Plaintiff v First Defendant

2 An inquest into Mr Jensen's death was held under the Coroners Act 1985 ('1985 Act') between July 1989 and October 1994 before the first defendant, who then held the office of State Coroner. Relevantly, the State Coroner concluded that Mr Jensen had contributed to his own death 'by attempting to escape, by producing a firearm and by failing to simply surrender' ('the contribution finding').

3 On 1 November 2009, the Coroners Act 2008 ('2008 Act') came into force. It repealed the 1985 Act and provided for some saving and transitional provisions.[1]

4 On 2 January 2018, the plaintiff, who is Mr Jensen's sister, applied to this Court for an order that the contribution finding is void and that 'the State Coroner re-open the inquest.' That application was said to be made pursuant to s 59 of the 1985 Act, which authorised an application to this Court to review the findings of a coroner.

5 The plaintiff contends that, notwithstanding the repeal of the 1985 Act, s 59 survived the repeal at least for the purposes of grounding the current proceeding because it conferred a right that is preserved by s 14 of the Interpretation of Legislation Act 1984 ('ILA') or the common law.

6 That contention is the subject of a separate question that Ginnane J ordered to be tried before the trial of the proceeding.[2] The separate question was framed by his Honour in the following terms:

Whether the Supreme Court of Victoria has jurisdiction to hear and determine the Plaintiff's application under s 59 of the Coroners Act 1985 (Vic) (now repealed)?

7 For the reasons that follow, I would answer that question in the negative.

8 In my view, a right to commence a legal proceeding in circumstances where there is no pre-existing or underlying right (apart from the potential proceeding itself) is not a right protected by s 14 of the ILA or the common law. It is simply a right to take advantage of a statutory power. This applies to s 59 of the 1985 Act. A clear distinction can be drawn between this case, where the plaintiff had a right or ability to commence a proceeding under the repealed provision but did not avail herself of that right prior to the repeal, and the situation where a person had commenced a proceeding at the time of the repeal.

9 Even if the putative right to commence a s 59 proceeding was protected by s 14 or the common law, the express repeal of s 59 clearly evinced an intention that any right or entitlement to commence proceedings was brought to an end and was no longer available to the plaintiff as the basis for her proceeding.

10 Further and in addition to the repeal of s 59 itself, the transitional provision in cl 8 of sch 1 to the 2008 Act, which expressly preserved extant s 59 proceedings in respect of which there had been a hearing in this Court, was exhaustive and left no room for the continued operation of s 59 outside the specific terms provided for in that clause.

11 My own conclusion accords with that reached by Habersberger J in Helmer v The State Coroner of Victoria ('Helmer').[3] I am not able to distinguish that decision and, accordingly, I should follow it unless I were of the view that it is clearly wrong. I am not of that view; indeed, with respect, I regard it as correctly decided.

12 In order to decide the separate question, it is necessary to record only the following brief facts relating to the inquest into Mr Jensen's death. None of them are contentious.

13 Mr Hallenstein held the office of State Coroner under the 1985 Act from 1 June 1986 to on or about 30 November 1994.

14 On 31 October 1994, following the inquest into Mr Jensen's death, the State Coroner published a document entitled 'Inquest Findings and Order' running to some 308 pages. The document records the evidence that was before the State Coroner on the inquest, findings made by the State Coroner on questions of fact, and a statement of the findings required by s 19 of the 1985 Act. The document records the contribution finding. The document also contains comments, as permitted by s 19(2) of the 1985 Act.

15 The published document records that the relatives of Mr Jensen, the Victoria Police Department, two individual named members of Victoria Police, and the Attorney-General for Victoria were all separately represented by counsel. Two senior counsel, the late Mr G W Morrish QC and Mr L Lasry QC, appeared to assist the State Coroner.

16 I turn now to consider the legislative regimes set up by the 1985 Act and the 2008 Act.

17 The 1985 Act commenced on 1 June 1986.[4] Part 2 of the 1985 Act provided for the appointment of the State Coroner, Deputy State Coroner, and coroners. The State Coroner was appointed under s 6.

18 By s 15 of the 1985 Act, a coroner had jurisdiction to investigate a death if it appeared to the coroner that the death was or may be a 'reportable death'.[5] A coroner who had jurisdiction to investigate a death was authorised to hold an inquest if the coroner believed it was desirable to do so.[6] An inquest was mandatory in certain circumstances,[7] but not those applicable to the death of Mr Jensen.

19 By s 19, a coroner investigating a death was required to find if possible:

(e) the identity of any person who contributed to the cause of death.

20 I note that s 19(1)(e) provided the statutory source of the State Coroner's power to make the contribution finding in respect of Mr Jensen.

21 In addition to requiring a coroner to make findings (if possible) on the matters enumerated in s 19(1), the coroner was authorised by s 19(2) to make comment. The distinction between findings and comment has been noted in a number of decisions of the Court. For example, in Chief Commissioner of Police v Hallenstein, Hedigan J observed that the 'necessary findings' specified in s 19(1) were, with the exception of the administrative particulars in s 19(1)(d), 'historically essential to the discharge of the coroner's task, namely, identity of the deceased, contributors to death, and the manner and cause of death_.'_[8] Section 19(2) was said to 'confer on the coroner freedom to comment about matters connected with the death, including public health, safety or administration of justice.'[9] It is not necessary to examine further the distinction between findings and comment.

22 Part 7 of the 1985 Act was addressed to inquests into deaths.[10] Section 45 authorised the coroner to make available to any person with 'a sufficient interest' any statements that the coroner intended to consider.[11] That section also provided that a person with a sufficient interest could appear at an inquest and call or cross-examine witnesses and make submissions.[12] By section 45(2), the Attorney-General enjoyed a right of appearance.

23 Section 46 of the 1985 Act conferred powers on the coroner, including the power to summon a witness and to take evidence under oath or affirmation.

59 New inquests and re-opening of inquests

(1) Any person may apply to the Supreme Court for an order that some or all of the findings of an inquest are void.

