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Supreme Court of Victoria |
![[AustLII]](195.1.gif)
Supreme Court of Victoria
Last Updated: 28 June 2007
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
MAJOR TORTS LIST
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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CORPORATIONS – breach of director’s statutory duties – application by corporation for compensation – time limit for bringing application – whether time limit may be extended – whether time limit should be extended.
Corporations Law ss. 1317HD(2), 1322(4)(d)
PRACTICE AND PROCEDURE – security for costs – amount of security.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Holding Redlich
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For the First Defendant
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Arnold Bloch Leibler
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For the Second Defendant
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Ms. C. Dew, Solicitor
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Cornwall Stodart
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1 The plaintiff, Newtronics Pty Ltd, at all material times carried on the business of designer, manufacturer and vendor of electronic controllers. The defendants were directors of Newtronics at the relevant time and therefore its officers pursuant to s. 232 of the Corporations Law, as then in force.[1]
2 In late 1994 Newtronics supplied certain electronic components to Seeley International Pty Ltd for it to incorporate in its air conditioners. In this proceeding it is alleged that, at the time of supply, the defendants knew or ought to have known that the components were defective and might fail. It is alleged that the defendants as directors of Newtronics, took no steps to rectify this position or to withdraw or recall the defective products and that this was a contravention of their duties as directors under s. 232(4) of the Law and a breach of their directorial duties owed to the company at common law and in equity.
3 On 12 February 1998, in proceeding SG-21 of 1998, in the Federal Court of Australia, Seeley sued Newtronics alleging that it suffered loss when three houses were burnt by fire which emanated from the Seeley air conditioners. It alleged that the cause of the fires were the components negligently designed and constructed by Newtronics. After a trial of some 71 days judgment was on 18 January 2002 given against Newtronics in the sum of about $8.9 million plus interest and costs. I am told that the interest was later fixed at $5 million and that the costs on a party and party basis were fixed at $6 million.
4 In its proceeding in this Court, Newtronics alleges that, as a result of the breaches of statutory, common law, and equitable duties by each of the defendants, it suffered the Federal Court judgment and it seeks to recover these sums. Insofar as the conduct of the defendants constitutes a contravention of s. 232(4) it is a contravention of a civil penalty provision within the meaning of Part 9.4B of the Law. Under this Part, the contravenor is liable to an order for compensation at the behest of Newtronics pursuant to s. 1317HD(1). This section provides as follows:
1317HD(1) [Recovery of profit, loss or damage by corporations] Where a person contravenes a civil penalty provision in relation to a corporation, the corporation may, by proceedings in a court of competent jurisdiction, recover from the person, as a debt due to the corporation:
(a) if that or another person has made a profit because of the act or omission constituting the contravention – an amount equal to the amount of that profit; and
(b) if the corporation has suffered loss or damage as a result of that act or omission – an amount equal to the amount of that loss or damage;
Whether or not:
(c) the first-mentioned person has been convicted of an offence in relation to the contravention; or
(d) a civil penalty order has been made against the first-mentioned person in relation to the contravention.
5 This proceeding was commenced by writ filed on 1 December 2005, some 11 years after the occurrence of the suggested breaches of s. 232. Section 1317HD(2) provides for a time limit of six years for the commencement of a claim under s.1317HD. The time limit is in these terms:
(2) Proceedings under this section may only be begun within six years after the contravention.
6 The first defendant, Giorgio Sergio Gjergja, in his defence filed on 6 October 2006, alleges, inter alia, that the statutory cause of action is statute barred; he relies upon s. 1317HD(2).
7 Newtronics responds to this by bringing an application pursuant to s. 1322(4)(d) seeking an order extending the period prescribed by s. 1317HD(2), nunc pro tunc, to 2 December 2005 so as to cure the defect. Counsel for Mr Gjergja argues that s. 1322(4)(d) is not available for this purpose and, alternatively, that the relief should be refused.
The Availability of s. 1322(4)
8 The provisions of s. 1322(4)(d) are in the following terms:
1322(4) [Court may make orders] Subject to the following provisions of this section but without limiting the generality of any other provision of this Law, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
...
