Stanojlovic v DPP & Anor [2018] VSCA 152

1 On 14 August 2015, the applicant, Robert Stanojlovic, was issued with an infringement notice for failing to display a P plate facing out from the front of his vehicle contrary to reg 55(1) of the Road Safety (Drivers) Regulations 2009 ('RSDR').

2 The applicant contested the infringement notice in the Magistrates' Court but was convicted and ordered to pay a fine and statutory costs.

3 The applicant appealed his conviction and sentence to the County Court. He argued that the offence created by reg 55(1) of the RSDR did not exclude the Proudman v Dayman defence, whereby the prosecution would need to disprove beyond reasonable doubt the defendant's state of mind that he had an honest and reasonable belief in a set of facts at the time which, if they existed, would have made him innocent of the offence.[1]

4 The County Court judge accepted this argument, and found on the evidence that the applicant had an honestly and reasonably held belief that a P plate was affixed to the front of his vehicle. The judge allowed the appeal and ordered that the charge be dismissed.

5 The respondent, the Director of Public Prosecutions, applied to the Trial Division for judicial review of the County Court's order.[2] That application was heard by Jane Dixon J.[3] In the result, her Honour held that absolute liability applies to the element of the offence that involves not displaying a P plate facing out from the front or rear of the vehicle. Her Honour quashed the order of the County Court and remitted the proceeding for hearing and determination according to law.

6 The applicant now seeks leave to appeal from her Honour's decision.

7 The facts relevant to this application may be summarised briefly.

8 On 14 August 2015, an officer of Victoria Police attended a multiple vehicle collision in Noble Park. The officer called for tow trucks to attend the scene. The applicant, who was employed as a tow truck driver, arrived a while later.

9 It was not in issue that the applicant was then the holder of a probationary driver's licence and that his tow truck did not have a P plate displayed facing out from the front of the vehicle when he arrived at the scene of the collision.

10 The officer issued the applicant with an infringement notice in respect of his failure to comply with reg 55(1) of the RSDR, which carried with it a fine of $152 and a penalty of three demerit points.

The decisions of the Magistrates' Court and the County Court

11 The applicant contested the infringement notice in the Magistrates' Court. On 31 May 2016, a magistrate convicted him of the offence and ordered him to pay a fine of $152 and statutory costs of $73.30.

12 The applicant appealed the magistrate's decision to the County Court. The appeal was conducted on 29 September 2016 and proceeded by way of hearing de novo.[4] It was submitted on behalf of the applicant that the offence created by reg 55(1) of the RSDR did not exclude the Proudman v Dayman defence. The respondent argued that the offence was one of absolute liability and that, accordingly, honest and reasonable mistake of fact was not a relevant matter.

13 In closing submissions, the applicant's counsel referred the judge to the decision in Kidd v Reeves, where it was held that driving while disqualified was an offence of strict liability.[5] The following exchange then took place between the judge and the applicant's counsel:

HIS HONOUR: If it applies to undisqualified [sic] driving you say surely it applies to P plate[s] if he had a reasonable belief that there was one on the car and it fell off.

COUNSEL: Exactly, yes. I mean one can think of a multitude of reasons why this should not be an absolute liability offence, including the facts in this case that it falls off. You believe it's affixed and it falls off you shouldn't be caught in the net.

HIS HONOUR: If the section said properly affixed and so it can't fall off but it doesn't say that.

14 The judge did not give reasons for his conclusion that the Proudman v Dayman defence was available to the applicant. However, the exchange set out above indicates that his Honour attached some weight to the fact that the regulation imposes no specific obligation on the licence holder to ensure that P plates are properly affixed to the vehicle.

15 The judge then delivered a short ruling in which he stated that he was satisfied, on the evidence, that the applicant held a reasonable and honest belief that a P plate was affixed to the front of the tow truck.

16 The County Court judge set aside the order made in the Magistrates' Court and ordered that the charge against the applicant be dismissed.

