Bass v Permanent Trustee Co Ltd

Case [1999] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MICHAEL REGINALD BASS and
EVELYN MAUDE BASS  APPELLANTS

AND

PERMANENT TRUSTEE COMPANY
LIMITED  FIRST RESPONDENT

FANMAC LIMITED         SECOND RESPONDENT

STATE OF NEW SOUTH WALES  THIRD RESPONDENT

PERMANENT CUSTODIANS LIMITED                 FOURTH RESPONDENT

LIVERPOOL-INGLEBURN CO-OPERATIVE
HOUSING SOCIETY   FIFTH RESPONDENT

MARKHAM, GEIKIE & RUMORE  SIXTH RESPONDENT

CO-OPERATIVE HOUSING SOCIETIES
ASSOCIATION OF NEW SOUTH WALES
LIMITED  SEVENTH RESPONDENT

THE ESTATE OF ANTHONY MARKHAM              EIGHTH RESPONDENT

Bass v Permanent Trustee Co Ltd (S45-1997) [1999] HCA 9
24 March 1999

ORDER

  1. Appeal allowed in part.

  2. Set aside Order 1 of the orders of the Full Court of the Federal Court of Australia to the extent necessary to set aside the Full Court's answers to questions 1, 2, 3 and 5 referred to that Court by Wilcox J.  In lieu thereof order that those questions be answered as follows:

2.

Q 1Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the State is bound by the Trade Practices Act 1974 (Cth) and whether any claim made under that Act in these proceedings against the State is maintainable?

A 1The claim made under the Trade Practices Act 1974 (Cth) against the State of New South Wales in these proceedings cannot be maintained. Otherwise, inappropriate to answer.

Q 2Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims contained in the amended Application and the amended Statement of Claim herein, in light of the principles referred to in Bradken?

A 2Inappropriate to answer.

Q 3Whether, on the assumption that the claim against the State under the Fair Trading Act 1987 (NSW) is not maintainable, on the basis of the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims under the Fair Trading Act, in light of the principles referred to in Bradken?

A 3Inappropriate to answer.

Q 5Are the applicants protected by section 47 of the Legal Aid Commission Act 1979 (NSW) against liability for the payment of the whole or any part of the costs that might be ordered by the Court against them if unsuccessful in these proceedings?

A 5Inappropriate to answer.

  1. Set aside Orders 3, 4 and 6 of the orders of the Full Court of the Federal Court.

  2. The appellants pay the costs of the State of New South Wales in this Court and in the Full Court of the Federal Court, subject to a maximum for the costs of the proceedings in the Full Court of the Federal Court of $10.00.

3.

  1. The appellants and the respondents, other than the State of New South Wales and the sixth and eighth respondents, bear their own…

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AGLC
Bass v Permanent Trustee Co Ltd [1999] HCA 9
Case
[1999] HCA 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from the Full Court of the Federal Court concerning the application of the *Trade Practices Act 1974* (Cth) to the State of New South Wales and related matters. The appellants, Bass and others, sought to bring claims against the State and other respondents under the *Trade Practices Act* and the *Fair Trading Act 1987* (NSW). Preliminary questions were referred to the Federal Court for determination, including whether the State was bound by the *Trade Practices Act*, whether other respondents were immune from claims, and whether the appellants were protected from costs liability by the *Legal Aid Commission Act 1979* (NSW).

The central legal issues before the High Court were whether the *Trade Practices Act* applied to the State of New South Wales, specifically whether the State constituted a "person" within the meaning of sections 6(3) and 75B(1) of that Act. The Court also had to consider the effect of section 64 of the *Judiciary Act 1903* (Cth) and section 5(2) of the *Crown Proceedings Act 1988* (NSW) on this question. Additionally, the Court examined whether the preliminary questions posed to the Federal Court were hypothetical or advisory, and thus inappropriate for judicial determination, and whether the appellants were entitled to protection from costs orders under section 47 of the *Legal Aid Commission Act 1979* (NSW).

The High Court reasoned that the claim under the *Trade Practices Act* against the State of New South Wales could not be maintained, finding that the State was not a "person" for the purposes of the relevant provisions of that Act. The Court also determined that several of the preliminary questions referred to the Federal Court were inappropriate for answer as they were hypothetical or premature. Specifically, the question regarding the application of the *Trade Practices Act* to the State was answered, but other questions concerning the immunity of other respondents and the costs protection were deemed inappropriate. The Court noted that section 43 of the *Federal Court of Australia Act 1976* (Cth) governed costs in that Court, which would otherwise provide for costs and thus prevent the operation of section 79 of the *Judiciary Act* in relation to section 47 of the *Legal Aid Commission Act*.

The appeal was allowed in part. The High Court set aside the Full Court's answers to questions 1, 2, 3, and 5, substituting its own determination that the claim under the *Trade Practices Act* against the State was not maintainable, and that the other questions were inappropriate to answer. Orders consequential to the Full Court's original answers were also set aside. The appellants were ordered to pay the costs of the State of New South Wales in the High Court and the Federal Court, subject to certain limitations on the costs in the Full Court. Other parties were to bear their own costs.