(d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Law or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;
and may make such consequential or ancillary orders as the Court thinks fit.
9 The point taken is that this provision is not available where the Law indicates that the intention of parliament as evinced in Part 9.4B was that the time limit might not be extended. Section 1322(4) was enacted as part of the statutory reforms of 1989 which became part of the Law in 1990. It was then, relevantly, in the same terms as those set out above. In this 1990 legislation s. 232(4) provided that a director must exercise a reasonable degree of care and diligence in the exercise of his or her powers and in the discharge of the duties of his or her office. This was the predecessor of s. 232(4) which came into force in 1992 and which is the provision which the defendants here are said to have contravened. Sub-section. 232(8) of the 1990 statute was the antecedent of s. 1317HD with which I am concerned. It provided that where the corporation has suffered loss or damage as a result of the contravention it may recover this in a court of competent jurisdiction. It did not fix a time within which the proceeding under s. 232 might be commenced.
10 By the Corporate Law Reform Act 1992 a new Part 9.4B was introduced to deal with the civil and criminal consequences of contravening a civil penalty provision of the Law. Section 232(4) is included in the list of civil penalty provisions. The scheme of this Part 9.4B is that the Court might for such contravention impose a civil penalty pursuant to Division 2, deal with the contravention in a criminal proceeding under Division 3 and 4 or make an order for compensation under Division 5. The present proceeding is brought under Division 5.
11 The times for bringing proceedings under Part 9.4B are various. By s. 1317EC there is a time limit for the bringing of an application for a civil penalty order under Division 2:
An application for a civil penalty order may be made within six years after the contravention.
There is no time limit for commencing a criminal proceeding under Division 3 or 4.
12 The position with respect to a proceeding to recover compensation is rather more complex. Such an order may be made in three situations:
(1) Where an application for a civil penalty order is made, the Court may order that the contravener provide compensation to the corporation which has suffered loss as a consequence.[2] This means that the time limit is six years, pursuant to s. 1317EC.
(2) Where a criminal proceeding is brought the Court may order that compensation be paid to the corporation where it has suffered loss as a consequence of the contravention. This means that there is no time limit other than that which might apply to any prosecution for a breach of the Law.
(3) Where the corporation applies under s. 1317HD, an order for compensation may be made where it has suffered loss as a consequence of the contravention. The time limit here is the six year period imposed by s. 1317HD(2). This is the present case.
13 Section 1322(4)(d) is of wide import and, as a general curative power, has been construed liberally to overcome a wide array of difficulties caused by the strict application of time limits in specific provisions of the Law. Nevertheless, it operates as a general curative provision which must operate in conjunction with other, more specific, provisions of the Law. As the High Court pointed out in David Grant & Co Pty Ltd v Westpac Banking Corporation[3], the difficulty does not arise from the particular text of the specific provision or s. 1322(4), but rather from the interaction of the two. I have been informed by counsel that their industry has not brought to light any reported case where ss. 1317HD and 1322(4)(d) have been considered together.
14 In David Grant, the High Court was concerned with the application of the procedures following service of a statutory demand upon a corporation as a step in the winding up process. There had for some years been varying views expressed about the power of the Court to extend the time prescribed for compliance with the demand pursuant to s. 459G. The section is in these terms:
459G(1) [Company may apply] A company may apply to the Court for an order setting aside a statutory demand served on the company.
459G(2) [Time limit] An application may only be made within 21 days after the demand is so served.
459G(3) [Affidavit and copy of application] An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
15 It will be observed that, like the present case, the right to apply to the Court is found in sub-s. (1) and the time limit in sub-s. (2) is in terms very similar to those of s. 1317HD(2), with which I am concerned. In particular, the use of the word “only” in the two sub-sections is attached to the word “may”. Section 1317HD(2) reads “Proceedings under this section may only be begun within six years after the contravention”. As I mentioned in argument, this is a surprising location of the word which might otherwise be expected to be placed before the phrase “within six years after ...” This led the High Court in David Grant to the following conclusion.
