose under cl 3.6 of the DOARR which was, by the preamble to cl 3, expressed to be "[i]n consideration of the amendments to the Kipper Gas Processing Agreement effected by" the DOARR. Those matters do not lead to the result that the Settlement Sum was not "consideration receivable … in relation to … the processing of … petroleum". 133 An analogy might be drawn with the situation in which an insured receives a settlement sum, wholly for income replacement benefits under a policy of insurance. The character of the receipt is determined by reference to that which the settlement sum replaces, namely income - see, for example: Sommer v Commissioner of Taxation [2002] FCA 1205; 51 ATR 102 at [19] (Merkel J).

[7]

The Monthly Reservation Fees 135 Esso contended that the MRFs were not derived until the time at which the processing services to which the MRFs related were performed, relying upon Arthur Murray at 319. According to Esso, the primary judge concluded that - if the MRFs were an "assessable tolling receipt" - they were derived in the year in which the processing occurred, referring to J[129(4)]. In the result, the primary judge concluded that the MRFs - not being "assessable tolling receipts" - were derived when the Monthly Statements were issued: J[134]. 136 In Arthur Murray, prepayments for dancing lessons were held in an account styled "Unearned deposits - Untaught Lessons Account" until transferred, only once lessons had been provided, to an account styled "Earned Tuition Account". There was no right of refund, although sometimes refunds were given in practice. 137 The High Court (Arthur Murray at 317) referred to Commissioner of Taxes (South Australia) v The Executor and Trustee Agency Company of South Australia Ltd [1938] HCA 69; 63 CLR 108 (Carden's Case) in which Dixon J at 155 stated: Speaking generally, in the assessment of income the object is to discover what gains have during the period of account come home to the taxpayer in a realized or immediately realizable form. 138 The issue in Carden's Case was whether fees earned by Dr Carden in his medical practice might be treated as assessable income of the year in which they were earned even though not received in that year. The Court held, as regards each year which had ended before Dr Carden's death, that earning without receipt did not make the earnings income. Dr Carden's income before his death was appropriately assessed on a cash rather than accruals basis. 139 The High Court (Arthur Murray at 318) observed that the case before them was the converse of Carden's Case, namely whether "receipt without earning makes income". The High Court found that the prepayments for the dancing lessons were not derived until the lessons were provided. Referring to the statement of Dixon J set out above, the High Court stated at 318-9 (footnotes omitted): The word "gains" is not here used in the sense of the net profits of the business, for the topic under discussion is assessable income, that is to say gross income. But neither is it synonymous with "receipts". It refers to amounts which have not only been received but have "come home" to the taxpayer; and that must surely involve, if the word "income" is to convey the notion it expresses in the practical affairs of business life, not only that the amounts received are unaffected by legal restrictions, as by reason of a trust or charge in favour of the payer - not only that they have been received beneficially - but that the situation has been reached in which they may properly be counted as gains completely made, so that there is neither legal nor business unsoundness in regarding them without qualification as income derived. The ultimate inquiry in either kind of case, of course, must be whether that which has taken place, be it the earning or the receipt, is enough by itself to satisfy the general understanding among practical business people of what constitutes a derivation of income. A conclusion as to what that understanding is may be assisted by considering standard accountancy methods, for they have been evolved in the business community for the very purpose of reflecting received opinions as to the sound view to take of particular kinds of items … A judicial decision as to whether an amount received but not yet earned or an amount earned but not yet received is income must depend basically upon the judicial understanding of the meaning which the word conveys to those whose concern it is to observe the distinctions it implies. What ultimately matters is the concept; book-keeping methods are but evidence of the concept. It was Dixon J's understanding of the concept that is reflected in his Honour's judgment in Carden's Case where he said: "If in a given medical practice there is but little certainty about the payment of fees, I should have thought that a receipts basis of accounting would alone reflect truly the income and for most professional incomes it is the more appropriate". Thus, in determining whether in such a case actual receipt had to be added to earning in order to find income, uncertainty of receipt, inherent in the circumstances of the earning, appeared to his Honour to be decisive. Likewise, as it seems to us, in determining whether actual earning has to be added to receipt in order to find income, the answer must be given in the light of the necessity for earning which is inherent in the circumstances of the receipt. It is true that in a case like the present the circumstances of the receipt do not prevent the amount received from becoming immediately the beneficial property of the company; for the fact that it has been paid in advance is not enough to affect it with any trust or charge, or to place any legal impediment in the way of the recipient's dealing with it as he will. But those circumstances nevertheless make it surely necessary, as a matter of business good sense, that the recipient should treat each amount of fees received but not yet earned as subject to the contingency that the whole or some part of it may have in effect to be paid back, even if only as damages, should the agreed quid pro quo not be rendered in due course. The possibility of having to make such a payment back (we speak, of course, in practical terms) is an inherent characteristic of the receipt itself. In our opinion it would be out of accord with the realities of the situation to hold, while the possibility remains, that the amount received has the quality of income derived by the company. 140 Esso relied particularly on what was said in the paragraph set out immediately above. 141 The scheme of the PRRTA Act is for liability for petroleum resource rent tax to be assessed on an accruals basis, as was explained in the Explanatory Memorandum to the Petroleum Resource Rent Tax Assessment Bill 1987 (Cth): Division 2 - Assessable receipts (Clauses 23 to 31) Liability for petroleum resource rent tax will be assessed on an accruals basis. Assessable receipts from the project will, therefore, be taken into account in the financial year in which they are receivable. 142 Where the "assessable receipts derived by a person" exceed the sum of the deductible expenditure incurred by the person (and certain other amounts not presently relevant), the person is taken for the purposes of the PRRTA Act to have a "taxable profit in relation to the project and the year of tax of an amount equal to the excess": s 22(1). Section 23 is headed "assessable receipts" and provides that "a reference to the assessable receipts derived by a person in a financial year in relation to a petroleum project … is a reference to the total receipts … whether of a capital or revenue nature, derived by the person in the financial year in relation to the project" of the various kinds specified in s 23(1), which include "assessable tolling receipts". 143 Section 24A supplies a definition of "assessable tolling receipts derived by a person in relation to a petroleum project". The definition is not confined to defining the meaning of "assessable tolling receipts". The "assessable tolling receipts derived by a person in relation to a petroleum project" are defined to be "the consideration receivable by the person in relation to the processing of external petroleum, or internal petroleum, in relation to the project". This definition is consistent with the scheme of the PRRTA Act in assessing liability on an accruals basis, that is, when the consideration is receivable. 144 The MRFs were earned when the Monthly Statements were issued under the Restated KGPA. It does not matter that the processing services to which they related were not to be provided until later. The MRF amounts were not refundable, but it was always expected that the processing services would be provided. Interest accrued on the Monthly Statements, indicating that they were due when issued. As a matter of commercial substance, the MRFs were non-refundable prepayments for the processing of petroleum into gas. In some ways, the MRFs are analogous to take or pay receipts which would ordinarily be earned and derived when received. Esso and BHP could offset MRF amounts they owed each other in their capacities as KUJV parties: cl 23.6. Unlike Arthur Murray, the MRFs were not held in an account for later application towards services to be provided. It could not be said, as it was in Arthur Murray at 319, that "as a matter of business good sense … the recipient [Esso] should treat each amount of fees received but not yet earned as subject to the contingency that the whole or some part of it may have in effect to be paid back". The fact that the MRFs might have been recoverable by way of damages in the event that the GBJV parties did not perform the services to which the MRFs related can be said of many earned receipts and does not establish that the MRFs were not derived when the Monthly Statements were issued.

