Director of Public Prosecutions v Paton - [2021] NTSC 36

CITATION: Director of Public Prosecutions v Paton [2021] NTSC 36

PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS

v
PATON, Jon William

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:105 of 2017 (21753364)
DELIVERED:  29 April 2021
HEARING DATES:  4, 5 and 19 November 2019
6, 7, 10 and 18 February 2020

JUDGMENT OF: Grant CJ
CATCHWORDS:

CRIME – Confiscations – Unexplained wealth
Whether more likely than not that the respondent’s total wealth is greater than his lawfully acquired wealth – Respondent bore burden of establishing on the balance of probabilities that the property, services, advantages and benefits constituting his total wealth were lawfully acquired – Onus discharged – Application dismissed.
Criminal Property Forfeiture Act 2002 (NT) s 6, s 11, s 67, s 68, s 69, s 70, s 71, s 98, s 136
Evidence (National Uniform Legislation) Act 2011 (NT) s 140

Ballard v Multiplex [2012] NSWSC 426, Briginshaw v Briginshaw (1938) 60 CLR 336, Carney v Newton [2006] TASSC 4, Chen v State of New South Wales (No 2) [2016] NSWCA 292, Henderson v Queensland (2014) 89 ALJR 162, Jackson v Lithgow City Council [2008] NSWCA 312, Kuligowski v Metrobus (2004) 220 CLR 363, Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, Nguyen v Cosmopolitan Homes [2008] NSWCA 246, NOM v DPP (2012) 38 VR 618, Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, referred to.
REPRESENTATION:

Counsel:
Applicant:SJ Monck
Respondent: Self-represented

Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent:  Self-represented
Judgment category classification:          B
Judgment ID Number:  GRA2106
Number of pages:  44

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Director of Public Prosecutions v Paton [2021] NTSC 36
No. 105 of 2017 (21753364)
BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

AND:

JON WILLIAM PATON
Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 29 April 2021)

