Malek Fahd Islamic School Limited v Minister for Education and Early Learning

Solicitors: Mitry Lawyers (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 2022/280829 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2022] NSWSC 1176 Date of Decision: 1 September 2022 Before: Rothman J File Number(s): 2021/161161

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Malek Fahd Islamic School Limited, operates a non-government school which receives government funding from the respondent Minister for Education and Early Learning (NSW). To be eligible for government funding a non-government school must not operate for profit. In 2017 the Minister was made aware that the appellant had been operating for profit in 2014 and 2015, during which time the appellant had received $11,065,584.69 in financial assistance. On 5 March 2021 the respondent wrote to the appellant to inform it that, pursuant to s 83J(3)(b) of the Education Act 1990 (NSW), she would reduce the provision of future financial assistance by $2,213,116 per annum for five years to recover the government funding paid during the period in which the school was ineligible. On 4 June 2021 the appellant sought judicial review of the respondent's decision of 5 March 2021 by commencing proceedings in the Supreme Court. The appellant argued that the six year limitation period under the Limitation Act 1969 (NSW) had expired and any debt was thereby extinguished. The Minister was thus barred from recovering money provided more than six years prior to the time at which recovery action was commenced. The primary judge found that no recovery could be undertaken if the underlying debt had been extinguished. However, as the limitation period only ran from when the Minister's Advisory Committee recommended that a non-compliance declaration be made in relation to the appellant, the debt had not been extinguished. The main issues on appeal were whether: (i) the Limitation Act limited the recovery of payments of financial assistance to ineligible non-government schools; and (ii) if it did, the date at which the "cause of action" arose. The Court (Basten AJA, Ward P and Meagher JA agreeing) held, dismissing the appeal: As to issue (i) (application of Limitation Act) (1) Section 83J(3) of the Education Act created two separate methods of recovering financial assistance paid to an ineligible school. The first created a cause of action in debt which might be pursued in a court of competent jurisdiction and therefore fell within s 14(1)(d) of the Limitation Act. The second was by way of reduction of future financial assistance and was not an "action" on a cause of action within s 14(1) of the Limitation Act: [27]. (2) While the Limitation Act defines the term "action" to include "any proceeding", thus including proceedings which would not normally be identified as "actions", the purpose of the definition is to expand the category of proceedings in a court. Relevantly to the public law nature of the present dispute, proceedings in the supervisory jurisdiction do not fall within the conventional understanding of an "action" but would be covered by the extended definition using the phrase "any proceedings". Non-curial processes are not: [33]. (3) As a matter of statutory construction, the presumption is that Parliament, in creating the novel right, attaches to it the particular mode of enforcement as part of its statutory scheme. To that extent the enactment is a code: [52]. Josephson v Walker (1914) 18 CLR 691; [1914] HCA 68; Federal Commissioner of Taxation v Official Receiver (1956) 95 CLR 300; [1956] HCA 24; Health Insurance Commission v Peverill (1994) 179 CLR 226; [1994] HCA 8 applied (4) Recovery by reducing future amounts of financial assistance is distinct from the recovery of an amount as a debt. Although one mechanism for recovery of the amount is by court process, the amount is not stated to be a debt but merely an amount recoverable "as" a debt. Further, s 83J(3)(a) and (b) are expressed in the alternative. The structure of the provision thus isolates recovery by reduction of future assistance and uses language which is distinct from recovery of a debt in a court: [50], [56] - [57]. Walker v Secretary, Department of Social Security (1995) 56 FCR 354; Taylor v Secretary, Department of Social Security (1988) 18 FCR 322; [1998] FCA 70 discussed. As to issue (ii) (when "cause of action" arose) (5) Issue (ii) did not arise except in relation to proceedings in a court pursuant to s 83J(3)(a): [61]. (6) There is no right of recovery under Pt 7, Div 3 of the Education Act until two statutory preconditions have been satisfied, namely (i) a recommendation by the Advisory Committee and (ii) the giving of notice of the recommendation to the affected school. Once those conditions have been met, it is open to the Minister to be satisfied that the basis for recovery has been established: [61]. (7) The primary judge's view that the cause of action arose at the date of the recommendation of the Advisory Committee should not be accepted. The better view is that a right of recovery arises upon the satisfaction of the Minister that a school has been the recipient of an unlawful payment, or that the school is otherwise a non-compliant school: [62], [64].