(2) The Supreme Court may declare that some or all of the findings of the inquest are void and may order the State Coroner -

(a) to hold a new inquest, or direct any coroner, other than the coroner who held the first inquest, to hold a new inquest; or

(b) to re-open (or direct another coroner to re-open) the inquest and to re-examine any finding.

(3) The Supreme Court may only make an order if it is satisfied that -

(a) it is necessary or desirable because of fraud, consideration of evidence, failure to consider evidence, irregularity of proceedings or insufficiency of inquiry; or

(b) there is a mistake in the record of the findings; or

(c) it is desirable because of new facts or evidence; or

(d) the findings are against the evidence and the weight of the evidence.

25 The 2008 Act repealed the 1985 Act and replaced it with a new regime. Only the briefest sketch of the 2008 Act is required for present purposes.

26 Part 3 provides for the reporting of a 'reportable death' to the coroner.[13] Part 4 confers a general discretion on the coroner to investigate reportable deaths.[14] In certain circumstances, an investigation is mandatory.[15]

27 Part 5 deals with inquests and authorises the coroner to hold an inquest into any death that the coroner is investigating.[16] An inquest must be held in certain circumstances.[17] Part 5 also confers the type of powers that would be expected to be available for the conduct of an inquest, including the calling of witnesses[18] and the rights of audience of interested parties.[19]

28 Part 6 deals with findings, recommendations and referrals by the coroner. Section 67 provides for the making of findings in similar terms to s 19 of the 1985 Act but without express reference to contributors to death.

29 The 2008 Act also established the Coroners Court and conferred certain functions and powers on that Court (rather than on coroners).[20] One of the functions and powers conferred on the Coroners Court is the power under s 77 to set aside 'findings of a coroner' and, if the Court considers it appropriate, order that the investigation be re-opened.

30 Part 7 of the 2008 Act provides for appeals to this Court. Section 83 is the provision which, perhaps with s 77, most closely resembles s 59 of the 1985 Act. Section 83 provides that a person with a sufficient interest may appeal against the findings of a coroner after an investigation[21] or after an inquest.[22] By s 87, an appeal under pt 7 is an appeal on a question of law.[23] I note that s 83(3) requires that an appeal under that provision must be brought within six months of the determination of the coroner, subject to a power in the Court to extend the time in exceptional circumstances.[24]

31 Section 123(2) of the 2008 Act repealed pts 2 to 7 of the 1985 Act.

32 Schedule 1 of the 2008 Act provides for savings and transitional provisions which operate by reference to a 'commencement day' of 1 November 2009. Clause 2 of sch 1 provides as follows:

2 General transitional provisions

(1) This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.

(2) Without limiting subclause (1), in declaring that certain provisions of the new Act are to be treated as re-enacting with modifications certain provisions of the old Act, this Schedule must not be taken to limit the operation of any provision of the Interpretation of Legislation Act 1984 relating to the re-enactment.

(3) This Schedule applies despite anything to the contrary in any other provision of the new Act.

33 Clause 7 deals with the situation where an inquest had commenced but had not been completed before the commencement day. In such a case, the 1985 Act continues to apply to the inquest.[25] However, the findings of the inquest are deemed to be findings made under s 67 or s 68 (as appropriate) of the 2008 Act.[26]

34 Clause 8 is important. That clause deals with applications under the 1985 Act, including applications under s 59. Clause 8 provides that:

8 Applications commenced under old Act

(1) Subject to clause 10, if a hearing of an application to the Supreme Court has begun under section 18, 28, 29, 30, 35, 59 or 59B of the old Act and the application is not completed before the commencement day, the old Act continues to apply on and from the commencement day to the application.

(2) Despite subclause (1), the determination of the application by the Supreme Court under that subclause is deemed to be a determination of the Supreme Court under section 87 of the new Act.

35 Clause 10 deals with the production of documents and relevantly provides that:

1. Release of documents on coroner's existing file to be subject to new Act

Despite clauses 7 and 8, on and from the commencement day, documents on a coroner's file or record within the meaning of section 51 of the old Act may only be released in accordance with -

(a) the new Act; or

(b) a law other than section 51 of the old Act.

36 The plaintiff relied on s 14 of the ILA in support of her contention that she may apply to this Court pursuant to s 59 of the 1985 Act. Section 14(2)(e) of the ILA provides that where an Act or provision is repealed, the repeal shall not, unless the contrary intention expressly appears, 'affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.'

37 The plaintiff submitted that, at the time of the repeal of the 1985 Act, she had an accrued right to bring an application under s 59 in respect of the findings made by the State Coroner. That right arose in 1994 on the making of findings by the State Coroner under s 19 of the 1985 Act. In support of this contention, the plaintiff submitted that:

(a) Section 59 was, in essence, a statutory right of appeal against coronial findings which was substantive rather than procedural in nature.

(b) Section 59 was also an integrity mechanism in furtherance of the coroner's public function. The conditions in which the Court may make an order (as set out in s 59(3)) were each directed to the accuracy, probity or reliability of the coroner's findings. Section 59 thus conferred a substantive right that ensured the proper discharge of the important statutory functions of the coroner.

38 The plaintiff also relied on the common law principle of construction that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer, impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[27] It was contended that the right to commence a proceeding arose in 1994 on the making of the coronial findings and that the right was 'complete and rested on events or transactions that were otherwise past and closed.'[28]

39 Having identified an accrued right within the scope of s 14, the plaintiff submitted that there was no express contrary intention that would displace the prima facie operation of s 14 or the underlying common law principle that would preserve the right notwithstanding the repeal of the 1985 Act. In that respect, the plaintiff submitted that cl 8 of sch 1 to the 2008 Act deals specifically, but narrowly, with the transitional operation of s 59. It was said that a contrary intention cannot be inferred from the silence in relation to persons who could have, but had not, commenced a proceeding under s 59.