This is an application by the Director of Public Prosecutions pursuant to s 67 of the Criminal Property Forfeiture Act 2002 (NT) for an unexplained wealth declaration against the respondent.
Background and procedural history
On 7 January 2016, the respondent left Alice Springs and drove to South Australia in a white Ford Ranger motor vehicle. While there he came into possession of 12.7 kilograms of cannabis packaged into individual one pound Cryovac bags. On 10 January 2016, he drove from South Australia back to the Northern Territory with the cannabis concealed in the rear tray of the vehicle. He was apprehended by police approximately 100 kilometres South of Alice Springs. Police conducted a search of the vehicle and located the cannabis. The respondent was subsequently charged with drug offences. On 23 August 2016, the respondent was found guilty by a jury of the unlawful possession of a commercial quantity of cannabis. He was sentenced to imprisonment for four years and six months which was suspended after he had served 21 months in prison.
On 10 November 2017, the Director of Public Prosecutions made application for a restraining order in relation to a residential property owned by the respondent in Alice Springs, and for the unexplained wealth declaration. On 27 November 2017, the application was amended to include the motor vehicle the respondent was driving at the time of his apprehension. The restraining order was made on 8 January 2018.
On 25 June 2018, the Director of Public Prosecutions made application for the forfeiture of the motor vehicle on the ground that it was “crime-used” property within the meaning of s 11 of the Criminal Property Forfeiture Act. The vehicle had been used directly in the commission of the offence for which the respondent had been found guilty and convicted[1], and on 28 June 2018 an order was made for the forfeiture of the motor vehicle to the Territory. The application for the unexplained wealth declaration was deferred until the respondent’s release from prison, and did not proceed to hearing until 4 November 2019. The hearing proceeded over seven separate days in November 2019 and February 2020, due in part to the fact that the respondent was self-represented in the matter and required a number of adjournments for the purpose of producing relevant evidence and preparing submissions.
Unexplained wealth
Section 68 of the Criminal Property Forfeiture Act defines “unexplained wealth” in the following terms:
Unexplained wealth
(1)   For this Act, a person has unexplained wealth if the value of the person's total wealth as described in subsection (2) is greater than the value of the person's lawfully acquired wealth as described in subsection (3).
(2)   The value of the person's total wealth is the total value of all the items of property, and all the services, advantages and benefits, that together constitute the person's wealth.
(3)   The value of the person's lawfully acquired wealth is the total value of all the items of property, and all the services, advantages and benefits, that constitute the person's wealth and were lawfully acquired.
There is no dispute between the parties concerning the relevant operation of the legislation. That is:
(a)A respondent’s unexplained wealth is the difference between the respondent’s total wealth and the respondent’s lawfully acquired wealth.[2]
(b)The property, services, advantages and benefits which constitute a person’s wealth are defined in broad terms.[3]
(c)The court hearing an application for an unexplained wealth declaration must declare that the respondent has unexplained wealth if it is more likely than not that the respondent’s total wealth is greater than his or her lawfully acquired wealth.[4]
(d)In conducting that enquiry, any property, service, advantage or benefit that is a constituent of the respondent’s wealth is presumed not to have been lawfully acquired unless the respondent establishes to the contrary.[5]
(e)The proceedings are taken to be civil proceedings for all purposes, and a question of fact is to be decided on the balance of probabilities. Accordingly, the respondent bore the onus of establishing on the balance of probabilities that the property, services, advantages and benefits asserted by the Director to constitute his total wealth were lawfully acquired.[6]
(f)When a court makes an unexplained wealth declaration it must specify the assessed value of the unexplained wealth and order the respondent to pay the amount specified to the Territory.[7]
The dispute in this case is purely factual. It resolves ultimately to the question whether the respondent has established on the balance of probabilities that various monies received by him between 2010 and 2015 were lawfully acquired. The applicant asserts that those monies were the proceeds of the sale of cannabis, and the principal focus of the evidence adduced by the respondent during the course of the hearing was to establish that each payment was the result of some form of lawful transaction.
Although the onus was on the respondent to establish that his wealth was lawfully acquired, the application for the unexplained wealth declaration necessarily asserted that there was a difference between the respondent’s total wealth and the respondent’s lawfully acquired wealth. The assertion was made on the basis of evidence from a forensic accountant employed by the Northern Territory Police to conduct financial investigations of this nature. That evidence was subject to modification and adjustment during the course of the hearing as the respondent adduced evidence in response to the application. That process was necessitated by the fact that the respondent was self-represented, that he had not filed and served any affidavit or other evidentiary material in advance of the hearing, and that much of the evidence adduced by the respondent had not previously been disclosed to the applicant or his legal representatives.
The first affidavit by the forensic accountant was made on 1 November 2017. Its content and conclusions may be briefly summarised as follows:
(a)The respondent was employed on salary/wages in the 2010, 2011, 2012 and 2013 financial years, and conducted an air-conditioning cleaning business (“Hydrokleen”) as a sole trader in the 2014 and 2015 financial years.
(b)An Asset Betterment Statement (“ABS”) was used to calculate the difference between the respondent’s total wealth and the respondent’s known lawfully acquired wealth. The ABS tabulated the respondent’s net worth for the 2010 financial year as the base year; assessed the change in the respondent’s net worth in each subsequent financial year up to and including the 2016 financial year; added the respondent’s expenses to the change in net worth for each subsequent financial year to derive total wealth at the close of that year; and deducted known lawfully acquired wealth from total wealth for each financial year to derive what was said to be unexplained wealth for each year.
(c)By that calculation, the respondent’s total change in net worth from 2010 to 2016 was said to be $107,949.60 and his total expenses were said to be $636,137.46, yielding a total wealth over the period of $744,087.06. The respondent’s known lawful income for the period was initially said to be $508,823.06. The difference between the respondent’s total wealth and known lawful income for the period, and thus his unexplained wealth, was said to be $235,264.00.
(d)That unexplained wealth was said to be constituted by a series of cash deposits in the total amount of $225,264.00 made into various bank accounts held in the respondent’s name, and the amount of $10,000.00 cash used to purchase a motorcycle from Russell Industries.
The forensic accountant made a supplementary affidavit on 13 March 2019. Its content and conclusions may be briefly summarised as follows:
(a)Further information had been received disclosing that some of the transactions which had been included in the previous calculation of the respondent’s unexplained wealth were in relation to a bank account which did not belong to the respondent and were entirely unrelated to him.
(b)While that error required certain adjustments to the calculations in the ABS, it did not result in any change to the unexplained wealth figure previously derived because all the amounts deposited into the account which had been wrongly included had been treated as lawfully acquired.
On the first day of the hearing of the application, a number of further business records were disclosed and identified by the respondent. These were said to substantiate that 21 cash deposits which had been made into ANZ Business Advantage and Credit Card accounts in the respondent’s name in the total amount of $27,293.90 were in fact lawful receipts from the Hydrokleen business. The respondent also cross-examined the forensic accountant as to whether an inheritance received by the respondent in the amount of $14,035.09 had been taken into account as lawfully acquired income, and why the respondent’s liability under a Volkswagen Finance agreement had been calculated at $28,939.20 rather than in the amount of $36,174.20 recorded in the loan statements.
