La Perouse Local Aboriginal Land Council ABN 89136607167 & Anor v Quarry Street Pty Ltd ACN 616184117 & Anor

[2025] HCATrans 20

[2025] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 2024

B e t w e e n -

LA PEROUSE LOCAL ABORIGINAL LAND COUNCIL ABN 89136607167

First Appellant

NEW SOUTH WALES ABORIGINAL LAND COUNCIL ABN 82726507500

Second Appellant

and

QUARRY STREET PTY LTD ACN 616184117

First Respondent

MINISTER ADMINISTERING THE CROWN LAND MANAGEMENT ACT 2016

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MARCH 2025, AT 9.59 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend MR O.R. JONES for the appellants.  (instructed by Chalk & Behrendt, Lawyers & Consultants)

MR B.K. LIM:   May it please the Court, I appear with my learned friend MR C.J. BESHARA for the first respondent.  (instructed Hall & Wilcox)

MS Z.C. HEGER, SC:   If the Court pleases, I appear with my learned friend MS O.J. RONAN for the second respondent.  (instructed by Crown Solicitor for NSW)

GAGELER CJ:   Thank you, Ms Heger.  Mr Walker.

MR WALKER:   May it please the Court.  In this contest in this Court, the second respondent is the Minister whose decision was sought to be judicially reviewed for jurisdictional error before the Chief Judge of the Land and Environment Court, and that was at the instance of the first respondent in this Court.  The contest joined at first instance but did not include in its full form the argument that has survived into this Court.  What matters perhaps is that the Minister resisted the judicial review and did so successfully.

Your Honours will appreciate that with respect to land claims in New South Wales there is a statutory appeal, but it is only in favour of – that is, only available to – a disappointed Land Council, a claimant.  That is why – whether uniquely or not does not matter, but rarely – that is why this was judicial review not by a claimant who, of course, was content with the ministerial decision, but rather by the respondent with an interest in the leasehold.  In the Court of Appeal, that situation obtained as well, although the arguments, as you will have observed, were somewhat different, but that is not to any point today.

In this Court now, notwithstanding that at an earlier stage, as reflected in case management directions, the first respondent here, understandably, sought to be heard after or to be able to respond to the second respondent, because of the hitherto diametrically opposed positions – the Minister now joins with the first respondent.

Now, the significance of that perhaps lies in a contest here concerning whether or not the decision and reasoning of the Court of Appeal disturbs an established understanding in the administration of this very important statute in a way which is properly called in aid in weighing up the arguments concerning, relevantly, the meaning of the particular words to which I am going to come.

GAGELER CJ:   Are you taking an Ex parte Hardiman point, Mr Walker?

MR WALKER:   No, no.  It does not matter for us from whom the arguments come and, if I may say so, Mr Lim can look after himself.

EDELMAN J:   The Minister is not really acting as a tribunal.

MR WALKER:   No – in the Hardiman sense, no.  It is a decision‑maker, and many a judicial review properly sees a decision‑maker, with all arms, defending a decision.

GAGELER CJ:   You are pointing out that on the Minister’s argument, as now presented to this Court ‑ ‑ ‑

MR WALKER:   The Minister erred.

GAGELER CJ:   ‑ ‑ ‑ the Minister’s own decision would have been wrong.

MR WALKER:   It was infected with jurisdictional error of a fundamental kind.  I do not – that is not just a rhetorical point.  People can and should change their minds if they have made a mistake.  No Minister should be discouraged from accepting, recognising and acting upon a perception of his or her own error, though, normally, it will be the intervention of a court which will be the proper, disciplined way of that being acted on.

Rather, our point is that contrary to what might be called some elements of floodgate arguments against us in this hearing, the disturbance to established order is by the implications of the decision against us, and the disturbance is well marked by the fact that the Minister, as it were, crossed the line, and now says that administration in accordance with a long‑held understanding of the matter was wrong.  That is the first point.  The second point, of course, in relation to the nature of the present hearing ‑ ‑ ‑

EDELMAN J:   The significance of the first point is only in relation to costs, is it?  Because the Minister says that no order for costs should be made either way against the Minister.  Although I take it, in light of what you say, you say that if you succeed, there should be an order for costs against the Minister.

MR WALKER:   If we succeed against the Minister, there should be an order for costs against the Minister.

