Bropho v The State of Western Australia & Anor (2)

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 matter concerned an application for special leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia. The core of the dispute revolved around the interpretation of a statute and whether the Crown was bound by its provisions, particularly in relation to the presumption against the Crown being deprived of its prerogative rights.

The legal issue before the High Court was whether special leave to appeal should be granted to allow the applicants to argue against the general principle concerning the presumption that statutes do not bind the Crown unless expressly stated or necessarily implied. This involved considering the historical development of this presumption and its application to modern statutes, as well as the construction of the specific statute in question. The court was asked to determine if the Full Court of the Supreme Court of Western Australia had correctly applied or interpreted the relevant legal principles in reaching its decision.

The court's reasoning, as indicated by the submissions, focused on the historical "checkered history" of the presumption against the Crown being bound by statute. Reference was made to the judgment of Sir Ninian Stephen in the *Bradken* case, which in turn drew upon earlier authorities such as *The Bombay* case and *The Commonwealth v Rhind*. The submissions highlighted that the prevailing view, as articulated by Sir Ninian Stephen and supported by the Chief Justice and Justice Brinsden in the Full Court, was that only express statutory alteration could now change the position regarding the Crown's prerogative. The court was considering whether to grant leave to challenge this established principle and its application to the specific statute under review.