"... a peculiar type of relitigation would arise. There would be relitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy.

Moreover, it would be relitigation of a skewed and limited kind. No argument was advanced to this court urging the abolition of judicial or witness immunity. If those immunities remain it follows that the relitigation could not and would not examine the contribution of a judge or witness to the events complained of, only the contribution of the advocate. An exception to rule against reopening of controversies would exist, but one of an inefficient and anomalous kind."[33]

1. If a proceeding settles part way through a trial the witnesses and the judge are immune from suit despite the absence of any judicial determination on the merits. Indeed the immunity in respect of witnesses extends to preparatory steps. As the Earl of Halsbury LC said in Watson v M'Ewans:

"... the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice is narrated to them - that is to the solicitor ... If it were otherwise ... the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, 'I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all'. It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove."[34]

1. It must necessarily follow from his Lordship's reasoning that even if a proceeding settles before trial a witness is immune from suit in respect of what they have said to a solicitor about the evidence they would have give at the trial. If it were otherwise witnesses may simply refuse to say anything before a trial for fear of having an action brought against them and, as his Lordship points out, 'no one would know whether what he was going to say was relevant to the question in debate between the parties'.
2. If the test postulated by Lasry J were right it may allow the very type of inefficient and anomalous exception to the rule against reopening controversies which was referred to by the joint judgment in D'Orta-Ekenaike.
3. Second, as I have already noted, in D'Orta-Ekenaike McHugh J gave examples of cases in which the work done out of court was held to be intimately connected with the conduct of the case in court. One such example was 'negligently advising a settlement'. In this context his Honour referred, with apparent approval, to the judgment of the New Zealand Court of Appeal in Biggar v McLeod[35]. In that case the defendant, a barrister and solicitor, had acted for the plaintiff in matrimonial proceedings and during the trial advised the plaintiff that the proceedings could be settled on particular terms. The plaintiff accepted the terms and the proceedings were settled. It was later claimed by the plaintiff that the defendant had misinformed her as to the terms of settlement and she brought an action in damages alleging negligence. Somers J determined a motion to strike out the proceeding in favour of the defendant on the basis of a barristers immunity from suit and the plaintiff appealed.
4. The New Zealand Court of Appeal dismissed the appeal and held that the settlement of an action by compromise in court was work related to the conduct of litigation which was covered by a barrister's immunity from suit for negligence. His Honour Woodhouse J dealt with issue in these terms:

"Once it is accepted that the immunity exists ... and that it extends to the conduct of litigation, then the simple question is whether the step of ending current proceedings by a compromise rather than by obtaining the judgment in due course should properly be regarded as part and parcel of the work of counsel in carrying forward the proceedings to a conclusion. I am in no doubt that this must be so."[36]

"Whilst is decisive is the nature and purpose of the work in relation to the conduct and management of the litigation ... pre trial work is sufficiently connected with the conduct and management of the cause if it involves a preliminary decision affecting the way in which the cause is to be conducted when it comes to a hearing. It follows, a fortiori, that the advice given by a barrister as to the settlement of a cause during the course of a trial and the settling of terms of a compromise must attract immunity. It is intimately and immediately connected with, and involves the termination of the litigation. In such a case it is not simply that there is a temporal connection between that work and the actual trial itself. The giving of advice as to the compromise of proceedings, involving as it does the question of their continuation of termination, is an inherent feature of the conduct of the cause by counsel. And when a settlement is reached in the course of the trial itself, the compromise must surely be influenced by the barrister's assessment of the way the trial is going; how the evidence has come out; what admissions have been made; any indication the trial judge has given of his thinking; and so on. In such a case it seems to me patently unrealistic to say that the compromising of the cause is not part and parcel of the management of the trial. Advice on settlement of a cause, during trial, is as much an incident of the conduct of the trial as advice on and decisions as to the calling of witnesses and other matters, which, although not necessarily given and made in the courtroom, cannot in a practical way be severed from and dissociated from the conduct of the cause by the barrister in the presence of the judge."[37]