40 The construction advanced by the plaintiff was said to be bolstered by the fact that the 2008 Act does not otherwise provide for a re-opening of findings made under the 1985 Act. It was submitted that the construction advanced by the second to ninth defendants is inconsistent with s 9 of the 2008 Act, which provides that '[t]he coronial system should operate in a fair and efficient manner.' That construction was also said to be inimical to the purpose of enlarging rights of review, as expressed in the second reading speech accompanying the Bill to enact the 2008 Act.[29]

41 The first defendant elected not to participate in this proceeding, in accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[30]

42 The second to ninth defendants ('the defendants') are current and former members of Victoria Police who were involved in the incident in which Mr Jensen was shot.

43 As to the plaintiff's contention that she had an accrued right at the time of the repeal of s 59, the defendants submitted that:

(a) First, a statutory right is preserved only if 'the statutory machinery ... has been set in train before the repeal'.[31] Standing to make an application pursuant to an Act is insufficient to constitute or confer an accrued right, absent the commencement of such an application. The plaintiff had no accrued right under s 59 because she had taken no steps to avail herself of that provision prior to its repeal.

(b) Second, even where a process has been commenced prior to repeal, there will be no preserved 'right' if the process is not concerned with pre-existing rights and liabilities. No such right existed here given that the role of the coroner is to find facts rather than determine pre-existing rights or liabilities.

(c) Third, a right to make an application for the favourable exercise of a discretionary power will not be preserved, at least where no application has been made prior to the repeal of the relevant provision.

44 The defendants submitted that even if the plaintiff had an accrued right to bring proceedings, that right was removed by the clear operation of the transitional provisions. It was said that the transitional provisions exhaustively provide that the only circumstance in which a right under s 59 is preserved is where an application had been made and a hearing of that application had begun before the commencement day of the 2008 Act.[32]

45 It is convenient to commence the analysis by noting some relevant aspects of s 14.

46 The plaintiff submitted that the question of whether she has a right or privilege that has been acquired or accrued is to be determined by reference to the provision of the repealed statute which is in question. I accept that submission, which accords with authority and is accepted by the defendants.[33]

47 The concepts of right and privilege are not to be read narrowly or confined to property law or rights reflected in the general law. The High Court has rejected a narrow view of the survival of accrued rights and, in particular, has not confined the protection to rights narrowly understood.

48 In Mathieson v Burton,[34] the High Court held that a statutory privilege conferred on a child of a lessee to remain in possession of property after the death of the lessee was a right or privilege protected by the New South Wales equivalent of s 14, notwithstanding that it did not reflect any underlying general law right. In that case, the lessee had died and his daughter had remained in possession before the commencement of the amending Act.

49 Windeyer J noted that the words in s 8 did not call for an exercise in analytical jurisprudence or an examination of rights and their correlatives as propounded by Hohfeld.[35] His Honour observed that, although the daughter did not have an estate or interest in land and her ability to remain in possession was best described as a power, it nevertheless fitted within the 'family of rights' protected by the equivalent of s 14.[36]

50 It has also been held that a right or privilege may include an inchoate right.[37] That arises particularly in the context of what are sometimes called contingent rights or discretionary exercises of powers.

51 Importantly, however, s 14 does not operate in respect of a right or privilege in the abstract. It is necessary to establish that the relevant right said to be protected by s 14 had been acquired or accrued by the person seeking the benefit of the right. A distinction has been drawn between an accrued right and 'a power to take advantage of an enactment'.[38]

52 It is relevant to observe that s 14 does not only operate in respect of rights occurring in the context of a court process. It also applies in respect of a right or privilege that is not reflected in a proceeding before a tribunal or a cause of action in a court. In some contexts, a person may have both an underlying right and a right to bring a proceeding. In other circumstances, a person may not have any underlying legal right and may only have the right to commence a proceeding or to have a proceeding, once commenced, completed.

53 Section 14 is informed by the common law. In Ogden Industries Pty Ltd v Lucas,[39] Windeyer J applied s 7(2) of the Acts Interpretation Act 1958, which is identical in key respects to s 14. His Honour noted that 'the statute states in effect the common law principle, using some economy of words to do so.'[40] More recently, in ADCO Constructions Pty Ltd v Goudappel ('ADCO'), the plurality observed that the New South Wales equivalent of s 14 mirrors the common law as enunciated by Dixon CJ in Maxwell v Murphy ('Maxwell') and Chang Jeeng v Nuffield (Australia) Pty Ltd.[41]

54 The preservation of accrued rights may be regarded as an aspect of the principle of legality. French CJ, Crennan and Kiefel JJ made the following observations regarding the principle of legality in the context of retrospective legislation:

In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law.[42]

55 The plaintiff submitted that the common law differs from s 14 of the ILA because the common law does not focus on rights that have accrued but operates where there is a right, liability, immunity or privilege that is complete and which rests on 'events or transactions that were otherwise past and closed.'[43] It was submitted that once the State Coroner made his findings on the inquest, the matter was past and closed and gave rise to a complete right to bring a proceeding under s 59.

56 In my view, both the relevant common law principle of construction and s 14 have a common foundation and operate where there are rights and liabilities that have crystallised and which are defined by reference to past events. Legislation will not be construed so as to affect those settled rights and interests in the absence of a contrary intention. In relevant respects, the two rules of construction do not differ in their scope or operation.

Does the plaintiff have an accrued right to bring an application under s 59?

57 I have concluded that the plaintiff, in common with every other person who could have invoked the jurisdiction of the Court, had a right to take advantage of s 59 for so long as the provision remained in force. The plaintiff, again in common with every other person, indubitably lost that ability when pt 7 of the 1985 Act was repealed.

58 I reach that conclusion in the light of the following matters:

(a) The making of coronial findings under the 1985 Act did not create any legal interest in favour of any person, nor did it determine any legal question as to pre-existing rights and liabilities. For this reason, the plaintiff was driven to find the source of the putative right in s 59 itself.

(b) An application under s 59 was akin to a public law remedy to ensure the public duty of coroner was undertaken in accordance with law and on the basis of evidence.

(c) The putative right to bring an application under s 59 was shared by the world at large.

(d) The plaintiff had taken no steps to avail herself of the right to bring an application under s 59 at the time of the repeal of the 1985 Act.