JUDGMENT

1. WARD P: I agree with Basten AJA.
2. MEAGHER JA: I agree with Basten AJA.
3. BASTEN AJA: The appellant, Malek Fahd Islamic School Limited, operates a non-government school which receives funding from the Minister for Education and Early Learning (NSW). There was no dispute that in 2014 and 2015 the appellant operated for profit and was thus ineligible for State Government funding. On 5 March 2021, the Minister wrote to the appellant communicating her decision to recover the amount of financial assistance provided to the School in 2014-2015 when the School operated for profit, by reducing future amounts of financial assistance payable to the appellant by $2,213,116 per annum for five years.
4. The appellant contended that the steps taken by the Minister to recover financial assistance paid under a statutory scheme by reduction of future benefits constituted "action on a cause of action" subject to the six-year limitation period provided by the Limitation Act 1969 (NSW), s 14(1). Secondly, the appellant submitted that the cause of action arose when the payments were made, with the result that, by the time the Minister made her decision to recover the payments, the six-year limitation period had expired.
5. In response, the Minister contended that s 14(1) of the Limitation Act had no operation and hence the appellant's proceeding failed on that basis. In the alternative, the Minister contended that no "cause of action" arose until 5 March 2021 when the Minister made the decision to recover the overpayments by way of deductions from future financial assistance. Alternatively, the cause of action arose when the Minister determined that the appellant was a non-compliant school, a determination made on 28 May 2020. Thus, assuming the Limitation Act was engaged, steps taken to recover the money by reduction of future assistance were commenced within time.
6. These proceedings were commenced by a summons filed on 4 June 2021 in the Common Law Division seeking an order quashing or setting aside the decision of the Minister communicated on 5 March 2021 or, in the alternative, a declaration that the Minister was precluded under the Limitation Act from recovering payments made in excess of six years prior to the recovery action being taken. On 1 September 2022, Rothman J made orders dismissing the proceedings and requiring the plaintiff to pay the defendant's costs. The present appeal was commenced on 30 November 2022.

Legislative scheme

1. It is convenient to start with the provisions of the Limitation Act, which provide the basis of the appellant's case. Section 14(1) provides for a limitation period with respect to causes of action founded on contract (par (a)), on tort (par (b)), and to enforce a recognizance (par (c)), none of which are presently relevant. Rather, reliance was placed on s 14(1)(d) which provides: 14 General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims - … (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
2. Further, the appellant relied upon the fact that the expiration of a limitation period resulted in the extinguishment of the cause of action: 63 Debt, damages etc (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished. (The qualification in subcl (2) is irrelevant for present purposes.)
3. Section 63 has no operation unless the appellant is correct in identifying a limitation period fixed by s 14(1)(d). With respect to s 14(1), two matters should be noted. First, the term "action" is defined in s 11(1) to include "any proceeding in a court." As will be noted shortly, the Minister contended that recovery of an amount unlawfully paid by reduction of future benefits did not constitute a proceeding in a court and should not be understood to constitute an "action" for the purposes of s 14(1).
4. Secondly, if s 14(1) were engaged, it was because, in terms of par (d), there was a cause of action "to recover money recoverable by virtue of an enactment", the relevant "enactment" being provisions of the Education Act. (It is convenient to assume for immediate purposes that that characterisation is appropriate.)
5. To the extent that the appellant contended that the cause of action arose in part in 2014, it is necessary to identify the legislation as at the date of the payment. It appears that there was no statutory right of recovery at the time when payment was made in 2014. Until November, virtually the end of the 2014 school year, the Minister had a power to provide financial or other assistance to non-government school children, pursuant to s 21(1) of the Education Act. While s 21A(1) imposed a prohibition on payment to a non-government school that operated for profit, it made no provision for recovery of payments made to such a school. However, s 21(7) provided that "any financial assistance under this section is to be paid out of money to be provided by parliament". Arguably, the combined effect of these provisions was that, in accordance with the general law principle of parliamentary control of public expenditure, a payment out of consolidated revenue in contravention of the prohibition in s 21A(1) would not have been provided for by parliament and accordingly was "simply illegal and ultra vires, and may be recovered by the government", [2] as a claim for money had and received. [3]

Application of Limitation Act

1. Although the primary judge found that the Limitation Act applied, the Minister challenged the finding pursuant to a notice of contention. It is logical to deal first with the question thus raised as to whether the Limitation Act applied at all, before considering how it operated.