1. In Francis v Bunnett Lasry J considered Biggar v McLeod, but did not regard it as persuasive, for two reasons:
   • it was decided in 1978 and his Honour was 'not sure that policy formulation for the law as it exists in Australia now is quite so, straightforward as stated by the New Zealand Court of Appeal'; and
   • in a subsequent decision, Lai v Chamberlain[38], the New Zealand Court of Appeal abolished advocates' immunity in that country.
2. Two observations may be made about his Honour's reasons for not regarding Biggar v McLeod as persuasive:
   • (i) It is clear that the policy considerations referred to by the court in that case extend well beyond the principal rationale for the immunity as expressed by the High Court in D'Orta-Ekenaike.[39]
   • (ii) The fact that the New Zealand Court of Appeal subsequently abolished the immunity is, with respect, irrelevant. The important point is that Biggar v McLeod was determined when the immunity operated in New Zealand. It is also relevant to note that when the New Zealand Court of Appeal abandoned the immunity, in Lai v Chamberlain, it expressly said that it was not overruling Biggar v McLeod.[40]
3. Finally, the test as formulated by his Honour Lasry J may mean that the operation of the immunity would depend upon chance. If a matter settled during trial no immunity would apply in respect of, for example, an advocate's cross examination of a witness. But if the matter proceeded to a judgment on the merits the immunity would apply. The immunity ought to apply in a principled way by attaching to the conduct itself and its connection to the conduct of the case in court, rather than on whether or not the proceeding is resolved. As his Honour Gleeson CJ observed in Keefe v Marks:

"A rule of law which is said to be based upon considerations of public policy should not depend for its practical operation upon chance."[41]

1. While there is some force in the Respondent's submissions, it must be borne in mind that I am dealing with this issue in the context of a strike out application pursuant to s 75 of the VCAT Act. Such an application should only be granted if it is clear that there is no real question to be tried. In the context of this matter I must be satisfied that the challenged claims in the substantive VCAT proceeding are obviously unsustainable in law or bound to fail. The hurdle that must be overcome to succeed in an application pursuant to s 75 is 'a high one'.[42]
2. In essence the issue comes down to whether it is arguable that the immunity does not apply in circumstances where the controversy has been resolved without a judicial determination of the case on its merits. I now turn to consider the Respondent's submissions in respect of this issue.
3. The Respondents contend that the need to preserve the finality of judicial determination was not the only policy rationale for the immunity which was articulated by the majority in D'Orta-Ekenaike. It is argued that the majority also relied on the place of the courts in the system of Government.
4. While the joint judgement in D'Orta-Ekenaike make reference to the judicial process as an aspect of government, it is in the context of the quelling of disputes by the exercise of judicial power. Their Honour's deal with the issue in the following terms:

"[31] In Giannarelli, Mason CJ said[43] that "the barrister's immunity if it is to be sustained, must rest on considerations of public policy". His Honour explained[44] that the term "immunity" was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and "the injury to the public interest that would arise in the absence of immunity".[45] Of the various factors advanced to justify the immunity, "the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings" (emphasis added)[46] was held to be determinative.[47] The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.

[32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the "judicial branch of government" is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.

[33] As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level[48] but, at least generally, is not at the state level[49]) it is, in Quick and Garran's words,[50] "the third great department of government".[51]"

1. Contrary to the Respondent's contention the joint judgement in D'Orta-Ekenaike clearly expresses the public policy basis for the immunity in terms of the adverse consequences to the administration of justice resulting from the relitigation of issues which have been judicially determined, as is evident from the following passage:

"....the central justification for the advocate's immunity is the principle that controversies, once resolved, are not be reopened except in a few narrowly defined circumstances"[52]

1. The key issue is whether the court's reference to the resolution of controversies is intended to be a reference only to resolution by judicial determination on the merits. Counsel for Phillips and Southall submits that there is no suggestion in D'Orta-Ekenaike that the immunity would not apply in circumstances where the proceeding settled without a judicial determination of the case on its merits. I disagree.
2. In the joint judgement their Honours express their conclusion in these terms:

"The 'unique and essential function' of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be relitigated. Yet relitigation of the controversy would be an inevitable and essential step in demonstrating that a advocates' negligence in the conduct of litigation had caused damage to the client...."[53] (emphasis added)

1. The above extract appears shortly before the joint judgement's statement of the central justification for the advocate's immunity (see para 69 above). It is at least arguable that the references in the joint judgement to the quelling of controversies is a reference to 'the quelling of controversies by the ascertainment of the facts and the application of the law'.
2. Further, in the course of his judgement in D'Orta-Ekenaike, McHugh J says:

"[166] There is, of course, a greater public interest in maintaining confidence in the administration of criminal rather than civil justice. So, it is possible to sue a practitioner for the negligent settlement of proceedings or for the negligent loss or abandonment of a cause of action. Such claims lead to the litigation of a primary claim even if that claim can no longer be pursued. These results flow even though there is a public interest in the finality achieved through the statutes of limitations and the promotion of out-of-court dispute settlement. But where a trial has taken place, as the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ demonstrates, public confidence in the administration of justice is likely to be impaired by the re-litigation in a negligence action of issues already judicially determined."

