Bropho v The State of Western Australia & Anor (1)

[1989] HCATrans 254

...

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P30 of 1989

B e t w e e n -

ROBERT BROPHO

Applicant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

WESTERN AUSTRALIAN DEVELOPMENT

COMMISSION

Second Respondent

Application for special leave to

appeal

DEANE J
TOOHEY J

McHUGH J

Bropho

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 10.20 AM

Copyright in the High Court of Australia

PIT3/l/JM 1 25/10/89

MR G.M.G. McINTYRE:	I appear with my learned friend,
-	MRS. CHURCHES for the applicant. (instructed by Keall Brinsden)

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, I appear with my learned friend, MSC.A. WHEELER for the respondents.

(instructed by the Crown Solicitor for Western

Australia)

DEANE J: Yes, Mr McIntyre.

MR McINTYRE:  I hand up to Your Honours the applicant's list

of authorities and outline.

DEANE J:	I should tell you straight away, Mr McIntyre,
your ideas of "authorities which may be referred to"
on a_ leave application bear no relation at all
to the reality.
MR McINTYRE:	Yes, quite so, Your Honour.
DEANE J:	Mr McIntyre, could you indicate briefly the precise
point you wish to raise on an appeal and the
precise decisions which you will be saying should be overruled or overturned if you were to succeed
in obtaining leave?

MR McINTYRE:  Yes. The precise proposition is perhaps

best revealed at page 61 of the appeal book

at paragraph 2(a)(i), that is that:

The Court erred in law in rejecting the proposition that it is the presumption against depriving the Crown of its prerogative which gives rise to the

application of the principle that an

Act does not bind the Crown unless an

intention that the Crown be bound

appears either expressly or by necessary

implication from the words of the statute.

So that - - -

DEANE J: Well, it is more paragraph (a)(ii) than

paragraph (a)(i)?

MR McINTYRE: Yes. Clearly those paragraphs (a)(i), (ii)

and (iii) are different ways of expressing the

same thing probably.

TOOHEY J:  But if the presumption has given rise to a

principle which now does not depend upon the

presumption in the sense that it has overtaken

the presumption and is now enshrined in principle

of law, if that be the case, what are you seeking
to do, Mr McIntyre, to attack the principle

directly, or to attack the presumption that gave

rise to it, or both, or what?

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:MR McINTYRE: 

I think probably both, Your Honour.

DEANE J: 

Or is that so? Is not what you are doing trying
to cut back the principle to the presumption,
to the scope of the presumption?

:MR McINTYRE: 

That is certainly so in relation to this

particular matter but it may well be that the
proper rule is the one in WILLION V BERKLEY,

which is that one looks to the mischief of the

statute and says that if the mischief needs to

bind the Crown then the Crown is bound. That is

probably a slightly more general proposition

that is set out at paragraph 2(a) in any of

its particular versions.

McHUGH J: Well the old rule of construction was that where

the statute affected rights of parties including

the Crown indifferently there was no presumption.

That was the ancient rule.

:MR McINTYRE:	Yes, that is right.
McHUGH J:	You seek to take the law back to that, do you?
:MR McINTYRE:	Yes, and naturally, of course, we would ask

the Court to be looking at the decision of

BRADKEN V BHP which is, I think one could say,

the leading case in Australia and of this Court

in relation to the application of that presumption.

DEANE J:	And this question of the challenge of existing
authority would effectively be the only issue in
any appeal? It is certainly the only one referred
to in the outline you have handed up.

:MR McINTYRE:  Yes. It is not the only ground of appeal as

matter which is probably of most concern to	is revealed in the appeal book, but it is the special leave. There are, of course, two other essential areas which comprise grounds of appeal
and they can probably best be seen at page 62
of the appeal book at paragraphs (c)(i) and (ii)
and paragraph (d).

DEANE J:	They are essentially questions of construction
arising - - -

:MR McINTYRE: That is right and whilst they are grounds

of appeal I would not seek to say that they

in any way would, by themselves at least, give

Your Honours any cause to grant special leave.

It might be that if you thought that there was

some basis for special leave flowing out of the first matter then those two might accumulate to

push you over the edge, if that was necessary,

in relation to making the decision.

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DEANE J:  And what are the decisions, particularly decisions
of this Gour~ that you would be attacking?

MR McINTYRE: Essentially the BRADKEN V BHP case, that

is the one which we would say_ stated the

principle. There are other cases, of course,

which were decided about the same time which

restate the principle. It is essentially our

case that in reality what each of those cases did was to merely state the principle that it was not

ever fully argued before them and that it is

therefore - - -

McHUGH J:  Was it a case like ESSENDON CORPORATION V

THE COMMONWEALTH where the question arose about

whether the statute found Commonwealth Crown

or State Crown, that sort of point?

MR McINTYRE:	Yes.
McHUGH J:	BOMBAY was relied on in that case, was it not,

if my memory serves me right?