EDELMAN J:   Yes.

GAGELER CJ:   Perhaps another significance is you might say that the adverse practical consequences to which the Minister points in the Minister’s submissions should be the subject of some scepticism, et cetera.

MR WALKER:   Yes, that is the main burden of my pointing out this crossing the line.  There is little or no cogency in a submission – and I stress, a submission – from the Minister which, without any demonstration from case law, parliamentary inquiry, any inquiry, suggests that something in the nature of a chaos of tenures emerges, of a publicly dangerous kind, by the approach which we urge and which we submit is plainly in accordance with the way things have been understood within the administration until very recently.

The fact that it was judicial review means, of course, that the merits of the decision, including the integers of the decision, we not for the Chief Judge to determine.  Rather, in the familiar way that I do not need to labour, the question was, perhaps most easily summarised in the relevant features of the argument, whether or not it was open to the Minister to conclude that the land was not being used, et cetera, within the meaning of the provisions to which I will come, as opposed to the question of whether the land was being used.

That difference is, of course, a critically important difference when it comes to respecting the different provinces of power of statutory decision‑makers upon whose satisfaction the taking of administrative steps depends and, on the other hand, matters which are required to be determined afresh by the court.

In our submission, as you have seen in our written submissions, one aspect of the approach taken in the Court of Appeal is to neglect, with great respect, to observe fully that distinction between a court deciding for itself whether a state of affairs is true and a court deciding whether it was open to a statutory decision‑maker upon whose satisfaction powers depended to reach a conclusion.

And although, of course, the appeal to the Court of Appeal is technically by way of rehearing, the issues are still, of course, as to whether error was committed in the judicial review proceedings at first instance.  And as your Honours appreciate, for the reasons we have sought to advance in writing, the simple answer to that is no, the Chief Judge did not err.

Now, it has to be said that a deal of the proceedings before the Chief Judge have fallen away as no longer of moment in this Court, not because there was anything wrong with them, but because of the way in which arguments were presented and the fact that some arguments are not persisted in.  The one that has survived is the question whether there was error in making orders in favour of the claim, depending, as it did, among other things, on the critical question of whether the Minister could be satisfied that the land was not being relevantly used.  Now, at that point ‑ ‑ ‑

GORDON J:   Just so I understand it, is what, then, is the issue set out in paragraph 5 of your outline?

MR WALKER:   Yes.  So, I have now covered propositions 1 to 6.  Could I, at this point, take your Honours to section 36 of the Act.  It is found starting at page 34 of volume 1 of Part A of the joint book of authorities.

GORDON J:   Just before you – can I just clarify, Mr Lim, in his outline of oral argument, contends that there has been a narrowing of your position on appeal – that is, that you now accept that a leasing, of itself, may be sufficient or may not be sufficient, as distinct from a broader inquiry.  Is that right?

MR WALKER:   No.

GORDON J:   Okay.

MR WALKER:   Unless I have misunderstood my own words, no.

GORDON J:   So, you accept that a lease is a use – it is just a question of whether that is sufficient, of itself.

MR WALKER:   No, I do not accept that a lease is a use.  Absolutely not.

GORDON J:   All right, Mr Walker – I was asking the question.

MR WALKER:   The existence of an estate – a leasehold estate – the title to that estate is not, in itself, a use.  Many an activity permitted or required by the terms of a lease will, par excellence, amount to use, not surprisingly, because the covenants in question are for permitted uses and prohibited uses.

GORDON J:   I must be misreading paragraph 5.  You say:

The question is not whether only physical uses of the land are “capable” of constituting use, but rather the inverse, i.e. is the mere leasing of ‑ ‑ ‑

MR WALKER:   We say, the mere leasing of land is not necessarily sufficient.

GORDON J:   Not necessarily sufficient.

MR WALKER:   Is not necessarily sufficient, and it had to be necessarily sufficient for judicial review to succeed.  In other words, you had to show it was not open to the Minister, given the presence of a lease, to consider anything other than the land was being used.  That is why the inverse question that we refer to in 5 contains no concession by us in relation to the significance of the lease.

