The powers were not vested in the deceased and could not be exercised by another as his agent. The relationship therefore was not that of agent and principal despite the so-called agency agreement of 19 April 1974 because, as was said in International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 CLR 644 at 652:

"Agency is a word used in the law to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties".

In any event, in my view, the correspondence in 1987 and 1988 established or evidenced a contract under which Mr Defago undertook to act as directed by the deceased, and the deceased for his part refrained from taking steps to remove Mr Defago as founder. The Foundation was a corporation, governed by a board of directors nominated by the founder, who appears to be the equivalent of a sole shareholder. The right to vote at a general meeting of a company is a right of property (Pender v Lushington [1877] 6 Ch D 70 at 75-6, 81) and voting agreements by shareholders are enforceable by injunction which may be prohibitory or mandatory. See Puddephatt v Leith [1916] 1 Ch D 200 and Grimwade & Ors v FCT [1949] HCA 9; (1949) 78 CLR 199 at 206. There was no evidence that voting agreements by founders would not be enforced under the laws of Switzerland or Liechtenstein, and I would apply the presumption that the laws of those countries, in this respect, are the same as ours.

Nothing appears to turn on the existence of the blank transfer of the founder's rights which Mr Defago signed but retained until after the death of the deceased. The deceased had no capacity to obtain and use this document without the co-operation of Mr Defago, and as far as I can determine he had no right, independent of fiduciary duty or contract, to compel Mr Defago to deliver it up.

The issues before this Court concern the effect of the notional estate provisions of the Family Provision Act on the Foundation and its assets. The plaintiffs identified what they claimed were four "prescribed transactions" falling within s 22, but all claims failed before Windeyer J. The claims in respect of the first three transactions were pressed on appeal, but the fourth was abandoned. Mason P rejects the second claim, and I agree that this fails for the reasons he has given. However he would uphold the first and third claims, and I must now deal with these.

"That in executing the Memorandum of Wishes (and in having the Founder incorporate this into a by-law) and in leaving this unrevoked, the deceased undertook an act as a result of which property became held by another".

The relevant Memorandum of Wishes dated 5 March 1987 was signed by the deceased and witnessed. It was directed to Societe de Controle Fiduciare which was no longer associated with Mr Defago and had ceased to be the founder on 26 October 1981. Mr Defago received the memorandum some time before 6 May 1987 when he wrote to Mr Nathan, a partner in Pannell Kerr Forster, acknowledging its receipt. A new special by-law, giving effect to the Memorandum of Wishes, was made by the founder with effect from 15 March 1988.

The Memorandum of Wishes was just that. It is not a will and does not purport to give binding directions to the addressee, let alone to Mr Defago. The relevant section is headed "My wishes are as follows", followed below by the word "Bequests", and below that by the words "Upon my death I wish the following payments to be effected". The new special by-law relevantly provided:

"The Founder hereby designates as beneficiaries of the Foundation those persons and that Foundation referred to in that section headed `Bequests' of a Memorandum of Wishes of Charles Keith Hyland of 5 March 1987, a true copy of which is hereto annexed".

Under the special by-law, the persons referred to were made actual and not merely precatory beneficiaries of the Foundation. Their rights were subject to Art 6 of the Foundation which provided:

"The beneficiaries of the Foundation are the persons who are designated by the Founder in a special by-law. The Founder determines upon his own discretion without justification if and when a distribution of the income, retained earnings or assets of the Foundation to the beneficiaries is to take place. Under the same conditions the Founder may make such distribution at any time and from time to time to any one or more of the beneficiaries to the entire exclusion or partial exclusion of any other or others of the beneficiaries".

This transaction was said by the appellants to fall within s 22 (1) which provides:

"A person shall be deemed to enter into a prescribed transaction if:

(a) On or after the appointed day he does, directly or indirectly, or omits to do, any act, as a result of which:

(i) property becomes held by another person ...; or

(ii) property becomes subject to a trust, whether or not the property becomes in either case so held immediately; and

(b) Full valuable consideration in money or money's worth for the first mentioned person's doing, or omitting to do, that act is not given".

