BGC (Australia) Pty Ltd v Environmental Protection Authority

[2004] HCATrans 413

[2004] HCATrans 413

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P83 of 2003

B e t w e e n -

BGC (AUSTRALIA) PTY LTD

Applicant

and

ENVIRONMENTAL PROTECTION AUTHORITY

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 12.41 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MR M.C. HOTCHKIN, for the applicant.  (instructed by Hotchkin Hanly)

MR G.T.W. TANNIN, SC:   May it please the Court, with MR C.S. BYDDER, I appear for the respondent.  (instructed by Crown Solicitor’s Office Western Australia)

GLEESON CJ:   Yes, Mr McCusker.

MR McCUSKER:   May it please the Court.  This application raises a very short point which is encapsulated at application book page 32 at paragraph 26 by Justice Steytler in the court below where he said:

The issue, as it was distilled before us, is whether the Tribunal is a “State . . . instrumentality” and hence within the definition of “public authority” . . . and, if so, whether it is a “decision-making authority” –

The short point that we wish to have this Court determine on appeal is what is the meaning of a State instrumentality and, in particular, is a body such as the Town Planning Appeals Tribunal a State instrumentality.  The term “State instrumentality” is not defined by the Act in which it appears, where it appears in the definition of “public authority” and it is common ground that the meaning of “State instrumentality” therefore has to be determined, as it were, according to common usage and any decision relating to the meaning of that term.

GLEESON CJ:   What do you say about the consideration mentioned on the bottom of page 36 in the concluding sentence?

MR McCUSKER:   That is, “It would be odd”, et cetera?

GLEESON CJ:   Yes.

MR McCUSKER:   Your Honour, we say that even if it could be said to be odd – and there is room for debate about that – that cannot affect the meaning of “State instrumentality” because ‑ ‑ ‑

GUMMOW J:   Why?

MR McCUSKER:   ‑ ‑ ‑ it is not a term which is defined by the Act, so it is not a question of subject to any contrary intention.  The Act defines a “public authority” and includes within that definition a State instrumentality and, subject to a contrary intention provision, in our submission, it cannot extend to change the meaning of “State instrumentality”.

GLEESON CJ:   Is it in doubt that, depending on the statutory context, a body such as the Tribunal is capable of being regarded as a State instrumentality?

MR McCUSKER:   Where the context is such as, for example, where “State instrumentality” is a phrase which is used throughout a statute in a particular context, it may be.  But where the term here “public authority” is used, not “State instrumentality”, in our submission, different considerations apply.  So that it may be the case that where a defined term “public authority” means subject to contrary intention the following, that cannot apply also to State instrumentality. 

The court below held that this body, the Town Planning Appeals Tribunal, is a State instrumentality, notwithstanding that it was accepted and not subject to any degree of direction or control by the State and not withstanding that it is entirely an independent body exercising judicial or quasi‑judicial powers.

If your Honours refer to the statute itself which creates the Tribunal, it will be seen that it is a body to which an appeal lies.  It deals with appeals in a way in which a court would normally deal with appeals and there was a right of appeal from the Tribunal to the Supreme Court on questions of law.  It is in no way subject to the direction of any Minister or, of course, the government.  Given those attributes, the question was raised before the court below but left open by the court as to whether the term “State instrumentality” would apply also to the Supreme Court, because if there were an appeal from the Tribunal on a point of law to the Supreme Court, exactly the same considerations would arise as have arisen in this case, where the appeal had stopped at the intermediate level of a tribunal.

The authorities referred to, the cases referred to, in our submission, by the court below do not support the conclusion that a body of this nature is a State instrumentality.  None of them establishes that a body which is entirely independent in every way from the State which does not have vested in it, unlike the Commissioner for Railways in one of the cases, property of the State where it might be said it has vested in it property of the State to hold on behalf of the State.  This is not such a case.  This is a case where, like a court, this body is entirely independent. 

So given that the term “State instrumentality” is an important term used, as we have pointed out in our schedule to our summary of argument, in numerous statutes throughout Australia, it is important that we get a determination as to whether a State instrumentality can be a body which simply serves, as the court below put it, some form of State purpose.  In a broad sense, to exercise judicial or quasi-judicial powers is serving a State purpose, and the State is interested in the administration of justice, but one would not have thought that it follows from that that a tribunal such as this is a State instrumentality.

If I could refer very briefly to the decisions that were referred to by the Full Court, and Justice Steytler, in particular, in the ‑ ‑ ‑

GUMMOW J:   None of them is immediately on this legislation, is it?