17 By originating motion dated 28 November 2016, the respondent sought an order quashing the order of the County Court, a declaration that the judge had erred in law in determining that the offence created by reg 55(1) of the RSDR was one of strict rather than absolute liability, and an order remitting the proceeding to the County Court for hearing and determination according to law.

18 The respondent advanced two related grounds. First, it was contended that the judge had erred in holding that a defence of honest and reasonable mistake of fact was available in respect of a charge for contravention of reg 55(1). Second, it was contended that the judge had erred in failing to hold that such a charge was an offence of absolute liability.

19 The judge in the Trial Division allowed the application, quashed the order made in the County Court, and remitted the proceeding for hearing and determination in accordance with law.

20 The judge set out the terms of reg 55 as follows:

(1) A person who holds a probationary driver licence or a driver licence issued on a probationary basis in another jurisdiction must not drive a motor vehicle (other than a tractor) on a highway unless -

(a) an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter 'P' is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres behind the vehicle; and

(b) in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter 'P' is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres ahead of the vehicle.

(3) Subregulation (1) does not apply to a person who is -

(a) a police officer who, in the course of duty, is driving a motor vehicle; or

(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or

(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.

21 It is not necessary to set out the balance of the regulation.

22 The judge then set out a summary of the central legal principles derived from He Kaw Teh v The Queen ('He Kaw Teh')[6] to be applied in resolving the constructional question of whether the relevant external element of not displaying a P plate involved strict or absolute liability.[7] Those principles, which were not questioned before us, were stated as follows: [8]

(a) The question of the relevant state of mind, if any, is essentially one of the construction of the statute creating the offence.[9]

(b) The statute is to be interpreted in light of the general principles of the common law which govern criminal responsibility.[10]

(c) It is a principle at common law that an honest and reasonable, but mistaken, belief in a set of facts which, if they existed, would have made the defendant innocent provides a ground of exculpation. The evidentiary onus of raising the ground is on the defendant. Once that occurs, the legal onus lies on the prosecution to prove beyond reasonable doubt the absence of an honest and reasonable belief.[11]

(d) There is a strong presumption that proof of state of mind is relevant where an offence carries serious penal consequences.[12] Conversely, the strength of the presumption is weaker for offences that 'are not criminal in any real sense'.[13]

(e) The presumption may be displaced where the statute is regulatory in nature and is concerned with issues of social concern, such as environmental or industrial requirements or public safety.[14]

(f) In deciding whether the presumption has been displaced, it is necessary to consider: (1) the words of the statute creating the offence; (2) the subject matter and purpose of the statute; and (3) whether imposing absolute liability will promote the observance of the statute. These considerations do not necessarily lead to the same conclusion.[15]

(g) Ultimately, it is the language of the statute that is controlling. The presumption may be displaced by a sufficiently plain manifestation of legislative intention, either by express words or necessary implication.[16]

23 The judge considered the scope and purpose of reg 55(1) within the wider structure of the Road Safety Act 1986 ('RSA') and the RSDR. Her Honour said it was clear that the graduated licensing scheme, within which reg 55(1) sits, is part of a wider legislative scheme which includes, as part of its aims, the imposition on probationary drivers of various restrictions and obligations.[17] Her Honour considered that the importance of closely regulating the driver behaviour of this target group is paramount over the interests of individual probationary drivers. This was said to assist the enforcement of safe driving by probationary drivers and encourage their awareness of being under scrutiny in respect of their driving behaviour.[18]

24 The judge then addressed in some detail the decision of the Full Court of this Court in Welsh v Donnelly.[19] That case concerned the question of whether the Proudman v Dayman defence was available for an offence under s 35 of the Motor Car Act 1958. The relevant provision made it an offence to drive a motor car on a highway in breach of the conditions of a special permit prescribing the maximum permitted weight of the vehicle. The offence was held to be one of absolute liability.[20] The Full Court placed emphasis on the common good, public safety and compliance as critical to the construction of the offence-making provision.[21]