Parties

Applicant/Plaintiff:

Commissioner of Taxation

Respondent/Defendant:

Esso Australia Resources Pty Ltd

Legislation Cited (3)

Petroleum Rent Resource Tax Assessment Act 1987(Cth)s 22(1), 23, 24A

Acts Interpretation Act 1901(Cth)s 13

Taxation Administration Act 1953(Cth)

Cases Cited (32)

OVERVIEW 1 By this appeal, the Commissioner of Taxation challenges the conclusions of the primary judge that certain amounts paid to Esso Australia Resources Pty Ltd were not "assessable tolling receipts" under s 24A of the Petroleum Rent Resource Tax Assessment Act 1987 (Cth) (PRRTA Act): Esso Australia Resources Pty Ltd v Commissioner of Taxation [2024] FCA 87 (hereafter "J"). Section 24A of the PRRTA Act provides that a reference to "assessable tolling receipts derived by a person in relation to a petroleum project is a reference to the consideration receivable by the person in relation to the processing of … petroleum, in relation to the project". 2 Esso was the operator of an unincorporated 50/50 joint venture between it and BHP Billiton Petroleum (Bass Strait) Pty Ltd, called the Gippsland Basin Joint Venture or GBJV. The GBJV agreed to use its extensive processing facilities to process petroleum from the Kipper gas field in the Gippsland Basin to produce sales gas, liquid petroleum gas (LPG) and condensate. Comparatively small quantities of LPG and condensate were anticipated compared to larger quantities of sales gas. 3 The amounts at issue were paid pursuant to an agreement called the "Kipper Gas Processing Agreement - Deed of Amendment, Restatement and Release" dated 18 July 2013 (DOARR) and the "Restated Kipper Gas Processing Agreement" which was Annexure A to the DOARR (Restated KGPA). The Restated KGPA amended a "Gas Processing Agreement" dated 31 October 2006 (Original KGPA). The amounts fall into two categories: (a) Monthly Reservation Fees or MRFs: These were initially paid by Santos Offshore Pty Ltd, and later by MEPAU A Pty Ltd (Mitsui), under cl 22.1(a) of the Restated KGPA in the financial years ended 30 June 2014 to 30 June 2017; and (b) The Settlement Sum of $23,410,477 paid by Santos under cl 3.6 of the DOARR in the year ended 30 June 2014, but which had been assessed by the Commissioner in the year ended 30 June 2013 or, alternatively, 30 June 2014. The Settlement Sum was paid in the context of the resolution of a dispute which had arisen between the parties after the discovery of high levels of mercury in the petroleum from the Kipper gas field. The high levels of mercury meant that the processing facilities had to be modified and there was a delay to the start of processing activities. 4 The Restated KGPA provided for a number of payments to be made to Esso as a member of the GBJV. The MRFs comprised about 90% of the consideration Esso received under the Restated KGPA. The calculation of the MRFs involved an integer referable to sales gas and not to condensate or LPG. Esso also received "Monthly Processing Fees", calculated by reference to the quantity of condensate and LPG produced. Attachment 4 to the Restated KGPA, which set out an illustration of "Contractual Milestones", described the two fees as: "Monthly Reservation Fee (Gas)" and "Monthly Processing Fee (LPG and Condensate)". The Monthly Reservation Fee was calculated, amongst other matters, by reference to a "Gas Capacity Reservation Tariff" based on $1.82 per GJ of UMDQ (being the maximum daily quantity of gas a recipient of the processing services could nominate under the agreement). The Monthly Processing Fee was calculated, amongst other matters, by reference to: (a) an LPG Processing Service Tariff of $12 per tonne; (b) a Condensate Processing Service Tariff of $10 per barrel. 5 The central questions at trial relevant to this appeal were whether the MRFs and the Settlement Sum were "consideration receivable by [the GBJV] in relation to the processing of … petroleum" within the meaning of s 24A of the PRRTA Act. 6 As to the MRFs: (a) Esso argued at trial that they were paid to "reserve processing capacity" at the GBJV processing facilities and were not "consideration receivable … in relation to the processing of … petroleum". (b) The Commissioner argued that the MRFs were "consideration receivable by [the GBJV] in relation to the processing of … petroleum". If it were otherwise, there was no apparent "consideration receivable" for the processing of petroleum into gas under the Restated KGPA. 7 The primary judge rejected the arguments of both Esso and the Commissioner. Her Honour concluded that the MRFs were: (a) "not linked to [the GBJV's] obligation to perform processing services" (J[102]) and "were not the contractual quid pro quo for the performance of processing services": J[111]; (b) not "to reserve a fixed level of processing capacity" (J[102]) nor paid for 'capacity sterilised": J[98]. 