Kidd v The State of Western Australia
[2015] WASCA 62
•26 MARCH 2015
KIDD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 62 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:46/2014 | 17 NOVEMBER 2014 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 26/03/15 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEIL GRAEME KIDD AND THE PERSONS DETAILED IN SCHEDULE A TO THE APPEAL NOTICE THE STATE OF WESTERN AUSTRALIA MINISTER FOR RACING AND GAMING BURSWOOD NOMINEES LTD |
Catchwords: | Statutes Statutory construction Scope of provision exempting land from Metropolitan Register Scheme, local planning laws and by-laws Contract Government agreement ratified by legislation Proper construction Agreement to be construed in accordance with ordinary principles of contractual construction Natural and ordinary meaning Contract Government agreement ratified by legislation Proper construction of defined terms Whether additional land granted for purposes of agreement Purposes to be gleaned from agreement as a whole Contract Government agreement ratified by legislation Proper construction of defined terms Whether sale of land constitutes grant Turns on construction of agreement |
Legislation: | Aboriginal Heritage Act 1972 (WA), s 18 Casino (Burswood Island) Agreement Act 1985 (WA), s 3, s 4(3), s 7 Environmental Protection Act 1986 (WA) Government Agreements Act 1979 (WA) Heritage of Western Australia Act 1990 (WA), s 9, s 64 Land Act 1933 (WA) Land Administration Act 1997 (WA), s 74 Planning and Development Act 2005 (WA) Swan and Canning Rivers Management Act 2006 (WA) Wildlife Conservation Act 1950 (WA) |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Kidd v The State of Western Australia [2014] WASC 99 Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323 Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KIDD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 62 CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Appellants
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
MINISTER FOR RACING AND GAMING
Second Respondent
BURSWOOD NOMINEES LTD
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : KIDD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 99
File No : CIV 2882 of 2013
Catchwords:
Statutes - Statutory construction - Scope of provision exempting land from Metropolitan Register Scheme, local planning laws and by-laws
Contract - Government agreement ratified by legislation - Proper construction - Agreement to be construed in accordance with ordinary principles of contractual construction - Natural and ordinary meaning
Contract - Government agreement ratified by legislation - Proper construction of defined terms - Whether additional land granted for purposes of agreement - Purposes to be gleaned from agreement as a whole
Contract - Government agreement ratified by legislation - Proper construction of defined terms - Whether sale of land constitutes grant - Turns on construction of agreement
Legislation:
Aboriginal Heritage Act 1972 (WA), s 18
Casino (Burswood Island) Agreement Act 1985 (WA), s 3, s 4(3), s 7
Environmental Protection Act 1986 (WA)
Government Agreements Act 1979 (WA)
Heritage of Western Australia Act 1990 (WA), s 9, s 64
Land Act 1933 (WA)
Land Administration Act 1997 (WA), s 74
Planning and Development Act 2005 (WA)
Swan and Canning Rivers Management Act 2006 (WA)
Wildlife Conservation Act 1950 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : Mr D H Solomon & Ms L M Retallack
First Respondent : Mr A J Sefton & Mr D E Leigh
Second Respondent : Mr A J Sefton & Mr D E Leigh
Third Respondent : Mr N J Young QC & Mr L A Warnick
Solicitors:
Appellants : Solomon Brothers
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : King & Wood Mallesons
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Kidd v The State of Western Australia [2014] WASC 99
Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323
Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
- MARTIN CJ:
Summary
1 The 75 appellants own or lease apartments near the Burswood casino and resort complex. They object to the proposal of the third respondent, Burswood Nominees Ltd (Burswood) to construct and operate a third hotel (Crown Towers Hotel Perth) as part of that complex pursuant to approval granted by the second respondent, the Minister for Racing and Gaming, but without any town planning or development approval. The respondents take and maintain the position that no other approval is required because of the combined effect of an agreement between the first respondent, the State of Western Australia, to which Burswood is now a party (Agreement), and the Casino (Burswood Island) Agreement Act 1985 (WA) (Casino Act) which ratified and authorised the implementation of the Agreement.
2 The Crown Towers Hotel is to be built partly on land located within the site of the original casino complex, and partly on another 5.8 ha of land which was acquired by Burswood from the State in 2013. The appellants commenced proceedings in which they asserted that, for various reasons, the Casino Act and the Agreement did not have the effect of exempting Burswood from the requirement to obtain town planning and development approval in respect of the development to be carried out on the 5.8 ha of land which was not part of the original casino site. They sought relief by way of declarations and injunctions appropriate to give effect to their contentions. The trial judge rejected each of the propositions which were said to sustain the conclusion that town planning and development approval was required in respect of the development to be carried out on the parcel of 5.8 ha of land to which I have referred, and dismissed the appellants' claims. Since the dismissal of the appellants' claims, work has commenced on the construction of the hotel.
3 The appellants now appeal from the decision rejecting their claims. Through their grounds of appeal they essentially replicate the propositions advanced to the trial judge. Those propositions must be rejected, essentially for the reasons given by the trial judge, as explained below. The insurmountable obstacle in the path of all of the appellants' propositions is that they are contrary to the natural and ordinary meaning of the words used in the Casino Act and the Agreement. The appeal must be dismissed.
The facts
4 There were no contentious facts at trial. The relevant facts were established by the tender of an agreed statement and a significant number of documents, generally by consent, but with some objections which are not material to any issue in the appeal.