Here, the phrase “(a)n application may only be made within 21 days” should be read as a whole. The force of the term “may only” is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. ...[4]
And a little later:
This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word “only” in s 459G(2) if it does not mean what it says, which is that the application is to be made within 21 days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of 21 days specified in s 459G would deprive the word “only” of effect.[5]
16 The High Court was at pains to point out that the scheme of Part 5.4 contained its own powers and procedures for extending time and for mitigating any hardship which might be caused by the rigidity of s. 459G. The corporation might in certain circumstances seek an order extending the period for compliance under s.459F(2)(a). The Court under s. 459R might extend the time within which a winding up order must be made. The Court under s. 459S might permit the corporation to rely upon a ground for resisting the winding up order which it might have raised upon an application to set aside the order pursuant to s. 459G, if made timeously.
17 These matters, as well as the statutory consequence which arises where the statutory demand is not set aside or complied with within time, were important factors which weighed against the applicability of a general power to extend that time.
18 Finally, as appears from the passages which I have set out, the presence of the word “only” pointed to a severe application of the time limit. In the context, its presence meant that the sub-section as expressed is functionally the equivalent of a provision that “no application may be made unless it be made within 21 days after...”
19 The decision of the New South Wales Court of Appeal in BP Australia v Brown[6] was handed down in August 2003, some eight years after David Grant. It concerned the time for bringing an application with respect to a voidable transaction entered into by a corporation prior to its winding up. The question was as to the power of the Court under s. 1322(4)(d) to extend the statutory time limit prescribed by s. 588FF(3) for bringing such an application. The sub-section is in these terms:
588FF(3) [Time limit on application] An application under subsection (1) may only be made:
(a) within 3 years after the relation-back day; or
(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those 3 years.
Again, it will be observed that the drafter has adopted the expression “an application ... may only be made ... within three years after ...”
20 The Chief Justice, with whose judgment the other members of the Court of Appeal agreed, identified the question as that of determining whether the specific provision of s. 588FF(3) was expressed to cover the field with respect to time limits for the bringing of applications, so that the general power of s. 1322 must yield to the specific. His Honour concluded that the facts that a specific power to extend time is conferred by s. 588FF(3)(b) and the terms of this specific extension power, show that the general power is impliedly excluded.[7]
21 His Honour also considered the significance of the word “only” in the following passage:
The word “only” in a time limitation statutory provision can characterise the provision as a “time so emphatically prescribed” (Texel Pty Ltd v Commonwealth Bank of Australia [1994] VicRp 62; [1994] 2 VR 298 at 300, per Hayne J, in a case under s 459G which was a precursor of David Grant v Westpac). However, the use of the word “only” is not of itself determinative. (See, eg, Emanuele.) Its force is affected by the relevant statutory scheme considered as a whole, as the analysis in David Grant v Westpac shows.[8]
22 His Honour then analysed the statutory scheme contained in Part 5.7B for the adjustment of creditors’ rights in insolvency. Without venturing to rehearse all of these matters, it is sufficient that I note that the Chief Justice demonstrated powerful policy considerations for providing a limit upon the power of the liquidator to disturb transactions entered into by an insolvent corporation prior to liquidation.
23 If demonstration be needed of the construction difficulties posed by cases such as the present, reference need only be made to the High Court decision in Emanuele v ASC[9]. This case did not turn upon the application of s. 1322 or its construction; it concerned s. 459P which deals with applications to wind up a corporation in insolvency.
24 By sub-s. 459P(1), any of a number of classes of persons might apply for an order that a corporation be wound up in insolvency. Sub-s. (2) then provides:
459P(2) [Applicants with leave of Court] An application by any of the following, or by persons including any of the following, may only be made with the leave of the Court.
The applicant, ASC, was one of the persons specified in the sub-section. Notwithstanding that no leave was sought or obtained, a winding up order was made, apparently due to an oversight. Upon appeal to the Full Court of the Federal Court, the difficulty came to light and the Court granted leave nunc pro tunc to cure the difficulty which it described as an irregularity. In a majority decision the High Court agreed that the want of leave was an irregularity only and that it could be cured by a subsequent order.