8 Rather, her Honour concluded that the MRFs were "a fixed monthly fee to provide a return to the GBJV for the investment [the GBJV] had made in the GBJV processing facilities and for the opportunity cost [the GBJV] had borne": J[102]. This was not a case for which either party had contended at trial. 9 The Commissioner challenges the primary judge's conclusions on this appeal, whilst Esso embraces them. Further, by a notice of contention, Esso advances a modified form of the position it took at trial, contending that the MRFs were "receivable in relation to GBJV's obligation to not overcommit its processing capacity". 10 A subsidiary issue, which arises if the MRFs are "assessable tolling receipts", is whether the MRFs were derived: (a) when the "Monthly Statements" charging the MRFs were issued, as the Commissioner contends; or (b) when the processing services to which the MRFs relate were carried out, as Esso contends. 11 As to the Settlement Sum: (a) The Commissioner argued that: (i) its character was to be ascertained by reference to the Monthly Statements issued to Santos under the Original KGPA. The Monthly Statements reflected charges of MRFs. The DOARR recorded in cl 3.6 Santos' acknowledgement of the receipt of the Monthly Statements and its agreement to pay the amounts stated in them. Clause 3.5(a) acknowledged the validity of the Monthly Statements issued from 1 October 2012 until the date of the Deed; (ii) alternatively, it represented payments of the MRF under the Restated KGPA. Clause 5.1(a) required payment of the MRF from the "Start Date" of 1 October 2012 - cl 4.2(a). Clause 22.1(a) required payment of the MRF each month during a contract year. The parties proceeded on the basis that payment of the Settlement Sum was in satisfaction of the MRF amounts owing under the Restated KGPA for the relevant period from 1 October 2012. (b) Esso argued that the Settlement Sum was not paid under either the Original KGPA or the Restated KGPA, but under the cl 3.6 of the DOARR in consideration for amendments to the Original KGPA effected by the DOARR and it was, therefore, not an MRF or any other fee under the Original or Restated KGPA. It was an undissected lump sum paid to settle a dispute. 12 The primary judge held that the Settlement Sum was not an "assessable tolling receipt" when the Monthly Statements and cl 3.6 were examined in context: J[123] to [126]. Her Honour reasoned that: (a) the DOARR recognised that the obligation on the part of the GBJV to perform processing services "would not be enlivened for what was then an indeterminate period" and which, as matters eventuated, did not occur for a number of years: J[124]; (b) no petroleum was processed in exchange for the payment of the Monthly Statements issued between 1 October 2012 to 18 July 2013: J[124]; (c) no entitlement to processing services accrued during that period and no property rights were conferred on Santos as consideration for the payment: J[124]; and (d) payment of the Monthly Statements was not made under the Restated KGPA in relation to the later processing of gas, for the reasons given in relation to the first issue: J[125]. The payments were not for processing gas or to reserve fixed capacity, but were "a fixed monthly fee to provide a return to the GBJV for the investment [the GBJV] had made in the GBJV processing facilities and for the opportunity cost [the GBJV] had borne": J[102]. 13 The primary judge therefore concluded that the Settlement Sum was not "consideration receivable … in relation to the processing of … petroleum" within the meaning of s 24A. 14 A subsidiary issue, which arises if the Settlement Sum is an "assessable tolling receipt", is whether the Settlement Sum was derived: (a) in the years in which the petroleum processing, to which the Monthly Statements (for MRFs) the subject of the Settlement Sum related, was provided; or (b) in the year ended 30 June 2013 when the Monthly Statements were issued; or (c) in the year ended 30 June 2014 when the Settlement Sum was paid. If the choice is only between (b) and (c), the view preferred by both parties was that the Settlement Sum was derived in the 2014 year. Both parties embraced the proposition that, before the Settlement Sum was agreed, there had been a genuine dispute between the parties as to whether the Monthly Statements for MRF were payable at all, such that the amounts were derived only when the Settlement Sum ultimately became payable. 15 For the reasons which follow, the MRFs and the Settlement Sum were both "assessable tolling receipts" as defined by s 24A. The MRFs were derived when the Monthly Statements were issued and the Settlement Sum was derived in the 2014 year. 16 It follows that the appeal must be allowed with costs.