5 The relevant facts established by that process were set out by the trial judge in his reasons.1 As little purpose would be served by replicating those facts in these reasons, they should be taken to be incorporated by reference.
Applicable legal principles
6 The trial judge set out general principles of statutory construction and contractual construction which he applied to the issues which he was required to determine. The written and oral submissions presented on behalf of the appellants are replete with references to authority on those topics, although it is not suggested that the trial judge misstated or mistook any of the relevant general principles. As this appeal turns entirely upon the application of those general and well-established principles of construction to the particular instruments governing the development of the Burswood casino and resort complex, in these reasons it will only be necessary to refer to those general principles where they apply to a particular issue of construction.
The grounds of appeal
7 There are three grounds of appeal. They correspond to the three basic propositions which were advanced before the trial judge and which are said to justify the relief sought by the appellants. It is unnecessary to set out the grounds in detail, and sufficient to refer to the propositions which underpin those grounds.
Ground 1 - the additional land sold by the State to Burswood is not part of the 'Resort Lands' for the purposes of s 7 of the Casino Act
8 Section 7 of the Casino Act provides that the town planning laws of the State, including the Metropolitan Region Scheme, the Planning and Development Act 2005 (WA) and town planning schemes prepared under that Act do not 'apply to or in relation to the land within the Resort Lands'. The term 'Resort Lands' is defined by s 3 of the Casino Act to mean 'the combined areas of the Resort Site and the Site as respectively defined by the Agreement'. The 'Agreement' is defined by the same section to mean the agreement between the State and other parties, now including Burswood, which is ratified by s 4 of the Casino Act and amended from time to time in accordance with the Agreement's provisions by specific Supplementary Agreements also ratified by the Casino Act. Section 4(3) of the Casino Act provides that the Agreement 'shall operate and take effect notwithstanding any other Act or law', except for the Government Agreements Act 1979 (WA).
9 So, s 7 of the Casino Act exempts the land falling within the 'Resort Site' and the 'Site', as defined by the Agreement, from the operation of the general planning laws of the State. Clause 2 of the Agreement defines 'Resort Site' to mean land shown on a designated plan or falling within designated locations 'but … does not include the Site'. The same clause defines the word 'Site' to mean the land within two designated locations and:
(b) except in clauses 6, 9(1) and 9(3) any additional land granted or leased to the Trustee for the purposes of this Agreement whether pursuant to cl 6(5) or otherwise.
10 Clause 6 of the Agreement contains provisions related to various matters including provisions requiring the State to grant the Site to the Trustee (now Burswood) and to permit access to the Site for the purposes of developing the resort. Clause 6(5) relevantly provides that on the recommendation of the Minister responsible for the administration of the Casino Act, the State may cause land excised from the Resort Site not exceeding 10 ha in the aggregate 'to be granted or leased to the Trustee' (now Burswood).
11 Clause 9(1) of the Agreement obliged the Trustee to construct and develop the resort at a cost of at least $200 million, inclusive of the cost of the Site, of which at least $15 million was to be expended upon the development and improvement of the Resort Site, and further obliged the Trustee to maintain and operate the complex.
12 Clause 9(2) of the Agreement provides that subject to subclause (3), the construction fit-out and commissioning of the resort and operation of the resort complex 'shall comply with the lawful requirements of and all regulations and by-laws of all relevant local and other authorities of the State and the Commonwealth, and all Acts of the State and Commonwealth applicable thereto'.
13 Clause 9(3) of the Agreement provides:
Notwithstanding the provisions of any Act, regulation, by-law, interim development order or town planning scheme, including but without limitation the provisions of the Metropolitan Region Scheme, the Trustee shall not be required to obtain any approval or consent required by or under a law of the State to the development of the Site or the Resort Site in accordance with the provisions of this Agreement, save and except, in the case of the Site, for a building licence issued by the Local Authority pursuant to provisions of Part XV of the Local Government Act 1960 - 1984.
14 The proposition which underpins the first ground of appeal turns critically upon that part of the definition of 'Site' which provides that any additional land granted to the Trustee (now Burswood) for the purposes of the Agreement is not included within the meaning of 'Site' when that word is used in cl 9(3). The appellants contend, as they did below, that in order to arrive at a 'harmonious' construction of the Agreement and the Casino Act, it is necessary and appropriate to give the term 'Site' the meaning which it bears for the purposes of cl 9(3) of the Agreement for the purpose of identifying the land which comprises the 'Resort Lands' within the meaning of s 7 of the Casino Act.
15 This basic proposition is said to be supported by the following:
(a) because s 4(3) of the Casino Act provides that the Agreement is to operate and take effect, other provisions in the Casino Act, including s 7, should be construed consistently with the Agreement to create a harmonious whole;
(b) within the Agreement, cl 9(3) has the effect that approval is not required under any of the relevant planning laws of the State for the development of the 'Site';
(c) cl 9(3) of the Agreement and s 7 of the Casino Act have 'concurrent and coextensive operation', or at other points in the appellants' submissions, a 'common purpose' or 'the same material function';
(d) there are, in effect, two definitions of the term 'Site' within the Agreement;
(e) when construing the meaning properly given to the term 'Resort Lands' in s 7 of the Casino Act it is necessary to make a choice between the two definitions of 'Site' contained within the Agreement; and
(f) because of the relationship between cl 9(3) of the Agreement and s 7 of the Casino Act, the term 'Site' should be given the same meaning in both provisions, being the meaning applicable for the purposes of cl 9(3) of the Agreement.