Reasoning of primary judge

1. The reasoning of the primary judge involved the following steps. First he held that s 83J(1) of the Education Act resulted in there being "money recoverable by virtue of an enactment", as described in s 14(1)(d) of the Limitation Act. [6] That conclusion was not disputed.
2. Secondly, the judge accepted the appellant's submission "that the Limitation Act applies to proceedings in a court of competent jurisdiction and recovery of the debt by other means". [7] While the primary judge accepted that the Minister "in reducing future financial assistance, is not instituting an action", he held that the Minister was nevertheless recovering money, which would constitute a cause of action for debt within s 83J(3)(a). [8] He reasoned that if the limitation period for the cause of action in debt had expired, the debt was extinguished under s 63(1) of the Limitation Act, and there was therefore no amount to be recovered by reduction of future financial assistance under s 83J(3)(b). [9]
3. This reasoning required the judge to determine when the limitation period applicable to recovery under s 83J(3)(b) commenced. He rejected the Minister's submission that "the cause of action does not accrue until the Minister exercises her discretion and decides to recover the amount in question". [10] Rather, he concluded that it "cannot accrue until the Advisory Committee determines the necessary questions and advises as to, and/or recommends to, the Minister the action to be taken". [11] As the Advisory Committee determination was made on 1 June 2017, and, the appellant having been accorded procedural fairness, notice that moneys would be recovered by reductions under s 83J(3)(b) was given on 5 March 2021, the judge concluded that the limitation period had not expired. [12]

Contentions on appeal

1. On appeal, the Minister submitted that s 83J(3) created two separate and independent methods of recovering the amount of any financial assistance paid to a school while it was operating for profit. Although the first alternative created a cause of action in debt which might be pursued in a court of competent jurisdiction (and therefore fell within the terms of s 14(1)(d) of the Limitation Act), the alternative means of recovery by way of reduction of future financial assistance was not an "action" on a cause of action. The Minister submitted that "an action on … a cause of action" to recover money, in s 14(1) of the Limitation Act, contemplated "pursuit of a right to sue or bring proceedings to recover some curial relief, remedy or enforcement". [13] The term "action", defined only as including a proceeding in a court, when used in combination with the concept of "a cause of action", envisages some form of curial proceeding. The Minister relied on the reasoning of Lord Goddard CJ in relation to similar provisions in the UK limitation act in China v Harrow Urban District Council: [14] "In my opinion the very wide terms of the definition [of 'action'] show that section 2(1) of the Act was intended to apply to all money claims made in a court. This view I think is to some extent strengthened by the inclusion of ecclesiastical courts in the definition section … [W]hen I find reference both to ecclesiastical courts and to all classes of arbitration in the present Act it leads me to think that the legislature meant to bring every class of litigation, before whatever tribunal it might come, within the ambit of the statute."
2. While the Limitation Act does not contain references to other courts, it does contain reference to "an action or arbitration" for which a limitation period is fixed by or under another enactment. [15] The similarity of language, it was submitted, warrants the adoption of the same approach in relation to s 14(1).