Section 24A of the PRRTA Act 49 Section 24A of the PRRTA Act provides: Assessable tolling receipts For the purposes of this Act, a reference to assessable tolling receipts derived by a person in relation to a petroleum project is a reference to the consideration receivable by the person in relation to the processing of external petroleum, or internal petroleum, in relation to the project. 50 There was no dispute that the relevant petroleum was "internal petroleum": J[74]. 51 The primary judge summarised the relevant principles in the following way (emphasis in original): [85] In applying s 24A of the PRRTA Act to the Monthly Reservation Fee amounts, the following principles apply: (1) The character of the Monthly Reservation Fee is to be determined by reference to its character in the hands of the recipient. This flows from the statutory language. What must be determined is whether the Monthly Reservation Fee amounts are consideration receivable in relation to processing. (2) The phrase "in relation to" is to be construed in context. In the context of s 24A, the phrase is limited by the word "consideration". Just as the use of the word "consideration" in s 24, in the context of sales, controlled the meaning and scope of the phrase "assessable petroleum receipts", so too the word "consideration" controls the meaning and scope of the phrase "assessable tolling receipts" in s 24A, irrespective of whether the textual nexus is provided by the words "in relation to" or "for": Woodside Energy Ltd v Commissioner of Taxation [2009] FCAFC 12; (2009) 174 FCR 91 at [62]. (3) Consideration in s 24A is not used in the sense of consideration moving from one party to another to make the contract binding. Adapting the statement of Dixon J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28; (1948) 77 CLR 143 at 152, consideration in the context of s 24A looks to that which moves the processing of petroleum. The question is whether the Monthly Reservation Fee amounts were receivable as a quid pro quo for "processing". The issue requires an examination of the connection between the Monthly Reservation Fee amounts receivable and the processing of petroleum: Esso [Australia Resources Pty Ltd v Commissioner of Taxation [2011] FCA 360; 194 FCR 32 (Esso (Trial))] at [495]; [Esso Australia Resources Pty Ltd v Commissioner of Taxation [2011] FCAFC 154; 199 FCR 226] Esso (Full Court) at [200]. (4) It follows that not every payment required to be made under a contract entitled "gas processing agreement" is consideration receivable in relation to processing. In determining the character of the amount entitled to be received it is necessary to identify the source of the entitlement to the receipt. (5) The word "processing" in s 24A is a reference to the performance of activities which are in the nature of "processing". Section 2 defines "processing of internal petroleum" in inclusive terms as including the "stabilisation, transportation, storage or recovery of internal petroleum in relation to the project". It is apparent from the statutory language that a receipt is not an assessable tolling receipt if it is not receivable as consideration for performance of an activity. (6) Caution must be exercised in determining the character of a receipt by reference to an integer in the calculation of its quantum. It has long been established that the manner of calculation does not determine the character of the amount for taxation purposes: Glenboig Union Fireclay Co Ltd v Inland Revenue Commissioners (1922) 12 TC 427 at 464; Commissioner of Taxes (Vic) v Phillips [1936] HCA 11; (1936) 55 CLR 144 at 156; Commissioner of Taxation v Northumberland Developments (1995) 59 FCR 103 at 120. 52 The phrase "in relation to" is used to indicate a degree of connection between two subject matters. The two subject matters here are "consideration receivable by a person" and "the processing of … petroleum". The degree of connection between the two subject matters which satisfies one subject matter being "in relation to" the other depends upon the context, and is, accordingly, ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision and the facts of the case - see generally: Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 at [25]; Minister for Home Affairs v DMA18 [2020] HCA 43; 270 CLR 372 at [43]. One subject matter can "relate to" another subject matter even though the first subject matter can be seen also to relate to things apart from the second subject matter - see: DMA18 at [43], citing Project Blue Sky [1998] HCA 28; 194 CLR 355 at [87]. 53 Whilst the issue always depends on the context, where the first subject matter is "consideration" in relation to the second subject matter, the word "consideration" may not bear its technical legal meaning under the law of contract: Commissioner of Taxation v Scully [2000] HCA 6; 201 CLR 148 at [40]; Brooks v Commissioner of Taxation [2000] FCA 721; 100 FCR 117 at [36]-[37]. For example, in the context of stamp duty legislation, the word "consideration" means that which moves the conveyance which is liable to duty: Archibald Howie Pty Ltd v Commissioner of Stamp Duties [1948] HCA 28; 77 CLR 143 at 153 (Dixon CJ). The Full Court in Woodside Energy Ltd v Commissioner of Taxation [2009] FCAFC 12; 174 FCR 91 at [63] accepted that "consideration" might bear this wider meaning in s 24 of the PRRTA Act. 54 The primary judge concluded that the MRFs "were not the contractual quid pro quo for the performance of processing services": J[111]. The formulation "contractual quid pro quo for", or similar formulations, were adopted by her Honour at J[85(3)]; [104]; [113]; [129(4)]; [131]. Thus, when stating the question raised in s 24A, her Honour stated at J[85(3)]: The question is whether the Monthly Reservation Fee amounts were receivable as a quid pro quo for "processing". 55 The Commissioner did not submit that this formulation of what was required by s 24A involved error or that the formulation implied the adoption of a test which required a closer connection than that required by the statutory language. Accepting that to be the case, including that the statute requires a close connection, it is preferable ultimately to return to the statutory language rather than to rest with a formulation expressed in different language. 56 The MRFs were "assessable tolling receipts" if they were "consideration receivable by [Esso] in relation to the processing of … petroleum": s 24A of the PRRTA Act.