The reasons of the trial judge
16 The trial judge rejected the basic proposition to the effect that the additional land excised from the Resort Site and granted to Burswood did not form part of the 'Site' and therefore was not part of the 'Resort Lands' for the purposes of s 7 of the Casino Act. He considered that the appropriate starting point was the language of the statute, which expressly incorporates the definitions used within the Agreement. While he accepted that it was appropriate to read the Casino Act and the Agreement together,2 in his view, the ordinary meaning of the relevant paragraph of the definition of 'Site' within the Agreement militated against the appellants' construction. As he observed, the natural and ordinary meaning of the definition of that term excludes additional land granted to the Trustee for the purposes of the Agreement only for the purposes of three clauses of the Agreement and not for any other purpose. So, for the purposes of s 7 of the Casino Act, by the natural and ordinary meaning of the definition of the term 'Site' within the Agreement, it includes any additional land granted to the Trustee for the purposes of the Agreement, and therefore includes (subject to the other arguments to be addressed) the additional 5.8 ha of land excised by the State from the Resort Site and granted to Burswood for the purposes of the Agreement, and in particular, for the purpose of constructing the Crown Towers Hotel Perth.
17 The trial judge rejected a number of the subsidiary propositions which were said to support the appellants' basic argument. In particular, he rejected the proposition that s 7 of the Casino Act and cl 9(3) of the Agreement had a concurrent or coextensive operation. First, he noted that there was a principle applicable both in the construction of contracts and in the construction of statutes to the effect that each part of an instrument should be construed so as to have some operation.3 Given the appellants' contention that the Casino Act and the Agreement should be read together, a construction of cl 9(3) of the Agreement which left s 7 of the Casino Act with no operation or effect was, in the view of the trial judge, contrary to these established principles.
18 Second, although the trial judge observed that the operation of the two provisions was similar, he noted that there were differences in their ambit and effect. As he noted, s 7 of the Casino Act has the consequence that the planning laws of the State do not apply to the 'Resort Lands'; on the other hand, cl 9(3) of the Agreement has the effect that the Trustee (now Burswood) is not required to obtain any approval or consent for the development of the Site in accordance with the provisions of the Agreement under any law of the State other than the law requiring the issue of a building licence. So, as the trial judge observed, cl 9(3) of the Agreement does not operate to exempt Burswood from any requirement to obtain development approval under the planning laws of the State because s 7 of the Casino Act has the effect that those laws do not apply to the land within the 'Resort Lands'.
19 Further, as the trial judge noted, the ambit of the legislation to which cl 9(3) applies is wider than the ambit of the legislation to which s 7 of the Casino Act applies. Clause 9(3) of the Agreement applies to all laws of the State which would require an approval or consent to development of the Site in accordance with the Agreement, other than the law requiring the grant of a building licence. There are a number of laws which fall within the ambit of cl 9(3) of the Agreement which do not fall within the ambit of s 7 of the Casino Act. In his reasons the trial judge gave the examples of s 18 of the Aboriginal Heritage Act 1972 (WA) and s 9 and s 64 of the Heritage of Western Australia Act 1990 (WA). Other examples have been provided by the respondents, including the Environmental Protection Act 1986 (WA), the Wildlife Conservation Act 1950 (WA) and the Swan and Canning Rivers Management Act 2006 (WA). The potential application of these statutory provisions to the development of the 'Site' is significant, with the consequence that the difference between the ambit of operation of cl 9(3) of the Agreement and the ambit of the operation of s 7 of the Casino Act is also significant.
20 Further, the trial judge noted and accepted the respondents' submission deriving from cl 8 of the Agreement, which provides:
The State shall ensure after consultation with the Local Authority that the Site shall be and remain zoned for use or otherwise protected during the currency of this Agreement so that the use to which the Trustee and any person claiming through or under the Trustee may put the Site in accordance with the provisions of this Agreement, and the erection and use of the Resort Complex thereon, may be undertaken and carried out without any interference or interruption by the State or by any agency or instrumentality of the State or by any local or other authority of the State on the grounds that such use is contrary to any town planning scheme or zoning by-law of the Local Authority or any other statutory town planning engineering or environmental provision.
21 The trial judge accepted the respondent's submission that s 7 of the Casino Act fulfilled the obligations imposed by cl 8 of the Agreement upon the State. Implicit in the reasons of the trial judge is recognition of the fact that cl 9(3) of the Agreement does not, of itself, have that consequence because that clause only exempts the Trustee (now Burswood) from the requirement to obtain any approval or consent and would not override any by-law or town planning scheme which would prohibit development of the Site in accordance with the Agreement irrespective of any approval or consent. This is another reason for concluding that s 7 of the Casino Act and cl 9(3) of the Agreement have a different ambit of operation and effect.
22 The trial judge considered that his conclusion that cl 9(3) of the Agreement and s 7 of the Casino Act have different ambits of operation and effect deprived the argument advanced on behalf of the appellants of much of its force and effect. Put another way, because the provisions have different ambits, in his view it was not necessary to conclude that the term 'Site' must have the same meaning for the purposes of both provisions in order to give 'harmonious' effect to the Casino Act and Agreement.