Construing the Limitation Act

1. As to the first limb of the Minister's contention, the appellant submitted that, the definition of "action", being merely inclusive, warranted an expansive construction extending beyond the category of "proceedings in a court". Accepting that proposition, the concept of "proceedings in a court" must remain the core of the relevant expanded category or it serves no purpose. A course of action which involves no application to any external body denies the definition any practical purpose.
2. However, inclusive definitions may serve a variety of purposes. As observed in Herzfeld and Prince, Interpretation: [16] "The word 'includes' is ordinarily non-exhaustive. It is principally used to expand the ordinary and natural meaning of the defined term or to remove doubt that certain things fall within the meaning of the defined term. In such cases, [presumably referring to the latter category] it does not restrict the ordinary and natural meaning of the defined term. However, in some contexts the word 'includes' can be construed as being equivalent to 'means and includes'. That form of definition provides an exhaustive explanation of the meaning to be attached to the defined term, but indicates that certain things fall within the definition either by way of expansion or clarification".
3. The term "action" as used in the context provided by a Limitation Act does not bear the ordinary and natural meaning of any form of conduct. It has a legal meaning derived from its context, which is to identify the temporal limit of enforceable rights. For example, in Vezitis v McGeechan [17] Taylor J held that proceedings for a declaration as to a prisoner's rights were not precluded by a section in the Prisons Act 1952 (NSW) which protected the Commissioner from any "action or claim for damages". Clearly the proceedings did not involve a claim for damages, but did they involve an "action"? Taylor J, holding that they did not, stated: [18] "The word 'action' in its proper legal sense is a generic term and includes every sort of legal proceeding; see Re Carter Smith; Ex parte Commissioner of Taxation [19] per Street J where the learned judge cited a passage from the decision from the House of Lords in Clarke v Bradlaugh [20] the passage being approved of by the House of Lords on appeal. [21] Street J went on to say [22] that when used by the legislature it - that is the word 'action' - must be construed according to its true legal meaning, unless it is apparent upon the face of the act in which it is used that it is intended to bear a more restricted meaning."

Construing the Education Act

1. In resisting the finding that any right to recover was extinguished when the debt created under s 83J(3)(a) was extinguished by force of s 63(1) of the Limitation Act, the Minister submitted: [26] "The effect of recovery action under s 83J(3)(b) is not to assert the Minister's right or title to money. It is rather to give effect to the statutory scheme that a school operating for profit should not receive financial assistance when operating for profit and an appropriate mechanism to achieve that, when a school has operated for profit during a past period, is to adjust future payments accordingly." That submission suggested that the primary focus of attention should not be the generic provisions of the Limitation Act, but the specific statutory scheme which gave rise to the right of recovery, namely Pt 7, Div 3 of the Education Act.
2. Before addressing that issue, it is desirable to identify the long-standing principles of statutory construction, and some examples of their recent application, with respect to schemes for the provision of fiscal benefits and the imposition of taxes.

Construing statutory schemes for fiscal benefits or imposts

1. As was suggested during the hearing of the appeal, the Minister's contention is supported by authorities dealing with statutory schemes for recovery of money by or from public authorities. The schemes broadly fall into two categories, namely, first, those where the government is imposing a tax or other impost and, secondly, those where the government is paying a benefit to an individual recipient. In either case, there may be under- or over- payments resulting in statutory provisions for refund or recovery. There are two different sets of principles at stake. In the case of taxation, legislation will confer power on the government authority to recover amounts due but, in the case of an overpayment by the taxpayer, there will be an assumption that the taxpayer can recover the overpayment, if necessary by proceedings in a court. On the other hand, in the case of benefits provided by the government, clear statutory authority will be required to provide for payment to a beneficiary. That is to comply with the Auckland Harbour Board principle that public funds cannot be expended without a statutory appropriation. [27] Thus, where there has been an overpayment, the government needs no express statutory authority to recover the money, although there may be limits on the general law power to do so.
2. Most of the cases fall within the former category, although the present case falls within the latter category. The underlying principle, common to both categories, may be traced to Josephson v Walker, [28] in which the High Court considered a claim by a plumber for wages said to be due pursuant to an industrial award. The claim was brought in the Supreme Court, rather than the relevant industrial tribunal. The question was whether the Supreme Court had jurisdiction to hear the claim. Isaacs J described the nature of the claim as follows: [29] "It is an action to enforce payment of moneys due to the plaintiff, not by virtue of any contract, express or implied, but by virtue of a statutory obligation. … Prima facie, where the same Statute creates a new right and specifies the remedy, that remedy is exclusive. The natural presumption to begin with is that Parliament in creating the novel right attaches to it the particular mode of enforcement as part of its statutory scheme. To that extent the enactment is a code." [30]
3. Federal Commissioner of Taxation v Official Receiver (Travis' Case) [31] involved a dispute as to whether the taxpayer or his trustee in bankruptcy was entitled to the refund of an overpayment of income tax. Fullagar J (with whom Dixon CJ agreed) noted that the arguments had turned upon an assumption: [32] "That assumption was that on assessment of tax a chose in action came into existence which… vested in the respondent under s 50(1) and s 91(i) of the Bankruptcy Act. The correctness of the assumption depends not on the Bankruptcy Act but on the Assessment Act. It is natural enough to say that, when s 221H(2)(b) of that Act comes into operation, it creates a 'debt', but it is apt to be misleading. Division 2 of Part VI of the Assessment Act contains an elaborate and carefully worked out scheme for the collection of tax by instalments from 'employees'. … The scheme is such that it is inevitable that, at the end of a financial year, it will be found that some taxpayers of that class have paid too much tax, so that a refund to them is necessary. … And, when the Act comes to prescribe what is to be done in the case where the deductions exceed the tax payable, we find it saying simply that 'the commissioner shall pay to the employee' an amount equal to the excess. Those words mean, in my opinion, literally what they say, in the sense that they are to be regarded as requiring the commissioner to pay the amount of the excess to the taxpayer and not to anyone else. … In another sense, of course, the words do not mean literally what they say. They do not mean that the commissioner is personally liable to make the payment. Section 221U speaks of the commissioner as being 'liable to pay', but provides that payment is to be made out of the Consolidated Revenue Fund, which is 'to the necessary extent appropriated accordingly'. I would not think that any action would lie against the commissioner for recovery of the amount of any excess. What s 221H(2)(b) really means is that the commissioner is to take all necessary steps to see that payment is made in the course of normal departmental procedure out of Consolidated Revenue Fund. Mandamus might lie against him to compel him to take those steps. An action might lie against the Commonwealth. It is not necessary to determine these matters, but a consideration of them serves to emphasise that we have here nothing really analogous to an ordinary 'debt', but simply a statutory direction to an officer of the Commonwealth to cause a payment to be made out of consolidated revenue to a specified person and an appropriation of a consolidated revenue for the purpose of that payment and of no other payment." [33]