Commercial construction of the Restated KGPA 58 The inquiry as to whether the relevant receipts are appropriately characterised as "consideration receivable … in relation to the processing of … petroleum" as a matter of "substance" (Esso Full Court at [163]) or when regard is had to the "[correct] construction and operation [of the relevant contract]" (Esso (Trial) at [497]) necessarily begins with the contract and its terms. It was common ground between the parties that the issue raised by s 24A revolves around both the terms of the contract properly construed and the substance and operation of the agreement. 59 The language of a written contract is construed according to its natural and ordinary meaning, having regard to those surrounding circumstances known to both parties which may legitimately be taken into account, the circumstances which the contract addresses, and the objects which it may properly be seen were intended to be achieved. In Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35], French CJ and Hayne, Crennan and Kiefel JJ said (footnotes omitted; emphasis added): [T]his court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd (in rec), unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". 60 The Court has regard to the commercial purpose behind the transaction which "presupposes knowledge of the genesis of the transaction, the background, the context [and] the market in which the parties are operating": HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; 104 NSWLR 634 at [23]. 61 The central object of the Restated KGPA was the processing of petroleum into gas, LPG and condensate. Gas constituted the bulk of what was produced from processing the petroleum sourced from the Kipper gas field. This informs why the contracting parties called their agreement a "Gas Processing Agreement". The Commissioner's characterisation of the LPG and condensate as being welcome and valuable byproducts of the processing of petroleum into gas was not commercially inapt. 62 On appeal, Esso contended that the consideration for processing the petroleum into gas was the Monthly Processing Fee and nothing else. This submission must be rejected. 63 The Restated KGPA contemplated payment of both a Monthly Reservation Fee and a Monthly Processing Fee. The Monthly Processing Fees were calculated by reference to the quantity of condensate and LPG in fact produced and not by reference to the quantity of sales gas produced. The MRFs were calculated by reference to allocations of gas and not by reference to LPG and condensate. 64 The circumstances known to both parties did not indicate that the Monthly Processing Fees were objectively intended to be fees for processing petroleum into gas. Those fees would have been understood by ordinary commercial parties as fees related to the processing of petroleum into LPG and condensate. Attachment 4 to the Restated KGPA, headed "Contractual Milestones", indicates that the "Monthly Reservation Fee (Gas)" would start on 1 October 2012 and that the "Monthly Processing Fee (LPG and Condensate)" would start later, on the "Mercury Facilities Ready Date". 65 Viewed objectively, a reasonable businessperson would have understood the Monthly Reservation Fees to be consideration receivable in relation to the processing of petroleum into gas, given one of the predominant "objects to be secured by the contract" (Woodside at [35]) was the processing of petroleum into gas. 66 This conclusion is also consistent with the genesis of the transaction including the history of negotiations set out earlier. The negotiations reveal that the parties had long contemplated that the Monthly Reservation Fee was related to the processing of petroleum into gas and the Monthly Processing Fee was related to the processing of petroleum into LPG and condensate. 67 This conclusion is not denied by the fact that the Monthly Reservation Fee might also be regarded commercially as calculated by reference to future processing requirements or capacity. The purpose of reserving capacity, or specifying future requirements, is to enable the processing of gas up to the "Max UMDQ" as required by cl 8.1(b) of the Restated KGPA. 68 It might be noted that, at trial, Esso had contended that the label "Monthly Reservation Fee" supplied the answer to what the fees were for, namely reservation of capacity. The primary judge was correct to observe at J[98] that parties cannot by a label determine the character of an amount, referring to: Radaich v Smith [1959] HCA 45; 101 CLR 209 at 214 (McTiernan J); Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [184] (Gordon J). It does not follow from that proposition that no assistance can be gained from the labels used by the parties to a contract. The primary judge's proposition at J[98] that no "assistance [is] gained from the description of the Monthly Reservation Fee as a 'reservation fee' rather than a 'processing fee'" is not correct if it were intended as a statement that labels adopted by the parties cannot provide assistance in determining what a reasonable businessperson would have understood the terms to mean. As Lord Hoffmann observed in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101 at [17], the contract uses labels, not algebraic symbols, and the labels are usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definitions or terms of the contract. However, notwithstanding use of the word "reservation" in the label, the MRFs were consideration for the processing of petroleum into gas.