59 I will deal with each of these four matters in turn.

The making of coronial findings did not create or determine legal rights or liabilities

60 I start with the observation that the plaintiff did not have any legal interest in the making of findings by the State Coroner.

61 The State Coroner had jurisdiction to investigate the death of Mr Jensen, which was a 'reportable death', and he had a discretion as to whether or not to hold an inquest into the death.[44]

62 As Callaway JA explained in Keown v Khan, the function of a coroner is to establish the facts relating to the matters in s 19 to the extent possible.[45] The task of the State Coroner was to make factual findings in respect of Mr Jensen's death. That task did not involve the creation of any legal rights or liabilities, nor did it entail the determination of any legal question relating to the death.

63 Putting aside s 59 itself, the plaintiff did not identify or rely on any rights or interests which could be protected by s 14 of the ILA. In other words, the source of the right relied on was s 59 itself.

An application under s 59 was akin to a public law remedy

64 Section 59 conferred an important, but relatively narrow, source of jurisdiction in this Court to review findings of the coroner. This statutory jurisdiction co-existed with the general supervisory jurisdiction of the Court to review for jurisdictional error or error of law on the face of the record.

65 There were two obvious sources of limitation on s 59. The first is that s 59 was limited to reviewing findings. As with the inquest that was the subject of Hedigan J's decision in Chief Commissioner of Police v Hallenstein,[46] the structure of the published document in this inquest did not clearly demarcate between findings and comment. However, the contribution finding which is the subject of this proceeding was a finding within the meaning of s 19(1)(e) and therefore fell within the scope of s 59. The second limitation on s 59 is that there were limits on the scope of a review, which flow from the conditions set out in s 59(3).[47]

66 The plaintiff emphasised the important public role of the coroner, observing that it was critical that the coroner establish reliable answers to the five matters raised by s 19(1)(a) to (e) in order to set the public mind at rest.[48]

67 So much may be accepted. However, in the present context, it is necessary to emphasise the public nature of a coronial process. As noted above at [62], it is not a process that either identifies (as to the past) or establishes (as to the future) legal rights, obligations or duties.

The right to bring an application under s 59 was shared by the world at large

68 Section 59 conferred on any person the ability to make an application to this Court to ensure that the findings of the coroner were arrived at in accordance with law, to the extent protected by the limited grounds of review. The right to make an application was therefore shared by every person who was in, or capable of invoking, the jurisdiction of this Court. No limitation as to standing was expressly imposed and the opening words of s 59, 'any person', told against an implied standing requirement.[49]

69 If the plaintiff were correct, the accrued right or interest to bring an application under s 59 is one conferred on the world at large. The plaintiff did not contend that s 59 could be preserved by s 14 of the ILA in a narrower way, as applying only to those people with a sufficient or particular interest in a particular inquest.

The plaintiff had not availed herself of the right to bring an application under s 59

70 In my view, no right or interest arises until the commencement of a proceeding. Once that occurs, the plaintiff acquires or accrues a distinct right to have the extant proceeding completed in accordance with law. This right is one protected by s 14 of the ILA. The commencement of a proceeding involves the creation of a new right or interest to have the proceeding determined in accordance with law; a right that is generally enforceable by way of mandamus.

71 Having regard to the combination of the three matters identified above, the plaintiff did not have a pre-existing right protected by either s 14 or the common law at the time of the repeal of s 59. It is also significant that the right that the plaintiff sought to preserve, which was said to have accrued when the State Coroner published his findings in 1994, was a right to take a step in the future. Section 14 operates to protect the exercise of rights that have already arisen, not to allow the creation of new rights in the future.

72 Support for that approach can be found in the judgment of Kitto J in Continental Liqueurs Pty Ltd v G F Heublein and Bros Inc,[50] a case dealing with proceedings in a court under the Trade Marks Act 1905-48 (Cth). His Honour said:[51]

If the application had not been pending in the Court when the new Act came into force, I should have agreed that the applicant company had not a right to relief under s 72 which it could thereafter enforce. Even though it had a locus standi to apply under the section as a 'person aggrieved', s 8 of the Acts Interpretation Act could have no application in its favour ... But in my opinion the applicant, by instituting its application in the Court, that is to say by filing its notice of motion, acquired a right to have the Court decide whether it ought to exercise its jurisdiction under s 72 in that application, and that right was within the protection of s 8(c) of the Acts Interpretation Act: cf Colonial Sugar Refining Company Limited v Irving.[52] The principle of Abbott v Minister for Lands, is expressed in the sentence: ' ... the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' ... '.[53]

73 In my view, this approach also accords with that taken by the High Court in Esber v The Commonwealth ('Esber')[54] and in Attorney-General (Qld) v Australian Industrial Relations Commission ('Attorney-General (Qld)').[55]

74 In Esber, the appellant had applied for the redemption of his ongoing pension under a 1971 Act.[56] That Act was subsequently repealed and the regime replaced with a 1988 Act. The transitional provision of the 1988 Act provided that 'proceedings instituted but not completed [under the 1971 Act] ... may be continued on and after that day [the commencing day of the 1988 Act]'.[57] The majority held that the transitional provision preserved the proceeding and the substantive law continued in the 1971 Act. That holding was enough to dispose of the appeal.[58]

75 The majority considered the application of s 8 of the Acts Interpretation Act 1901 (Cth) which relevantly provided that, unless the contrary intention appeared, an Act repealing a former Act would not 'affect any right ... acquired accrued or incurred under any Act so repealed' or 'affect any investigation legal proceeding or remedy in respect of any such right ...'.

76 Their Honours held that, on the assumption that the appellant had no legal right to a redemption of his ongoing payments, once he had commenced his proceeding in the Administrative Appeals Tribunal he had 'a right to have the decision of the delegate reconsidered and determined by the Tribunal.'[59] Having commenced the proceeding, his right was not merely a power to take advantage of an enactment but was rather a substantive right. The premise of that conclusion was that, notwithstanding that he had no legal right to a particular outcome in the proceeding, he obtained a protected right or interest once he had engaged the jurisdiction of the Tribunal.[60] In my view, if the appellant had not commenced a proceeding prior to the repeal, s 8 of the Acts Interpretation Act 1901 (Cth) could only have applied if he could establish a pre-existing right to a redemption.