The forensic accountant made a supplementary affidavit on 4 February 2020. Its content and conclusions may be briefly summarised as follows:
(a)Of the 21 cash deposits identified by the respondent, two had already been treated as lawfully acquired income in the previous calculation of unexplained wealth. The other 19 deposits totalling $24,394 had previously been identified as unexplained wealth. Although the respondent had not provided invoices corresponding with the deposit slips, the forensic accountant accepted that the deposits were lawfully acquired income, even though that amount may not have been declared as income to the Australian Taxation Office. The previous calculation was amended accordingly.
(b)The inheritance amount of $14,035.09 had previously been accounted for as lawfully acquired wealth.
(c)The discrepancy between the tax invoice for the respondent’s Volkswagen vehicle in the amount of $28,939.20 and the balance of $36,174.20 recorded in the loan statements could be attributed to the loan amount being grossed up to include interest and other charges. The previous calculation was amended accordingly.
(d)In accordance with s 70(d) and (f) of the Criminal Property Forfeiture Act, the previous calculation was further amended to exclude expenditure on the necessities of life in the calculation of the respondent’s total wealth.
(e)Those amendments operated to reduce the applicant’s calculation of the respondent’s unexplained wealth from $235,264 to $123,660.
With those amendments, the essential issue which presented on the hearing of the application was whether 49 cash deposits in varying amounts made between 2010 and 2015 into one or other of seven bank accounts held by the respondent were lawfully acquired income. Although the applicant did not bear the onus of establishing that those amounts were unlawfully acquired, its assertion was that those deposits were the proceeds of the sale of cannabis. As already stated, the respondent bore the onus of establishing those monies were lawfully acquired. The respondent gave evidence and was subject to cross-examination in relation to each of those transactions, and called evidence from other witnesses in substantiation of his account concerning certain transactions.
The respondent’s general circumstances and employment history
The respondent’s evidence in relation to his general circumstances and employment history may be summarised as follows. The respondent was 37 years of age at the time the hearing commenced. He commenced part-time work at the age of 13 while still at school. He had an interest in cars and motorcycles from an early age and became proficient at working on them. He left school at age 16 and bought his first car at that time. He started working out bush at the age of 17 and continued doing so, interspersed with periods of employment in town, until he established the Hydrokleen business in 2014. He earned good money for the bush work, and when in town during weeks off from the bush work he did cash jobs for which it was not unusual for him to make $400 per fortnight.
The respondent’s evidence was that from the time he entered the workforce he invested most of the money he earned on cars and motorcycles, and frequently bought them, did them up and on-sold them on a cash basis. He always had a large collection of cars and motorcycles for that reason. He also developed an interest in drag racing, and bought and sold drag racing vehicles, including building drag racing vehicles and selling them on a cash basis. Much of the respondent’s evidence in relation to specific transactions was directed to those activities, as was the evidence of witnesses called by the respondent. That evidence, and the findings in relation to that evidence, are most conveniently dealt with by reference to each of the bank accounts into which cash payments were made. Those accounts and the deposits in question are set out in a spreadsheet tendered by the respondent as exhibit R12.
ANZ Access Account 191615752
The first three deposits into this account are in the amount of $1000, $8000 and $4500 made on 6 November 2013, 19 November 2013 and 3 March 2014 respectively. The respondent’s evidence was to the effect that he had received these monies as payment by instalments for a drag racing vehicle which he built and then sold to Heather Parkinson. He said in cross-examination that he had built the vehicle over a number of years, as he had bought or otherwise acquired the chassis, differentials and other parts necessary for the construction of the vehicle.
The respondent called Heather Parkinson to give evidence in support of his account. Ms Parkinson’s evidence may be summarised as follows. She has known the respondent for approximately 15 years. She first met him through drag racing circles. Due to her interest in the sport she has at various times been an officeholder in the association which runs the sport in Alice Springs. She recalled the respondent building a drag car over a period of time up to 2013. Although she had been involved in the administration of drag racing for many years, up to that point in time she had never driven a vehicle competitively. The configuration of the vehicle being built by the respondent suited her and she expressed an interest in purchasing and racing the vehicle.
The respondent said he was prepared to sell the vehicle to Ms Parkinson, however she wanted to see whether she would be able to handle racing it before finalising the purchase. She then raced the vehicle during the course of two meetings in early 2013 before competing in the Desert Nationals in July 2013. Having satisfied herself that she was able to handle the vehicle and that it suited her purposes, she agreed to purchase the vehicle for a total sale price of $13,500. She initially paid the respondent $1000 to hold the vehicle. She then paid him a further $8000, also in 2013, and subsequently paid the balance of $4500 in March 2014. The timing of the payments was by agreement, and governed largely by the cash flow situation in her business and her ability to make them.
Ms Parkinson also gave evidence to the effect that over the time she had known the respondent he had been actively involved in the building, sale and/or purchase of cars and motorcycles. She recalled that at one stage the respondent had three cars and five motorcycles at the Hydrokleen business premises.
I have no hesitation in accepting Ms Parkinson as a credible witness and in accepting her testimony as reliable. That testimony corroborates the respondent’s account in relation to the source of the first three deposits into the account specifically, and his evidence in relation to his practice of buying, selling and building cars and motorcycles generally.
The next five deposits into the account are for amounts ranging between $500 and $1300 made between May 2014 and January 2015. The respondent’s evidence in relation to those transactions may be summarised as follows. In or about 2012, he became aware of a product named “Keyfinder” which was available through a business venture kickstarter site named Pozible. The product was a Bluetooth enabled tag which could be attached to a keychain and activated by a signal from the owner’s smartphone. When activated, the tag emitted a flashing light and an audible ring tone to enable the owner to locate the keys. He invested $25,000 into the product through that site and received 800 Keyfinders which he intended and hoped to sell at a profit. He sold the product at markets and other places in Alice Springs over a number of years. The five deposits made into the account between May 2014 and January 2015 were the proceeds of the sale of some of those Keyfinder units over that period. Unfortunately, the demand for the product was not as strong as the respondent had hoped, and he had to sell them at a lower price than anticipated. Although he was ultimately able to sell 750 of the 800 units he had purchased, he agreed during the course of cross-examination that he had made a net loss of something in the order of $5800 on the venture. (By the time of his final submissions, the respondent had adjusted that assessment and calculated that he had lost something in the order of $6500 from the investment.) However, had he been able to sell them at $30 per unit, as the prospectus suggested he could, he would have made in excess of $5000 on the initial investment.
In support of his evidence in this respect, the respondent tendered the “receipts” from the kickstarter site recording investments in the amounts of $10,000, $5000, $5000 and $5000. The respondent also tendered a page from his Internet banking history showing that debits in those amounts were made on 8 October 2012. Although those pledges were made in 2012, because of the venture capital nature of the arrangement the project did not proceed to production until it met its financial goal, and the respondent did not receive the Keyfinder units until a later time. The respondent tendered one of the boxed Keyfinder units which remained in his possession due to his inability to sell them (exhibit R 21).