Temporal proximity 74 The Commissioner submitted that the primary judge erred at J[111] by treating the temporal gap between Esso's entitlement to receipt of the MRFs and the performance of processing services by Esso as a sufficient or contributory reason to support a finding that the MRFs were not consideration receivable by Esso in relation to the processing of petroleum. 75 Her Honour stated at J[99]: If the Monthly Reservation Fee amounts had been payable in the same period as the period during which processing services were required to be performed, there may have been some force to the [Commissioner's] contention that the Monthly Reservation Fee amounts were in the nature of fixed fees receivable by the applicant for the performance of its obligations to provide processing services. In those circumstances, there may be said to be a close analogy to the "take or pay" payment in Esso [(Trial)] made in January 1997 which was regarded as part of the consideration provided for the acquisition of the gas supplied during that 1996 calendar year. There was a material and relevant relationship between that 1997 payment and the gas supplied in the 1996 contract year. 76 At J[111], her Honour stated: In the present case, the Monthly Reservation Fee amounts payable in the relevant years were not the contractual quid pro quo for the performance of processing services. Unlike the payments in [PTTEP Australasia (Ashmore Cartier) Pty Ltd v Federal Commissioner of Taxation [2014] FCAFC 71; 222 FCR 592], which were referable to a shipment of crude oil to be delivered, the Monthly Reservation Fee amounts payable in the relevant years were not made by the terms of the Restated KGPA referable to a quantity of petroleum to be processed in the future or to a quantity of gas to be produced in the future. The Monthly Reservation Fee amounts were not paid in the relevant years in order to obtain processing services to produce a quantity of gas in a future year. The Monthly Reservation Fee payments in the relevant years did not secure the entitlement to processing services in the year in which the obligation to make the payment accrued. Nor did the payment of the Monthly Reservation Fee in the relevant years result in a right to have gas processed in a later year. 77 The primary judge noted that the Commissioner sought to address the "temporal disparity" by contending that the Monthly Reservation Fee amounts were prepayments for processing services to be provided in later years: J[103]. Her Honour referred to PTTEP at [34]: …the fact that the adjustment to the amount payable is not made at the time of delivery of a particular shipment of crude, is not determinative of the question of whether the seller had an entitlement to the consideration receivable in relation to the sale. Upon the variation to the original agreement and the price being made specifically referable to a 'Shipment' of crude oil, the terms of the sale were concerned with the amount payable to the seller in order for the buyer to become entitled to a quantity of relevant product. 78 Her Honour then stated at J[104]: An amount is not a prepayment merely because it is received at a point in time that is earlier from the time at which services are required to be performed. Describing an amount as a prepayment does not obviate the need to identify a nexus between the entitlement to the payment and the obligation to perform services. An amount received in advance of the performance of processing services may be said to be a prepayment where the amount is the quid pro quo for the performance of those services. 79 A sufficient connection between the "consideration receivable" and the "processing of … petroleum" is not necessarily negated if the fact was, as the primary judge concluded, that the MRFs were not appropriately described as 'prepayments'. More importantly, however, the primary judge was wrong to conclude at J[100] that there was a "lack of a causal or timing nexus between the obligations to provide processing services and the receipt of the Monthly Reservation Fee amounts". Although not expressed to be prepayments for processing, as a matter of substance the MRFs were prepayments for the later services in processing petroleum into gas. As has been noted earlier, in agreeing to resolve the issues which had arisen by the discovery of mercury, Santos took the position either that: (a) the MRF would have to be adjusted to recognise the time value of money impact of the fee commencing when gas flows began (then expected to be the first half of 2016); or (b) Santos would agree to commence paying the MRF from October 2012 provided this enabled all the anticipated gas (212 PJs) to be recovered and processed from 2016 - see: [44(b)] above. 80 It was common ground that the parties agreed on the latter alternative and that this was reflected in the Restated KGPA. This solution can also be seen by comparing Exhibit A1.3 to the Restated KGPA (dealing with MRF payments required under cl 22.1(a)) with Exhibit A1.1 (dealing with the processing obligation under cl 8.1(b)). The two tables have the same UMDQ figures for the same period of 15 years, but the payment obligations are structured according to Contract Years (Year 1 being 1.10.12 - 1.10.13) whereas the processing obligations are structured according to Allocation Years (Allocation Year 1 being 4.3.17 - 1.3.18). In other words, given that the Mercury Facilities Ready Date turned out to be 4 March 2017, payment had to be made about 4 years and 5 months before the processing of the relevant quantity of petroleum required for production of the specified amount of gas in respect of which the MRF payments had been made. The MRFs are appropriately characterised as 'prepayment'. It should also be noted that there was a mechanism to adjust the MRFs where the quantities were later adjusted: cll 23.3(b) and 8.3(d) and (e).

Refundability 84 The Commissioner submitted that the primary judge erred "by treating the absence of an express contractual right of refund of the MRF as a relevant matter in determining what the MRF was receivable 'in relation to' for the purposes of s 24A". In this regard, the Commissioner pointed to J[106] (see also J[131] and [134]) where the primary judge stated that there "was no blanket obligation on [Esso] to refund the [MRF] amounts payable … if processing services were not performed in later years". 85 Under the Revised KGPA, a User was obliged to pay the MRF in full irrespective of whether the User nominates 100% of its "Max.UMDQ" for the relevant Allocation Year: cl 16.1(b). That is, the MRF was payable based on UMDQ and was not adjusted or refunded regardless of how much gas a User nominated and, therefore, regardless of how much petroleum was processed. Even where a User nominated zero gas to be returned and therefore no petroleum was processed, there was no refund of the MRF corresponding to that month. The absence of a right of "refund" in this respect is, as the Commissioner submitted, similar to the "take or pay" arrangement considered in Esso (Trial). 86 There was also no right of refund if petroleum processing services were not performed for reasons other than a User's failure to nominate 100% of its "Max.UMDQ". The Commissioner submitted that the absence of an express contractual right to a refund of MRF amounts is not determinative of whether MRF amounts might have been returned to a User and suggested mechanisms by which this might occur. The Commissioner submitted that the MRF amounts might have been returned: (a) by way of repayment to adjust for error, referring to cl 23.9; (b) as "Fee Relief" by reason of "Force Majeure", referring to cl 27.3(b)(i); or (c) by being "paid back, even if only as damages, should the agreed quid pro quo not be rendered in due course", referring to Arthur Murray (NSW) Pty Ltd v Commissioner of Taxation [1965] HCA 58; 114 CLR 314 at 319. 87 None of these is a real answer to the point the primary judge was making. As Esso submitted, cl 23.9 ensures errors in statements could be corrected and does not provide for a refund in the relevant sense. Clause 27.3 deals with force majeure and confirms that there is no refund of the MRF except in limited circumstances. As to the Commissioner's third example, the payment of damages - assuming the existence of events giving rise to such a claim - is not a refund of the MRFs or relevantly equivalent to a refund. 88 The fact that there was no contractual right to a refund for the MRFs was a relevant matter to consider in characterising the receipt and in determining the degree of connection between the "consideration receivable" and the "processing of … petroleum". The primary judge was correct to take it into account as one relevant matter. If there had been a contractual right to a refund if a User did not take up 100% of its "Max.UMDQ", then there would plainly be a closer connection between the "consideration receivable" and the "processing of … petroleum" than was in fact the case. The absence of a refund supports the primary judge's conclusion that the MRFs provided GBJV with a return on investment and compensation for opportunity cost, not that either party contended for that conclusion at trial. 89 The absence of a mechanism for a refund is only one matter to take into account. In the context of what the parties objectively anticipated, namely that petroleum would be processed into gas once the mercury issues had been appropriately addressed, it is not a factor which of itself points strongly against a connection between the MRFs and the "processing of … petroleum".