77 Brennan J dissented on the basis that a right to have an application determined fell short of a 'right' for the purposes of s 8 of the Acts Interpretation Act 1901 (Cth).[61] His Honour regarded as critical the fact that the Tribunal was tasked with merits review and would therefore conduct a hearing de novo, with the law to be applied being that which existed at the time of its decision, rather than the law existing at the time the appellant commenced his application for review.[62]

78 In Attorney-General (Qld),[63] a union had commenced an arbitral proceeding in the Australian Industrial Relations Commission. The legislation changed and under the new provisions the Commission was required to cease dealing with certain industrial disputes before it. If the Commission were to cease dealing with the arbitral proceeding in question, the union could not obtain an award that would bind employers in Queensland to the obligations of a federal award.

79 The union argued that it had an accrued right to have its application determined on the basis of the law in existence at the time of the application. This argument was rejected by the High Court on the basis that the proceeding was an administrative proceeding in which there is no underlying legal right to a particular outcome. The right was to have the proceeding heard and determined in accordance with law, with no right to have the matter determined in accordance with the law as it stood at the time of the application.[64]

80 Ultimately, s 14 does not bite unless and until the person with standing commences a proceeding. The mere capacity to initiate a proceeding does not constitute a right that has been accrued or acquired for the purposes of s 14.

81 It may be acknowledged that both Esber and Attorney-General (Qld) concerned accrued rights in the context of applications made to administrative tribunals: the Administrative Appeals Tribunal and the Australian Industrial Relations Commission respectively. Here, s 59 is concerned with a right to apply to a court.

82 In this respect, the general approach might differ as between administrative processes and court processes. In the context of court processes, the general rule is that once an application is made to the court, the law to be applied is that existing at time the proceeding is commenced.[65] (I say generally because the text of the particular provision will be decisive.)[66] In so far as the proceeding is in a court, it may be necessary for the purposes of applying s 14 to ascertain whether the change in the law effects a substantive change or merely a change to the processes of the court by which those rights are determined.[67]

83 The difference in approach as between administrative processes and court processes may be explained by the fact that usually a plaintiff commencing a proceeding in a court will already have an accrued cause of action reflecting a pre-existing right. So much appears from the following passage in Attorney-General (Qld):

Where what is involved is the exercise of judicial power, that often will require the determination of pre-existing rights or liabilities. This is illustrated by those functions which are appropriate exclusively to judicial action, including the determination of criminal guilt, actions in contract and tort, and suits to enforce trusts. The term 'pre-existing rights' will take its content from the state of affairs at some stage before the judicial determination, such as the accrual of a cause of action or institution of an action or application. Hence the ready accommodation here of notions of accrued rights within the sense of s 8 of the Interpretation Act.[68]

84 Here, there were no 'pre-existing rights' other than the right to commence the proceeding, which is not a right, in my view, protected by s 14. I consider that the analysis in Esber and Attorney-General (Qld) is apposite. The plaintiff had no protected rights because she had not commenced a proceeding.

If the plaintiff did have an accrued right, was there an express contrary intention?

85 If I am wrong in my conclusion and the plaintiff has established a right falling within the protective scope of s 14 of the ILA, it would be necessary to determine whether the prima facie position had been displaced by a clear contrary intention. It will be recalled that s 14(2) does not preserve an accrued right if the contrary intention to affect the right expressly appears in the repealing Act.

86 Before dealing with the provisions of the 2008 Act, it is necessary to address the requirement that the contrary intention expressly appear. In Mitchell v Latrobe Regional Hospital, the Court of Appeal held that '"expressly" means "plainly", "clearly", or "by necessary implication" and, as such, does not require a line by line reference to every part of a piece of existing legislation.'[69] In arriving at that conclusion, their Honours adopted the approach taken by Habersberger J in Helmer.[70]

87 The following observation of Gageler J in ADCO in relation to s 30 of the Acts Interpretation Act 1901 (Cth) applies with equal force to s 14 of the ILA:[71]

A contrary intention need not be express and its implication, although sometimes referred to as 'necessary implication',[72] has not been confined to those extreme circumstances in which alteration of an existing right or liability 'cannot be avoided without doing violence to the language of the enactment'.[73] The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears 'clearly' or 'plainly' from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.[74]

88 The plaintiff made two submissions in support of her contention that the 2008 Act does not manifest a contrary intention.

89 First, she submitted that the 2008 Act is silent on what should happen where no application had been made under s 59 of the 1985 Act, and that it is not possible to discern the necessary contrary intention from that silence. The plaintiff noted that cl 2(1) expressly referred to the ILA. The plaintiff rightly pointed out that cl 8 of sch 1 does not refer to an application under s 59 that had been commenced but where no hearing had begun, nor does it refer to a situation where an application could have been but was not commenced before the repeal of s 59. The former circumstance was considered by Habersberger J in Helmer.[75] The plaintiff submitted that Helmer could be distinguished because it was concerned with a case where a s 59 application had been commenced. Alternatively, the plaintiff submitted that I should decline to follow Helmer.

90 Second, the plaintiff submitted that there was no mechanism in the 2008 Act to enable the State Coroner appointed under that Act to re-open an inquest finding made under the 1985 Act. In this regard, it was submitted that s 77 of the 2008 Act could not be relied on because that section authorises a person to apply to the Coroners Court for an order that some or all of the findings of a 'coroner' after an investigation should be set aside. The argument was that a 'coroner' within the meaning of s 77 was a coroner appointed under the 2008 Act or a coroner under the 1985 Act whose office had been extended by cls 15 or 16 of sch 1 to the 2008 Act.