MR McINTYRE:  Yes, that is right. It is our view that

that case, and other cases of its kind, really

were cases which decided the question of

which Crown was to be bound in the context of

a decision about the divisibility or indivisibility

of the Crown. In fact, the judges turned their

attention to that issue merely accepting, as I said,

the rule in BOMBAY and that none of them had

before them a sufficient amount of authority

to examine, analyse or deal with the rule in

BOMBAY and in fact consider it as a separate

issue. They were considering the issue of whether

the Crown, which had not legislated, was bound or not and in all of those sorts of cases they

merely said, "Well, it's the well-known rule

cited in BOMBAY and we follow that", and never

turned their minds to it in terms of critically

analysing it.

McHUGH J:  How does your argument fit in with the

assumptions upon which section 64 of the JUDICIARY

ACT are based? It assumes that the Commonwealth

is not normally bound by statute, among other

things.

MR McINTYRE: That, of course, has its place in relation

to the Commonwealth but the importance of this

case is that it - and in particular this case

deals with a State Crown and in tenns of a special

leave application it also has some relevance to

all of the other State Crowns. So that the

position of the Commonwealth may be set apart

by that special piece of legislation but it

does not preculde this Court from considering the

common law position because of its effect upon

the various States of the Commonwealth.

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DEANE J:	One problem you would face in seeking to reopen
established authority would be what is involved
is essentially a principle of statutory
construction.
MR McINTYRE:	Yes.
DEANE J:	And all parliaments in the country have acted for years on the basis that that principle
does apply.  Now, that being so, one can
speculate about whether if the Court were to
overturn the principle, the logical result
would be that every parliament would enact an interpretation Act to have applied to its
statutes the principle on the basis of which
they had been enacted.

MR McINTYRE: Well, of course, it is open to the parliament

to react as they will.

DEANE J: But that is a consideration that is relevant,

or that would be relevant to whether the Court

should, as it were, give leave to argue that
all these cases are involved and, as it were,

take up the time which would be involved in that

argument.

MR McINTYRE:  It may well be that the trend at least

throughout the world is not heading in that

direction, Your Honour.

DEANE J: There is not much in this country to support a

trend,let alone the result for which you contend

though.

MR McINTYRE:  Yes. I was thinking of Scotland, the

case of STRATHCLYDE V LORD ADVOCATE and there
seemed to be a very serious trend in the other
direction in the decision of the First Division

of the Court of Session. It is a report which

I have available to Your Honours if you wish to

have a look at it.

DEANE J:	Mr McIntyre, am I correct,reading your outline,
that the whole basis on which you seek leave really depends on the Court giving you leave to reopen the relevant decisions?
MR McINTYRE:	Not if one accepts the view that in reality

BRADKEN did not do anything other than follow

statements from BOMBAY and really at one level

did not analyse the decision and make an

independent and separate decision.

DEANE J:	But that would not matter whether the decision
in BRADKEN is based on an independent analysis or acceptance of an analvsis made by another

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court. The acceptance of the principle in its current form was basic to the decision.

MR McINTYRE:  Yes, of course our argument runs that there

have been waxings and wanings in relation to

the acceptance of that principle through the

history of the common law in Australia and

we say that, as in our outline, there are a

number of cases decided before BOMBAY which

clearly went in the opposite direction.

DEANE J:	Can I put it to you differently: would it be
accurate to say that the question whether you
should be allowed to reopen the relevant
decisions would be of very great importance
in any appeal?

MR McINTYRE:  Yes, that would be so. Does Your Honour

want me now to develop that argument?

DEANE J:	Mr McIntyre, one matter that is going through
our minds is that in one sense it may be
undesirable for this Court as presently constituted to deal with a leave application that turns to a very large extent on the question
whether leave should be given to reopen existing
authority.  One solution to a problem
involved in that question would be for this
Court to be reconstituted by five Justices
who could really deal with the leave application
in the context of their views on that point. relation to that? It would mean the matter
being stood down until later in the week.
MR McINTYRE:	No, there is no difficulty with that,

Your Honour. I probably should not leave it

without saying that, of course, we would be

looking in any appeal to deal with the question

of the proper rule or statutory interpretation

and how it was applied in this case. But, as

Your Honour has said, that may be a matter

which -

DEANE J: Whether you are going to be allowed to reopen

existing authority may well in the event determine

the outcome of this application for leave.

MR McINTYRE:  Yes. I have no problem with Your Honour's

suggestion.

TOOHEY J:  Mr McIntyre, are there any orders at all relating

to this matter that are in existence, other than

the order made by the Master?

MR McINTYRE:  No, Your Honour. The result of the Master's

decision was to strike out the statement of claim

of the plaintiff's which was a claim seeking

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declarations and injunctions to prevent work.

That was then struck out and the action ceased.

DEANE J:	Somewhere in the papers I saw that an undertaking,
or an assurance had been offered that steps would be taken to amend the Act by adding a provision
that did bind the Crown.
MR McINTYRE:	Yes.
DEANE J:	What happened to that?
MR McINTYRE:	That was an undertaking which was given by

the Crown to the plaintiffs, not to the court.

An argument was considered as to whether	it
then resulted in the appeal before the
Court of Appeal being hypothetical.	The Court

of Appeal took the view that it was an anpeal

as of right and that it was a matter of some

substance and proceeded with the appeal. The

historical position is that nothing more has

happened to my knowledge in relation to the -

DEANE J: Because y~ur client effectively rejected it?