25 Her Honour traced through a number of cases at first instance that had applied the reasoning in Welsh v Donnelly,[22] including Kearon v Grant,[23] Pilkington v Elliot,[24] Skase v Holmes,[25] Tsolacis v McKinnon,[26] and Wilson v Gahan.[27] In the latter case, Warren J summarised the principles to be discerned from He Kaw Teh as follows:

In He Kaw Teh the High Court referred to the fact that the courts have set down criteria to be applied in determining whether the presumption of mens rea has been displaced. The first criterion is consideration of the words of the statute creating the offence ... The second criterion is consideration of the subject matter of the statute ... The third criterion is whether subjecting the defendant to absolute liability will assist in the promotion of observance of the relevant statute ... The fourth criterion is that where a statute creates an offence for the purpose of regulating social conditions and public safety and where the penalty attached to a statutory offence is monetary and moderately sized, the statute is more easily regarded as imposing absolute liability ... [28]

26 The judge concluded her extensive survey of authority by observing that the cases in Victoria dealing with summary driving or road traffic offences evince a marked tendency to construe the offences as excluding the Proudman v Dayman defence.[29] The judge noted that Welsh v Donnelly has been particularly important to the development of the jurisprudence in Victoria concerning summary driving offences, leading to a narrowing of the availability of the Proudman v Dayman defence.[30]

27 Applying the principles set out in He Kaw Teh (as summarised by Warren J in Wilson v Gahan), the judge then carefully assessed the words of the regulation creating the offence,[31] the subject matter of the regulation and the objectives of the statutory scheme in which it is found,[32] and the question of whether imposing absolute liability would promote the observance of the statute.[33] Her Honour concluded that the relevant element is one involving absolute liability.[34]

28 In relation to the words of reg 55(1), her Honour observed that the regulation does not contain any particular words that incorporated a mental element such as 'intentionally', 'knowingly', or 'without reasonable excuse'.[35] The mandatory language employed in reg 55(1) was observed to be consistent with that considered in Pilkington v Elliot and Tsolacis v McKinnon (cases in which the Court concluded that the relevant offence provisions imposed absolute liability).[36]

29 In relation to the subject matter of the regulation and the objectives of the statutory scheme, her Honour noted that a road safety purpose lies at the heart of the RSA and the accompanying regulations.[37] Her Honour identified the mischief to which reg 55(1) is directed as being 'risky driving behaviour by young and/or inexperienced drivers.'[38] Her Honour regarded the purpose of reg 55(1) as regulatory, noting that it 'assists authorities in enforcing the restrictions placed on probationary drivers ... by providing police and other road users a means of easily identifying probationary drivers.'[39]

30 In answer to the submission advanced below by the applicant that reg 55 is at most only ancillary to the road safety purposes of the RSA, her Honour concluded that the regulation could not be divorced from the overall statutory scheme.[40] Her Honour expressed the view that reg 55(1) plays an important role in achieving public safety as part of an integrated scheme which included graduated licensing.[41]

31 Finally, the judge considered whether imposing absolute liability instead of strict liability would promote the observance of the regulatory scheme. She concluded that compliance with the scheme would be encouraged by the imposition of absolute liability.[42] Such an imposition was not, in her Honour's view, overly onerous in circumstances where the commission of the offence is 'largely avoidable by a conscientious probationary driver' and 'pragmatism dictates that the interests of the individual be subjugated to the welfare of the public as a whole if the graduated licensing scheme is to operate effectively.'[43]

32 The judge was alive to the potential hardship that may arise in individual cases through the imposition of absolute liability. She was satisfied that burden could generally be managed and that, although the imputation of absolute liability was a matter of some importance, the potential penalties for the offence were low (with no risk of imprisonment) and no significant moral stigma attached to the offence.[44] In this regard, the fact that the presumption of mens rea is weaker for a regulatory offence in contrast to an offence of a truly criminal character was a relevant part of the overall exercise of construction.[45]

33 By his application for leave to appeal, the applicant advances four proposed grounds of appeal. The applicant contends that the judge erred in law:

Ground 1. By holding that reg 55(1) of the Road Safety (Drivers) Regulations 2009 is an offence of absolute liability.