"There is no doubt that as a result of the execution of the Memorandum of Wishes by the deceased, the execution of the special by-law and the decision of ... Gartner to make distributions in accordance with the Memorandum of Wishes or the ratified special by-law, property of the Foundation became held by (the persons identified in the Memorandum of Wishes) without their providing full consideration for it. At least the action of the deceased in signing the Memorandum of Wishes was a causal link in this chain ... the founder was not compelled to act in accordance with the Memorandum of Wishes, it was his decision whether or not to do so. The passing and non-revocation of the special by-law were acts or omissions of the founder, not Hyland. Therefore he was only responsible for one step in the causal chain ... one action out of three necessary actions to bring about a result cannot in itself bring about a particular ... result ...".

Mason P considers that the deceased did an act within the section by causing Mr Defago to make this special by-law. He also considers that s 22 (1) is not limited to "acts ... that are the operative cause of property becoming held by the deceased's intended disponee".

I find myself in respectful dissent from these conclusions principally because, in my view, questions of causation of the kind referred to in Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 673, which arise so frequently in tort, contract, and workers' compensation cases, are not relevant to the operation of s 22 (1). The words "directly or indirectly" do not, in my view, support the construction accepted by the majority. They are linked to the doing of an act and not its results. The enquiry therefore is whether an act which had a certain result has been done directly or indirectly. It is not whether the deceased has, directly or indirectly, caused property to be disposed of to another or become subject to a trust.

In any event the expression "directly or indirectly" does not widen the scope of a statutory provision such as this. Doing an act directly means doing it yourself and doing it indirectly means doing it through another (Law Society of NSW v Ramalca Pty Ltd & Anor (1988) 12 NSWLR 34 at 43). This requires something akin to agency in accordance with the principle that he who does an act through another does it himself. See Ex parte Aston Investments Pty Ltd Re Hall & Ors [1959] 60 SR (NSW) 620 at 626. Thus in R v Metal Trades Employers' Association & Ors Ex Parte AEU [1951] HCA 3; (1951) 82 CLR 208 at 261, Kitto J said:

"... the inclusion of the words `directly or indirectly' serve to make plain the completeness of the (provision), but makes no difference to its operation".

Although the deceased could give legally binding directions to Mr Defago, he did not attempt to do so in his Memorandum of Wishes. The appellants' proposition is that s 22 (1) (a) extends to a case where a wish or a request communicated to another has been acted on. The section so construed would have an extraordinarily wide operation. Reference was made during argument to Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 306 where the Court referred to the justifiable confidence that a husband will frequently have in his wife that she "will always consult his interests, and probably comply with his wishes in exercising her proprietary rights". Would a request by a husband to a wife, which she acted on by making some disposition of property, be an act "as a result of which property becomes held by another person"? Another example mentioned during argument was a request by a parent to a grandparent that he or she make a will in favour of the grandchildren rather than the parent. Other examples that readily come to mind include an employee's wishes communicated to superannuation trustees and a settlor's wishes communicated to the trustees of a discretionary trust. See Hartigan Nominees Pty Ltd & Anor v Rydge (1992) 29 NSWLR 405.

The causative potency of such requests may be clear, as it is in this case, but in my opinion the section does not make relevant the requests and wishes of a third party which are acted on by a disponer. Acts of that nature are not within the section.

I cannot see how s 26 would prevent the notional estate provisions applying in such a case. If a parent who persuaded a grandparent to leave his or her estate to the grandchildren, instead of the parent, enters into a prescribed transaction within s 22 (1)(a) that would, it seems to me, disadvantage his or her own estate which would otherwise have benefited under an earlier will, or under one that would otherwise have been made.

The act of the deceased relied upon is the making and communication of his Memorandum of Wishes. I am unable to accept that as "a result of" this act property became vested in another within the meaning of a statute concerned with property. The words, on their ordinary and natural meaning in this context, apply to acts which, in themselves, effect a disposition of property. They apply to what Salmond referred to as "acts in the law" which, in the exercise of a legal power, create, transfer or extinguish rights. See Salmond, "Jurisprudence", 12th Ed, 1966 at 333-4.