MR McINTYRE:	Did not accept the undertaking, that is so.
The undertai<ing, of co1:1rse, in the widest

sense,was an undertaking given by the Premier

to the Prime Minister that legislation would be

enacted and that the government would comply

with the legislation in the meantime and that

is now the subject of other proceedings. But

there has been - as I think the Court of Appeal
took the view that unless we were in a position

where there was draft legislation or some more

concrete manifestation of that intention that we were entitled not to proceed as though the

undertaking was of any benefit EO- us.

DEANE J:	Could I finally ask you are there any
extraordinary considerations of urgency relating to this matter if this Court were to embark
upon it?
MR McINTYRE:	Not in relation to this particular matter,

as I understand it.

DEANE J:	Mr Solicitor, you have heard what has passed
between the Bench and Mr McIntyre.  Can I just
ask your reaction to the suggestion that
perhaps the matter should be stood down in
the list to come before a Bench of five later
in the week.
MR PARKER:	We would have no objection to that at all, sir, no. The only concern would arise if it

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had to fall out of the list and wait to come

into some other list later in the year. If

it can be heard in this list we would have

no difficulty at all.

DEANE J: It seems to me that if there is a serious

effort to seek leave to reopen existing

decisions that there is a lot to be said

for the view that if possible that question

should be dealt with in the leave application,

not only because of the effect it will have

on the leave application but if it can be

put out of the way one way or the other it
makes the job of the parties, if leave is
eventually granted, a lot easier in terms

of the appeal.

:tvfR PARKER: Indeed, sir, and the value of a court of

five sitting over a three is emphasized by the fact that it is not just BRADKEN

but there are decisions going a long way
back in the history of the Court that have

all been to the one direction so that a

lot of judicial thought has to be considered.

TOOHEY J:  Mr Solicitor, if that course were followed

and the application for special leave were

refused, well that would be the end of the

matter. If the application were granted, is there

then any sense of urgency attaching to the

hearing of the substantive appeal?

:tvfR PARKER: There is, if it please the Court. There are

other matters pending. Delay is in the interests

of the applicant against the interests of the

respondents in a number of aspects, hence my

corrnnents earlier that we would be concerned

if this matter fell out of this list altogether.

TOOHEY J: Yes, but retaining it in the list does not

necessarily take it beyond the application for

special leave in itself.

:tvfR PARKER:  I appreciate that, sir.

TOOHEY J: That is what prompted my question to you

about the hearing of a substantive appeal if

the matter got that far.

:t1R PARKER:  I would respectfully suggest that the hearing

of the substantive appeal is not likely to be

a lengthy matter if leave were granted because

the range of issues is fairly confined.

DEANE J: Well, if leave were granted to appeal but leave

to reopen existing decisions were refused?

:tvfR PARKER:	That would be very brief.
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DEANE J:	What do you anticipate by "very brief"?
MR PARKER:	I would have thought the matter could be

fully argued within an hour.

DEANE J: That is on the question of statutory construction?

MR PARKER:	Yes.
DEANE J:	By that you mean 20 minutes for your side?

MR PARKER: Certainly, perhaps even a quarter of an hour.

DEANE J:	I see.
TOOHEY J:	But if leave were granted on the basis that

existing authorities were to be reviewed then

it is hard to see that it would not be a fai~ly

substantial exercise. ·

MR PARKER:  Except that~I would have thought that

virtually the whole of the ground about the

merit of the authorities and that point of

principle would have been covered in the leave

application so that there would not be, I would

have thought, a great deal more to be said about

the merits. It may be I wrongly anticipate -

DEANE J:	Can I ask you this final question_
from me:  if we adopt this course would there
be any difficulty in your being ready to use your 20 minutes in the event that the Court
was of the view that the standing authorities should not be reopened but that it was appropriate to go on and deal with the question of construction
that would remain?
MR PARKER:	No, we are fully prepared for that now, if it

please the Court.

DEANE J:  I am not suggesting it is a possible course, but

that is a course that you would press for if it

were available.

MR PARKER: If it please the Court.

DEANE J:	Mr McIntyre, what do you say about the suggestion
that if at the end of the day you were not allowed
to reopen existing decisions, assuming that the
Court adhere to its -current view that you need
leave to argue that they are wrong, what do
you say to the suggestion that the other matters
could be disposed of within an hour? That
allows you 40 minutes.
MR McINTYRE:	It would surpriae me to be more long-winded than the Solicitor-General but it is quite
possible in this matter.  I seem to recall that

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when essentially the same matters were argued

before the Court of Appeal it took a little

longer than an hour. My learned friend suggests

not. Perhaps an hour or an hour and a half.

DEANE J:  I see, thank you. The Court will take a short

adjournment to consider the course it will

adopt in this matter.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.05 AM:

DEANE J:	Mr McIntyre, Mr Solicitor, we will stand this
matter down until the end of the list today
and we will say not before 2.30, when the
matter will come on before a Bench of five.
MR McINTYRE:	May it please the Court.

AT 11.06 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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