Deputy Commissioner of Taxation v Buzadzic [2019] VSC 141

CONSTITUTIONAL LAW - Chapter III Constitution - Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 - Exercise of federal judicial power by a State court - Where grant of summary judgment would impermissibly confer judicial power on a federal official - Where legislative provision may render unexaminable by the courts an administrative decision by a federal official imposing a tax - Where Parliament may purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction - Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1 - Where conclusive evidence provision may impermissibly interfere with the exercise of federal judicial power.

1 The Deputy Commissioner of Taxation ("the Commissioner") has brought separate proceedings against Mr Danny Buzadzic (S CI 2017 01114) and Mrs Leisa Buzadzic (S CI 2017 01115) ("the Defendants") seeking recovery of taxes, administrative penalties and interest charges.

2 In a Summons filed on 6 December 2017, the Commissioner seeks to obtain summary judgment in each of the proceedings, pursuant to section 61 of the Civil Procedure Act 2010. A hearing of the application took place on 19 February 2019.

3 On Monday 25 February 2019, I advised the parties that I had decided to dismiss the application, with reasons to be provided at the earliest convenience. These are my reasons.

4 In a Writ filed on 29 March 2017 in proceeding S CI 2017 01114, the Commissioner alleges Mr Danny Buzadzic is indebted to the Commonwealth of Australia in the amount of $4,535,348.97. Similarly, in a Writ filed on 29 March 2017 in proceeding S CI 2017 01115, the Commissioner alleges Mrs Leisa Buzadzic is indebted to the Commonwealth of Australia in the amount of $1,137 965.45. These debts primarily comprise income tax liability pursuant to the Income Tax Assessment Act 1936 (Cth) ("the ITAA 1936"), as well as administrative penalties and shortfall interest charges payable under the ITAA 1936 and Taxation Administration Act 1958 (Cth) ("the TAA"). Furthermore, in addition to the debts claimed, in each of the proceedings the Commissioner seeks to recover further general interest charges pursuant to the ITAA 1936 and the TAA.

5 The Defendants each filed a Defence in their respective proceeding on 26 September 2017. At a Directions Hearing on 4 May 2018, I granted leave nunc pro tunc to the Defendants to each file an Amended Defence in the form of a Draft Amended Defence filed with the Court on 19 March 2018. A single Amended Defence was filed in respect of both proceedings.[1] In the Amended Defence, the Defendants plead, inter alia:

(a) the purported exercise by the Plaintiff of the powers conferred by sections 167 and 170 of the ITAA 1936 amounted to jurisdictional error; and the purported exercise of power was ultra vires the power of assessment and was unlawful, invalid, void and of no effect ("the jurisdictional error defence");[2]

(b) each of the defendants has brought review proceedings of the Commissioner's disallowance of their objections to the impugned assessments in the Administrative Appeals Tribunal under Part IVC of the TAA in which they have a reasonably arguable case, and these proceedings are still pending ("the review proceedings defence");[3]

(c) each of section 175 of the ITAA, sections 350-10(1) item (2) and 255-5 of schedule 1 of the TAA and section 14ZZM of the TAA are unconstitutional and invalid and of no force and effect ("the constitutionality defence");[4]

(d) whilst each of the Defendants have not paid in full the income tax purportedly assessed for the years of income ended 30 June 2007 to 30 June 2013, the Defendants have paid the amounts assessed for the years ended 30 June 2014 (in respect of Ms Leisa Buzadzic) and 30 June 2015 (in respect of Mr Danny Buzadzic) in full ("the partial payment defences").[5]

6 On 6 December 2017, the Commissioner filed a Summons seeking to obtain summary judgment in respect of each of the proceedings, pursuant to section 61 of the Civil Procedure Act 2010. I heard the application on 19 February 2019.

7 The principles governing the summary disposal of civil proceedings are well settled. The regime, provided for in this state in the Civil Procedure Act 2010, facilitates the expeditious disposal of legally unmeritorious matters that would otherwise result in judicial and other publicly funded resources being expended and diverted from dealing with other, more deserving, cases.[6] In order to grant summary judgment, a Court must be satisfied the pleaded defences in a proceeding have no real prospect of success.[7] Furthermore, a Court may order a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success, summarily disposal should not occur because it is not in the interests of justice, or the dispute is of such a nature that only a full hearing on the merits is appropriate.[8]

8 The Court of Appeal has accepted that the statutory criterion of "no real prospect of success" is more liberal than the "hopeless" or "bound to fail" test, or at least is a different test, and may be satisfied in cases where the former tests might not.[9] The Court relevantly observed that the test:[10]

... should be applied by reference to its own language, without paraphrase or comparison with the previous rule, always bearing in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.