MR McCUSKER:    None of them is, your Honour.  Furthermore, in the Anti-Cancer Council Case upon which great reliance was placed, it was held by the Court there that the Council was not a State instrumentality.  In the Electricity Trust Case, which is No 3 on our list of authorities, it was held in a South Australian decision by Justice Ligertwood that the State Electricity Trust was a State instrumentality as it was formed to manage an undertaking which belonged to the Crown, to the State.  If I could take your Honours briefly to page 137 of that decision – it is No 3 on our list of authorities – at 137 your Honours will see that Justice Ligertwood set out section 15 of the Act which provided:

The trust shall hold all its assets for and on account of the Crown.

One can readily see why that would be regarded as a State instrumentality. In the Federal Municipal Employees’ Case, which is No 4 on our list, it was held that the municipal corporation in that case, although serving a form of State purpose, was nevertheless not a State instrumentality.  The Federal Municipal Employees’ Case was referred to by the court below because it referred to, with apparent approval, the decision in Coomber’s Case. 

GUMMOW J:   Well, it is just before the Engineers’ Case, this case, is it not?

MR McCUSKER:    Yes, that is so, but the decision in Coomber’s Case was not that the assize courts in that case were a State instrumentality or anything to that effect.  It was simply held, in that case, that the assize courts enjoyed Crown immunity from income tax in respect of the buildings that they occupied.

GUMMOW J:   It all depends on the purpose for which you have to ask the question.

MR McCUSKER:    It does, your Honour, but it would be stretching the language of the statute too far, in our submission, to hold that where “State instrumentality” is not defined, that nevertheless it means a body such as the Town Planning and Appeals Tribunal simply because it would be convenient perhaps to so hold.  Why should it not be thought, to answer the point that your Honour the Chief Justice raised earlier, that a body such as the Tribunal would take the approach, as indeed it does, to ensure that all environmental considerations are taken into account before it gives its decision. 

The decision in the Corporation of Unley v South Australia was that a health centre created by statute was not a State agency and in Bradken, which we have referred in our list, it was held that the Commissioner of Railways was an agent of the Crown and entitled to its immunities.  But in Bradken’s Case, which is No 6 on our list of authorities, at page 115, at point 2 on that page, the first full paragraph, Acting Chief Justice Gibbs there said:

There are other considerations that support the view that the Commissioner is intended to be treated as an agent of the Crown and to be entitled to its immunities.  An important question is whether the body ‑ ‑ ‑

GUMMOW J:   Well, Bradken is not travelling too well these days after NT Power the other week.

MR McCUSKER:    Perhaps not, your Honour, but on this point I do not think it is travelling too roughly, that is, when the body whose status is in question is subject to direct ministerial control or is independently governed and has discretionary powers of its own.  With respect, our submission is that that is an important consideration which was not applied in the court below and has left, as the law presently stands, according to the decision of the court below, the position that the question of control is irrelevant and therefore not only is the Tribunal a State instrumentality but, arguably on the same line of reasoning, so would the Supreme Court to which an appeal lies from the Tribunal, because it too could make a decision which would affect the ultimate result of the planning arrangements and planning application. 

So for those reasons, your Honours, can I also mention that the term is in common usage.  It cannot derive entirely its meaning from the context.  By that I mean that where there is no reason to assume that there is intent to mean one thing in one place and one thing somewhere else and where it is possible that the legislative intention was that the Tribunal would be immune from requirements of the Environment Planning Authority Act when there is no provision in the Act expressly directed at the Town Planning Appeals Tribunal. 

For those reasons, in our submission, this is a case where this short point – and I have been short I hope – ought to be determined by this Court, there being no decision of this Court directly on point.  Could I mention also, your Honours, the case of General Steel where it was held that there the Commissioner for Railways was an authority ‑ ‑ ‑

GUMMOW J:   That is a Crown use case.

MR McCUSKER:    A Crown use case, and it was subject to direction by the State.  May it please your Honours, they are our submissions.

GLEESON CJ:   We do not need to hear you, Mr Tannin.

Having regard to the special statutory context, we think that there is insufficient reason to doubt the correctness of the decision that this particular tribunal satisfied the relevant statutory description to warrant a grant of special leave to appeal and the application is dismissed with costs.

We will adjourn now until 2.00 pm.

AT 12.55 PM THE MATTER WAS CONCLUDED