The respondent’s evidence in that respect was also corroborated by his mother, whose testimony is dealt with in more detail later in these reasons. She was aware of the respondent’s investment in the product, his receipt of the units, and his activity selling them in Alice Springs over the years. For the reasons which are given further below, I also have no hesitation in accepting the respondent’s mother as a credible witness and in accepting her testimony as reliable.
The next deposit into the account was made in September 2015 in the amount of $7000, which the respondent seeks to attribute to the sale of a KTM525 motorcycle to Robert Lamb. The respondent says that at the time he had two KTM motorcycles – the KTM525 and a KTM350 – which he had bought from an Alice Springs local, worked on and improved. The respondent then sold the KTM525 to Mr Lamb for $7000, and later sold him the KTM350 as well, also for $7000.
Mr Lamb was also called to give evidence during the course of the hearing. He is a self-employed carpenter. His evidence may be summarised as follows. He first met the respondent in or about 2003. They had a shared interest in motorcycles. He recalls discussing the KTM525 with the respondent and agreeing to purchase the motorcycle. He said it was in excellent condition. His reason for the purchase was that he had just sold a road bike and wanted an off-road motorcycle. He recalls that it was in or about September 2015 because the transaction took place shortly after his birthday, and only a number of months before he moved temporarily to Perth. He then purchased the KTM350 about a month after that because he had spare cash at that time from the sale of a Commodore motor vehicle. He says that he sold both of them about a year later for a little less than he had paid for them.
I am less ready to accept Mr Lamb as a reliable witness in the matter. That is not because of any inconsistencies in his account, or any inconsistency between that account and contemporaneous documents, or any particularly adverse assessment of his demeanour as a witness. My hesitation is based on the implausibility apparent in an account of purchasing two motorcycles within a month; in purchasing both motorcycles for the same price of $7000 notwithstanding that they were quite different models; and in purchasing two motorcycles shortly before a planned relocation to a far distant city. However, it cannot be said that those matters make Mr Lamb’s account inherently and necessarily implausible, and it does corroborate the respondent’s account. The question whether the respondent’s account in that respect should be accepted does not fall for consideration in isolation. It will turn on the general assessment of the complainant’s credibility having regard to the totality of the evidence.
The next deposit into the account was made on 14 October 2015 in the amount of $10,000. The respondent’s evidence in that respect may be summarised as follows. During the course of 2015 the respondent decided to purchase a residential property in Alice Springs. He was having some difficulty putting together the deposit necessary to secure a loan to fund the purchase. A good friend of his by the name of Steve Ariston lent him $10,000 in cash to assist in putting together the required deposit. Mr Ariston was not called to give evidence during the course of the hearing. During the course of his closing submissions, the respondent the said that he had not considered necessary to do so because the fact of the loan had been accepted by the prosecution during the course of the criminal proceedings. The respondent referred in that respect to an affidavit which had been made by Russell Goldflam, the respondent’s erstwhile legal representative, for the purpose of a bail application. The deposition records that on 20 January 2016 the legal practitioner spoke to Mr Ariston. During the course of that conversation, Mr Ariston told the legal practitioner that he was a “good mate” of the respondent, and that in October 2015 he had lent the respondent $10,000 cash towards a deposit on a house.
Of course, the fact that uncontested evidence of that matter was received during the course of the criminal proceedings does not in any way bind the applicant in the present matter. For these purposes, the applicant does not accept that the deposit was referable to a loan. As it transpired, the respondent ultimately purchased the residential property on 22 January 2016 for a purchase price of $410,000. As at the time the application for the unexplained wealth declaration was made in November 2017, the respondent’s mortgage liability on the property was in the amount of $328,000. The determination of whether the amount of $10,000 was lawfully acquired by way of a loan from Mr Ariston will also turn ultimately on the general assessment of the respondent’s credibility having regard to the totality of the evidence.
The next deposit into the account was made on 15 October 2015 in the amount of $13,500. The respondent’s evidence was that it was for the sale of a late-model KTM350 through Facebook Marketplace. He said that he procured the motorcycle from a person by the name of Sean Donnelly. The respondent had a wingless sprint car which he had built from parts. Mr Donnelly wanted to purchase the sprint car, and they ultimately agreed to do a swap by which the respondent took ownership of Mr Donnelly’s KTM350 in exchange for the sprint car. The respondent later on-sold the motorcycle for a profit, as was his habit. He said that he no longer had access to any Facebook posting in relation to the sale.
The final deposit into the account was made in December 2015 in the amount of $1900. The respondent’s evidence is that he received that money for the sale of a Ford Courier utility with motor vehicle registration number CB65CC. He said it was a vehicle he purchased as a runabout and second vehicle for the Hydrokleen business. He sold it when he purchased the Ford Ranger which he was driving at the time of his arrest. In support of that account, the respondent tendered a document from the Northern Territory Department of Infrastructure, Planning and Logistics (exhibit R5) showing a history of vehicle registrations in his name and that of Hydrokleen Central Australia.
The document discloses that a Ford Courier vehicle with that registration number was registered in the name of the business in January 2015 and disposed of by the company in November 2015. The sale price is recorded in the document as $1500. The respondent stated frankly that the disparity between the sale price showing in the government record and the $1900 he says he received for the vehicle is attributable to the fact that in his milieu it is common practice for buyers and sellers of motor vehicles to understate sale prices in order to lower the stamp duty liability on the purchase. That is sometimes done with the knowledge of the seller, but sometimes the transfer papers are submitted unilaterally by the buyer and the price misrepresented without the seller’s collusion.
During the course of the cross-examination of the respondent, and in the course of closing submissions, counsel for the applicant also drew attention to the fact that exhibit R5 recorded the disposal date as 4 November 2015, but the amount of $1900 which the respondent said was attributable to that sale was not banked until 30 December 2015. The respondent did not have any clear or precise recollection as to when he actually received the monies from the purchaser, or whether and why there was any delay between that receipt and the making of the monies. His presumption was that if there was any delay it was because he was busy with work at the time.
The applicant made similar submissions in relation to a number of other amounts banked by the respondent. It is unnecessary to go into the detail of the delay between the apparent date of the sale transaction and the banking of the monies in relation to each of those transactions. It suffices to say that by way of general explanation, the respondent suggested variously in evidence and in closing submissions that the change of registration details submitted to the motor vehicle registry are not always accurate in relation to the timing (or price) of the transaction; that the purchase monies may have been received some time after the documentation was submitted; that sometimes he was too busy at work to bank monies immediately upon receipt; and/or that he sometimes kept cash monies in a safe at his business premises for some time before he got around to banking them.
ANZ Access Account 191616114
The first deposit into this account was made on 6 November 2013 in the amount of $5500. The respondent’s evidence was that this was a loan from his mother to enable him to establish the Hydrokleen business. The respondent’s mother also gave evidence during the course of the hearing. So far as is relevant to this particular transaction, that evidence may be summarised as follows. The respondent’s mother lives in Alice Springs. The respondent spoke to her about starting the Hydrokleen business at some time towards the end of 2013. He asked her for a loan of $5500 to assist in starting the business. She gave him the money in cash at that time. She had her employer draw it out of her holiday pay from work. She gave him the money in cash because she was not proficient at Internet banking and never thought about doing it by way of bank transfer. The general impression from her evidence in this respect was that most, if not all, of her financial transactions were conducted using cash rather than by electronic means.
The evidence given by the respondent’s mother was also generally corroborative of the respondent’s account of his personal circumstances. She said that the respondent had always been “car crazy”. He bought his first motor vehicle for $5000 when he was aged 16. At one point in her recollection he owned nine cars, and always had ownership of multiple cars and motorcycles. He would buy the vehicles for cash, fix them up and then resell them for a profit. As already described above, the respondent’s mother was also aware of the respondent’s investment in the Keyfinder product, his receipt of the units, and his activity selling them.