It highlights the fact that we say, you, the claimant, the applicant for judicial review – this is to our opponents – seeking to show error in the Chief Judge’s rejection of the judicial review, need to show that, in and of itself, with nothing more, the existence of this lease – and the argument makes it generic, the existence of any lease – must mean, always, that is legally sufficient to make out the “use” within the meaning of the statute.  We say that is wrong.

EDELMAN J:   That is all this case comes down to, is it not?

MR WALKER:   Yes.

EDELMAN J:   You may wish to deal with this once you get into the provisions, but one difficulty that I have is how does one ever use an estate in land other than by leasing it?  An estate is not a thing.  You cannot fish or hunt or run on an estate – estate is a legal concept.  How does one use that, other than by leasing it?

MR WALKER:   Yes.  Your Honour, if you are talking about estates, what you have asked me about – and I am removing that from the wording of the statute at the moment – but in using those terms generally, the most obvious estates you can lease will be the fee simple for a lease, a leasehold for a sublease, et cetera.  There are other interests that do not lend themselves quite so readily to the notion of a lease, so it is not true that the only way in which you can use any estate is by leasing it.

It is true that one of the ways – and here I am moving to the language of the authorities – one of the ways you can exploit an estate, derive benefit for yourself from it, is by – I think the modern word is – monetising it in the various ways in which the law permits that.  By the way, a lease is only one of those ways and is by no means exclusive.  Licences can be just as valuable in terms of deriving income streams, contracts which may not even amount to a continuing licence but permit resort to the land from time to time, such as hunting franchises.  Those are other ways in which the estate, be it, in that case, a fee simple or a leasehold, can be turned to advantage, can be exploited.

STEWARD J:   Can I ask you a question, Mr Walker.  In relation to paragraph 5 of your outline, is that an acceptance that “use” is not confined to physical use?

MR WALKER:   No.

STEWARD J:   It is not an acceptance of that?

MR WALKER:   No. 

STEWARD J:   So, do you say “use” in 36(1)(b) is confined to physical use of land?

MR WALKER:   This case does not require a universal proposition of that kind.  This case is about whether or not the existence of the lease meant that the decision‑maker had no choice available lawfully in the administration of the legislation but to find the land was being used.  That is the evaluative assessment against the background of all the facts and history of the – I am trying to avoid the word “use” – activities or non‑activities of relevant people with respect to this piece of land, whether that amounted to it being “used” within the meaning of the statute. 

EDELMAN J:   But if you do not adopt any universal proposition of that kind, you come straight back to the question Justice Gordon asked you at the outset, which is that you would have to then accept that if a “use” is not confined or may not be confined to physical uses of land, then a lease in some circumstances might be a use of land.

MR WALKER:   No, with great respect, I accept what your Honours have both raised with me in that regard.  Let me make our position clear.  We say what is decisive here is answering the question:  is the mere leasing of land necessarily – that is, always – sufficient in and of itself to constitute “use”?  Answer:  no.

That is enough for us to win the case, which was an appeal against judicial review, which, in order to show jurisdictional error, had to show that in this case – which was strikingly devoid of documentary record of the considerations of the Minister, where, really, you only had the decision it is claimable and the order that followed from that, that by the Minister then upheld after a judicial review challenge, in order for there to be judicial review, you had to show that the mere existence of the lease in and of itself meant that there had to be a conclusion by the Minister in addressing what was required under the statute that the land was being relevantly “used”.

STEWARD J:   Mr Walker, I know you do not want to go outside the four‑square parameters of this case, but would land banking be a use by a developer?

MR WALKER:   No is the answer, if that is all you know about it, and there is authority to that effect.  The mere passive holding of land, which is land banking, in the hope that the scarcity of the stuff – you can have as many estates as you like, if you take the extended of definition of land, they can multiply forever, but you cannot multiply land.  And so, land banking, which takes advantage of the increasing scarcity of available physical material, is clearly not a use of the land.

STEWARD J:   Is that because of the absence of any physical activity on the land?

MR WALKER:   Yes.  Yes.

STEWARD J:   So, how then do we deal with Newcastle Hospital?

MR WALKER:   Well, there is physical activity in the land when it is a buffer.  It does not mean people have to be there.

STEWARD J:   So, a buffer or, indeed, having an attractive park designed by Capability Brown, for example, that is all “use”?

MR WALKER:   Yes.

STEWARD J:   Yes.