25 The case is of interest for my purposes inasmuch as it shows that a provision such as s. 459P(2), which contains the phrase “may only be made,” may be seen either as imposing a jurisdictional limit upon the power of the Court to entertain an application to wind up in insolvency, or as a procedural matter whose breach amounts only to an irregularity. In the event, the High Court by a narrow majority favoured the latter view. In this regard, it will be recalled that Gummow J in David Grant[10] characterised the 21 day time limit upon the right of a company to apply to set aside a statutory demand under s. 459G, as jurisdictional.
26 The task of the Court when considering a provision such as s. 1317HD in a case such as the present is not limited to a textual analysis of the section. The Court is concerned with other matters, such as the role that the specific provision plays in that part of the Law in which it is found.
27 Chief among these other matters is the availability or not of procedures other than s. 1322(4)(d) to deal with the case where a strict application of the time limit in the specific provision would impose hardship or would appear to defeat the object of the specific provision. The courts have therefore looked at the role that the time limit is intended to play in the scheme of the legislation.
28 Starting, as one must, with the text, the presence of the word “only” and the location of that word are of primary importance. It is said with considerable force that to permit s. 1322 to override a limit so expressed is to deny meaning to the word “only”. This contention draws considerable support from the omission of this word from s. 1317EC, a time bar for the bringing of a civil penalty application which was introduced into the Law in 1992 as part of the same legislative package that included s. 1317HD. The explanatory memorandum reinforces this, for, in respect of s. 1317EC it says that it is to “provide that an application for a civil penalty order may be made within six years after the contravention.[11] Of s. 1317HD it says:
An application may be made under the section irrespective of whether the person has been convicted of an offence, or a civil penalty order has been made, in relation to the contravention, but must be made within six years of the contravention.[12]
A further textual consideration is the fact that s. 1322 which is, of course, of general application, was introduced into the Law some years prior to Part 9.4B.[13]
29 With respect to the arguments based on purpose, I observe that, unlike s. 459P and s. 588FF, there is in Part 9.4B no provision to alleviate any hardship which might be caused by the effluxion of this statutory limitation period. Furthermore, if the critical factor against the availability of s. 1322(4)(d) is the word “only”, the position would be that time might be extended by that section for an application under s. 1317EC for a civil penalty, but not for an application for compensation under s. 1317HD. This disparity seems, at first blush, to be anomalous.
30 In my opinion, the structure of Part 9.4B does point to the conclusion that s. 1322 has no application to an application under s. 1317HD. The text of s. 1317HD points to this conclusion. To my mind, in its context, the word “only” has the role of meaning “not otherwise” rather than that of merely providing a non-imperative emphasis to the time limit.
31 This conclusion is not inconsistent with the different wording of the time limit for an application for a civil penalty under s. 1317EC. While such an application is not criminal in character,[14] the remedies which may be ordered are obviously directed to encouraging directors to comply with their statutory obligations[15] and to protecting the commercial community from delinquent directors.[16] Such an application may not be brought by any person; it must be made by the Commission or a delegate of the Minister.[17] The corporation itself might seek compensation upon such an application and may intervene in the proceeding for that purpose.[18] As I have mentioned, the corporation may seek compensation in a criminal proceeding under s. 1317FA.
32 The power of the corporation itself to initiate a proceeding for compensation is not controlled by any supervisory or government agency. It may therefore be seen as a civil right in the corporation to pursue an errant director, a statutory right conferred in addition to its common law or equitable rights. It is not surprising that this statutory right should have some time limitation as to the bringing of a proceeding to enforce the legal or equitable rights.
33 Under the 1989 legislation an application seeking compensation from a director in breach of a duty to exercise a reasonable degree of care and diligence could be brought as part of a criminal proceeding against that director pursuant to s. 232 (6) or by a proceeding brought by the corporation pursuant to s. 232(7). No limitation period was specified for the bringing of such an application. It would seem, therefore, that the ordinary limitation periods (if any) would apply. On the view I take of Part 9.4B of the Law after the 1992 amendments, the same position would apply to their successors.