91 In response to the first of the plaintiff's submissions, the defendants submitted that the contrary intention is revealed by the comprehensive suite of transitional provisions contained in sch 1 to the 2008 Act. In short, they contended that rights were preserved to the extent, and only to the extent, allowed for in sch 1. In making that submission, they relied on a passage from the joint judgment of the High Court in GF Heublein and Bros Inc v Continental Liqueurs Pty Ltd ('Continental Liqueurs'), where it was said that:

Close consideration of the special provisions of s 5 induces us to think that the express provision which it makes with respect to applications pending under the earlier Act must be read as exhaustive and that there is, therefore, no room for the application of s 8 of the Acts Interpretation Act, even if it were otherwise possible to bring the case within its terms.[76]

92 Before addressing the parties' competing contentions on this aspect, which focused on sch 1 to the 2008 Act, I would observe that, given the only source of the putative right is s 59 itself, the express repeal of s 59 manifested a plain or clear intention to abrogate any right to bring a proceeding under that provision.[77] No clearer manifestation was required: the putative accrued right corresponded completely with the scope of s 59. The repeal of s 59 necessarily removed that right.

93 If the plaintiff's right to commence a proceeding was preserved, it would follow that the repeal of s 59 was ineffective to prevent a person from continuing to rely on s 59 in respect of any inquest findings that were made under the 1985 Act. The entire effect of the repeal would be reversed by s 14 of the ILA, subject to contrary intention. In other words, the operation of s 14 in relation to s 59 would not be to preserve that section for the limited purpose of preserving accrued rights. Rather, s 59 would continue to operate virtually unaffected by its repeal. The observations of Gageler J in R v Independent Broad-Based Anti-Corruption Commissioner ('IBAC') are apposite here:

any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical.[78]

94 The plaintiff accepted that a contrary intention could be discerned with respect to those persons who had commenced a proceeding but in respect of which there had not been a hearing in this Court, but not otherwise. On that analysis, s 59 would be preserved subject to this very narrow exception.

95 It is to be borne in mind that the repealing provision also repealed the provisions that provided for the holding of investigations, inquests, and the making of coronial findings under the 1985 Act. There could be no further inquests under the 1985 Act that might have attracted the future operation of s 59 other than those that were continued under the transitional provisions. However, for those inquests, the transitional provisions provided that the findings were deemed to be findings under s 67 or s 68 of the 2008 Act, to which 59 could have had no application. In other words, the repeal of s 59 could only have had effect in relation to inquests that had already been completed under the 1985 Act.

96 However, it is not necessary to rest my judgment on the basis that the repealing provision itself expressed, with the necessary clarity, an intention to preclude an application being made under s 59 after the commencement of the 2008 Act. That is because the following additional matters lead, in my opinion, irresistibly to the conclusion that s 59 was repealed and had no continued operation in relation to persons who had not commenced a proceeding under s 59 before the date of repeal.

97 In Continental Liqueurs, the High Court discerned a clear intention that the transitional provisions were exhaustive, with the effect that what was not carried through by means of the transitional provisions was brought to an end by the repeal.[79] The defendants argue that this approach also applies to sch 1 to the 2008 Act.

98 Clause 8 of sch 1 to the 2008 Act is critical to the defendants' argument. Pursuant to cl 8(1), if a hearing of an application under s 59 had begun but had not been completed, the 1985 Act continues to apply to the application on and from the commencement day.[80] Clause 8(2) provides that a determination of an application under cl 8(1) is deemed to be a determination under s 87 of the 2008 Act.

99 The issue turns on the construction of cl 8 read in its context. The clause expressly deals with one circumstance, namely where there has been a part heard proceeding, and provides for the continuation of such a proceeding and for machinery to make the Court's determination effective as an exercise of power under the 2008 Act. The plaintiff submits that, in the light of the strong interpretative principle in s 14 of the ILA, it is not possible to discern from the interstices of the clause an intention to deal with proceedings that are not expressly mentioned; that is, proceedings that have not yet commenced.

100 It is true that s 14 requires the clear manifestation of an intention to abrogate accrued rights. However, the ultimate construction of sch 1 must still be reflective of its text and produce a harmonious result with the 2008 Act as a whole.

101 The evident effect of cl 8 is to preserve an application commenced under s 59 where a hearing has begun and to bring the determination of that proceeding into the purview of the 2008 Act.

102 In my view, the provision of cl 8 is properly regarded as exhaustive in respect of proceedings under s 59 that are preserved post repeal. That is so because the clause targets a subset of applications that had been commenced, namely those in respect of which a hearing had begun, and expressly reserves the 1985 Act in that respect (but provides machinery provision to bring the outcome within the 2008 Act). The plaintiff appeared to accept that cl 8 necessarily impacted on proceedings that had been commenced.

103 The device in cl 8 of both preserving the 1985 Act for a limited purpose but bringing the outcome into the 2008 Act regime is used in a number of places in sch 1. For example, cl 7 continues the operation of the 1985 Act in relation to inquests commenced but not completed under that Act at the commencement day, but provides that findings are deemed to be made under s 67 or s 68 of the 2008 Act. I have already noted the operation of cl 8(2) in respect of applications to this Court under ss 18, 28, 29, 30, 35, 59, and 59B.

104 Clauses 11 (release of a body), 12 (objections to autopsy), 13 (exhumations) and 17 (depositions) adopt a similar practice. The translation of applications, powers and decisions into the 2008 Act strongly suggests that the continued operation of the 1985 Act was narrow and confined. It would represent a striking and improbable contrast to the scheme of the transitional provisions to treat s 59 as continuing in operation in cases where no application had been made without there being any machinery provisions to give effect to such a process.

105 Another strong factor telling against the plaintiff's construction emerges from the form of relief that this Court could grant under s 59. It will be recalled that under s 59, this Court could declare that some or all of the findings of a coroner were void and order the coroner to hold a new inquest or to re-open the inquest and re-examine any finding. The reference to a coroner in s 59 is a reference to a coroner appointed under the 1985 Act. It follows that, in the absence of some machinery provision, there would be no office holder to discharge the duty contemplated by s 59 to re-open the inquest.