9 It is necessary to consider whether the respondent to an application for summary judgment has a "real" as opposed to a "fanciful" chance of success.[11] However, it is the plaintiff that bears the burden of demonstrating the pleaded defences have no real prospect of success.

10 In Spencer v Commonwealth,[12] the High Court cautioned against the award of summary judgment, observing:

Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has former the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter.

11 The power to give summary judgment is a powerful tool of case management, but one that is not to be exercised lightly. If the overarching obligations under the Civil Procedure Act[13] are to be complied with, successful applications for summary judgment should be rare. The summary disposition provisions of the Act are part of a regime that includes the overarching purpose, overarching obligations, and other rigorous case management provisions. It should be borne in mind that parties and practitioners owe an overarching obligation to the Court to:[14]

... not make any claim or make a response to any claim in a civil proceeding that ... does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.

12 If such an obligation is complied with, it is difficult to see how a claim or defence could have "no real prospect of success". Summary disposition may call into question whether parties and practitioners have fulfilled their obligations under the Act.

13 In each of the Amended Defences, the Defendants plead there has been an error in the purported exercise by the Commissioner of the powers conferred by sections 167 and 170 of the ITAA 1936 amounting to jurisdictional error. It is alleged the purported exercise of power was ultra vires the power of assessment and was unlawful, invalid, void and of no effect.

14 The Defendants plead they have each furnished income tax returns for the years of income ending 30 June 2007 through to 30 June 2015,[15] in which the Defendants returned all taxable income for each year of the relevant periods. Consequently, it was not open for the Commissioner not to be satisfied with the returns furnished by the Defendants, and to make an assessment of the amount that in the Commissioner's judgment income tax ought to be levied. It follows that the assessments were not authorised by section 167 of the ITAA 1936 and are subject to jurisdictional error.

15 Further, and in the alternative, the Defendants allege the assessments were not authorised by section 170 of the ITAA 1936 because there was no fraud or evasion within Item 5, section 170, and there was no evidence to sustain the formation of the opinion by the Commissioner that there was fraud or evasion in the relevant periods.

16 The Defendants further plead the assessments were made "arbitrarily" and were "speculative and tentative and as such lacked the certainty and finality postulated and mandated by the ITAA 1936".[16]

17 The Commissioner challenges the pleaded defence by seeking to rely on a statutory scheme formed by Section 350-10 of Schedule 1 to the TAA, section 175 of the ITAA 1936, s14ZZM of the TAA, and various provisions of the TAA which entitle a taxpayer to "object against various assessments and other decisions of the Commissioner 'in the manner set out in Part IVC' of the TAA".[17]

18 The plaintiff submits s350-10 of Schedule 1 to the TAA takes the form of a present-day iteration of a "conclusive evidence" provision.[18] It relevantly provides:[19]

350-10 Evidence

... the production of...a notice of assessment under a taxation law... is conclusive evidence that

(a) The assessment was properly made; and

(b) except in proceedings under Part IVC of this Act on a review or appeal relating to the assessment - the amounts and particulars of the assessment are correct.

19 Section 175 of the ITAA 1936 is described as a "no invalidity" provision and relevantly provides:[20]

175 Validity of assessment

The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

20 The plaintiff refers to the observations of Gummow, Hayne, Heydon and Crennan JJ in Federal Commissioner of Taxation v Futuris Corporation Limited:[21]

... the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the Administration Act; in review or appeal proceedings under Pt IVC the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in s14ZZK and s14ZZO of the Administration Act.

21 The Commissioner argues the cumulative effect of these provisions is to place the Commissioner in a position of "special advantage" with respect to recovery proceedings.[22] According to the Commissioner,[23] the High Court's decision in Futuris renders an assessment incapable of judicial review except on two narrow grounds: conscious maladministration or where the assessments are tentative or provisional,[24] neither of which are raised in the Amended Defences.