As earlier stated, I accept the respondent’s mother as a credible witness and accept her testimony as reliable. That is based partly on an assessment of her demeanour, and partly on the fact that her evidence was clearly not concocted, contaminated or tailored to suit or support the respondent’s case. That was most starkly apparent in her evidence concerning the second deposit made into this account on 12 December 2013 in the amount of $11,000. The respondent’s evidence was that he received this money from his grandmother, also as a loan to assist in the establishment of the business. During the course of her examination-in-chief, the respondent prompted his mother to remember the facts and circumstances of that loan as well. Rather than agreeing with the respondent’s suggestions in that respect, the respondent’s mother said that she did not have any recollection of his grandmother also lending him money. All she could say in that respect was that the establishment of the business occurred shortly after the grandmother had sold a block of land in Sydney. The implication was that the sale price was substantial, and the respondent’s mother was able to say that to her knowledge the grandmother did have a large amount of money available at that time. The evidence given by the respondent’s mother in this respect was patently impartial and her evidence was generally reliable.
The third deposit into this account was made on 22 October 2015 in the amount of $11,500. The respondent’s evidence was that this amount was made up of two receipts. The first was the sale of the KTM350 motorcycle to Robert Lamb, which has already been dealt with above. As stated there, Mr Lamb described purchasing a second KTM motorcycle from the respondent at about that time for the amount of $7000. The respondent’s evidence was that the balance of $4500 was received from Mr Hayden Bouwer in part-payment for a Toyota LandCruiser. He said that vehicle had been sold to Mr Bouwer for a total price of $8000, and that Mr Bouwer paid $4500 of that in cash and the balance of $3500 into the National Australia Bank account held by the respondent (discussed further below). The respondent was unable to produce any documentary evidence of that sale beyond a receipt for the surrender of Western Australian number-plates 9DM097 (exhibit R7), which he says initially belonged to that vehicle and which he removed at the time of sale.
The final deposit into this account was made on 23 October 2015 in the amount of $15,800. The respondent’s evidence was that this was the balance of a cash gift of $30,000 which his grandmother had given to him at Christmas in 2014. He said that the making of the gift was explicable by the fact that he visited his grandmother frequently and did a lot of jobs for her, and that the grandmother was particularly fond of him and his daughter. He kept the monies in the safe at his business premises to use as needed. He said that he used $10,000 of that amount to purchase a KTM500 motorcycle from Russell Industries in October 2015. He said that he intended to set aside about half of that money for his daughter. However, as already described above, towards the end of 2015 the respondent determined to purchase a residential property, and reasoned that if he purchased a house his daughter would end up with the benefit of it anyway. Accordingly, he decided to use the $15,800 that was left towards a deposit on a house. To that end, he then deposited those funds into the ANZ Bank account in order to enhance his apparent liquidity, and made application for a loan to the ANZ Bank but was ultimately refused.
The respondent’s grandmother unfortunately passed away at some time in 2015, and so could not give evidence in relation to either this alleged gift or the loan said to have been made to the respondent in 2013 for the purpose of establishing the business. The affidavit made by the respondent’s former legal practitioner discloses that on 21 January 2016 he spoke to a woman by the name of Trish Pearson, who was a close friend of the respondent’s deceased grandmother. Ms Pearson was unaware whether the respondent’s grandmother had given him $30,000, but she confirmed that the respondent and his daughter had visited the grandmother at Christmas in 2014; that the grandmother was very pleased to see them; and that the grandmother was in the habit of keeping large sums of cash money in the house where the respondent and his daughter stayed with her during that Christmas period.
ANZ Credit Card 4565 8070 1194 1520
The single deposit called into question in this account was made on 18 September 2015 in the amount of $858. Given that amount, it would appear unlikely on its face that it was the proceeds of some form of drug transaction. However, for the reasons described at the outset it is not incumbent on the applicant to prove that it was the proceeds of an illegal transaction. It is incumbent on the respondent to prove that the monies were lawfully acquired. In discharge of that onus, the respondent gave evidence that this was a credit card used in the Hydrokleen business, and that the amount of $858 represented cash payments received in the course of that business. That account was not disturbed in cross-examination.
Credit Card 4560 0450 1685 5842
The applicant calls into question nine deposits made into this credit card between July 2010 and March 2011. It may be noted at the outset that these transactions took place at a substantially earlier time than the transactions considered above, and at a substantially earlier time than the respondent’s arrest for the cannabis offence in January 2016.
The second deposit into this account was made on 10 August 2010 in the amount of $4500. The respondent’s evidence in that respect was that he received the $4500 in payment for the sale of a Ford “Bomber” race car which he sold to Gene Gilby. There was some inconsistency in the evidence as to whether it was an XW or XY model, but nothing turns on that for these purposes. The respondent tendered a photograph of the vehicle, and called Mr Gilby to give evidence. Mr Gilby is a contracts manager with a government department. He is a long-term resident of Alice Springs, and has known the respondent for approximately 15 years. Over that time he has observed that the respondent has owned a large range of motor vehicles and motorcycles, which he purchases cheaply, fixes up and then on-sells. He recalls that he bought the vehicle from the respondent in or about August 2010 for the purchase price of $4500. He identified the vehicle as the one depicted in the photograph tendered by the respondent. I have no hesitation in accepting Mr Gilby’s evidence as reliable.
The fourth deposit into this account was made on 11 October 2010 in the amount of $700. The respondent’s evidence is that he received that money for the sale of a set of car rims and tyres which were spares from the “Bomber” race car which he no longer required after he had sold the vehicle. He said that he would likely have advertised the rims and tyres for sale in the local paper, but he did not have a copy of the advertisement.
The third deposit into this account was made on 29 September 2010 in the amount of $5600. The respondent’s evidence is that he received those monies for the sale of a YZ250 motorcycle which he had also advertised for sale in the local paper. Similarly, the first and final deposits into this account, both in the amount of $500 and made on 9 July 2010 and 29 March 2011 respectively, were said by the respondent to of been for the sale of rims, tyres and a bike through advertisements in the local paper. Again, although the respondent was unable to provide any contemporaneous documentary evidence in substantiation of the transactions, it is consistent with his established activity of purchasing, doing up and then on-selling motor vehicles, motorcycles and related parts.
The remaining four deposit into this account were made between December 2010 and February 2011 in the total amount of $6800. The respondent’s evidence in relation to these deposits is that he was working remotely in the drilling industry at the time. He and a number of his workmates received something in the nature of inside information from that industry that the shares in a company named White Rock Minerals were “going cheap”. The implication was that the company had received some sort of positive assay results which were not yet public knowledge. The respondent said that he was part of a consortium of friends and workmates who decided that they would pool an amount of money to buy shares in the company, and that the respondent would ask a friend of his by the name of Sam Ashton to purchase the shares. It was not made entirely clear in the respondent’s evidence why they decided to have the shares purchased by somebody else. However, during the course of his final submissions the respondent said it was because none of the members of the consortium had the sort of account necessary to buy shares online.
The respondent says that the $6800 was paid into his bank account by the other members of the consortium, and that he subsequently provided the money to Sam Ashton to make the purchase. He says that as it transpired, the company’s share performance was poor and they effectively lost their money on the transaction. The respondent was unable to provide any documentary evidence of these transactions, and did not call evidence from Sam Ashton or any other member of the consortium. Again, the question whether the respondent’s account in relation to these particular deposits should be accepted must be considered having regard to the general assessment of his credibility and reliability, and having regard to the totality of the evidence. Matters of context are also relevant in that assessment. As already stated, one matter of context in relation to these deposits is that they were made five years before any suggestion that the respondent was involved in the supply of cannabis.
NAB iSaver 130916033