Orders

Orders of the court

1.

Appeal allowed in part.

2.

Set aside Order 1 of the orders of the Full Court of the Federal Court of Australia to the extent necessary to set aside the Full Court's answers to questions 1, 2, 3 and 5 referred to that Court by Wilcox J. In lieu thereof order that those questions be answered as follows:

2.

Q 1 Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the State is bound by the Trade Practices Act 1974 (Cth) and whether any claim made under that Act in these proceedings against the State is maintainable?

A 1 The claim made under the Trade Practices Act 1974 (Cth) against the State of New South Wales in these proceedings cannot be maintained. Otherwise, inappropriate to answer.

Q 2 Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims contained in the amended Application and the amended Statement of Claim herein, in light of the principles referred to in Bradken?

A 2 Inappropriate to answer.

Q 3 Whether, on the assumption that the claim against the State under the Fair Trading Act 1987 (NSW) is not maintainable, on the basis of the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims under the Fair Trading Act, in light of the principles referred to in Bradken?

A 3 Inappropriate to answer.

Q 5 Are the applicants protected by section 47 of the Legal Aid Commission Act 1979 (NSW) against liability for the payment of the whole or any part of the costs that might be ordered by the Court against them if unsuccessful in these proceedings?

A 5 Inappropriate to answer.

3.

Set aside Orders 3, 4 and 6 of the orders of the Full Court of the Federal Court.

4.

The appellants pay the costs of the State of New South Wales in this Court and in the Full Court of the Federal Court, subject to a maximum for the costs of the proceedings in the Full Court of the Federal Court of $10.00.

3.

5.

The appellants and the respondents, other than the State of New South Wales and the sixth and eighth respondents, bear their own costs of the proceedings in this Court and in the Full Court of the Federal Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH, GUMMOW, HAYNE AND CALLINAN JJ KIRBY J
It seems clear enough that were the question whether s 79 of the Judiciary Act "picks up" s 47 of the Legal Aid Commission Act to arise in proceedings to enforce a costs order of the Federal Court, it would be answered "No". That is because s 43 of the Federal Court of Australia Act provides as to the costs of proceedings in that Court and, thus, otherwise provides for the purpose of s 79 of the Judiciary Act. It is clear that that was the issue intended to be raised by the question referred to the Full Court. However, that question has not yet arisen. Accordingly, question 5 should also have been answered "Inappropriate to answer".Conclusion The appeal should be allowed to the extent necessary to set aside the Full Court's answers to questions 1, 2, 3 and 5 and to substitute instead the following answers:Question 1: The claim made under the Trade Practices Act 1974 (Cth) against the State of New South Wales in these proceedings cannot be maintained. Otherwise, inappropriate to answer.Question 2: Inappropriate to answer.Question 3: Inappropriate to answer.Question 5: Inappropriate to answer.And Orders 3, 4 and 6 of the Full Court's Orders, which are consequential on that Court's answers to questions 2, 3 and 5, should also be set aside. In substance, the appellants have failed in their claims against the State of New South Wales. Accordingly, they should pay the State's costs in this Court and in the Full Court. As earlier indicated, however, orders were made by Wilcox J limiting their liability for the costs of the proceedings in relation to the determination of the preliminary questions. By those orders the maximum liability in respect of the costs of the State was $10.00 in the first two appeals and $12,500 in the third appeal[70]. Apparently, those orders were not the subject of appeal and it was not contended in this Court that the appellants should not have the benefit of them. Accordingly, the order in favour of the State for the costs of the proceedings in the Full Court of the Federal Court should be subject to a maximum of $10.00 in the first and second appeals and $12,500 in the third appeal.[70](1995) 58 FCR 139 at 149. So far as concerns the respondents, other than the State of New South Wales, neither they nor the appellants can claim to have been successful in this Court on the issues intended to have been raised by questions 2 and 3. The respondents have, perhaps, had a limited measure of success with respect to the final question, although that question should not have been asked. The appropriate course, in the circumstances, is for the appellants and respondents, other than the State of New South Wales, the sixth and eighth respondents in the first appeal and the eighth respondent in the second appeal[71], to bear their own costs of the proceedings in this Court and in the Full Court of the Federal Court. These appeals from the Full Court of the Federal Court of Australia[72] raise multiple issues of constitutional law and federal statutory law. However, on the way to resolving them, a question, procedural in character, arose during argument in this Court. It was suggested that most, if not all, of the questions ordered for separate and preliminary trial[73], were hypothetical so that they should not be answered and that the Full Court of the Federal Court had erred by failing to so hold. [72]Sub nom Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213.[73]Orders of Wilcox J, 1 June 1995. See Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213 at 216-217.Responding effectively to complex litigation

Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW, HAYNE AND CALLINAN JJ, KIRBY J

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