Ground 2. By not holding that reg 55(1) of the Road Safety (Drivers) Regulations 2009 is an offence of strict liability.

Ground 3. By not holding under the circumstances that the defence of honest and reasonable, but mistaken belief, was relevant to proof of the offence under reg 55(1) of the Road Safety (Drivers) Regulations 2009.

Ground 4. By not holding that under the circumstances that the learned County Court Judge was correct in dismissing the charge under reg 55(1) of the Road Safety (Drivers) Regulations 2009.

34 In substance, the four grounds collapse into a single constructional question: is the relevant element of the offence one of absolute liability? It was the same question considered and answered by her Honour. It is not suggested that her Honour made any error in the distillation of the applicable principles, only that her Honour should have come to a different conclusion.

35 In oral submissions, the applicant submitted that the judge erred in the application of the relevant principles by mischaracterising reg 55 as being a regulation concerned, or sufficiently concerned, with road safety and in drawing the conclusion that a construction that imposed absolute liability was necessary for the better operation of the regulatory provision.

36 It was contended that reg 55 is only incidentally concerned with road safety, and should be contrasted with provisions regulating 'more serious' matters such as speed limits or car registration.

37 This submission was said to be reinforced by reference to reg 55(3) which exempts emergency service personnel from the operation of reg 55(1). It was said that if reg 55 were a provision concerned with road safety, there would be no reason to exclude emergency service personnel when they are driving in the course of duty.

38 It was also submitted that it is not necessary to impose absolute liability in order to make the regulatory scheme effective and that achieving such an objective should not come at the cost of a 'luckless class' being penalised. It was said that there are many circumstances in which a probationary driver might make a reasonable and honest mistake as to whether P plates are displayed on his or her vehicle, for example where a P plate has become detached from the vehicle through no fault on his or her part. In this regard, it was submitted that the fourth criterion referred to by Warren J in Wilson v Gahan (relating to statutes creating offences that regulate social conditions and public safety, where the penalty is monetary and moderately sized) was a weak factor in the present context and that the judge had overstated its utility.

39 The respondent largely adopted the reasoning of the judge.

40 The respondent referred, without objection, to the Regulatory Impact Statement ('RIS') which accompanied the RSDR as an aid to interpreting the purpose or mischief to which the RSDR is directed.

41 The RSDR introduced the current graduated licence regime under which probationary drivers are divided into two subclasses, namely:

(a) P1 (designated by a red P plate) which is to be held for a minimum of one year and which carries with it certain restrictions, including in relation to driving high-powered vehicles, blood alcohol level and the permitted number of passengers; and

(b) P2 (designated by a green P plate) which is to be held for a minimum of three years and which has similar restrictions to P1, although these are relaxed in relation to passenger numbers.

42 The RIS identified the policy reason for the introduction of the requirement to display yellow L, red P or green P plates as being to 'enable[ ] all road users to identify young inexperienced drivers, be more tolerant and take preventative action to avoid any potential traffic incidents. The display of plates enables the police to identify the status of drivers and to enforce the Regulations.'[46] The RIS noted that:

The proposed Regulations set out a graduated driver licensing scheme and penalties to promote compliance and provide substantial community road safety benefits. Without licensing and penalties, there would be scant compliance with the proposed Regulations by individual road users of any age. In effect, without penalties there would be no consequences while compliance with licensing requirements would be discretionary ... [47]

43 The respondent submitted that in determining the purpose of a relevant provision, it is necessary to have regard to the purpose of the Act or regulation as a whole rather than the particular provision in issue. Support for that contention was said to be found, among others, in the judgment of Gibbs CJ in He Kaw Teh where his Honour referred to 'the subject-matter with which the statute deals' as a relevant focus of inquiry.[48]

44 Counsel for the respondent accepted that Gibbs CJ had immediately gone on to consider the subject matter of the specific offence-making provisions. Counsel clarified that the respondent's submission was that it is necessary to look both to the Act or regulation as a whole and also to the particular provision in issue.