Application of principles

1. In applying these principles, one starts by identifying the nature of the statutory "right" which is at the source of the dispute. In the present case, it is the power to provide financial assistance to "non-government school children", pursuant to s 83B(1). Although the section identifies a power (the Minister "may" provide financial assistance), rather than an entitlement, it should be assumed for present purposes (in favour of the appellant) that the scheme, which is subject to the National Education Reform Agreement between the State and the Commonwealth, creates an obligation to provide such assistance in circumstances where the relevant criteria are met. The remainder of Pt 7, Div 3 (in which s 83B appears) is directed to the imposition of both substantive and administrative conditions on recipients, together with a scheme for the enforcement of such conditions. As s 83B(7) recognises, each payment of financial assistance must be the subject of an appropriation of money by Parliament.
2. In circumstances where there has been a payment to a school which was operating for profit or was otherwise non-compliant, s 83J(1) confers on the Minister a power to "recover" the amount of any such financial assistance. Again, the term "may" implies the existence of a power, but in the circumstances of a payment which is not authorised, and is indeed prohibited, the power may constitute a duty (subject to any discretion conferred on the Minister under the Education Act).
3. To the extent that the Minister is empowered to recover the amount as a debt in a court of competent jurisdiction, the statute engages the judicial system, including its procedural and other constraints. Thus, if, under the Limitation Act, the cause of action in debt is extinguished, it may well not be recoverable by court process.
4. On the other hand, the system of recovery by reducing future amounts of financial assistance is distinct, both linguistically and in providing a mechanism which is dependent upon the operation of the statutory scheme. That mechanism should therefore be presumed to operate to the exclusion of the constraints which might apply to proceedings in a court.
5. The linguistic elements which support this conclusion are three-fold. First, what may be recovered is "an amount" and not something identified as a "debt". Secondly, although one mechanism for recovery of the amount is by court process, even then the amount is not stated to be a debt but merely an amount recoverable "as" a debt. Thirdly, pars (a) and (b) in subs (3) are expressed in the alternative. The structure of the provision thus isolates recovery by reduction of future assistance and uses language which is distinct from that of debt recovery in a court.