The single deposit called into question in this account was made on 10 December 2012 in the amount of $1100. The respondent was unable to explain that deposit. He said he had no recollection of it or the surrounding circumstances, and during the course of his cross-examination (which did not take place until some two months after his evidence-in-chief), he said that he had been unable in the interim period to find any documentation relating to the transaction. He denied the suggestion by counsel for the applicant that the monies had been received from the sale of illicit drugs.

NAB Classic 123598786

The largest deposit into this account was in the amount of $11,400 made on 24 September 2013. The respondent’s evidence was that he procured those monies from the cash sale of a Ford Ranger motor vehicle at that time. The record from the Department of Infrastructure, Planning and Logistics at exhibit R5 shows that the respondent had acquired a Ford Ranger motor vehicle in February 2013, and subsequently sold the vehicle on 23 September 2013 for a sale price of $12,000. The respondent’s evidence was that he only banked $11,400 of that amount, and kept the balance in cash.
There are then two deposits made on 18 September and 14 October 2015 in the amount of $6000 and $9500 respectively. The respondent’s evidence in relation to these amounts was that the first deposit was of $6000 he received for the sale of a KTM530 motorcycle, and that the second deposit was made up of two components being $2500 he received from the sale of a KTM520 motorcycle and $7000 he received from the sale of a Toyota LandCruiser with the Northern Territory registration number “RDTRIPN”.
So far as the motorcycles were concerned, his initial recollection was that he sold the KTM520 through a mechanical workshop and sold the KTM530 through Facebook. When he approached the owner of the workshop for the purposes of this application in relation to the KTM520, he was reminded that the KTM530 had been sold through the workshop as well. The respondent called Jamie Landers, who was at the material time, and remains, the owner of the workshop. Mr Landers’s evidence was that he was a small engine mechanic and the proprietor of the workshop business. He has known the respondent for 15 or 20 years. In about November 2019, the respondent had gone to him to ask him whether he remembered the sale of a KTM520 through his workshop. At that time, he told the respondent that he recalled not only selling the KTM520 through the workshop, but also that he had taken payment for a KTM530 which the respondent owned and had sold. He also recalled that the respondent had told him at the time that he wanted to sell the motorcycles because it was the end of the racing season and he needed a deposit to purchase a house.
So far as the context of the relationship was concerned, Mr Landers said that the respondent had been racing off-road motorcycles at the time, and that Mr Landers’s business was sponsoring him in that capacity. As part of that sponsorship, the workshop did all the maintenance on the respondent’s racing motorcycles. In or about September 2015, the respondent decided to sell the KTM530 he had been racing up to that time and advertised it on Facebook. The motorcycle was kept at Mr Landers’s business premises, and once it had been sold he took payment of the $6000 when the purchaser came to collect the motorcycle. He gave those monies to the respondent. A short time later, the respondent also decided to sell a KTM520 motorcycle which he owned, but which he was not racing at the time. That motorcycle was also housed in the workshop, and Mr Landers sold it directly to a purchaser on the respondent’s behalf for the amount of $2500. When queried about the difference between the purchase prices for the two motorcycles, Mr Landers said that he could not recall whether KTM520 was a 2002 or 2003 model, but that at the time he considered $2500 was a fair price because purchasers would not pay any premium for a KTM520 model (for reasons which were not further explored). I have no hesitation in accepting Mr Landers’s evidence as reliable.
So far as the sale of the Toyota LandCruiser is concerned, the vehicle history at exhibit P5 records that there was a Toyota LandCruiser with registration number “RDTRIPN” registered in the respondent’s name between 7 June 2012 and 26 November 2015. Counsel for the applicant drew attention to the fact that the vehicle history recorded the sale price as $1000, rather than $7000, and that the putative disposal date of 26 November 2015 post-dated the deposit of the monies into the account on 14 October 2015. Again, the respondent’s explanations for those discrepancies were that sale prices were routinely – and often substantially – understated to avoid stamp duty liability, and that there was often a laxity in the submission of transfer documents to the motor vehicle registry such that the disposal date was recorded at a later time than the actual transaction.
The next deposit into that account for which there is some documentary evidence was made on 21 March 2013 in the amount of $2000. The respondent says that this money was received for the sale of a Toyota Corolla with Northern Territory registration number 788501. The record from the Department of Infrastructure, Planning and Logistics at exhibit R5 shows that the respondent had acquired that particular motor vehicle in January 2013, and subsequently sold it a short time later for $1500. The respondent’s evidence was that he did acquire and then sell the vehicle very shortly afterwards, and that again the sale price was understated on the transfer documentation for stamp duty purposes. When questioned why the monies were not banked until March 2013, the respondent’s evidence was that if there was any delay between the receipt and banking of the monies it would have been because he was working out bush in the drilling industry at the time.
The next deposit into that account for which there is some documentary evidence was made on 11 April 2013 in the amount of $4000. The respondent says that this money was received for the sale of a Holden Commodore with South Australian registration XSG724. In support of that account the respondent tendered a letter and printout from the South Australian Department of Planning, Transport and Infrastructure (exhibit R6) which certified that he had owned the vehicle and that it was sold in October 2012 for $4000. When questioned about the disparity between the sale date recorded in the departmental records and the date of the deposit, the respondent said he could not recall whether or why there was any delay in banking the monies. As already discussed above, there was also the possibility that the date of transfer was recorded in the departmental records on the basis of inaccurate information provided at some time after the transaction in question.
There is then a deposit in the amount of $7000 which was made on 6 November 2013. The respondent’s evidence is that he had purchased an EF Falcon wagon because he liked the bonnet configuration. He owned it for a short time before he on-sold it to a man by the name of Channon Secker who lived in Kadina in South Australia. The respondent said he had no documentation to show that the vehicle was ever transferred into his name, and that he could not recollect whether it was registered during the period in which he owned the vehicle. The only documentary evidence tendered by the respondent in relation to this vehicle was a photograph of the vehicle which was taken during the period of his ownership (exhibit R8).
There is then a deposit in the amount of $6000 made on 19 November 2013. The respondent’s account in relation to these monies is that they were the proceeds from the sale of a Kawasaki KXF250 motorcycle to a person named Alex Lemel. The respondent tendered a photograph of the motorcycle (exhibit R9), and called Mr Lemel to give evidence in relation to the transaction. Mr Lemel is a ceramic tiler. He said that he had known the respondent for approximately 20 years. He confirmed that he had purchased the motorcycle from the respondent at some time in 2013, but he could not recall the precise date. He was living in Alice Springs at the time and relocated to Western Australia on Christmas Eve in 2013, and had purchased the motorcycle prior to that time. He paid $6000 in cash for the motorcycle. It was a 2009 model and well worth the money. A new KXF250 would have cost approximately $12,000 at that time. He had the motorcycle for a couple of months and then on-sold it himself before leaving Alice Springs.
As with Mr Lamb, I am less ready to accept Mr Lemel as a reliable witness in the matter. Again, that is not because of any inconsistencies in his account, or any inconsistency between that account and contemporaneous documents, or any particularly adverse assessment of his demeanour as a witness. My caution is attributable only to the apparent anomaly in the account of purchasing a motorcycle shortly before moving interstate, and then on-selling it before doing so. However, it also cannot be said that the timing of the purchase makes Mr Lemel’s account inherently implausible. He and the respondent both moved in circles where motor vehicles and motorcycles were regularly bought and sold, and sometimes turned over very quickly. Mr Lemel was prepared to come to court and give evidence about the matter. He exposed himself to cross-examination. He flatly rejected the suggestion put to him by counsel for the applicant that no such transaction had taken place. In the absence of some objective basis on which to do so, I am unable to find that Mr Lemel was prepared to go out of his way to perjure himself in order to assist the respondent to resist the application, or that the respondent prevailed upon him to do so.