23 The trial judge considered that this conclusion was reinforced by Burswood's submission to the effect that there is a plausible and rational basis for the term 'Site' being given a narrower meaning for the purposes of cl 6, cl 9(1) and cl 9(3) of the Agreement than for the purposes of s 7 of the Casino Act. The trial judge implicitly accepted the submission to the effect that the definition of the term 'Site' so as to exclude additional land granted to the Trustee for the purpose of the Agreement in respect of three clauses of the Agreement is explained by the fact that those provisions have a largely historical operation, relating to the original development of the casino complex, with the result that it is not appropriate to apply those provisions to additional land added to the Site after the development of the original complex. So, for example, the natural and ordinary meaning of the terminology used in the Casino Act and Agreement is entirely consistent with an intention that legislative provisions such as the Aboriginal Heritage Act and the Environmental Protection Act (just to take two examples) should apply to development on any land granted to Burswood over and above the original site of the complex, and a rational basis for that intention is discernible.
Ground 1 - the argument on appeal
24 In this appeal, the arguments advanced to the trial judge were reiterated in written and oral submissions, augmented by reference to a detailed history of the amendment and modification of the planning laws of the State which, with respect, adds nothing to the weight or force of the appellants' basic arguments. In essence it was submitted that the trial judge erred:
(a) by approaching the construction of the Casino Act and Agreement with an a priori assumption to the effect that s 7 of the Casino Act and cl 9(3) of the Agreement must have different fields of operation;
(b) by failing to find that s 7 of the Casino Act and cl 9(3) of the Agreement had a concurrent and coextensive operation, alternatively a common purpose, alternatively the same material effect; and
(c) by accepting Burswood's argument with respect to cl 8 of the Agreement because cl 8 could not and should not be construed as an attempt by executive government to bind the Parliament.
25 The various criticisms of the reasoning of the trial judge must be rejected. The reasons of the trial judge do not reveal an a priori assumption as to the operation and effect of s 7 of the Casino Act as compared to cl 9(3) of the Agreement - rather they reveal an appropriate consideration of well-established principles of statutory and contractual construction which militate against a construction which would render words or provisions otiose. Further, the trial judge was plainly correct to conclude that s 7 of the Casino Act and cl 9(3) of the Agreement have different fields of operation and different effects, for the reasons which he gave. With respect, the proposition advanced on appeal relating to cl 8 of the Agreement misses the point of the trial judge's reference to that provision. Clause 8 provides a convenient means of demonstrating that the function performed by s 7 of the Casino Act, of exempting land from the operation of the general planning laws of the State, is different in character to the function performed by cl 9(3) of the Agreement, which is to absolve the Trustee (now Burswood) of the need to obtain a consent or approval. The terms of cl 8 of the Agreement conveniently illustrate that there will be circumstances in which absolution from the requirement to obtain a consent or approval would not permit a development prohibited by a planning law of the State irrespective of consent or approval.
26 None of the submissions advanced on behalf of the appellants either at first instance or on appeal can overcome the fundamental obstacle in the path of their success, which lies in the natural and ordinary meaning of s 7 of the Casino Act, as the trial judge held. Section 3 of the Casino Act expressly incorporates the definition of the term 'Site' used in the Agreement. That definition expressly incorporates additional land granted to the Trustee (now Burswood) for the purposes of the Agreement except in the operation of three specified clauses of the Agreement. There is no exception or proviso with respect to the application of the definition of 'Site' for the purpose of identifying the land which comprises the 'Resort Lands' to which s 7 of the Casino Act applies. No provision of the Casino Act or the Agreement requires an evaluative choice to be made between competing or alternative definitions of the 'Site'. To the contrary, the scheme and effect of the Casino Act and Agreement is pellucidly clear and unequivocal. In both instruments, the term 'Site' means and includes any additional land granted to the Trustee (now Burswood) for the purposes of the Agreement except where the term 'Site' is used in cl 6, cl 9(1) and cl 9(3) of the Agreement. The appellants' first ground of appeal must be dismissed.
Appeal ground 2 - 'the purposes of the Agreement'
27 The basic proposition underpinning ground 2 of the appeal is the assertion that the additional 5.8 ha of land excised by the State from the Resort Site and granted to Burswood was not granted 'for the purposes of [the] Agreement' and therefore does not fall within the definition of 'Site' in cl 2 of the Agreement, and therefore does not fall within the definition of 'Resort Lands' for the purposes of s 7 of the Casino Act, with the consequence that the town planning laws of the State apply to development of that land.
28 The reasoning underpinning this proposition starts with Recital D to the Agreement which provides:
D. The Minister pursuant to the power aforesaid has accordingly agreed to enter into this Agreement for the purpose of providing for and facilitating implementation of the Development Proposals and the operation of the Resort and the Resort Complex subject to and in accordance with the provisions hereinafter contained.