1. This passage clearly supports the proposition that the immunity only operates in circumstances where a claim has already been 'judicially determined' as opposed to the resolution of a controversy by an out of court settlement.
2. I now turn to the Respondent's reliance on MM & R.
3. I am not persuaded that the ratio of MM & R is inconsistent with Francis v Bunnett. MM & R was concerned with conduct in respect of an appeal from the AAT to the Federal Court. Shortly before the appeal was to be heard the judge hearing the matter, North J., raised an issue regarding the competence of the appeal. Both parties acknowledged that the appeal was incompetent and North J. dismissed it accordingly.
4. Before Cavanough J the complaint was that MM & R ought to have known that the appeal was incompetent and should have advised its clients to take steps at the outset to secure the prompt dismissal of the appeal. As a consequence of the solicitor's failure to do so 13 months were lost and they suffered damage as a result.
5. Cavanaough J held that the conduct complained of was intimately connected with the conduct of the case in court and hence covered by the immunity.
6. But MM & R is distinguishable from Frances v Bunnett because in MM & R the proceeding in question was the subject of a judicial determination on the merits, in that the appeal was dismissed by North J. as incompetent. Indeed this is the basis on which Cavanough J dealt with the application before him. At paragraph 36 of the judgment his Honour says:

"In any event, there is a sense in which allowing the clients' first claim to proceed against the solicitors would undermine the finality of the decision in the Federal Court case."

1. However, I note that in MM & R Cavanough J appears to make some observations which are inconsistent with the ratio in Francis v Bunnett:

"I raised with counsel the question whether D'Orta had restricted the immunity to situations in which the proposed attack on the legal practitioner would bring into question the correctness of a previous court decision. Peter Cane has argued that just such an implication should be seen in D'Orta, because the joint majority placed almost the entire weight of justifying the immunity on the "finality argument", ie. the proposition that allowing clients to sue advocates would derogate from and undermine the principle of the finality of court decisions.

Counsel for the clients did not embrace this suggestion. He recognised, as had Peter Cane himself, that the actual outcome in D'Orta was not consonant with any such restriction. To have allowed Mr D'orta-Ekenaike to sue the legal practitioners who advised him to plead guilty at the committal before the first trial would not have undermined the jury's verdict in the second, ultimate trial. Similarly the supposed restriction would sit ill with the outcome in Giannarelli, the judgment in which was applied in D'Orta. Further, as McHugh J noted in D'Orta, the immunity has been applied in relation to negligently advising a settlement. In Chamberlain v Ormsby (trading as Ormsby Flower), a case decided by the New South Wales Court of Appeal after D'Orta, it was held, obiter, that the immunity applied in relation to advice given by a barrister to an injured worker to accept a settlement of his case before the Compensation Court.

In any event, there is a sense in which allowing the clients' first claim to proceed against the solicitors would undermine the finality of the decision in the Federal Court case."[54]

1. But it is clear from the context that the above remarks were obiter.
2. It is also relevant to note that there is a conflict in the cases decided after D'Orta-Ekenaike.
3. In Chamberlain v Ormsby[55] the NSW Court of Appeal held, by majority, that the immunity applied in relation to advice given by a barrister to an injured worker to accept a settlement of his case before the determination of his claim by the Compensation Court. Tobias JA (with whom Giles JA agreed) referred to the following passage from the judgement of McHugh J in D'Orta-Ekenaike as to the meaning of work 'intimately connected with' work in court:

"The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of the proceedings. The advice is critical to and often determinative of the client's decision."[56]

1. Tobias JA observed that the barrister's advice was critical to the plaintiff's decision to settle his case. His Honour concluded that:

"It is difficult to imagine a stronger case than the present where the advice given by the barrister led to the appellant's decision as to the conduct of his case before the Compensation Court or which was more intimately connected with the course of that case including its settlement."[57]

