Coverdale v West Coast Council

[2015] HCATrans 228

[2015] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart   No H1 of 2015

B e t w e e n -

WARRICK COVERDALE VALUER‑GENERAL OF THE STATE OF TASMANIA

Applicant

and

WEST COAST COUNCIL

Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON FRIDAY, 11 SEPTEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR M.E. O’FARRELL, SC:  If the Court pleases, I appear for the applicant together with my learned friend, MS S.K. KAY.  (instructed by Acting Director of Public Prosecutions (Tas))

KIEFEL J:   I understand there is a submitting appearance for the West Coast Council. 

MR O’FARRELL:   There is, your Honour.

KIEFEL J:   I notice, Mr Solicitor, in your written submissions that you say the Council does not oppose this application.  Is that meant positively or is that just because they are not here?

MR O’FARRELL:   It is because they are not here, your Honour. 

KIEFEL J:   This is a question of construction.  You put it that it is of general application to statutory provisions throughout Australia.  Can I put it this way?  Do you put this really as a matter of general principle or is it a visitation question and a matter of the administration of justice?

MR O’FARRELL:   I submit, your Honour, it is more a visitation question and a matter of the administration of justice.  It touches on common forms of definitions of land in Interpretation Acts and other Acts, including our Valuation of Land Act.  But, your Honour, there is a significant issue as to the way that the majority court reasoned to the conclusion, effectively, that sea was included in the class of land and, also, your Honour, there is an issue of importance to Tasmania as a State. 

Your Honour, aquaculture is Tasmania’s largest primary industry.  It is an expanding industry and it has a significant benefit to Tasmania’s economy.  So the marine farming leases in this case, your Honours, relate to the culture of salmon which is the largest sector in the industry.  However, it is not limited – aquaculture is not limited to that.  Tasmania also enjoys a reputation in oysters, mussels and abalone. 

Further, your Honours, the waters of Macquarie Harbour, in respect of which this case applies, are not the only estuarine waters enclosed by municipal boundaries in Tasmania.  There are other places, including Georges Bay on the east coast, a waterway known as Pitt Water in the south and also the Huon River and also Port Esperance which is at Dover in the south.  All are farmed for salmon – for oysters.  It cannot be assumed that other leaseholds will not be granted in the future.  So, effectively, your Honour, the rating of marine farming leases in Tasmania is a significant point for Tasmania. 

If I can also say, your Honour, that until the majority of the Full Court decided this case in the way it did no marine farming lease, of course, had ever been rated and no one, so far as my understanding goes, could have anticipated this result.  So the industry is also significantly affected.

NETTLE J:   Mr Solicitor, can you instance any other State legislation where the same, or comparable, problem arises?

MR O’FARRELL:   No, your Honour Justice Nettle.  I cannot see your Honour Justice Nettle and I apologise, but there is marine farming legislation, I think, in Western Australia and also, I think, possibly in the Northern Territory but the inquiries we made of Western Australia did not reveal a similar issue to this would arise there.

NETTLE J:   Yes, thank you.

MR O’FARRELL:   Your Honours, the effective contest in this case is this.  On our argument, the Valuer‑General’s duty in respect of Crown land, arises where three things are present:  firstly, that there is land within the ordinary and natural meaning of that word and we rely on this Court’s decision in Risk to support that proposition; secondly, that it is Crown land; and, thirdly, that it is liable to be rated.  So once those three conditions are present then the Valuer‑General’s duty is engaged.

The majority view of the section misses the first step, that is, it does not require that there must be land within the ordinary and natural meaning of it.  So they do not give effect, in our submission, to the whole of the words of the section and, further, they import into the section definitions from the Crown Lands Act which are, firstly, expressly confined to the Crown Lands Act and, secondly, inconsistent with the meaning of “land” in the Valuation of Land Act. 

KIEFEL J:   Mr Solicitor, speaking of contest, it appears likely that there may not be a contradictor in this case if leave is granted.

MR O’FARRELL:   Yes, your Honour, that would appear so.  It appears that the Council does not wish to be heard before this Court.  I am unaware of the reasons for that.

KIEFEL J:   Is it proposed that the State of Tasmania or the Valuer‑General would provide a contradictor?

MR O’FARRELL:   Your Honour, can I put it this way?  Were your Honours minded to grant special leave – and the only impediment was the lack of contradictor – then, your Honours, if you would make the grant

of leave conditional on us finding and providing an appropriate contradictor, then we will do that within 14 days.

KIEFEL J:   There will be a grant of leave on that condition.  Thank you, Mr Solicitor.

MR O’FARRELL:   If your Honours please.

AT 9.37 AM THE MATTER WAS CONCLUDED