29 The term 'Development Proposals' is defined by cl 2 of the Agreement to mean, in effect, the proposals for the construction, development and establishment of the resort detailed in two reports identified in the definition. Those documents contemplate development of the resort in two stages - the first stage including construction of the casino, a five-star 400-room hotel with associated facilities, a convention centre, a theatre restaurant, an exhibition centre, an international standard 18-hole golf course and a fully developed foreshore area with associated recreational facilities. The second stage identified in the documents coming within the definition of 'Development Proposals' was a general reference to the construction of a second hotel containing 400 rooms with an indicative cost estimate of $100 million at a location shown on the plans contained within those documents. Neither of those documents include reference to or contemplate the development of a third hotel.
30 The terms 'Resort' and 'Resort Complex' used in Recital D of the Agreement are also defined by cl 2 of the Agreement. 'Resort Complex' is defined to mean the hotel, convention centre/theatre restaurant, exhibition centre, recreation and other facilities and the casino established on the Site and, if and when constructed, Stage 2. The term 'Resort' is given a somewhat broader definition, to mean 'the complete and entire Burswood Island Resort (including the Resort Complex) referred to in the Development Proposals'. So, all the defined terms in Recital D of the Agreement take their meaning and content from the proposals identified in the documents coming within the definition 'Development Proposals' and do not extend beyond Stage 2 of the contemplated development and in particular do not refer to the construction of a third hotel. The appellants contend that Recital D provides a comprehensive statement of the purposes of the Agreement and those purposes do not include the construction of a third hotel. According to their argument, it follows that land excised by the State from the Resort Site and granted to Burswood for the purposes of constructing a third hotel was not granted to Burswood for the purposes of the Agreement, and does not therefore come within the definition of 'Site' in cl 2 of the Agreement.
31 In order to make this proposition good, the appellants must confront and overcome cl 13 of the Agreement which provides:
13(1) If the Trustee shall resolve to proceed with Stage 2 or to carry out any other development of the Site the Trustee shall:--
(a) forthwith notify the State of such resolution; and
(b) in the case of any such other development, submit to the Minister a proposal in reasonable detail, and before proceeding, obtain the consent of the Minister in relation thereto.
(2) The provisions of clauses 7, 9, 10 and 11 shall, with necessary modifications, apply in relation to the construction, Fit-Out and Commissioning of Stage 2 or any other development referred to in sub-clause (1).
32 The appellants attempt to avoid the conclusion that when cl 13 was introduced into the Agreement in 1987, it had the effect that the purposes of the Agreement included the carrying out of any other development of the Site with the prior consent of the Minister by asserting that the words 'any other development' in cl 13 should be read down to include only developments taking the place of proposed Stage 2.
The reasons of the trial judge
33 The trial judge rejected the proposition that Recital D of the Agreement provided a comprehensive statement of the purposes of the Agreement. He noted that its terminology referred only to the purpose of the Minister in entering into the Agreement, that recitals to Agreements must be read in the context of the Agreement as a whole and that the purposes of an Agreement can be inferred from its express and implied terms and from any admissible evidence of surrounding circumstances.4 Consistently with those principles, in his view all the provisions of the Agreement, including cl 13, had to be considered in order to discern its purposes.5 In the view of the trial judge, a construction of Recital D to the effect that it provided a comprehensive statement of the purposes of the Agreement was inconsistent with, and would not accommodate, the introduction of cl 13 into the Agreement by amendment in 1987. As he pointed out, the construction of other developments approved by the Minister pursuant to the terms of cl 13 would not come within the purpose of implementing the Development Proposals to which reference is made in Recital D.
34 The trial judge noted that the apparent tension between construing Recital D as a comprehensive statement of the purposes of the Agreement, and the breadth of the power to carry out 'any other development' with the prior consent of the Minister conferred by cl 13 of the Agreement is diminished if the appellants' argument that cl 13 should be given a narrow construction is accepted. However, he rejected that proposition for reasons which he gave.
35 First, the trial judge noted that the appellants' contentions with respect to the construction of cl 13 would require a number of limiting words to be read into its broad language - such that, for example, 'any other development of the Site' is to be read as meaning 'any other development that is other than and in substitution for, but not in addition to, Stage 2'.6 He noted that the breadth of the natural and ordinary meaning properly given to the expression 'any other development' did not sit well with the construction for which the appellants contended.
36 The trial judge noted that the appellants relied significantly upon the use of the word 'or', which was said to be used disjunctively. However, as the trial judge observed, the disjunctive meaning commonly given to the word 'or' is entirely consistent with a meaning of 'any other development' additional to Stage 2, and would not, in its ordinary meaning, limit the meaning properly given to the expression 'other development' to a development in substitution for Stage 2. In particular, as the trial judge noted, there is nothing in the language of cl 13 which would suggest that the obligations imposed by the clause are exhausted once Stage 2 has been carried out.
37 The trial judge reinforced this conclusion by the observation that cl 13 is expressed in mandatory terms, obliging the Trustee to notify the State of any proposed development of the Site and to obtain the consent of the Minister before proceeding. In his view, the language of the clause was consistent with a purpose, evident from its terms, of regulating any and all future development of the Site. Implicit in this line of reasoning is the proposition that the purpose of the clause is sufficiently achieved by construing it by reference to the natural and ordinary meaning of the language used, without any need to read down or constrain that meaning.
38 The trial judge reinforced these conclusions by observing that if the construction of cl 13 for which the appellants contended was accepted, once Stage 2 of the development or another development in substitution for Stage 2 had been completed, the Trustee (now Burswood) would have no obligation to give notice to the State of any intention to carry out further development of the Site, nor would such development be subject to the prior consent of the Minister or to approval pursuant to any of the planning laws of the State, because on any view s 7 of the Casino Act exempted the Site as originally defined from the operation of those laws. The trial judge noted that such an extraordinary consequence was an unlikely intention to attribute to the parties to the Agreement.
