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

The parties before the High Court of Australia were The State of Western Australia and Western Australian Development (the applicants) and Bropho (the respondents). The dispute concerned an application for special leave to appeal from a decision of a lower court. The core of the applicants' argument revolved around the legal principle that an Act of Parliament does not bind the Crown unless an intention for it to do so is expressly stated or necessarily implied.

The legal issue the Court was required to determine was whether the presumption against statutes binding the Crown, which gives rise to the principle that the Crown is not bound unless expressly or by necessary implication indicated, should be overturned or modified. Specifically, the applicants sought to challenge the established principle, as articulated in cases like *Bradken v BHP*, and potentially revert to an older rule where statutes affecting rights indifferently did not raise a presumption against binding the Crown. The applicants also indicated other grounds of appeal concerning statutory construction, but these were considered secondary to the primary issue regarding the Crown's immunity from statute.

The applicants' counsel argued that the principle that an Act does not bind the Crown unless an intention to do so appears expressly or by necessary implication is derived from a presumption against depriving the Crown of its prerogative. They contended that this principle, as applied in *Bradken v BHP*, may not have been fully argued and that the Court should reconsider the scope of this rule. The applicants suggested that a more general proposition, looking to the mischief of the statute to determine if the Crown is bound, as potentially reflected in *Willion v Berkley*, might be more appropriate. The Court considered whether the applicants sought to attack the principle directly, the presumption that gave rise to it, or both, and whether the aim was to limit the principle's application to the scope of the original presumption.