45 Her Honour identified and applied well-established principles of construction to the regulation in issue and her conclusion was, in our view, clearly correct. Subject to addressing some additional matters below, we would respectfully adopt her reasons as our own for the purpose of explaining that an honest and reasonable but mistaken belief that a P plate is displayed facing out from the vehicle is not relevant to proof of the offence created by reg 55(1) of the RSDR.

46 Her Honour was correct to apply the approach taken in Welsh v Donnelly and, in the circumstances of this regulation, to place great weight on:

(a) the mandatory language of the regulation;[49]

(b) the important public safety purpose of the regulation which is directed to risky driving behaviour by young and/or inexperienced drivers by providing police and other road users with a means of easily identifying probationary drivers;[50]

(c) the fact that the commission of the offence is largely avoidable by a conscientious probationary driver;[51]

(d) the fact that the interests of the individual need to be subjugated to the welfare of the public as a whole if the graduated licensing scheme is to operate effectively;[52] and

(e) the fact that the offence is more of a regulatory than criminal character.[53]

47 The applicant submitted that the judge gave undue weight to the fourth element identified by Warren J in Wilson v Gahan (relating to statutes creating offences that regulate social conditions and public safety, where the penalty is monetary and moderately sized). It was submitted that this Court should conclude that imposing absolute liability goes further than necessary to achieve compliance.

48 There are at least two reasons for rejecting the submission. The judge properly and carefully considered each of the factors that principle demanded should be taken into account in resolving the constructional question. None of them was in itself decisive. Secondly, the issue of construction is not whether this Court considers the offence should be one of absolute liability or whether imposing such an approach goes further than is necessary. These are legislative judgments for the body responsible for making the regulation.

49 It is clear that the graduated licensing regime is an important aspect of road safety that requires compliance by probationary drivers. That compliance is aided by the imposition of absolute liability with respect to the requirement to display the relevant P plate on the vehicle. It is not to the point that there may be other provisions that deal with matters that may have a more direct and immediate effect on road safety such as speed limits or permissible blood alcohol levels. The regulation is part of the regime that regulates road safety, it is of a regulatory rather than a truly criminal character, and compliance with it is likely to be more effective if a charge for failure to display the applicable P plate brooks no argument about the honesty and reasonableness of the belief of the driver.

50 The RIS relied on by the respondent indicates the specific purpose embodied in reg 55(1). The RIS identified the policy reason to introduce the yellow L, red P and green P plates as enabling all road users to identify young inexperienced drivers and respond accordingly to avoid potential traffic incidents. It was also said that the display of plates would assist in enforcement of the regulations applying to probationary drivers. In our view, the graduated licensing scheme and the ability to clearly identify drivers who hold a probationary licence forms an important part of the road safety regime erected by the RSA and RSDR.

51 We should add that to the extent that the respondent sought to contend that the purpose of reg 55 is to be discerned from the RSDR as a whole (with lesser consideration to be given to the regulation in issue), we would not accept that submission. In our view, the starting point for inferring legislative intention must be the text of the provision in issue.[54] Many Acts and regulations embody a variety of purposes, and the overall purpose of the legislation (whether stated or inferred) may be so general as to be unhelpful in construing the provision in issue.[55] In Carr v Western Australia, Gleeson CJ observed that:

the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs ... For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.[56]

52 His Honour went on to say that, in such cases, the text or relevant extrinsic materials may indicate 'a more specific purpose which helps to answer the question.'[57] In other cases, however, there may be no available indication of a more specific purpose.[58]

53 The applicant relied on the exception contained in reg 55(3) pertaining to emergency service personnel and suggested that this exception undermined the contention that reg 55 is concerned with safety. It was further suggested that the exclusion only applies to personnel driving in the course of duty and that there would be considerable scope for the Proudman v Dayman defence to operate in circumstances where, for example, a person had an honest and reasonable but mistaken belief that they were on duty at the time when they were apprehended. In this context, it was submitted that the Proudman v Dayman defence could not be lightly excluded.