39 The trial judge noted that the appellants endeavoured to overcome that consequence by asserting that s 7 of the Casino Act should be read down to accord with cl 9(3) of the Agreement, which is limited to an exemption from the requirement to obtain consents or approvals for development in accordance with the provisions of the Agreement. So, the appellants asserted that a similar constraint should be read into s 7 of the Casino Act, so that the planning laws of the State did not apply to the 'Resort Lands' only in respect of proposed developments which were in accordance with the Agreement. However, as the trial judge noted, there were no words in s 7 of the Casino Act which could be construed as having that effect and, for all the reasons he had given with respect to the proposition underpinning ground 1 of the appeal, it was neither necessary nor appropriate to construe s 7 of the Casino Act as entirely congruent and coextensive with cl 9(3) of the Agreement.
40 The trial judge went on to observe that, by contrast, the natural and ordinary meaning of cl 13 provided an entirely rational and sensible scheme under which the Minister was given control over all future developments on the Site, consistently with the long-term nature of the Agreement itself.
41 The trial judge noted and rejected the appellants' reliance upon the Second Reading Speech given by the Minister at the time of the second reading of the Casino Act amendment Act which introduced cl 13 of the Agreement. The trial judge noted that there was nothing in that speech which referred specifically to the purpose of the amendment to cl 13 and that in any event, secondary material such as the Minister's speech must be regarded as subordinate to the natural and ordinary meaning of the text.
42 The trial judge concluded that cl 13 revealed that a purpose of the Agreement was to facilitate and regulate further development of the Site subject to and in accordance with the consent of the Minister.7 He noted but rejected the appellants' submission that this conclusion impermissibly confused the powers conferred upon the Minister by cl 13 of the Agreement with the purposes or objects of the Agreement. In the view of the trial judge, the conferral of power upon the Minister by cl 13 was entirely consistent with an evident purpose or object to the effect that further development of the Site was to be regulated by the Minister in the exercise of the powers conferred by the clause.
43 The trial judge also rejected submissions advanced on behalf of the appellants to the effect that his conclusions involved a priori reasoning and assumptions with respect to a desirable result, or a flaw of the kind to which the High Court referred in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.8 To the contrary, the trial judge considered that the purposes of the Agreement were to be derived from a consideration of all of its terms, including cl 13.
44 The trial judge went on to observe that it was evident from the amendments to the Agreement made in 1997 that the purposes of the Agreement included the excision of land from the Resort Site by the State and the grant of all or part of that land to the Trustee, which land then becomes part of the Site (except for the purposes of cl 6, cl 9(1) and cl 9(3)), if and only if the grant was for the purposes of the Agreement. The trial judge rejected a submission on behalf of the appellants to the effect that this conclusion was flawed by circulatory reasoning. The appellants submitted to the trial judge that cl 13 only applied to development of the 'Site', and that if the land was not part of the original site it could only become part of the Site if granted (or leased) for the purposes of the Agreement and in that context the power of the Minister to consent to development on the Site could not or should not be used to enlarge the geographical boundaries of the Site.
45 The trial judge noted that the amended definition of 'Site' introduced into the Agreement as part of the 1997 amendments expressly and unequivocally embodies an intention that the Site is to be expanded to include any additional land granted or leased to the Trustee for the purposes of the Agreement except for the purpose of the three clauses of the Agreement specified in the definition. In his view, the process of reasoning advanced on behalf of the appellants would entirely defeat that evident purpose and intent. Further, in his view, there was no circulatory reasoning involved in assessing whether or not additional land granted or leased to the Trustee was being granted or leased for the purposes of the Agreement. In the view of the trial judge, any issue as to the purposes for which additional land was being granted or leased to the Trustee could be resolved by ascertaining the purposes of the Agreement from a consideration of its terms as a whole.
46 In this context the trial judge noted the appellants' reliance upon extrinsic evidence which was said to be relevant to the proper construction of the expression 'the purposes of [the] Agreement' when used in paragraph (b) of the definition of 'Site'. The first item of extrinsic evidence upon which the appellants relied was a letter by the then Minister in 1991 giving reasons for refusing an application for consent for the development of the Site. In that letter the Minister expressed certain views with respect to the construction and effect of the Agreement. The trial judge did not consider those views to be admissible as an aid to the process of construction of the Agreement. Further, the trial judge expressed the view that the letter from the Minister and related correspondence did not sustain a finding of any common understanding or consensus as to the purposes of the Agreement.
47 The appellants also relied upon correspondence passing between the parties in 1993 with respect to the requirements of cl 13 of the Agreement. Again, the trial judge took the view that the correspondence went no further than to express views with respect to the proper interpretation of cl 13, and the correspondence was inadmissible for that purpose. He further noted that the correspondence took place after cl 13 had been introduced into the Agreement by amendments made in 1987. Further and in any event, the trial judge again concluded that the correspondence did not reveal any common understanding between the parties as to the purposes of the Agreement.