The reference to "a result" in the section does not in my view support a different construction. An act in the law may have more than one result. Thus a person may settle his own property on himself for life with a remainder over, or with some other provision for the disposal of the property after his death. As "a result" of his settlement he retains a life estate but this does not fall within s 22 (1)(a). However as "a result" of the same act in the law, property has become held by another, although not immediately, or has become subject to a trust, and that result is within the section. The disposition must be "a result" of the act but one cannot change this to a statement that the act may be "a cause" of the disposition without enlarging its meaning. In my opinion the reference to "a" result does not assist the appellants in this case.

However this is not the end of the enquiry because s 22 (1) (a) also applies to omissions. The deceased had the power to direct Mr Defago to revoke the special by-law and if he had exercised this power the bequests referred to in that by-law would not have taken effect.

The question then is whether "as a result" of the special by-law remaining in force, property became held by another person, that is by someone other than the Foundation? The omission of the deceased left the persons referred to in his Memorandum of Wishes as designated beneficiaries of the Foundation but, given the terms of Art 6, this only made them objects or beneficiaries of a power akin to a discretionary trust. A beneficiary under a discretionary trust has an interest because he has a right to be considered by the trustees as a potential recipient of benefit, and this right may be protected by a court of equity, but this interest is uncertain, contingent, and potentially valueless. See Gartside & Anor v IRC [1967] UKHL 6; [1968] AC 553 at 617-8.

The trustees of a discretionary trust have a power of appointment among the objects of the trust which will generally be a special power. The effect of the exercise of a special power of appointment is well established. The appointees do not take any proprietary interest in the subject matter of the power until the appointment takes effect, but the instrument creating the power "is the assurance by which the property is imparted to the appointees once the power is exercised". See Pedley-Smith & Ors v Pedley-Smith & Anor [1953] HCA 27; (1953) 88 CLR 177 at 189-191, and Perpetual Trustee Co Ltd v Commissioner of Stamp Duties [1977] AC 525 at 534.

The beneficiaries designated in the special by-law took no proprietary interest under that by-law until the founder exercised his discretion to pay them the amounts referred to, but those amounts then came to them "under the by-law". See Pedley-Smith at 190. The section clearly treats a relevant omission as capable of causing property to become held by another. I see no reason for denying this result to the omission by the deceased to exercise his power to direct Mr Defago to cancel the special by-law. In my opinion the existence of the first prescribed transaction contended for by the appellants should be upheld on this basis.

This claim invoked s 22 (4) (a) which provides:

"...a person shall, for the purposes of sub section (1) (a) be deemed to do, or omit to do, an act, as a result of which property becomes held by another person or subject to a trust if:

(a) he is entitled, on or after the appointed day, to exercise a power to appoint, or dispose of, property which is not in his estate but the power is not exercised before he ceases (by reason of death or the occurrence of any other event) to be so entitled and, as a result of the omission to exercise the power and of his death or the occurrence of the other event:

(i) The property becomes held by another person ... or subject to a trust (whether or not the property becomes in either case so held immediately); or

(ii) Another person becomes (whether or not immediately) or, if he was previously entitled, continues to be, entitled to exercise the power; ".

Windeyer J held that the deceased had no power to appoint or dispose of property. He said:

"At best what he had was a power to obtain that entitlement by taking to himself the Founder's rights, and then executing a special by-law designating beneficiaries, after which he would have been able to direct a distribution to particular beneficiaries. There is I think a clear distinction between entitlement and the ability to become entitled; one is present and one is potential ... De facto control does not equate to entitlement which has a legal connotation".

Mason P concludes otherwise but I find myself again in respectful dissent. While the composite expression "a power to dispose of property" is not a technical term, its constituents (power, dispose of and property) have established legal meanings in a statute dealing with property. The composite expression has a long history in Anglo-Australian legislation imposing death and estate duties dating at least from the Finance Act 1894 (UK) s 22 (2)(a). It was included in the definition of general power of appointment in Part IV of the Stamp Duties Act dealing with death duty. The meaning of this expression in that context was the subject of much judicial consideration which in my opinion is highly relevant.

This Act does not impose taxation and should not receive the strict construction appropriate for legislation of that character. However the case law referred to does not depend upon a special construction of words in a revenue statute. Moreover the New South Wales Law Reform Commission in their report on The Testator's Family Maintenance and Guardianship of Infants Act, 1916 (LRC 28) which led to this Act drew on the statutes dealing with death and gift duties (above at 75-6, 79-80, 81 etc).