1. I note that because the court concluded that the barrister was not negligent it was, strictly speaking, unnecessary to decide whether the immunity applied. Hence the above observations are obiter.
2. The reasoning of Tobias JA in Chamberlain v Ormsby was recently considered by the Court of Appeal of the Supreme Court of Western Australia in Alpine Holdings Pty Ltd v Feinauer [58]. In that matter the court concluded that the passage from the judgement of McHugh J, upon which Tobias JA relied, did not support the proposition that advice in relation to settlement before trial falls within the immunity. The Court said:

"We do not, with respect, consider that the passage from the judgement of McHugh J to which Tobias JA referred supports that conclusion. McHugh J had earlier held [152] that a decision about a plea of guilty cannot be described as other than intimately connected with the conduct of a criminal cause; it is a decision made preliminary to the hearing of the charge which affects the conduct of the accused's matter before the court. In that connection, it is significant that his Honour's statement was made in circumstances where the plea of guilty would not avoid the matter going to a hearing, but would affect the conduct of the hearing. The reference by McHugh J to 'the giving of advice on the basis of which the client will give instructions that direct the course of the proceedings' must be read in that light and also in the context of the conclusion his Honour reached in relation to the extent of the immunity, namely, that it should extend to any work which, if the subject of a claim in negligence, would require the impugning of a final decision of a court or the relitigation of matters already determined by a court.

We do not, therefore, with respect, consider that what was said by McHugh J in D'Orta-Ekenaike provides support for the proposition that advice in relation to settlement before trail falls within the immunity."[59]

1. The court went on to conclude that the references in D'Orta-Ekenaike to the undesirability of reopening controversies already determined were concerned with the undesirability of permitting a party to reopen any decision of a court except through the appellate process and not simply with decisions that are ultimately conclusive of the issue between the parties.[60] Of course in the matter before me there has been no decision by a court in respect of the controversy between the parties.
2. I am satisfied that it is arguable that the immunity does not apply in the present case having regard to the public policy justification for the immunity articulated by the majority in D'Orta-Ekenaike and the fact that the challenged claims do not involve any undermining of the principle of finality of court decisions because the relevant proceedings were not been the subject of any decision by a court.
3. I am not persuaded that the challenged common law claims in the substantive VCAT proceedings are manifestly unsustainable in law or bound to fail. Accordingly the s.75 applications in respect of those clams are dismissed.
4. In the circumstances it is unnecessary for me to deal with the proposition that the Tribunal, however constituted, is bound by the ratio of a decision of a single judge of a Supreme Court Nor need I consider the lack of particularity and useless expense points advanced on behalf of the Applicant.
5. I now turn to deal with the challenged Fair Trading Act claims.
6. There are two limbs to the Respondent's s.75 application in relation the challenged claims which are based on the Fair Trading Act 1999:
   • D'Orta-Ekenaike recognises that the immunity is 'from suit whether for negligence or otherwise' and as such it covers a claim based on a statutory course of action; and
   • The conduct upon which the claims are based was not conduct 'in trade or commerce' and hence the provisions of sections 9, 11 and 12 of the _Fair Trading Act 1_999 do not apply.
7. As to the first limb the Respondents rely on a decision of Master Sanderson in Alpine Holdings Pty Ltd v Feinauer [61]. But since the hearing of this matter the Applicant has brought to my attention (and to the notice of the solicitors acting for the respondent) that Master Sanderson's decision was overturned by the Court of Appeal of the Supreme Court of Western Australia. On appeal the court said:

"The position when a claim against an advocate is framed, not in negligence, but as a breach of the Fair Trading Act of a State or of the Trade Practices Act 1974 (Cth), does not appear to have been squarely considered in Australia. In Boland v Yates Property Corporation Pty Ltd [1999] HCA 64, the High Court concluded that it was unnecessary to consider the immunity issue in the context of a claim under the Trade Practices Act. In Gray v Morris [2004] QCA 5; [2004] 2 Qd R 118 (53), the question again did not have to be determined but was regarded as not settled.

The questions of how the public policy considerations which ground the immunity are to be reconciled with the operation of s.10 of the Fair Trading Act, and the scope of any immunity which limits the operation of the Fair Trading Act as it applies to the provision of legal services, therefore still await determination.