48 Finally on this issue, the trial judge concluded that the purposes for which the State excised approximately 5.8 ha of land from the Resort Site and transferred it to Burswood are to be derived from the terms and conditions of the grant which clearly revealed the purpose of enabling and requiring Burswood to develop the additional land in accordance with the terms and conditions of the grant, including, generally speaking, by constructing and operating the third hotel to be operated as part of the resort complex. So, for those various reasons, the trial judge concluded that the additional land was granted to Burswood for the purposes of the Agreement, and therefore came within the definition of 'Site' for the purposes of the Agreement, and therefore within the ambit of the 'Resort Lands' for the purposes of s 7 of the Casino Act.
Ground 2 - The argument on appeal
49 The written and oral submissions advanced in support of ground 2 of the appeal essentially reiterated the arguments which had been advanced at trial. In particular, it was again submitted that Recital D of the Agreement should be construed as comprehensively defining 'the purposes of [the] Agreement', and that expression when used in later provisions of the Agreement should be construed accordingly. It was also submitted that the trial judge erred by refusing to use the letter written by the then Minister in 1991 as an aid to the construction of the amendments made in 1997. It was submitted that the grounds of the Minister's refusal were mutual facts and circumstances known to the parties at the time they agreed the 1997 amendments and were therefore facts relevant to the construction of the expression 'the purposes of this agreement' in the amended definition of 'Site'. Further, submissions with respect to the circularity of reasoning involved in the construction favoured by the trial judge, the confusion of purposes with powers, the effect of giving the word 'or' a disjunctive construction and the avoidance of the absurd result posited by the trial judge by reading down s 7 of the Casino Act to correspond to cl 9(3) of the Agreement were repeated, together with an additional submission that even if the consequence of the appellants' construction was to leave further development of the Site entirely unregulated, the court should not impose its own view of desirable policy to avoid the consequences of the language used by contracting parties or the legislature.
50 Each of these submissions must be rejected, essentially for the reasons given by the trial judge. There is nothing in the language of Recital D of the Agreement which would suggest that it was intended or should be read as a comprehensive statement of the purposes of the Agreement, or in such a way that the purposes of the Agreement could only be found within its terms. The trial judge was correct to conclude that the purposes of the Agreement should be derived from a consideration of all its terms, including cl 13. There is nothing in the language of cl 13 which would enable it to be given the constrained meaning for which the appellants contend, and the disjunctive meaning of the word 'or' is entirely consistent with the meaning given to the clause by the trial judge, and does not support the proposition that the expression 'any other development' is constrained to developments in substitution for Stage 2 of the Development Proposals.
51 The trial judge was correct to conclude that the letter from the Minister in 1991 was only evidence of the view taken by the Minister with respect to the construction of the Agreement and was inadmissible as evidence of facts and circumstances known to the parties at the time they agreed to amend their agreement in 1997. The trial judge was correct to conclude that the construction of cl 13 for which the appellants contend would have the extraordinary result that all further development of the Site other than Stage 2 or developments in substitution for Stage 2 was entirely unregulated and it was not appropriate to attribute to the parties an intention to produce that result in the absence of clear and unequivocal language to that effect (and there is no such language). The trial judge was also correct to reject the appellants' assertion that such a conclusion could be averted by construing s 7 of the Casino Act as applying only to developments in accordance with the Agreement, when there is no language in the section capable of supporting that construction. The additional submission now made to the effect that the court should not shirk from an unusual outcome because of its view of desirable policy must be rejected, not only because it is well established that the fact that a particular construction of either a statute or a contract would have absurd consequences is relevant to the process of construction, but further because the construction for which the appellants contend is not suggested, let alone compelled, by the words used within cl 13.
52 Further, the trial judge was correct to reject the arguments with respect to circularity of reasoning, confusion of power and purpose, and the argument based upon the decision of the High Court in Alcan, for the reasons which he gave and which need not be repeated.
53 In 1987 the parties agreed to amend cl 13 of their agreement to facilitate and regulate future development of the Site. Ten years later, in 1997, the parties agreed to amend their agreement to provide the State with power to add up to a further 10 ha of land to the Site on condition that the land was used for the purposes of the Agreement. That is what occurred in 2013, and the trial judge was correct to conclude that development of that additional land is regulated by cl 13 of the Agreement and that s 7 of the Casino Act has the effect that the general planning laws of the State do not apply to that land. The appellants' arguments to the contrary are not consistent with the natural and ordinary meaning of the words used in the Casino Act and the Agreement. Ground 2 of the appeal must be dismissed.
Ground 3 - the additional land was not granted to the Trustee
54 The appellants contended at trial that the additional land excised by the State from the Resort Site and conveyed to Burswood was not 'additional land granted … to the Trustee' within the meaning of par (b) of the definition of 'Site' for a number of alternative reasons.
55 First, it was submitted that on a proper construction of cl 6(5), the State cannot enter into an agreement to grant land excised from the Resort Site until the land has in fact been excised, the Minister has recommended its grant to the Trustee, and the State has accepted that recommendation. Clause 6(5) of the Agreement provides:
(5) Notwithstanding the provisions of the Public Works Act 1902, the Financial Administration and Audit Act 1985 or of any other Act the State may -
(a) on the recommendation of the Minister cause part of parts of any land excised from the Resort Site not exceeding in the aggregate 10 hectares to be granted or leased to the Trustee on terms and conditions approved by the Minister by notice published in the Government Gazette; and
(b) pay or direct the payment of all or any part of any money payable by the Trustee to the State for land granted or leased to the Trustee under paragraph (a) to the person who was registered as the proprietor of that land immediately prior to its acquisition by or on behalf of the State.