34 There is also to be found in Part 5.7B Division 4 a power to order compensation against a director who has caused loss as a consequence of a breach of duty to prevent insolvent trading pursuant to s. 588G. Like Part 9.4B an application for such an order for compensation may be made in the course of an application for a civil penalty order,[19] in the course of a criminal proceeding[20] or upon application by the liquidator of the company.[21] The time limit for bringing an application for a civil penalty order is that fixed by s. 1317EA and there is no time limit specified for the bringing of a criminal proceeding. In the case of an application by the liquidator, there is a time limit prescribed by s. 588M(4) which is expressed in terms very similar to the time limit presently under consideration: the proceeding may only be begun within six years after the beginning of the winding up.
35 Unlike a criminal proceeding and a civil penalty proceeding under Part 9.4B, a proceeding under s. 1317HD is one brought essentially to resolve a dispute between the corporation and its director. These disputes are not restricted to claims by insolvent corporations or corporations under external administration. There is a good policy reason for bringing such disputes to an end so that each of the corporation and the director can focus on their commercial future. In general, this is an important reason for the imposition of a limitation period in any commercial dispute.
36 It may be accepted that the imposition of a limitation period, like any arbitrary rule, will throw up hard cases. Nevertheless, where the delinquency of the director is grave, this hardship may be mitigated by the corporation seeking to recover compensation in a criminal proceeding or a civil penalty proceeding where it is thought appropriate by the relevant authority that such a proceeding be brought.
37 It was put in the present case that such an interpretation would cause a hardship in a case where the six year period expired at a time when the corporation remained under the control of a receiver who was appointed by a corporation associated with the allegedly delinquent director. This, it was said, is the case now before the Court. Accordingly, it was only when a liquidator was appointed and a more independent mind brought to bear, that the question of a proceeding against the director arose. This consideration cannot affect my task of construing the statute. The fact is that, whenever there is a statutory limitation period, the prospective plaintiff may choose not to commence the proceeding. I say nothing as to whether such a decision by a receiver may give rise to other rights or remedies.
38 For these reasons, I conclude that s. 1322(4)(d) cannot be called upon in the present case to validate the Newtronics’ statutory claim.
39 The conclusion I have reached is sufficient to dispose of the Newtronics’ application. Nevertheless, in case this proceeding may go further, and in deference to the submissions of counsel, I will briefly venture my views upon the further question, whether I should extend time under s. 1322.
40 I would not extend time for the following reasons:
Security for Costs
41 There was no dispute before me that there should be an order in favour of Mr Gjergja for security for the costs he may be awarded in the event that he be successful. Nor was there any resistance to my suggestion that the order should, at this stage, cover only those costs to be incurred up to the date of setting down for trial. Under the current practice, this would include the preparation of the court book and witness statements.
42 The contest, therefore, was as to the amount of the security to be ordered.
43 On behalf of Mr Gjergja it was originally put that the costs should be assessed on the same basis as those incurred by Newtronics in its unsuccessful defence of the Seeley proceeding in the Federal Court. The figure should therefore be the appropriate part of the $6,000,000 costs there incurred. I reject this approach on any of a number of grounds. First, the issues are not the same or sufficiently similar to adopt this approach, even as a starting point. Second, inasmuch as there are common issues, more is now known of the evidence which is available. This should enable the parties to agree upon many matters. Third, the cases are not the same. I would not expect that the work involving costs of that order would be required in the present proceeding. Finally, I know nothing of the detail of the Seeley costs.
44 I will therefore address the alternative and more conventional approach put on behalf of Mr Gjergja which was based on the report of Harris Cost Lawyers. This produced a total amount of party and party costs including disbursements of $4,778,342. This assessment dealt with costs of Mr Gjergja from the commencement of the litigation up to the end of trial. The assessment of Mahlab Costing provided on behalf of Newtronics on the same basis was $429,226.
45 I will now set out the principles I will apply in determining the proper security to be given up to the setting down of this case for trial:
(1) I do not include costs incurred prior to the date of application. This was agreed by the parties.