MR WALKER:   And can it possibly be doubted that if you have protected something with mantraps and ha-has so that nobody can get in except by killing themselves, of course that land is being used.  Now, the physical activity involved may be intermittent, by gardeners attending.  It may be constant, by the recreational lands – the creation of artificial landscape.

But nobody has any doubt that to deploy land as a garden or as a buffer is using it as a buffer.  Whether it is for mining or hospitals, it is a well‑known use and it is not different in kind from curtilages and setbacks in various housing estates for hundreds of years.  So, by “activity”, one includes the purpose to which the land is put by those who have the right of use and occupation.

Physical use, in short, is not an expression that can be given content only by reference to the physical presence of human beings or their machines at any given time or at any given place.  That is why it is an evaluative assessment as to whether, for example, the annual visit by a monitor, the fleeting visit by a real estate agent, may not amount to use either by them or by the persons who employ them, as cases have shown in this country.

It is in that sense, we say, that the question in this case was simply that which was finally selected by the argument accepted in the Court of Appeal.  Namely, the mere existence of this lease under which nobody was using the land at all.  They could use it for permitted purposes, but they were not.  The fact of this case is stark.  They were not using it at all.  If anything, it was, if I may say so, a rather ragamuffin form of land banking.

STEWARD J:   So, does it follow that mere possession ‑ ‑ ‑

MR WALKER:   Right to possession, or possession, your Honour.

STEWARD J:   Yes – is it insufficient?

MR WALKER:   No, no.  A right to possession is absolutely not use.

STEWARD J:   Yes.

MR WALKER:   And that is under whatever estate we are talking about.  Similarly, the right to exclusive possession under a leasehold is not, in itself, use.  You will no doubt, in order for the use to be lawful, resort to that as well as the absence of any public regulation of activities in order to make good the proposition to the Minister that your use is lawful.  But it is not, in our submission, ever the case that simply possessing a right to possession, exclusive or otherwise, is, in itself, a use.  At most, it is a basis upon which, combined with other necessary circumstances, any use will be lawful.

I want to stress, although that is all we need to show error in the Court of Appeal so as to restore the rejection of the judicial review to the Minister’s decision, it does involve – as your Honours have seen from our written argument – attacking the proposition that exploiting the land, if that is the rather surprising character one should give to the State in granting a lease of Crown land, that exploiting the land does not in and of itself compel the conclusion necessary for a judicial review to jurisdictional error that the land was being used by reason of that fact.

It would be, in any number of ways – legal and extra‑legal – extraordinary to regard the portfolio of Crown lands, including those that are available, as this statute contemplates, to be reserved or dedicated for purposes – it would be extraordinary simply to see that as stock‑in‑trade of a landowner who just happens to be a polity.  It is a very special landowner and it, obviously, historically stems from the radical title upon settlement and from the concept of the regulated use of and resort to waste lands thereafter.

There is no ready analogy between this and a private investor who, for example, puts together a portfolio of thousands of apartments in order to run that kind of a business.  One can put all of that to one side, and there is no trace of an argument that this lease ought to be regarded as a use in the same way as well‑known massive landlords in Sydney employ leases in order to use their land so as to derive rents from tenants.

In our submission, the same can be seen in, for example, the Macquarie University Case, with which your Honours are familiar.  There was a lease, but the question – and this is a tax case, not an Aboriginal land rights case, of course – there, as your Honours will appreciate, the lease was significant only because that was the so‑called “indirect” means by which the land was used by the University for the provision of necessary commissary functions for staff and students.  That is, really, an illustration of an approach which would be congruous and unnecessary if all that needed to be said was that they have leased to shopkeepers – that is it, that is enough.

In our submission, that accords with what might be called an everyday notion, the University was not leasing in the same way as a large commercial landlord does, it was leasing for the purpose of achieving the provision of those services by shopkeepers who were not going to be put on staff but were going to be their own entrepreneurs.  It could be then said – as it was said – that the University was using the land, albeit indirectly, through the shopkeepers to whom it had leased the premises.

We are saying, in this case, that the absence of any physical activities at all is and was a very solid basis – leaving it open, one might even think compelling – for the Minister to say this land was not being relevantly used.  All there was, was a lease, under which there were permitted uses, none of which were being carried on – none of which were being carried on.  At the only relevant time, which is when the claim was made, it is not relevant whether it was done at some anterior stage or whether one might posit, at some posterior stage after a claim is admitted, that a lessee might try to engage in permitted use. 