22 The Commissioner further argues section 350-10 of Schedule 1 of the TAA "precludes any argument that the Commissioner was not authorised to amend the Defendants' assessments outside the normal periods of review because section 170 of the ITAA 1936 was not complied with".[25] Accordingly, where the Commissioner relies on the conclusive evidence provision, it is said the taxpayer cannot impugn the validity of amended assessments made in reliance on s170(2) of the ITAA 1936.[26]

23 The Defendants each allege four provisions in the ITAA 1936 and the TAA are unconstitutional:

(a) section 175 of the ITAA 1936 ("the no invalidity provision");

(b) item 2 of section 350-10(1) in Schedule 1 to the TAA (the "conclusive evidence provision");

(c) section 255-5 of Schedule 1 to the TAA;

(d) section 14ZZM of the TAA.

24 The Defendants submit the construction and application of the relevant provisions as proffered by the Commissioner is unconstitutional. The suggested approach of the Commissioner requires the Supreme Court of Victoria, as a court within the meaning of Chapter III of the Commonwealth Constitution, to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.[27] In turn, it is said that the provisions would confer upon the Commissioner part of the judicial power of the Commonwealth. Furthermore, the proffered construction of the provisions would operate to deny the Defendants all rights to resist the pleaded assessments, so as to offend the constraint of contestability as required of taxation within section 51(ii) of the Constitution.[28]

25 The cumulative effect of the provisions would be to give a binding and authoritative determination, and in so doing preclude a real judicial consideration, of the Defendants' liability. The Court would have no role except to give curial force to the Commissioner's decision. Consequently, following their submission that the Commissioner's construction and application of the provisions renders them unconstitutional and invalid, the Defendants submit the provisions must be construed, so far as their language permits, so as to ensure their constitutionality.

(a) The no invalidity provision and conclusive evidence provision are "closely related".[29] The conclusive evidence provision operates to give evidentiary effect to the no invalidity provision, and except in proceedings pursuant to Part IVC of the TAA, to immunise the assessments against substantive attack.[30] Further, the conclusive evidence provision provides an exception permitting a dissatisfied taxpayer to object and seek review in the AAT or the Federal Court in the manner provided by Part IVC.

(b) Section 255-5 of Schedule 1 to the TAA does not confer any power upon the Commissioner, nor upon any other body; rather, it operates to provide that certain consequences flow if a "tax-related liability" is due and payable.[31] It authorises the Commissioner to commence debt proceedings in a court of competent jurisdiction,[32] and in that context, it is that court that exercises judicial power. No part of that power is conferred on any member of the Executive Government.[33]

(c) Section 14ZZM confirms the Commissioner is not prevented from commencing judicial recovery proceedings in accordance with s255-5(2), and "does not confer judicial power - or any power - on the plaintiff, nor upon any other body".[34] The Commissioner is thus authorised to proceed to recover tax "despite the pendency of a review in relation to a taxation decision".[35]

27 The Defendants observe they have commenced proceedings in the Administrative Appeals Tribunal pursuant to Part IVC Taxation Administration Act 1953 (Cth) ('the Part IVC proceedings), seeking review of the Commissioner's disallowance of the defendants' objections to the assessments.

28 Notwithstanding the Part IVC proceedings on foot, the Commissioner argues section 14ZZM of the Tax Administration Assessment Act 1953 (Cth) provides a "complete answer" to the defence put forward by the Defendants.[36] The section relevantly provides:

14ZZM Pending review not to affect implementation of taxation decisions

The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.

29 The Commissioner argues the section gives effect to legislative policy to "protect the interests of the revenue"[37] by defending against a taxpayer who may withhold payment, instead using the funds to conduct appeals against the Commissioner until having achieved bankruptcy. Accordingly, it is submitted, it is irrelevant, for the purposes of the application for summary judgment, whether the Part IVC review proceedings have reasonable prospects of success. Section 14ZZM confirms the Commissioner is not prevented from commencing judicial recovery proceedings in accordance with section 255-5(2), and "does not confer judicial power - or any power - on the plaintiff, nor upon any other body".[38]

30 The Defendant submits such a construction would "render the Part IVC review a mere sham".[39] As a consequence, the Defendants would lack recourse to judicial power to demonstrate they are not liable to pay tax (or pay in the amounts assessed) and the administrative assessments would be conclusive.[40]

31 Having regard to the applicable principles, I cannot accept the underlying propositions supporting the Commissioner's contention that the pleaded defences have "no real prospects of success". Accordingly, the application must fail. I have serious concerns regarding the nature of the case that was put to me by the Commissioner. The Commissioner's submissions pay insufficient regard to this Court's status as a superior court of record and a repository of judicial power.

32 During the hearing of the application, in response to a question from the bench, counsel for the Commissioner submitted the purpose of the Court in the context of these proceedings is "to give curial force to the decision of the Administrator".[41] This bears a curious resemblance to the admonition of Gummow J in Kable v DPP, where His Honour observed, by consequence of the impugned legislation:[42]

The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality.