(2) There was a serious dispute between the parties as to what will be the issues at trial. On behalf of Mr Gjergja it was said, for example, that he was not bound by the findings in the Seeley trial that the defective components caused the fires. But counsel for Newtronics disavowed any intention of proving that fact. The case which Newtronics wishes to present is that the delinquency of the directors exposed this corporation to the risk of a claim such as the Seeley claim. The task of the Court will be to value that risk. Its case is that the value of the risk is the amount which it has been ordered to pay as a consequence of the Seeley trial. Accordingly, they said, they had no need to and would not attempt to re-run the Seeley case. I proceed on the basis that the Newtronics case will not be conducted on the basis suggested by the defendant. It is not for me, or for the defendant for that matter, to presume, or to require Newtronics to do, otherwise. The costs to be assessed, therefore, will be very much less than those incurred at the Seeley trial.
(3) The costs are based on estimates. These are estimates of time and work to be done as well as the hours involved. Since further security will be sought my assessment may be seen as provisional only and subject to adjustment up or down as the interlocutory process continues. For the same reason I have approached the matter with a fairly broad brush, determining what seems to me the appropriate party and party costs which might reasonably be incurred in the case as I understand it from the pleadings and from what I was told by counsel at the hearing.
(4) I have brought to bear my own experience of litigation in deciding what work might be required. I have, with the agreement of parties, consulted the Taxing Master.
(5) In making my assessment I have adopted a conservative approach. Security for costs is not intended to be an indemnity to the defendant.
46 My assessment of the security to be provided up to the date of setting down, therefore, is $129,000. I have set out below, as an annexure, a summary of the items comprising this sum together with a brief note of my reasons where appropriate.
ANNEXURE TO JUDGMENT [2007] VSC 195
Newtronics v Gjergja
Party and Party costs of firstnamed defendant up to setting down.
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#
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Item
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Mahlab
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Harris
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Allow
|
|
|
Defence and particulars
|
1,737[23]
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25,027[24]
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10,000
|
|
|
Request for Particulars of Statement of Claim
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1,957[25]
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16,231[26]
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nil[27]
|
|
|
Particulars of Defence
|
16,231[28]
|
Nil[29]
|
|
|
|
Inspection of Pltff’s documents
|
4,050[30]
|
101,160[31]
|
20,000
|
|
|
Mediation incl counsel
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15,102[32]
|
53,498[33]
|
20,000[34]
|
|
|
Directions hearings
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8,652[35]
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11,336[36]
|
12,000[37]
|
|
|
Advice by counsel
|
10,542[38]
|
44,880[39]
|
15,000
|
|
|
Witness Statements
(a) Expert
(b) Lay
|
{34,980[40]
{ |
|
5,000[43]
45,000 |
|
|
Court book
|
472[44]
|
21,344[45]
|
2,000[46]
|
|
|
Total
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77,492
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575,503
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129,000
|
[1] All references in this judgment to the Corporations Law are references to the Law as it stood in 1994.
[2] Section 1317HA.
[3] [1995] HCA 43; (1995) 184 CLR 265 at 275.
[4] [1995] HCA 43; (1995) 184 CLR 265 at 277 per Gummow J.
[5] [1995] HCA 43; (1995) 184 CLR 265 at 277 (footnote omitted).
[6] (2003) 58 NSWLR 332, referred to with approval by the High Court in Gordon v Tolcher [2006] HCA 62; (2006) 231 ALR 582 at 589, [37] ff.
[7] 58 NSWLR 332 at 341, [85]-[88] per Spigelman CJ.
[8] 58 NSWLR 332 at 341, [88].
[9] [1997] HCA 20; (1997) 188 CLR 114.
[10] David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 277. See par [15] above. Gummow J was not a member of the Court that decided Emanule.
[11] Para 139.
[12] Para 185 (emphasis added).
[13] Section 70 of the Law, another general power to extend the time for doing an act, also preceded the enactment of Part 9.4B in 1992.
[14] See s. 1317ED(1).
[15] Pecuniary penalty of not more than $200,000: s. 1317EA(3)(b).
[16] Section 1317EA(3)(a).
[17] Section 1317EB(1).
[18] Section 1317HA.
[19] Section 588J.
[20] Section 588K(2).
[21] Section 588M.
[22] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 554, per McHugh J.
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