It is for those reasons, in our submission, that although the issue is as focused as we have put it in proposition 5, in particular, of course it involves the proposition that in the absence of physical activities, on the cases to date, it is not possible to posit a use of the land within the meaning of this statute.  I put it that way because circumstances will alter cases, and there is a large variety of the ways in which people can have a relation to land, and so rather than commit to a universal, unqualified proposition, all we say is this.  The word “use”, both in this legal context and, importantly, in its idiomatic understanding, obviously has as its core meaning that which human beings actually do, rather than the artificial creation of interests of a proprietary kind, et cetera.

That is why one of the obvious ways in which land can be exploited, namely bought for one price and sold for a higher one, is on the authorities – see Wagga Wagga – not a use.  Selling the land is not using it.  Although, in terms of the utility of the wealth it represents, the liquidating of it by sale may be seen as the most obvious way to use that part of your wealth which is your land.  But it is not using the land because it is dealing with the abstraction called “title”, rather than concretely doing anything on, in or to that concrete material mass which is – relevantly, we say – the meaning of “land” in this statute.

As your Honours know, and I will come to the wording in a moment, we say that properly understood the off‑the‑shelf boilerplate definition of “land” in this statute – one of the shelves in question is the Interpretation Act, after all – is obviously, and importantly, subject to context requiring otherwise.  For the reasons that we have written and that I am about to come to in address, that must be the case here in at least one important respect.  We say there is no error of law in the ministerial determination which, looking at these facts – a lease, none of the uses permitted it by being carried out, no other lawful uses by anybody else posited finding that there was no use as part of the checklist of matters before the administrative decision was reached – was then the subject of judicial review.

It means that for the purposes of cases like this, where all you have is a lease and there is no use of the kind permitted by the lease, then in law, we say, there is nothing defective about a ministerial decision and evaluation by the Minister that this land is not being used within the meaning of the statute.  That is why we say the reasoning in the Court of Appeal must depend upon the proposition that, regardless of the physical concrete circumstances – the matter which in every case to date in this Court has been said always to be relevant, but regardless of that, the mere existence of the lease meant that the Minister could do nothing other than find there was a relevant use.

In our submission, that approach is in the face of the authorities – which have not been faced with the mere lease point before, admittedly – you will always have to look at the way in which humans are actually physically comporting themselves in relation to the piece of dirt which is the land in the material, concrete sense.  Now, one can say this about sale.  You can sell land while being on the other side of the globe.  You can sell it to somebody who is also on the other side of the globe.  The abstraction which passes with title is, in our submission, devoid of any activity on the land, and all it has done is to exploit by realising its value by receiving a price.  On the authority of this Court, not challenged as we understand it, it is accepted that is not using.

If you posit just the slightest alteration to that of a kind which is by no means odd, namely a sale in return for instalments of price, then, in our submission, in terms of the exploitation in question, the difference between that and a lease is of no moment to the practical question required by the statute, whether the land was being used.  Exclusive possession, in the example I have given, is given to the purchaser, title passes and there is deferred payment.  The exclusive possession has gone, the money is being received, that is a sale, that is not a use.

EDELMAN J:   In a sense, the sale is almost an anti‑use, because a sale is putting any form of use out of the owner’s ability.  So, a sale by instalments is a progressive anti‑use.

MR WALKER:   Which will not help with respect to the analysis of use or not – I want to come back to that – but, of course, it is not true that a sale puts it beyond the power of a vendor to control activities on the land.  The taking of restrictive covenants is an absolute commonplace.  For that matter, the taking, if you retain adjoining land of an easement, is absolutely commonplace.  So, it is not true that sale is the abolition of all interests which can be said to be of utility in land, but what can be said is that, because of the context in which the word “use” appears, that dealing with estates, that monetising of title, is not in itself using the land.

We say that the obvious analogy is with a lease where exclusive possession is parted with in return for rent because there is a reversion interest.  Like a vendor who takes a restrictive covenant or easement, a lessor continues to have an interest in the observance of covenants, and some of them may lead to ejectment.  For example, the termination of the leasehold estate.