(aa) excise from the Resort Site any part or parts of the Resort Site agreed to be granted or leased to the Trustee under clause 6(5).
- So, as the trial judge observed, the Agreement clearly contemplates an agreement to grant land to the Trustee, followed by excision of land from the Resort Site, followed by the grant of land to the Trustee. The trial judge also observed that the appellants' contention to the effect that the State is unable to enter into an agreement to grant land excised from the Resort Site to the Trustee unless and until excision has occurred is an unlikely intention to attribute to the parties and is not, in any event, evident in any of the words which have been used in the Agreement.
57 Second, the appellant submitted that the land granted to Burswood by the State was not granted pursuant to cl 6(5) because it was sold by the State in the exercise of the powers conferred upon the Minister for Lands pursuant to s 74 of the Land Administration Act 1997 (WA). The appellants submitted that sale of land under the powers conferred by that section, and the grant of land under cl 6(5) of the Agreement, are mutually exclusive alternatives.
58 The trial judge rejected these propositions for two reasons. First, in his view, the natural and ordinary meaning of the words used in cl 6(5) of the Agreement contemplates that the statutory power to grant land is to be found elsewhere than in cl 6(5) of the Agreement. That assumption was correct at the time the clause was introduced into the Agreement, as the power to grant was then contained in the Land Act 1933 (WA), and is now to be found in s 74 of the Land Administration Act.
59 Second and in any event, as the trial judge noted, par (b) of the definition of 'Site' includes additional land granted to the Trustee for the purposes of the Agreement 'whether pursuant to cl 6(5) or otherwise'. Accordingly, the fact that the land may have been granted to Burswood pursuant to some power other than that conferred by cl 6(5) of the Agreement does not take the land outside the definition of 'Site'.
60 Finally, the appellants submitted that the land excised from the Resort Site by the State was conveyed to Burswood by way of sale, which did not constitute a 'grant' of the land for the purpose of par (b) of the definition of 'Site'. The trial judge rejected this submission for a number of reasons. First, he noted that the relevant statutory provisions relating to the grant of Crown land at the time the Agreement was entered into were contained within the Land Act. He noted that under that Act the word 'grant' was used in a sense that includes any conveyance of Crown land in fee simple, and that the Act expressly contemplated that land could be 'contracted to be granted'.
61 Second, the trial judge observed that in cl 6(4) of the Agreement there were express provisions relating to payments to be made by the Trustee to the State by way of consideration for the grant to the Trustee of the Site. It followed that in the lexicology of the Agreement, a conveyance of land upon sale was equivalent to a grant of land.
62 Third, the trial judge noted that cl 6(5)(b) of the Agreement expressly recognised that money may be payable by the Trustee to the State in respect of land granted to the Trustee under cl 6(5)(a), which was again consistent with a lexicology which equated a conveyance upon sale with a 'grant'.
Ground 3 - the arguments on appeal
63 The arguments advanced at trial were reiterated in essentially the same terms in support of ground 3 of the appeal. They must be rejected essentially for the reasons given by the trial judge.
64 First, there are no words in cl 6(5) apt to constrain the capacity of the State to enter into a contract to grant land to the Trustee before the procedures relating to the excision of land from the Resort Site have been carried out. Any construction of cl 6(5) to that effect is inconsistent with the express terms of cl 23(3)(aa) of the Agreement.
65 Second, the language of cl 6(5) of the Agreement is consistent with an assumption that the power of the State to grant land to the Trustee is to be found elsewhere and in any event, par (b) of the definition of 'Site' includes within the Site additional land granted to the Trustee 'whether pursuant to cl 6(5) or otherwise'.
66 Third, it is clear from the language of the Agreement, including in particular cl 6(4) and cl 6(5)(b) of the Agreement that the word 'grant' in the Agreement is used to describe the conveyance of land to the Trustee on sale, for consideration. The same conclusion is evident from the use of the word 'grant' in the legislation governing the disposal of interests in Crown land at the time the Agreement was entered into.9
67 As with the other grounds of appeal, the fundamental obstacle in the path of the success of all of the propositions advanced in support of ground 3 is that they are contrary to the natural and ordinary meaning of the words used in the Agreement. Ground 3 must be dismissed.
Conclusion
68 The trial judge was correct to conclude that all of the propositions advanced by the appellants in support of their claim should be dismissed, for the reasons which he gave. In short, all of the propositions advanced to the trial judge and in support of this appeal are contrary to the natural and ordinary meaning of the words used in the Casino Act and the Agreement. The appeal must be dismissed.
69 NEWNES JA: I agree with Martin CJ.
70 MURPHY JA: I agree with Martin CJ.
1Kidd v The State of Western Australia [2014] WASC 99 [11] - [100] (Reasons).
2 Reasons [136].
3 See Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 [16]; Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49 [80] - [81]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70] - [71].
4 Citing his own earlier decision in Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; see also Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35].
5 Reasons [157].
6 Reasons [168].
7 Reasons [186].
8 [2009] HCA 41; (2009) 239 CLR 27 [52].
9Land Act 1933 (WA).
11