There are two deposits in the amount of $470 and $200 made on 14 and 20 March 2012 respectively. The respondent says that they were receipts for cash jobs, which he did often when he was in town on weeks off from his work out bush. His recollection was that these particular jobs were concreting jobs. There is a further deposit into the account in the amount of $3500 which the respondent says was the balance of the purchase price paid by Mr Bouwer for the Toyota LandCruiser with the Western Australian plates (discussed above). The remaining nine deposits into this account made in various amounts were attributed by the respondent to the sale of the Keyfinder units (also discussed above).
Bendigo EasySaver 155970940
The respondent’s evidence in relation to this account generally is that he established it with Bendigo Bank in late 2015 in the hope of getting a home loan from that institution. His intention was to put as much cash as possible into the account to bolster his prospects of success in the loan application.
The first deposit into this account is in the amount of $5000 made on 27 October 2015. The respondent’s evidence was to the effect that he made that money doing cash jobs in the Hydrokleen business. The implication was that he had previously withheld banking the monies or otherwise bringing them to account as business receipts. During the course of final submissions the respondent stated frankly that these monies had not been declared for taxation purposes.
The second deposit into this account is in the amount of $15,000 made on 30 October 2015. The respondent’s evidence was to the effect he decided to sell the KTM500 he had purchased from Russell Industries, presumably for the purpose of contributing to the deposit monies for the purchase of a house. He said that he sold it to the proprietor of Adelaide Industrial Cleaning who came up to Alice Springs on a regular basis to clean canopy filters, and was able to make a profit on the sale.
The third and final deposit into this account is in the amount of $9800 made on 11 November 2015. The respondent’s evidence was to the effect that when he was trying to raise the monies for the deposit to purchase the house in late 2015 he conducted a lawn sale at which he sold a lot of the parts and household goods he had accumulated over the years. These included tools, drop saws, a vehicle front-end, a differential, spare tyres and other valuable items.
The assessment of the respondent’s evidence
As stated at the outset, the onus is on the respondent to establish on the balance of probabilities that the monies received by him in the transactions described above were lawfully acquired. However, the respondent does not bear any special onus, burden or standard in that respect. Section 140 of the Evidence (National Uniform Legislation) Act 2011 (NT) provides that in a civil proceeding the court must find the case of a party proved if it is satisfied the case has been proved on the balance of probabilities. In doing so, the court may take into account the nature of the cause of action; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. Those factors reflect the principles set out by Dixon J in Briginshaw v Briginshaw[8] that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are relevant to deciding whether a matter is proved on the balance of probabilities.
This is not a case in which the nature and consequences of the fact or facts to be proved by the respondent requires particularly cogent or strict proof. The respondent is not himself making serious allegations against any other person, or seeking a finding which would have grave consequences for another. Rather, in constructive and practical terms at least, the respondent is defending an assertion by the applicant that he acquired the monies concerned through criminal activity. However, that feature of the proceedings also does not work in any way to lower the cogency of the evidence required to establish that the monies were lawfully acquired, on the basis of the general proposition that people do not ordinarily engage in fraudulent or criminal conduct.[9] In Henderson v Queensland[10], the High Court considered the operation of Queensland legislation which required the respondent to satisfy the court that “it is more probable than not” certain property “is not illegally acquired property”. French CJ held at [15] that ‘[t]he placement of the burden of proof is uncompromising and unable to be ameliorated by any “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”’.[11]
What is required is that the Court is able to reach a state of actual persuasion of the occurrence or existence of the fact(s) asserted by the respondent.[12] A “[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”.[13] The respondent must show that his case is more likely than not.[14] The respondent will not have proven his case if the likelihood of his case and applicant’s assertions are perfectly balanced.[15] Where the Court is unable to reach a conclusion either way, the respondent will also have failed to discharge the burden of proof.[16] Having regard to those governing principles, there are a number of considerations relevant to the determination whether the respondent has proved to the requisite standard that the monies received by him in the transactions described above were lawfully acquired.
First, I accept that the respondent was a man who had for the whole of his adult life engaged in buying, building and selling motor vehicles and motorcycles, including to make profit. The respondent’s evidence in relation to transactions which he says are referable to the sale of motor vehicles and motorcycles is in most cases corroborated by evidence from the other party to the transaction and/or objective documentary evidence. I accept that evidence, and the respondent’s evidence, in substantiation of his assertion that those monies were lawfully acquired. The transactions referable to the sale of various motor vehicles and motorcycles account for approximately half of the monies which the applicant says constitute the respondent’s unexplained wealth. There were also other vehicles listed in the vehicle history record at Exhibit 5 which were previously owned and sold by the respondent which were not implicated by the application. The record of the other vehicles serves to reinforce the respondent’s evidence in relation to his buying and selling activity, and the monies received from the sale of those other vehicles would have been available to be used to fund further purchases of other vehicles or parts.
I do not consider that respondent’s evidence in this respect is fatally compromised by the delays between the receipt of monies for the sale of vehicles and the deposits said to be referable to those receipts. It is quite conceivable that those delays were attributable to discrepancies in the transfer documentation or the fact that the respondent was working out bush or otherwise busy at the time. I also have no difficulty finding that for various reasons the respondent operated largely in the “cash” economy, and that it was not unusual for him to keep cash in the safe at his business premises.
Secondly, although the applicant did not bear any onus of proof in the matter, it was still open to him to lead positive evidence in support of his assertions and in contradiction of the respondent’s case that the monies were lawfully acquired. The only evidence led by the applicant was the fact and circumstances of the respondent’s arrest in January 2016 and subsequent conviction, and the forensic accounting evidence to the effect that there were various cash deposits made by the respondent which were not obviously referable to employment income or some other lawful source. There was no evidence led to the effect that the respondent was involved in ongoing drug supply activity in the months and years leading up to his arrest in January 2016 (bearing in mind that the transactions sought to be impugned date back to 2010). There were no contemporaneous documents produced by the applicant which were inconsistent with the respondent’s evidence.
As the respondent submitted, at the time of his arrest in January 2016 police seized the CCTV footage from his business premises for analysis. There has been no suggestion subsequently made that the CCTV footage disclosed drug supply and distribution activity. This is also not a case, as sometimes presents, in which a respondent has accumulated a large quantity of cash and/or other assets with no visible means by which those acquisitions could have been made. As the respondent submitted, he left school and commenced full-time employment at age 16, he started working out bush at age 17, he had always made a good income and had earnt well in excess of $1 million during the course of his working life prior to his arrest (even leaving aside monies made in the buying, building and selling of motor vehicles). This is not a case in which there can be no other explanation than that the monies and assets were illegally acquired.
Thirdly, although one possible approach might be to go through the balance of the transactions one by one to determine whether there is objective documentary evidence or some other evidence in corroboration, in the absence of such evidence the question will resolve to an assessment of the reliability of the respondent’s account. The respondent is a self-represented and relatively unsophisticated litigant defending a well-resourced criminal property forfeiture application against him. In that context, he marshalled a range of witnesses and documentary evidence to support his contentions that the 49 transactions were not drug-related and that the monies were lawfully acquired. The respondent himself gave evidence in relation to those matters, subjected himself to cross-examination, and was able to give relatively plausible explanations for all but a few of the transactions.