None of that differs from the case, with respect, of a sale, in the sense that all that is happening is that the owner of the interest is exploiting it in return for money.  The fact that exclusive possession is given to the tenant means, of course, that, if anything, the lessor has removed himself, herself or itself from a position of using the land, in the sense in which, to date, this Court has approached the question of using the land.  In our submission, the way in which the accepted non‑use by sale is dealt with in the reasons in the Court of Appeal, is unsatisfying.  It does not, with respect, deal with the matters that I have just advanced.

Your Honours, can I come then to the statute itself.  You are familiar, of course, with the definition of “land”, which is subject to context.  In 36, we start with just such another definition, though the reference to:

context or subject‑matter otherwise indicates –

will not, we think, find any application in this argument.  Subsections (a), (b), (b1), (c), (d) and (e) are, as between each of them, cumulative requirements for land to have the status of being claimable Crown lands, one sees that the definition looks to the state of affairs:

when a claim is made –

Within some of them, there are alternatives and one of the most obvious ones of those is the one with which we are concerned, (b):

are not lawfully used or occupied –

I am going to come to why I call that an alternative.  But there are other alternatives, (b1):

needed or are likely to be needed –

Subsection (c):

not needed, nor likely to be needed –

et cetera.  One sees that there are alternatives so that the cumulative aggregate of qualities can be collected, notwithstanding that not every element is satisfied, so long as one of the available posited alternatives is satisfied.  The same is true, obviously, in (a), it is enough that it is:

able to be lawfully sold or leased, or are reserved or dedicated for any purpose –

et cetera, under one Act or the other.  When we come to (b), on the authorities in this Court, and in particular Berrima, one rejects the readings as a hendiadys of the words “used” or “occupied”. So, it is not a linguistic equivalent of nice and warm. 

As the Court made it clear in Berrima, including in Justice Gageler’s paragraph 87, paragraphs 34 and following in the plurality, they are separate concepts – “use” and “occupation” – though obviously overlapping.  A person may occupy in order to carry out a use, and a person may use by, among other things, occupying.  In both cases, it has to be lawful.

In other words, the notion of the use or occupation, though they are separate, if related or overlapping concepts, nonetheless are both governed by the adverb “lawfully”.  They also are descriptions of a necessary connection – “used or occupied” – which relates to the same concepts, namely, lands.  So:

claimable Crown lands means lands –

et cetera, which:

are not lawfully used or occupied –

In our submission, the error which you will see in Justice White’s probably critical determination of this matter in his Honour’s paragraph 118, on page 82 of the core book, is to read the separation of concepts between “use” and “occupation”.  They are, after all, grammatically said to be alternatives, which means they are not the same thing.  It is not use and occupy, it is use or occupy. 

His Honour misreads that so as to permit or – as his Honour would need to do in order to find the kind of jurisdictional error that, ex hypothesi, the trial judge should have found – he has to find that, not merely permitted but positively required, the word “land” to be understood differently, depending on whether you were considering its use or its occupation.  That, with respect, has no footing whatever in the text or context or, it can hardly be said, in any authority of this Court. 

It is a very odd way to proceed because, on any view of it, occupation is accepted to be something – that is, “occupied” in the statute – which makes no sense with respect to all the lesser interests or, indeed, any of the estates or interests which are contained in the compendious prima facie definition of “land”.  You do not occupy a fee simple.

EDELMAN J:   I think Justice White must be talking about, rather than the definition of “land”, the extension of the definition of “land” in section 4.

MR WALKER:   No, he is there talking about ‑ ‑ ‑

EDELMAN J:   The inclusive aspect of it.

MR WALKER:   I may be missing your point, I am so sorry, your Honour.  In 118, he is using, of course, 36(1)(b).  He is trying to construe that.  The defined meaning he refers to in the third line of 118 is a reference to section 4’s extended definition, which is subject to context.

EDELMAN J:   Yes.

MR WALKER:   The point at which I had reached was this.  It is accepted that “occupied” cannot have that extended meaning, the inclusive extended meaning.  All it can have is that which is also within the definition, because it is a definition that includes or extends what, in various forms, this Court has described as the concrete, physical, tangible mass of material, starting with a surface and extending in the direction of the centre of the earth.