The meaning of this expression in death duty legislation was not restricted to powers of appointment strictly so called. See also the definition in s 6 (6) of this Act. Re Parsons [1943] Ch 12 decided that a legatee who disclaimed had power to dispose of the legacy before the disclaimer; and in Re Estate of Spencer Isles [1946] NSWStRp 26; (1946) 47 SR (NSW) 33 decided that a member of a superannuation fund had power to dispose of the benefit payable to his legal personal representatives on his death. The expression was treated as capable of applying to the powers of a husband under regimes of community property in Ochberg & Ors v Commissioner of Stamp Duties [1949] NSWStRp 5; (1949) 49 SR (NSW) 248 and Commissioner of Estate and Gift Duties v Fiji Resorts Ltd [1983] 2 AC 649, and to property the subject of an option that lapsed on death in The Estate of Taylor [1950] NSWStRp 38; [1950] 51 SR (NSW) 16.

However decisions on the meaning of this expression in death duty legislation would deny it any application where the deceased for merely practical reasons had "in effect" an ability to bring about a disposition of property. Such a view is prima facie excluded by the reference to "entitled" which, as the word itself suggests, normally requires a legal title. See In re Sutton Coldfield Grammar School [1881] 7 App Cas 91 at 94-5. Re Parsons was concerned with the expression "competent to dispose of property" in s 22 (2) (a) of the Finance Act 1894 which was defined to include "every power ... enabling the donee ... to dispose of property as he thinks fit". Lord Greene MR said at 15:

"The phrase `competent to dispose' is not a phrase of art, and, taken by itself and quite apart from the definition clause in the Act, it conveys to my mind the ability to dispose, including, of course the ability to make a thing your own. From the moment of the testatrix's death the husband was able to make the legacy his own ... during the period between the death of the testatrix and the disclaimer, he was unquestionably `competent to dispose' within the meaning of those words in the sub-section, which, I think, are wide and, in a sense, popular in meaning. The matter is set beyond doubt by the definition in s 22 sub section 2 (a) of the Finance Act 1894 ... That language seems to me clearly to cover the case of a legatee to whom a legacy has been given and who is in the position either to take it or to disclaim it as he thinks fit".

The decisions on the meaning of this expression were considered in Equity Trustees Executors and Agency Co Ltd v Commissioner of Probate Duties (Victoria) [1976] HCA 34; (1975-1976) 135 CLR 268 where at 271, 274, 281, the view expressed by Lord Greene in Re Parsons was preferred to that of Luxmoore J in Re Penrose [1933] Ch 793. Stephen J, having referred to the phrase "competent to dispose" and its definition in the Probate Duty Act (Vict), said at 273:

"The competency spoken of must, I think, be legal competency to dispose and does not involve questions of the possession at the relevant time of a practical ability then and there to make an effective disposition. ... thus `to dispose' includes the effecting of a change in the ownership of property, not by its owner but by the deceased pursuant to some competency conferred by the owner. In any disposal of ownership one person loses title and another gains it ...".

"The language of the paragraph is apt to apply to anything which the deceased could alienate, either because he was the owner of it or because he had a capacity to dispose of it stemming from some authority or power, not being fiduciary in character".

The construction of s 22 (4) (a) which would confine it to powers to appoint or dispose of property which the deceased could exercise as a matter of legal entitlement, is supported by s 6 (7) of the Act which provides:

"A reference in this Act to a person entitled to exercise a power is a reference to a person entitled to exercise the power whether the power is absolute or conditional and whether or not the power arises under a trust, and includes a reference to a person entitled to exercise the power together with one or more other persons, whether jointly or severally".

This language can only properly apply to powers having an existence in law. It too has been drawn from death duty legislation, and reflects an intention to displace the decision in Commissioner of Estate and Succession Duties v Bowring [1962] AC 171, that a deceased person did not have a power to dispose of property as he thought fit where the power was joint, or only exercisable with the consent of others.

