Bass v Permanent Trustee Co Ltd

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.