Misapplication of Esso (Full Court) 90 The Commissioner submitted that the primary judge gave insufficient weight to the construction of s 24 ("consideration receivable … in relation to the sale") given in Esso (Full Court) at [163] (Commissioner's emphasis added): The description in argument of the relevant provisions of the SECV Agreement as "take or pay" provisions is apt to distract attention from the task of determining whether the Shortfall Payment is "consideration receivable … in relation to the sale". If the Shortfall Payment is "consideration receivable … in relation to the sale", that is because it is, in substance, part of the payment for gas supplied by the co-venturers to SECV. The resolution of this issue is not assisted by the invocation of the "take or pay" label, or by reference to authorities concerned with the interpretation of different legal language. 91 Referring to this passage, the Commissioner submitted that s 24 (and likewise s 24A) is concerned with the identification of "consideration receivable … in relation to [a] sale" of petroleum or any marketable petroleum commodity "in substance". In relation to this argument, the Commissioner relied, by way of analogy, on Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; 221 CLR 496 and Commissioner of State Revenue (Vic) v Lend Lease Development Pty Ltd [2014] HCA 51; 254 CLR 142 at [53]. 92 Esso sought to distinguish Dick Smith and Lend Lease on the basis that they concerned stamp duty rather than the PRRTA Act, referring to Esso (Trial) at [481]. Esso also referred to PepsiCo, Inc v Commissioner of Taxation [2024] FCAFC 86; 303 FCR 1 at [33]. Esso submitted there was a requirement for a "relevant and direct" nexus with the processing of petroleum for the purposes of s 24A, referring to Esso (Trial) at [482] and Esso (Full Court) at [193]. Esso submitted that the requirement for a "relevant and direct" nexus was supported by: (a) the statutory context. In particular, Esso referred to the heading to s 24A, which refers to "tolling receipts" and to s 13 of the Acts Interpretation Act 1901 (Cth) and R v Rolfe [2021] HCA 38; 273 CLR 413 at [18], [20] (the Court); and (b) the extrinsic materials. In this respect, Esso referred to the Revised Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 2003 (Cth) at pp 7, 38 and 40 [5.24] and the Explanatory Memorandum to the Tax Laws Amendment (2009 Measures No 3) Bill 2009 (Cth) at [3.7]. 93 Each of the cases referred to turn on their own particular facts, albeit the reasoning in Dick Smith and Lend Lease has useful application by analogy - see, for example: Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62; 251 FCR 40 at [133]; Commissioner of Taxation v Glencore Investment Pty Ltd [2020] FCAFC 187; 281 FCR 219 at [154]. 94 In the present case, it was common ground that the issue raised by s 24A revolves around both the terms of the contract properly construed and the substance and operation of the agreement. It was common ground that the MRFs were not expressed in the Restated KGPA as being the consideration for processing petroleum into gas but that this fact does not of itself supply the answer to the issue raised by s 24A. 95 As to the phrase "relevant and direct", as mentioned earlier, it is preferable ultimately to remain with the statutory language even if judicial formulations or explanations assist in determining what the statutory language requires. It is to be accepted that: (a) the relevance of one subject matter to the other; and (b) the directness of any connection between two subject matters, are both probative inquiries in making an evaluative judgment about whether one subject matter can be said to relate to the other in the particular factual context in which the question is asked and for the purposes of the particular statute in respect of which the question arises. The formulation "relevant and direct" raises its own questions, including the type and degree of relevance required and the degree of directness required. 96 As to Esso's reliance on the heading to s 24A - "assessable tolling receipts" - and the extrinsic materials referred to at [92] above, these do not take matters significantly further. The heading simply and accurately summarises what the section is about. The relevant parts of the explanatory memorandums indicate that, under the PRRTA Act, petroleum tolling receipts - that is amounts paid for processing petroleum - are intended to be assessable receipts. 97 The issue posed by s 24A is answered by reference to the substance and practical operation of the commercial arrangement agreed between the parties as expressed in their contract, construed in the ordinary way, and the degree of connection between the "consideration receivable" and the processing of petroleum. In the present case, for the reasons given earlier the MRFs were consideration receivable in relation to the processing of petroleum into gas. The connection between the two can be described as substantial, relevant, direct and close. The connection was not severed because the MRFs were paid before the processing services were in fact provided nor by the fact that they were not refundable. 98 The MRFs were plainly paid to Esso for processing petroleum into gas.