33 I agree, that were I to grant summary judgment in the proceedings on the basis of the reasons advanced by the Commissioner, it would reduce the Court's function to such a role as an "arm of the executive". I cannot accede to this result.

34 The principles relating to the vesting and exercise of federal judicial power are well established. It is helpful to restate them briefly. Section 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in the High Court of Australia, in such other federal courts as the Parliament creates, and in such other courts as the Parliament invests with federal jurisdiction.[43] Section 77(iii) specifically empowers the Parliament to invest any court of a State with federal jurisdiction.[44] Federal jurisdiction may comprise any of the matters set out in sections 75 and 76 of the Constitution. Subject to limited exceptions, the State courts have been invested with federal jurisdiction in relation to all matters referred to in sections 75 and 76 of the Constitution by sections 39(2) and 68 of the Judiciary Act 1903 (Cth).[45] Consequently, to the extent that the courts of the States are invested with federal jurisdiction by the Parliament of the Commonwealth, those courts become part of the federal Judicature established under Chapter III of the Constitution.[46] It is not a matter of controversy that this Court, being seized of federal jurisdiction, is such a court proscribed by the limitations of Chapter III.

35 In this proceeding, the Commissioner seeks to challenge the pleaded defences by reliance on a proffered construction of certain provisions of the ITAA 1936 and the TAA which, if accepted, would impermissibly confer judicial power on a federal official and require the Court to act in a manner inconsistent with its position as a repository of federal judicial power. In Falzon v Minister for Immigration and Border Protection, Gageler and Gordon JJ stated:[47]

The provisions of Ch III of the Constitution constitute an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. As a corollary, the grants of legislative power in s51 of the Constitution do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth.

36 It follows that the Parliament is constrained as to the extent to which it may direct a Chapter III Court as to the outcome of the exercise of its judicial function. In Chu Kheng Lim, Brennan, Deane and Dawson JJ noted:[48]

It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates.

37 Whilst a conclusive evidence provision (such as section 350-10 of Schedule 1 to the TAA) may not ordinarily be regarded as interfering with the exercise of judicial power, it may be different if attempt were made by the legislature "to give conclusivity to a document or certificate which was in its terms determinative of the very issue for determination in a pending case".[49] The Courts have not yet considered whether the Parliament may prescribe a conclusive rule of evidence to be applied by federal courts, and whether this precludes the determination by a federal court of facts in controversy, in so doing constituting an impermissible intrusion into the exercise of judicial power.

38 In Nicholas v R, Brennan CJ observed a law prescribing a rule of evidence does not impair the curial function of "finding facts, applying the law, or exercising any available discretion", and accordingly does not infringe Chapter III.[50] However, his Honour noted the comments of Isaacs J in Williamson v Ah On,[51] warning that:[52]

Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial function of finding the facts and hence a usurpation of judicial power. He said:[53]

"It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly."

If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing.

39 In this proceeding, the Commissioner adopts a construction of the relevant provisions which, contrary to this warning, would have the effect that a taxpayer, found to have been assessed to owe debts pursuant to the provisions of the taxation legislation, would be conclusively deemed to owe those amounts for the purposes of recovery proceedings in the Supreme Courts of the states. Taxpayers seeking to challenge recovery proceedings would do so in vain, despite the pendency of Part IVC proceedings in the Administrative Appeals Tribunal or the Federal Court of Australia. In the words of Brennan CJ, the legislature would have reduced the judicial function of fact finding to the merest formality.

40 I share the concerns raised by Kirby J in Futuris where, with regards to sections 175 and 177(1), his Honour relevantly observed that issues may arise concerning the constitutional validity of the provisions given they:[54]

... attempt to render unexaminable by the courts an administrative decision by a federal official imposing a tax, or to render such a decision examinable only under conditions that are inconsistent with the proper application of s75(v) of the Constitution ...

Given recent explanations of the meaning, purpose and application of s 75(v) of the Constitution, it is questionable whether the Federal Parliament could lawfully provide that the "validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with".

The validity of an assessment ... can only be finally determined by a court, not by parliamentary fiat nor by administrative action. Moreover, the effect of non-compliance with a provision of the Act must surely depend upon the particular terms of that provision; the nature, extent and purpose of any non-compliance; and whether in law the non-compliance affects (or does not affect) the validity of what has been done or omitted.