There is, as Windeyer J held, a distinction between entitlement and the ability to become entitled which has been recognised in analogous situations. In W P Keighery Pty Ltd v FCT [1957] HCA 2; (1957) 100 CLR 66 the Court had to consider whether the appellant was "capable of being controlled" by not more than seven persons on the last day of a fiscal year. Dixon CJ, Kitto and Taylor JJ said in a joint judgment at 85-7:

"Clearly enough, the description of a company as `capable of being controlled' is not satisfied by the mere fact that a majority of shareholders, while not under any legal or equitable obligation to obey the directions of other persons, may ... obey those directions ... A power in a person to provide shareholders with an incentive or inducement to exercise their voting power as that person may wish is not aptly described as making the company capable of being controlled by that person. The person must be able to dictate the decisions of the general meeting, through a preponderance of voting power which either is vested in him or is subject to his command ... To describe a company as capable of being controlled by a person or group of persons is to attribute to that person or group a presently existing power of control. `Capable of being controlled' in this context cannot be interpreted so widely as to be satisfied whenever a possibility of obtaining control over the company exists by reason of something in its constitution or its special circumstances. The natural sense of the expression is that of possessing, as a present attribute, a liability to be controlled.

... The truth is that `capable of being controlled' connotes the existence of either one person whose enforceable and immediately exercisable rights enable him to control, or a number of persons whose enforceable and immediately exercisable rights enable them, if they act in concert, to control".

In FCT v Sidney Williams (Holdings) Limited [1957] HCA 1; (1957) 100 CLR 95, decided at the same time, the Court rejected another argument on the same provision stating, at 112:

"But to give effect to this argument would be to construe the expression `capable of being controlled' as referring, not to a capability existing in law - that is to say a liability to a lawful control by the exercise of legal or equitable rights or powers which persons are shown to possess - but to a possibility of being wrongfully subjected to de facto control by persons acting in breach of the rights of others. That cannot be what the paragraph means".

The Court therefore held that the existence of the relevant capacity was to be determined by reference to the existing legal rights and duties of the parties, and not by any potential capacity, or any present capacity which existed for purely practical reasons.

In analogous contexts, a reference in a taxing statute to a company which is controlled by a deceased person, or in which a deceased person has a controlling interest, has been construed as a reference to the legal control of the company, that is the company in general meeting. See Mendes v Commissioner of Probate Duties (Victoria) [1967] HCA 23; (1967) 122 CLR 152 at 161, FCT v Commonwealth Aluminium Corporation Limited [1980] HCA 28; (1980) 143 CLR 646 at 660. Again the relevant cases do not depend upon a special construction of words in a revenue statute.

I agree that the decision in Equiticorp Industries Ltd v ACI International Ltd [1987] VicRp 44; [1987] VR 485 is of doubtful, if any, relevance in this case because s 8 of the Foreign Takeovers Act 1975 (Cth) included control of voting power which was exercisable by means of "arrangements or practices, whether or not having legal or equitable force, and whether or not based on legal or equitable rights". See NCSC v Brierley Investments Ltd & Ors (1988) 14 NSWLR 273 at 287. I would also regard the latter decision as irrelevant because s 9 (3) of the Companies (Acquisition of Shares) Code included power and control over voting rights and shares "direct or indirect" as a result of "arrangements, understandings and practices ... whether or not they are enforceable". See also s 9 (2), (4). It is significant however that the subject Act does not include provisions of this nature, although it post-dates the Acts under consideration in those cases.

The deceased's power, under his contractual arrangements with Mr Defago to direct the making of a special by-law, or to require a transfer of the rights of the founder to himself or another did not, in my view, make him "entitled ... to exercise a power ... to dispose" of the Foundation's property. He had no legal power or capacity to dispose of the property of the Foundation. An instrument signed by him purporting to effect such a disposition would have been without legal effect and the Foundation would have been bound to ignore it.

The capacity of the deceased during his lifetime to dispose of the property of the Foundation was entirely practical, and was not based on any power exercisable against it. His power against the Foundation always remained potential. Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 318-9 does not require a different conclusion. That case, and the cases there cited, involved value transfer schemes which were held to give rise to prescribed transactions under other provisions which are not relevant in these appeals. Bryson J said in the passage quoted that he observed

"a purpose of the Legislature that the notional property provisions should extend the power of the Court to the full range of benefits and advantages controlled by testators. In so far as any question of construction presents a choice, a construction which would promote this purpose is to be preferred".