That required an exhaustive recollection and reconstruction of his financial dealings over the period between 2010 and 2015. That was undertaken without the assistance of a professionally qualified accountant, and relatively shortly after the respondent’s release from prison. The process took a number of months and was obviously intellectually and emotionally exhausting for him. While it would no doubt be possible in the theoretical sense to accept some parts of the respondent’s evidence and reject others, his general credibility is bolstered by the fact that his account in relation to many of the other transactions is corroborated by other evidence. By way of example, because of that corroboration I accept the respondent’s account in relation to the sale of the Keyfinder units, and the loans and gifts from his mother and grandmother. Although I am less convinced by the respondent’s account in relation to such items as the $10,000 loan from Mr Ariston and the purchase of the White Rock shares, I am prepared to accept his evidence in relation to those matters on the basis that I accept that he was a generally reliable witness. I also note once more that the transactions attributed to the White Rock shares took place in 2010 and 2011.
In drawing that conclusion in relation to the respondent’s general credibility concerning the transactions described above, I specifically reject the respondent’s attempts to suggest that he was somehow set up or an unwitting actor in relation to the cannabis supply offence for which he was convicted. In no way do I ignore or discount the fact of the respondent’s conviction for the transportation of a large quantity of cannabis, or the fact that the evidence from police was that in the time leading up to his arrest the respondent had been identified through information reports and intelligence as a person involved in the supply of cannabis. There is no necessary inconsistency between a finding that the monies identified in the forensic accountant’s analysis were lawfully acquired, and the possibility that the respondent derived other monies from the sale of cannabis. The police evidence included that the initial outlay of cash necessary to purchase the 12.7 kilograms of cannabis which was in the respondent’s possession at the time of his arrest would have been in the order of $70,000.
It is quite plausible that if the respondent had in fact previously received monies for the sale of cannabis, the proceeds of those sales were reinvested in the purchase of the 12.7 kilograms with which he was arrested. If that was the case, the subsequent seizure of the cannabis meant that the monies invested for the purchase of the cannabis would have been lost to the respondent. It is neither possible nor necessary to make any finding in that respect. This scenario simply illustrates that the respondent’s total wealth as identified in the forensic accountant’s analysis may well have been lawfully acquired, and that the respondent might at the same time have had an unidentified amount of cash which was neither lawfully acquired nor channelled through bank accounts.
Disposition
The application is dismissed. I will hear the parties in relation to costs if need be.

____________________________

[1]A "forfeiture offence" is defined in s 6 of the Criminal Property Forfeiture Act to include an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.

[2]Criminal Property Forfeiture Act, s 69.

[3]Criminal Property Forfeiture Act, s 70.

[4]Criminal Property Forfeiture Act, s 71(1).

[5]Criminal Property Forfeiture Act, s 71(2).

[6]Criminal Property Forfeiture Act, s 136.

[7]Criminal Property Forfeiture Act, ss 71(4), 72.

[8]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

[9]Cf Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171.

[10]Henderson v Queensland (2014) 89 ALJR 162.

[11]See also Henderson v Queensland (2014) 89 ALJR 162 per Bell, Kiefel and Keane JJ (agreeing) at [31], [171]; per Gageler J (dissenting) at [98].

[12]See NOM v DPP (2012) 38 VR 618; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [136]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246; Ballard v Multiplex [2012] NSWSC 426 at [123]-[127]; Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 at [749]–[753]; Chen v State of New South Wales (No 2) [2016] NSWCA 292 at [34].

[13]See NOM v DPP (2012) 38 VR 618 at [124].

[14]See Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[10].

[15]See Carney v Newton [2006] TASSC 4 at [61].

[16]See Kuligowski v Metrobus (2004) 220 CLR 363 at [60].