106 The defendants submitted that s 59 would not have been preserved without some machinery provision being in place to treat an order under s 59 as an order under the 2008 Act that is directed to coroners appointed under that Act. I agree. I am unpersuaded by the plaintiff's response that this is simply a matter of procedure and that the 2008 Act should be taken to apply to orders made under the 1985 Act.

107 The plaintiff was disposed to accept that a person who had commenced a proceeding which was not part heard on the commencement day would not be entitled to continue with the action on the basis that cl 8 of sch 1 evinced a contrary intention. However, it was said that a person who had not commenced such a proceeding was free to do so and have it determined under the 1985 Act.

(a) a person who had not commenced a proceeding prior to the 2008 Act coming into force would have the ability to bring a new proceeding under s 59;

(b) a person who had commenced a proceeding which had been heard (or part heard) prior to the commencement day would have that proceeding preserved; and

(c) a person who had commenced a proceeding which was yet to be heard (or part heard) on the commencement day would have no rights under s 59 because, as held in Helmer, their rights had been expressly abrogated.

109 No rational legislative purpose would be served by such an anomalous outcome. In my view, the displacement of any right with respect to a person who had commenced a proceeding that had not been heard or part heard would logically apply with even greater force to a person with standing to bring a proceeding prior to the commencement day but who had not commenced it. The construction for which the plaintiff contends would render 'inoperative or nonsensical' the means by which the 2008 Act set out to achieve the repeal of provisions in the 1985 Act.[81]

110 It is not surprising that cl 8 deals specifically with the situation where a proceeding had been commenced by, in effect, dividing that class into two depending on whether or not there had been a hearing before the commencement of the 2008 Act. Authority and principle clearly meant that simply repealing s 59 would not have been enough to address the situation where a proceeding had already been commenced.[82]

111 My conclusion corresponds to that reached in Helmer.[83] In that case, the issue was whether an application that had been brought under s 59 before the commencement day could continue under cl 8. It was necessary for the Court to determine whether there had been a hearing so as to bring the application within cl 8. Habersberger J found that there had not been a hearing and that although the 2008 Act did no expressly say that the proceeding could not continue, it was plain or clear that this was so having regard to the express continuation of those proceedings in which there had been a hearing_._[84]

112 The plaintiff sought to distinguish Helmer on two bases. First, in that case, an application under s 59 of the 1985 Act had been made before the 2008 Act came into force. The issue fell to be determined on the construction of cl 8 of sch 1 to the 2008 Act. It was submitted that Helmer stands for the limited proposition that where an application had been commenced under s 59 before the 2008 Act commenced, then it could only be continued if it came within the scope of cl 8 (in the sense that the hearing had commenced before the 2008 Act came into force). It was submitted that cl 8 did not apply in the present case as no application had been made prior to the repeal of s 59.

113 The second matter relied on to distinguish Helmer was that Habersberger J had concluded in that case that 'the plaintiff is not completely without other avenues of recourse even if he cannot proceed with his originating motion under s 59 of the 1985 Act'.[85] It appears his Honour proceeded on the basis that procedures under the 2008 Act were available in respect of an inquest completed under the 1985 Act.[86]

114 Dealing with the first point raised by the plaintiff, it is true that the plaintiff in Helmer had commenced a proceeding under s 59 in this Court before the commencement day. However, the point of construction resolved in Helmer was that the 2008 Act preserved proceedings where a hearing had commenced but, in all other circumstances, there was an express contrary intention to repeal the right to bring an application under s 59.

115 I have decided not to resolve the question raised by the plaintiff's second submission. I do not regard it as necessary or appropriate to do so. I note that the issue of contrary intention only arises if I am wrong in holding that the plaintiff did not have a right protected by s 14 of the ILA.

116 The question of how a death might be investigated under the 2008 Act where that death that had occurred before the commencement of that Act and had been the subject of coronial findings was not explored in detail in this matter. The focus was on the narrower question of whether s 77 of the 2008 Act applied.

117 I note that the operation of s 77 directly arises in the matter of James v Mason,[87] but it is not the subject of the separate question posed in either matter. Accordingly, I do not determine the question of whether s 77 would be available to re-open an inquest finding made under the 1985 Act. It is preferable that this question be addressed in a matter in which it directly arises.

118 Even if the plaintiff were correct in saying that s 77 of the 2008 Act is not available, that would not lead me to any different construction. The express repeal of the operative parts of the 1985 Act, the language of the transitional provisions and the absence of any machinery provisions to give effect to future applications under s 59 of the 1985 Act make it impossible to accept her construction.

119 It follows that, in my respectful view, Helmer is both applicable and correct.

120 For the reasons that I have endeavoured to explain, the plaintiff did not have an accrued right or interest that was preserved by s 14 of the ILA as at the commencement day of the 2008 Act. If I am wrong in that conclusion, any such right was clearly displaced by the contrary intention expressed in the 2008 Act.

121 I would amend the separate question so as to rephrase it into an interrogative form as follows: 'Does the Supreme Court of Victoria have jurisdiction to hear and determine the Plaintiff's application under s 59 of the Coroners Act 1985 (now repealed)?'

122 I would answer that question in the negative. I will hear the parties on any consequential orders in the light of the answer to the separate question.

[1] Coroners Act 2008 s 123, sch 1 ('2008 Act').

[2] Pursuant to r 47.04(a) of the Supreme Court (General Civil Procedure) Rules 2015.

[3] [2011] VSC 25 ('Helmer').

[4] I note that certain provisions in the Act, namely ss 1-3 and pt 9 (ss 64-74), commenced earlier, on 12 February 1986.

[5] 'Reportable death' was defined in s 3 to include a death 'that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from accident or injury'. Regulation 5 of the Coroners Regulations 1986 prescribed that '[a] death is also a reportable death when it occurs as the result of a negligent act or omission of any person.'

[6] Coroners Act 1985 s 17(2) ('1985 Act').

[8] Chief Commissioner of Police v Hallenstein [1996] VicRp 51; [1996] 2 VR 1, 3.

[10] It is not necessary to make reference to the coroner's jurisdiction with respect to inquests into fires.