The questions of construction which arise in this case do not in my view present a choice. Moreover the Law Reform Commission in their Report stated (p 79) that they had not attempted what they described as the extraordinarily difficult task of drafting a provision which would make the Act applicable to every will substitute. Thus the Commission did not propose nor did the Parliament attempt, in terms, to extend the Act to situations where the powers of a deceased were practical rather than legal.

I conclude therefore that the requirements of s 22 (4) (a) were not met in this case because the power the deceased could exercise over the Foundation was practical and not legal, and the legal power he was entitled to exercise was not a power to dispose of the property of the Foundation.

Further issues arise under s 22 (4) (a) which, strictly, I need not address because of my conclusion that the deceased did not have a power to dispose of the property of the Foundation. However, because mine is a minority opinion, I should express a view on these other issues.

Mason P would affirm the decision of Windeyer J that the requirements of s 22 (4) (a)(i) were not satisfied in this case because, in the events that happened, the property of the Foundation did not become held by another. I agree with this conclusion and with the reasons given.

Windeyer J did not address s 22 (4) (a)(ii) but Mason P concludes that its requirements were satisfied. Two alternatives were hypothesised; that the power which the deceased possessed was transmitted to others, or that it lapsed on his death. The Memorandum of Wishes contained a request by the deceased that in the event of his incapacity the founder would act in accordance with the recommendations of his advisers. On 6 May 1987 Mr Defago wrote to Mr Nathan stating that in the event of the deceased's death or incapacity the Advisers designated in the Memorandum of Wishes would be entitled to give him instructions. I am prepared to assume that the power of the deceased to give binding directions, despite some differences, passed in substance to the Advisers. If the deceased's power was within the section, its transmission to others would satisfy s 22 (4) (a)(ii), but if it was not, the added requirement would make no difference.

During the deceased's lifetime, the founder had the power to make, vary or rescind a special by-law having the effect of defining or amending the beneficiaries of the Foundation. The founder continued to be entitled to exercise that power after the death of the deceased, but this power was not the same as that which had been exercisable by the deceased. This situation is not analogous to a joint or several power which continues to be exercisable by the survivors. Such a power is within s 22 (4) (a)(ii) and that is put beyond doubt by s 6 (7). However in such cases the same power continues throughout and the only change is that it is exercisable by fewer persons.

In the present case the only power which the Foundation was bound to recognise was that of the founder, the deceased's only power being exercisable against the founder personally, not the Foundation. In my judgment therefore sub para (ii) was not satisfied in this case because the founder did not "continue to be entitled to exercise the (same) power" that the deceased had been entitled to exercise. The two powers were different and while the founder's power continued it was not the same power as that which had been exercisable by the deceased. In these circumstances I need not express any view on the issue under s 23.

For these reasons the appeal should in my view be allowed in part, but as mine is a minority view I need not formulate the precise orders that would be appropriate.

See Hyland v Hyland (1971) 18 FLR 461.

[4] Cf State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62; (1986) 161 CLR 639 at 650.

[8] See Wentworth v Wentworth. (Court of Appeal, unreported, 16 December 1991) per Priestley JA at p45; Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 319-20.

[9] Schaeffer at 318F, citing Wentworth v Wentworth (NSW Supreme Court, Bryson J, 14 June 1991).

[10] (1994) 36 NSWLR 315.

[11] Cf Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 673; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463G.

[12] Even though SCF was not the Founder at the time.

[13] [1982] HCA 49; (1982) 150 CLR 666 at 673.

[14] (1994) 36 NSWLR 315 at 318, citing Wentworth v Wentworth (Bryson J, 14 June 1991).

[16] See s21, which defines "disponer" in relation to a prescribed transaction as the person deemed by s22 to have entered into the prescribed transaction.

[17] Cf Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250.

[18] Court of Appeal, unreported, 3 March 1992.

[19] [1957] HCA 2; (1957) 100 CLR 66 at 86.

[21] [1987] VR 482 at 488-9.

[22] (1988) 14 NSWLR 273 esp. at 287.

[24] See Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 318-9.

[25] (1881) 7 App Cas 91 at 94-5.

[27] This was assumed to be New South Wales for the purpose of the issues debated before Windeyer J.