The application of the immunity to the Fair Trading Act is not, in our view, a matter appropriately to be determined on a pleading summons. It involves a novel question of law that is properly left to be determined at trial. It is, moreover, a matter which, if it arises on the facts as fond, is properly to be determined in the light of the findings as the precise nature of any misleading and deceptive conduct engaged in by the respondent."[62]

1. I respectfully agree with, and adopt, the approach taken by the WA Court of Appeal.
2. I now turn to the second limb of the Respondent's s.75 application.
3. The terms 'trade' and 'commerce' are not terms of art, rather they are expressions of fact and terms of common knowledge.[63]
4. In Ku-Ring-Gai Co-operative Building Society (No. 12) Ltd, Deane J, with whom Brennan J agreed, observed that the terms were 'of the widest import' and were not restricted to ordinary trading and commercial activities in open markets. His Honour went on to observe that the terms: -

"....are not restricted to dealings or communications which can properly be described as being at arm's length in the sense that they are within open markets or between strangers or have a dominant objective of profit marking. They are apt to include commercial or business dealings in finance between a company and its members which are not within the mainstream of ordinary commercial activities and which, while being commercial in character, are marked by a degree of altruism which is not compatible with a dominant objective of profit making".[64]

1. In Concrete Constructions (NSW) Pty Ltd v Nelson (Concrete Constructions) a majority of the High Court held that to be 'in trade or commerce' for the purpose of s.52 of the Trades Practices Act 1974 (Cth) the activities or transactions in question must 'of their nature, bear a trading or commercial character'.[65]
2. While Concrete Constructions was concerned with a different statutory context, the above observations have been held to provide 'a safe guide' to what must be found to establish that a benefit was provided 'in trade or commerce' for the purpose of the Fair Trading Act 1999'.[66]
3. The Respondents contend that the conduct which is the subject of the Applicant's complaint was not conduct 'in trade or commerce' and hence sections 9, 11 and 12 of the Fair Trading Act 1999 have no application. The essence of the Respondent's argument is that conduct by a legal practitioner in litigation or by way of advice is not conduct in trade or commerce. Reliance is place on the judgement of Osborn J in LT King Pty Ltd v Besser[67] (Besser) in support of this proposition.
4. In Bond Corp Pty Ltd v Theiss Contractors Pty Ltd [68] French J analysed the scope of 'trade or commerce' in relation to the conduct of a profession and concluded:

Where the conduct of a profession involves the provision of services for reward, then in my opinion, even allowing for widely differing approaches to definition, there is no conceivable attribute of that aspect of professional activity which will take it outside the class of conduct falling within the description 'trade or commerce'. This conclusion flows from both the judicial exposition and the particular statutory context of that term"[69]

1. In Besser Osborn J did not accept the 'universality of the view' expressed by French J in the above passage[70] but his Honour did not say that the element of reward was irrelevant; nor did he set out any alternative determinative criteria. Indeed his Honour said:

"The characterisation of particular conduct must always be a question of fact and degree. It is not possible or desirable to judicially define the concept of 'conduct in trade or commerce' by prescriptive criteria."[71]

1. The Respondents place particular reliance on two parts of his Honour's judgement. At paragraph 27 of his judgement Osborn J says:

"In the case of the practice of the law it is not appropriate to describe conduct in the area of litigation as conduct in trade or commerce."

1. His Honour relies on the judgment of the Court of Appeal in Little v Law Institute of Victoria and Others (No 3) (little)[72] in support of this proposition. But Little is only authority for the proposition that statements made in court during the course of litigation cannot be categorised as statements made in 'trade or commerce'[73].
2. The second passage relied on is at paragraph 28 where his Honour says:

"It is also doubtful that the expression of professional advice (which lies at the core of the practice of a profession) constitutes trade and commerce."

1. Two observations may be made about Besser:
   • His Honour did not intend to lay down any prescriptive criteria for the determination of whether the conduct of a profession was conduct in trade or commerce, rather, the characterisation of particular conduct is a question of fact and degree; and
   • The extracts from his Honour's judgement relied on by the Respondents were obiter because the circumstances of that case concerned conduct as between lawyers for opposing parties and he concluded that the essential character of the communication and conduct which formed the basis of the plaintiff's claim was conduct 'in trade or commerce'.[74]
2. Hence I am faced with Federal Court authority for the proposition that the element of reward is determinative of the characterisation of the conduct and obiter comments by Osborn J that may cast doubt on the universality of that view. I am not persuaded that this is sufficient to put the issue beyond doubt.
3. I am not persuaded that the claims based on the Fair Trading Act 1999 are manifestly unsustainable in law or bound to fail. Accordingly the s.75 applications in respect of those claims are dismissed.