In the generality of its language, s 175 of the Act may be an over-broad provision which could not successfully breathe validity into a purported "assessment" that was not in law an "assessment" as contemplated by the Act.

42 In any event, I consider that even if the defences have no real prospects of success, it is not in the interests of justice to summarily dispose of the proceedings, and only a full hearing on the merits is appropriate. It is therefore proper to exercise the discretion afforded to me by section 64 of the Civil Procedure Act 2010.

43 The application is dismissed. I will hear the parties on the matter of costs.

[1] The Amended Defence filed on 14 March 2018 was filed in respect of S CI 2017 01115. However, submissions proceeded on the basis that the defence was filed in respect of both proceedings.

[2] Amended Defence (19 March 2018) [2].

[3] Amended Defence (19 March 2018) [7].

[4] Amended Defence (19 March 2018) [20].

[5] Amended Defence (19 March 2018), [5].

[6] Explanatory Memorandum_, Civil Procedure Bill_ 2010.

[7] Civil Procedure Act 2010, s63(1).

[8] Civil Procedure Act 2010, s64.

[9] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 38 [27].

[10] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 38 [27].

[11] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 38 [27].

[12] [2010] HCA 28; (2010) 241 CLR 118 at 132 [25].

[13] Civil Procedure Act 2010, Part 2.3.

[14] Civil Procedure Act 2010, s18.

[15] Mr Danny Buzadzic does not plead to having lodged an income tax return for the year ending 30 June 2014.

[16] Amended Defence (18 March 2018), [2].

[17] Plaintiff's Written Submissions, (20 December 2018), [28].

[18] See Federal Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 at 166 [64] ('Futuris').

[19] Income Tax Assessment Act 1997 (Cth), s350-10(1) of Schedule 1.

[20] Income Tax Assessment Act 1936 (Cth), s175.

[21] Futuris [2008] HCA 32; (2008) 237 CLR 146 at 157 [24].

[22] Plaintiff's Written Submissions (20 December 2018), [29].

[23] Plaintiff's Written Submissions (20 December 2018), [29].

[24] Citing Futuris [2008] HCA 32; (2008) 237 CLR 146 at 157 [25].

[25] Plaintiff's Written Submissions (20 December 2018), [31].

[26] Plaintiff's Written Submissions (20 December 2018), [32], citing McAndrew v Federal Commissioner of Taxation [1956] HCA 62; (1956) 98 CLR 263 at 270 - 1.

[27] Defendant's Written Submissions (22 January 2019), [3(a)].

[28] Defendant's Written Submissions (22 January 2019), [3(b)].

[29] Plaintiff's Written Submissions (20 December 2018), [47].

[30] Plaintiff's Written Submissions (20 December 2018), [47].

[31] Plaintiff's Written Submissions (20 December 2018), [51].

[32] Defendant's Written Submissions (22 January 2019), [52].

[33] Plaintiff's Written Submissions (20 December 2018), [53].

[34] Plaintiff's Written Submissions (20 December 2018), [54].

[35] Plaintiff's Written Submissions (20 December 2018), [40].

[36] Plaintiff's Written Submissions (20 December 2018), [37].

[37] Citing Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 at 492 [44].

[38] Plaintiff's Written Submissions (20 December 2018), [54].

[39] Defendant's Written Submissions (22 January 2019), [41].

[40] Citing Deputy Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32 at 40 and at 52.

[41] Transcript (19 February 2019), [23]-[27].

[42] Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 at 134.

[43] Australian Constitution, s71.

[44] Australian Constitution, s77(iii)

[45] Leslie Zines, Cowen and Zine's Federal Jurisdiction in Australia (The Federation Press, 2002) 217.

[46] Burns v Corbett and Others (2018) 353 ALR 386 at 394, [15].

[47] [2018] HCA 2; (2018) 92 ALJR 201

[48] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 36-7.

[49] Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1994-1995) 183 CLR 168 at 184-15.

[50] Nicholas v R [1998] HCA 9; (1998) 193 CLR 173 at 189 [23].

[51] [1926] HCA 46; (1926) 39 CLR 95.

[52] Nicholas v R [1998] HCA 9; (1998) 193 CLR 173 at 189, [24].

[53] Williamson v Ah On [1926] HCA 46; (1926) 39 CLR 95 at 108.

[54] Futuris [2008] HCA 32; (2008) 237 CLR 146 at 182 [122].

[55] Futuris [2008] HCA 32; (2008) 237 CLR 146 at 183 [125]- [126].