Date "cause of action" arose

1. If the unlawful payment were sought to be recovered as a debt in a court of competent jurisdiction, a separate question would arise as to the time the cause of action arose. As noted above, there is no power to make a declaration of non-compliance until two statutory preconditions have been satisfied, namely the existence of a recommendation by the Advisory Committee and the giving of notice of the recommendation to the affected school. Once those conditions have been met, it is open to the Minister to be satisfied that the basis for recovery has been established. In her submissions as to the date at which the right of recovery came into existence, the Minister accepted that a cause of action arose either when she was relevantly satisfied that the appellant was non-compliant, or when she exercised her discretion to commence recovery under s 83J(3)(b).
2. As also noted above, the primary judge took the view that the cause of action arose at the date of the recommendation of the Advisory Committee. The reasoning underlying this conclusion was not entirely clear. The judge correctly noted that the powers of the Minister to suspend, reduce or impose conditions on the provision of financial assistance in relation to a non-compliant school, pursuant to s 83E(1), were not dependent on the Minister declaring a school to be non-compliant: s 83F(6). It would seem that the power "under this Division" to "reduce" the amount of assistance provided includes the power conferred by s 83J(3)(b). As it is only the non-compliance declaration (relevantly for present purposes) which is subject to a precondition, being the recommendation of the Advisory Committee, it is not entirely clear why a cause of action should arise upon the making of that recommendation, when the declaration to which it is a precondition is not itself a precondition to recovery by reduction of future payments of financial assistance. [51]
3. There is, however, merit in the appellant's submission that the decision to seek recovery, albeit a discretionary decision, is equivalent to the decision of a creditor to commence proceedings to recover a debt. A decision to seek recovery of an amount would appear to assume that the Minister is already satisfied that there is a recoverable amount. Absent that state of satisfaction, no discretionary power would be considered.
4. Although it is not necessary to determine the matter for present purposes, the better view appears to be the alternative view proffered by the Minister, namely that a right of recovery arises upon the satisfaction of the Minister that a school has been the recipient of an unlawful payment, or that the school is otherwise a non-compliant school.

Conclusions

1. Because the right to recover by way of reducing future financial assistance is not subject to the operation of s 14(1)(d) of the Limitation Act, and in circumstances where no other basis for relief was pursued, the judgment of the primary judge refusing relief must be upheld. The appeal must be dismissed. In the Common Law Division, costs were awarded in favour of the Minister. The appellant sought its costs in the notice of appeal, and, as there was no reference to costs at the hearing of the appeal, it may be assumed that the parties accept that costs should follow the event.
2. The Court should make the following orders: 1. Dismiss the appeal. 2. Order that the appellant pay the respondent's costs in this Court.

Endnotes

1. Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning [2022] NSWSC 1176 at [188] (primary judgment).
2. Auckland Harbour Board v The King [1924] AC 318 at 327; Pape v Commissioner of Taxation (Cth) (2009) 238 CLR 1; [2009] HCA 23 at [58]-[59] (French CJ).
3. Sims v Commonwealth of Australia (2022) 109 NSWLR 546; [2022] NSWCA 194 at [78]-[80] (Bell CJ), [121] (Meagher JA); [156] (White JA).
4. Commencement of Education Amendment (Not-for-profit Non-Government School Funding) Act 2014 (NSW).
5. See Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 at [45].
6. Primary judgment at [281].
7. Primary judgment at [280].
8. Primary judgment at [285].
9. Ibid.
10. Primary judgment at [286].
11. Primary judgment at [298].
12. Ibid.
13. Respondent's written submissions, par 25.
14. [1954] 1 QB 178 at 185-186.
15. Section 7.
16. P Herzfeld and T Prince, Interpretation (2nd ed, Law Book Co, 2020) at [21.40].
17. [1974] 1 NSWLR 718.
18. Vezitis at 719-720.
19. (1908) 8 SR (NSW) 246 at 249.
20. (1881) 7 QBD 38 at 50.
21. (1883) 8 App Cas 354 at 361, 374.
22. Clarke at 249.
23. Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [38]-[42]; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [20].
24. Victims' Compensation Fund Corporation v District Court of NSW (1997) 92 A Crim R 224; Grzybowicz v Smiljanic [1980] 1 NSWLR 627.
25. (2017) 261 CLR 509; [2017] HCA 6.
26. Respondent's written submissions, par 36.
27. See fn 2 above.
28. (1914) 18 CLR 691; [1914] HCA 68.
29. Josephson at 700, 701.
30. See also Griffith CJ at 697; Powers J at 703.
31. (1956) 95 CLR 300; [1956] HCA 24.
32. Travis' Case at 323.
33. See also at 311-312 (Williams J).
34. (1994) 179 CLR 226; [1994] HCA 8.