54 In our view, the relatively narrow exclusion contained in reg 55(3) casts little light on the broader question of construction that arises in this matter. The exclusion does not undermine the place of reg 55 within the overall road safety regime erected by the RSA and RSDR.

55 The application for leave to appeal must be refused.

[1] Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. Under Proudman v Dayman, the burden on the defendant is evidentiary only and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not hold the belief in question: Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 582 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

[2] Pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015.

[3] [2017] VSC 540 ('Reasons'). The County Court of Victoria was the second named defendant in the judicial review proceeding before Jane Dixon J, and the second named respondent in the proceeding before us. In accordance with the principles enunciated by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, the County Court did not take an active part in either proceeding. In these reasons, we will refer to the Director of Public Prosecutions as the respondent.

[4] See Criminal Procedure Act 2009 ss 254, 256.

[5] Kidd v Reeves [1972] VicRp 64; [1972] VR 563, 566-7 (Menhennitt J).

[6] [1985] HCA 43; (1985) 157 CLR 523 ('He Kaw Teh').

[9] CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 ('CTM').

[10] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 566-7 (Brennan J); CTM [2008] HCA 25; (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

[11] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 534-5 (Gibbs CJ, with whom Mason J agreed), 582 (Brennan J), 592-3 (Dawson J).

[12] CTM [2008] HCA 25; (2008) 236 CLR 440, 446-7 [7] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

[13] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 529-30 (Gibbs CJ, with whom Mason J agreed).

[15] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 529-30 (Gibbs CJ, with whom Mason J agreed).

[16] Ibid 528-30, 539 (Gibbs CJ, with whom Mason J agreed), 576 (Brennan J); CTM [2008] HCA 25; (2008) 236 CLR 440, 446 [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ).

[19] Reasons [73]-[79], referring to Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173.

[20] Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173, 178 (Young CJ), 191 (McInerney J), 200 (Southwell J). As noted by Jane Dixon J in the Reasons (at footnote 52 in [73]), in Welsh v Donnelly, as in many cases pre-dating He Kaw Teh, the term strict liability was sometimes used in place of, or interchangeably with, the term absolute liability.

[21] Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173, 177-8 (Young CJ), 187 (McInerney J), 197, 199-200 (Southwell J).

[23] [1991] VicRp 25; [1991] 1 VR 321. This case concerned a charge of exceeding a speed limit of 60 kilometres per hour contrary to reg 1001(1)(c) of the Road Safety (Traffic) Regulations 1988.

[24] (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991). This case concerned a charge of being the owner of an unregistered motor vehicle used on a highway contrary to s 7(1)(b) of the Road Safety Act 1986 ('RSA').

[25] (Unreported, Supreme Court of Victoria, Vincent J, 11 October 1995). This case concerned a charge of exceeding the prescribed blood alcohol limit contrary to s 49(1)(f) of the RSA.

[26] [2012] VSC 627; (2012) 38 VR 260 (Cavanough J). This case concerned a charge of driving an unregistered motor vehicle on a highway contrary to s 7(1)(a) of the RSA.

[27] [1999] VSC 72.

[28] Ibid [9] (citations omitted), quoted in Reasons [86].

[45] Ibid [119], citing Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173.

[46] Regulatory Impact Statement, Road Safety (Drivers) Regulations 2009 62, 85.

[48] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 529 (Gibbs CJ, with whom Mason J agreed).

[54] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 35 [11] (French CJ), 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[55] See Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380, 397 [157] (Mason P, with whom Spigelman CJ and Beazley and Giles JJA agreed); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 35 [11] (French CJ), 46-8 [47], [51]-[53] (Hayne, Heydon, Crennan and Kiefel JJ); Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358, 374-5 [53]-[54] (Keane CJ and Jacobson J).

[56] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 143 [5].