The integers of the contractual formula for calculating the MRF 99 The Commissioner submitted that the primary judge "erred by not taking account of the integers of the contractual formula for calculating the MRF in making a finding about what the MRF is 'in relation to' for the purposes of s 24A", referring to J[85(6)], [97] and [106]. At J[97], the primary judge stated: Limited assistance is gained from the terms used to describe the integers in the formula for calculating the Monthly Reservation Fee amounts. The fact that the Monthly Reservation Fee is calculated by a formula that uses an integer that is described as a quantity of gas is not determinative of the character of the Monthly Reservation Fee particularly in circumstances where the quantity of gas is a fixed figure and is not a measure of the quantity of the petroleum in fact processed or the quantity of gas in fact produced. 100 The Commissioner submitted that the integers of the contractual formula for calculating the MRFs are not determinative of the statutory question, but that they are significant contextual matters for the purpose of assessing whether s 24A applies to the MRFs. Referring to Mussalli v Commissioner of Taxation [2021] FCAFC 71; 284 FCR 516 at [110] (Thawley J), the Commissioner submitted that accepting that the character of a payment is "not dictated by the manner of its calculation" does not entail a requirement that one must "[ignore] the objective facts". The Commissioner observed that, in Mussalli at [97] (McKerracher and Stewart JJ), the method of calculation for certain upfront payments was regarded as "an objective fact centrally relevant to the question of what the payments were made for and the character of those payments". 101 It should first be observed that the primary judge did take into account the integers of the contractual formula in reaching her conclusion, but considered that they were not determinative of the character of the MRFs (J[85(6)], [97]) and did not sufficiently supply the nexus required by s 24A: J[106]. Her Honour's analysis focussed principally on the terms used to describe the integers rather than the substance of the contractual formula. To the extent it is relevant to the inquiry, the integers of the calculation are at least related to processing in that the GCRT is relevant to the "Processing Service Tariffs" in cl 22 and the UMDQ is a measure of a quantity of gas, which is the product of the processing activity. Under the Restated KGPA, UMDQ is measured in gigajoules, a quantity of gas energy, in contrast to LPG and condensate which are measured in tonnes and barrels respectively. Capacity is also related to processing. The MRF payable by each User was calculated at a flat rate of $1.82 (adjusted to CPI) per gigajoule of UMDQ: J[67]; cll 22.3(a) and 22.2(a). MDQ represented the "User's reservation of gas processing capacity under [the Restated KGPA]": cl 8.1(b). It is relevant to an assessment of the connection between the MRF and the "processing of … petroleum" that the MRF is calculated by reference to gas processing capacity. The Monthly Processing Fee was the contractual method of payment relating to the processing of petroleum into LPG and condensate.

Alleged irrelevant considerations (subsequent amendments to the Restated KGPA) 102 The Commissioner submitted that the primary judge erred at J[96(f)] and [101] by relying on deeds entered in 2019 and 2020 in support of a finding that the calculation of the MRF "did not correlate with the volume of gas to be provided from the processing of petroleum". The Commissioner contended that events that happened after the years to which the amended assessments relate do not assist in determining whether s 24A applied to the MRF. The Commissioner acknowledged that the primary judge's reference to those deeds "was ancillary to the principal reasons for decision", but contended that "the reference to irrelevant material had a cumulative effect in her Honour's erroneous conclusion about the nexus between the MRF and Esso's obligation to provide processing services". 103 Esso contended that it was open to the primary judge to consider the subsequent amendments in determining the weight to be given to matters that existed during the relevant period as part of characterising the MRFs: Commissioner of Taxation v Harris [1980] FCA 74; 30 ALR 10 at 25-26 (Fisher J), see also at 18 (Bowen CJ). 104 It is sufficient for present purposes to focus on the deed entered into in 2020. By the deed entered into in 2019, the parties had decided to provide for only one additional well (rather than two additional wells) to be drilled and started up by March 2021. By the deed entered into in 2020, the parties decided that the additional well should be started up by March 2023 - see: Recital A at Part C, Tab 173, page 1366. The consequence was that production would not increase by as much as had been envisaged at the time of the Restated KGPA. Under the Restated KGPA, the amount of gas in each of the "Contract Years" matched the amount of gas in each of the "Allocation Years". This was reflected in Exhibit A1.1 and Exhibit A1.3 - see [80] above. Under the deed entered into in 2020, changes were made to Exhibit A1.1 such that it no longer matched the quantities of gas in Exhibit A1.3. 105 The deed entered into in 2020 provides no real assistance in determining the question whether the MRFs in the 2013 to 2017 years were consideration receivable in relation to the processing of petroleum. 106 It is clear that by 2020 circumstances had changed such that the parties would only provide one additional well, rather than two. The parties chose to amend their contract. The fact that parties, seven years after an original contract, chose to amend it in light of changed circumstances does not alter the character of payments made some years earlier. In the 2013 to 2017 years, the MRFs (Contract Years) and the processing allocations (Allocation Years) were calculated on the same UMDQs. That fact is not altered by later events. It might also be observed that the changes were relatively minor and that the changes did not affect years one to four (which had mostly passed). Further, it should be observed that the 2020 deed effected other changes and did not have retrospective effect.

[2010] HCA 33

[1936] HCA 11

(2009) 174 FCR 91

(1948) 77 CLR 143

(1936) 55 CLR 144

(1995) 59 FCR 103