[13] 'Reportable death' is defined in s 4 to include 'a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury' and 'the death of a person who immediately before death was a person placed in custody or care'. The definition of 'person placed in custody or care' in s 3 relevantly includes 'a person who a police officer ... is attempting to take into custody or who is dying from injuries sustained when a police officer ... attempted to take the person into custody'.

[24] Section 86 allows the Court to grant leave to appeal out of time where the Court is of the opinion that the failure to institute within time was due to exceptional circumstances and it is satisfied that it is desirable in the interests of justice to grant leave.

[27] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ) ('Maxwell').

[29] Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4037 (Rob Hulls, Attorney-General).

[30] [1980] HCA 13; (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

[31] NSW Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685, 696 (Hope JA).

[33] See, eg, Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 68 [96] (Gummow and Hayne JJ).

[34] [1971] HCA 4; (1971) 124 CLR 1 ('Burton').

[37] Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440-1 (Mason CJ, Deane, Toohey and Gaudron JJ) ('Esber').

[38] Burton [1971] HCA 4; (1971) 124 CLR 1, 23 (Gibbs J). See also Abbott v Minister of Lands [1895] AC 425, 431.

[39] [1967] HCA 30; (1967) 116 CLR 537.

[41] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1, 15 [27] (French CJ, Crennan, Kiefel and Keane JJ) ('ADCO'), citing Maxwell [1957] HCA 7; (1957) 96 CLR 261, 267 and Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629, 637-8 (McTiernan and Windeyer J agreeing).

[42] Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, 134-5 [30] ('Australian Education Union'). I note that, in the joint judgment of Gummow, Hayne and Bell JJ, their Honours observed that '[t]here is ... no occasion to consider what is meant when it is said that a statute has "retrospective" effect or to consider how and when s 8 of the Acts Interpretation Act operates'. This was said to be so because no general principle about retrospective legislation had been debated and no party or intervener had suggested that s 8 of the Acts Interpretation Act 1901 (Cth) might bear on the issues to be decided: Australian Education Union [2012] HCA 19; (2012) 246 CLR 117, 146 [64] (citations omitted). Section 8 of the Acts Interpretation Act 1901 (Cth) was the equivalent of s 14 of the Interpretation of Legislation Act 1984.

[43] Maxwell [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).

[45] Keown v Khan [1998] VSC 297; (1998) 101 A Crim R 503, 510.

[46] [1996] VicRp 51; [1996] 2 VR 1.

[47] Anderson v Blashki [1993] VicRp 60; (1993) 2 VR 89, 92.

[48] Domaszewicz v The State Coroner [2004] VSC 528; (2004) 11 VR 237, 247 [37].

[49] Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591, 601 [13]-[15] (Gleeson CJ and McHugh J), 605 [30] (Gaudron J), 637 [120] (Gummow J), 643 [139] (Kirby J).

[50] [1960] HCA 37; (1960) 103 CLR 422.

[52] [1905] AC 369.

[53] [1895] AC 425, 431.

[54] [1992] HCA 20; (1992) 174 CLR 430.

[55] (2002) 213 CLR 485 ('Attorney-General (Qld)').

[56] Esber [1992] HCA 20; (1992) 174 CLR 430.

[57] Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) s 129(2).

[58] Esber [1992] HCA 20; (1992) 174 CLR 430, 436-8 (Mason CJ, Deane, Toohey and Gaudron JJ).

[59] Ibid 440 (Mason CJ, Deane, Toohey and Gaudron JJ).

[63] Attorney-General (Qld) (2002) 213 CLR 485.

[64] Ibid 502 [40], 503 [43] (Gaudron, McHugh, Gummow and Hayne JJ).

[65] See, eg, Esber [1992] HCA 20; (1992) 174 CLR 430, 448-9 (Brennan J).

[66] IOOF Holdings Ltd v Federal Commissioner of Taxation [2014] FCAFC 91; (2014) 224 FCR 535, 561 [105] (Robertson J) ('IOOF Holdings').

[67] See, eg, Maxwell [1957] HCA 7; (1957) 96 CLR 261, 267-8 (Dixon CJ), 277 (Williams J), 285-6 (Fullagar J).

[68] Attorney-General (Qld) (2002) 213 CLR 485, 503 [44] (Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

[69] Mitchell v Latrobe Regional Hospital [2016] VSCA 342 [64].

[71] ADCO [2014] HCA 18; (2014) 254 CLR 1, 22 [52] (Gageler J).

[72] Cf Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518.

[73] Cf Burton [1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J), quoting In re Athlumney; Ex parte Wilson [1989] 2 QB 547,

[74] See, eg, Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595, 620-1 (Deane, Dawson, Toohey and Gaudron JJ); Attorney-General (Qld) (2002) 213 CLR 485, 492 [6], 494 [14] (Gleeson CJ), 505 [52] (Gaudron, McHugh, Gummow and Hayne JJ); Australian Education Union [2012] HCA 19; (2012) 246 CLR 117, 134 [27] (French CJ, Crennan and Kiefel JJ).

[75] [2011] VSC 25.

[76] GF Heublein and Bros Inc v Continental Liqueurs Pty Ltd [1962] HCA 66; (1962) 109 CLR 153, 161-2 ('Continental Liqueurs').

[77] It will be recalled that s 59 of the 1985 Act was expressly repealed by s 123(2) of the 2008 Act.

[78] R v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459, 481 [77] (Gageler J) (citations omitted) ('IBAC').

[79] Continental Liqueurs [1962] HCA 66; (1962) 109 CLR 153, 161-2.

[81] IBAC [2016] HCA 8; (2016) 256 CLR 459, 481 [77] (Gageler J).

[82] See, eg, Continental Liqueurs Pty Ltd v G F Heublein and Bros Inc [1960] HCA 37; (1960) 103 CLR 422, 426-7; Esber [1992] HCA 20; (1992) 174 CLR 430, 440-1 (Mason CJ, Deane, Toohey and Gaudron JJ).

[83] [2011] VSC 25.

[87] [2018] VSC 170.