[1] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd [2001] VSC 385 at [14]

[2] State Electricity Commission of Victoria v Rabel [1998] IVR 102; Forrester v Aims Corporation [204] VSC 506 (8 December 2004)

[3] [2005] HCA 12; (2005) 223 CLR 1

[4] (1988) 165 CLR 543

[6] Op cit at pp20-21, paras [45] - [46]

[7] (1988) 165 CLR 543 at 560

[8] [2005] HCA 12; (2005) 223 CLR 1 at 31 [86]

[11] Wilson v Rigg [2005] NSWSC 1351 at [64] per Rothman J

[12] [2000] 3 AII ER 673 at 707 per Lord Hoffman

[13] (1988) 165 CLR 543 at 559-560; cited with approval in D'Orta-Ekenaike

[14] [2005] HCA 12; (2005) 223 CLR 1 at 52

[15] Rees v Sinclair [1974] INZLR 180 at 187

[16] Keefe v Markes (1989) 16 NSWLR 713 at 718

[17] Munnings v Australian Government Solicitor [No.2] [1994] HCA 65; (1994) 118 ALR 385 at 390 per Dawson J

[18] Giannarelli v Wraith (1988) 165 CLR 543

[19] Biggar v McLeod [1978] 2 NZLR 9

[20] (1989) 16 NSWLR 713 at 718

[21] See generally (1988) 165 CLR 543 at 553 per Mason CJ

[22] [2005] HCA 12; (2005) 223 CLR 1 at 31-31

[23] Saif Ali v Sydney Mitchell & Co. [1980] AC 198 at 216, 224 and 232

[24] MacRae v Stevens [1996] Aust Tort Reports 81-405 (63.679)

[25] Donellan v Watson (1990) 21 NSWLR 335

[26] Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1

[27] (1990) 21 NSWLR 335

[30] [2007] VSC 527

[32] [2007] VSC 528

[33] [2005] HCA 12; (2005) 214 ALR 92 at 103, para [45]

[34] [1905] UKHL 1; [1905] AC 480 at 487; approved in Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 525 per Gavan Duffy CJ and Rich and Dixon JJ

[38] [2005] 3 NZLR 291

[39] Alpine Holdings Pty Ltd v Funawer [2008] WA SCA 85 (30 April 2008) at [25]

[40] [2005] 3 NZLR 291 at [125]

[41] (1989) 16 NSWLR 713 at 719

[42] Zaparenkov v Perpetual Trustees Victoria Ltd [2006] VCAT 2147 at [11] per Justice Morris P

[43] (1988) 165 CLR 543 at 555; 81 ALR 417 at 421

[44] (1988) 165 CLR 543 at 554-5; 81 ALR 417 at 420-1

[45] Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 529 per Starke J

[46] (1988) 165 CLR 543 at 555; 81 ALR 417 at 421

[47] See also (1988) 165 CLR 543 at 574; 81 ALR 417 at 435 per Wilson J, CLR 579; ALR 438-9 per Brennan J, CLR 595-6; ALR 450-2 per Dawson J.

[48] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 267-8 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

[49] Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; 138 ALR 577

[50] Quick and Garran, The Annotated Constitution of the Australian Commonwealth 1901, p 719

[51] [2005] HCA 12; (2005) 214 ALR 92 at [31]- [33]

[52] [2005] HCA 12; (2005) 223 CLR 1 at [45]

[54] [2007] VSC 528 at [34]- [36]

[55] [2005] NSWCA 454

[56] [2005] HCA 12; [2005] 223 CLR 1 at [157]

[57] [2008] NSWCA 454 at [120]

[58] [2008] WASCA 85 (30 April 2008)

[61] [2007] WASC 58

[62] [2008] WASCA 85 at [96]- [98]

[63] Re Ku-Ring-Gai Co-operative Building Society (No.12) Ltd [1978] FCA 50; (1978) 36 FLR 134 per Deane J, with whom Brennan J agreed.

[65] [1990] HCA 17; (1990) 169 CLR 594 at 604 per Mason CJ and Deane J, Dawson and Gaudron JJ

[66] Sigma Constructions (Vic) Pty Ltd v Morwell Investments Ptyy Ltd [2004] VSCA 242 (9 December 2004) at paragraph 22 per Batt JA with whom Vincent and Nettle JJA agreed.

[67] [2002] VSC 354

[68] [1987] FCA 84; (1987) 14 FCR 215

[70] [2002] VSC 354 at [30]

[72] [1990] VicRp 25; [1990] VR 257