EDELMAN J:   You occupy the physical and you owner‑occupy the estate.

MR WALKER:   That is right, that is right. 

EDELMAN J:   But why does that mean that you cannot use the estate?

MR WALKER:   Because if land is understood in 36(1)(b) – in relation to occupied – as being the physical mass, the context has shown that the meaning of these words concerns a relation with the physical mass.

EDELMAN J:   Concerns only a relation.  That has to be your argument.

MR WALKER:   Yes, that is my point.  The context which determines whether or not the extended inclusive reference to estates and interests is to be understood in “land” – for the purposes of 36(1)(b) – is, in our submission, compelling.  The context shows, because of the undoubted nature of occupation, that it is concerned with a physical relation.

GAGELER CJ:   It is a contextual argument of the kind that used to be captured in the notion of what noscitur a sociis ‑ ‑ ‑

MR WALKER:   Noscitur a sociis, yes.

GAGELER CJ:   Yes.

MR WALKER:   But it does not need a grandiose Latin label.

GAGELER CJ:   No.

MR WALKER:   We are looking at six words in (b) and one word in the relevant chapeau, “lands”.  Then you look to the definition.  The definition does not mean that every time you see “lands”, you just slot in – in the way that Justice McHugh encouraged to test propositions – the words of the definition, because as soon as you read‑in the words of the definition for the single – but with alternatives within it – criterion of 36(1)(b):

not lawfully used or occupied –

nonsense ensues.  What is being proposed in paragraph 118 of Justice White’s reasons is that you read “lands” through a completely different prism by reason of the little word “or” between “used or occupied”.

The context has to do with the nature of that aspect of the relation of people with land for the purposes of contributing one of the criteria of it being claimable.  In our submission, there is no evident purpose, certainly, to be got from this statute itself, or from a matter of what might be called the civilised use of language, to propose that “lands” means something different in 36(1)(b), depending on which side of the word “or” you are looking. 

EDELMAN J:   But one would have to give “lands” the wider meaning that focuses upon their estate in land when one is looking at (a) ‑ ‑ ‑

MR WALKER:   Unquestionably.

EDELMAN J:   ‑ ‑ ‑ because you cannot lease the physical mass, you only lease the estate.

MR WALKER:   If I may say so, it is perfectly good English, including legal English, to say that Blackacre has been leased and can be leased, and it does not require distinguishment between the creation of an estate and describing a plot of dirt as being leased.  I entirely accept that “sale or lease” can only make sense in relation to an estate.  That is, the way you can sell or lease a plot of dirt is by dealing with a relevant estate or creating a relevant estate.  I entirely accept that.  But that, with respect, does not answer at all – if you take 36(1)(b1), for example, why would one suppose that estates:

are needed or are likely to be needed as residential lands –

Section 36(1)(d) would perhaps be a neutral, but even there, the notion of estates and native title is jarring, and so you do not necessarily need to make a decision about that one.  Section 36(1)(e), that surely is talking about territory, not just – or even at all – estates.

GORDON J:   Mr Walker, your complaint about 118 is really, I think, as I understand it, a complaint that it says too much.

MR WALKER:   Yes.

GORDON J:   Your submission is that, although I accept “use” and “occupation” have different terms and different meanings and may overlap, when you come to apply the definition of “lands” to those definitions, you must do it distributively.

MR WALKER:   And you should do it the same, because you are looking at the relation of human beings to a piece of land to see whether it has either been either lawfully used or lawfully occupied.

GORDON J:   Even if that is right, and in a sense that is a valid criticism of 180, I do not quite get – and I assume you are going to come to it – how that gets you up, because if you apply it distributively to the definition or the concept of “use”, as distinct from “occupation”, that is really the question we are focused on.

MR WALKER:   But why do we win, in that case?  Because there was no use of the physical land at all.  That is the point.

GORDON J:   No use of the physical land the subject of the claim.

MR WALKER:   That is right, at all.  They are very striking facts.

GORDON J:   We are back to, I think, the question we posed earlier.  That is, even if you accept the distributive application of the definition, the question is the question we posed earlier.

MR WALKER:   Well, that is why I put in that epithet “physical”, your Honour, because unless it be a physical use of the land to lease it – and for the reasons we have put and we have written, it manifestly is not; a lease does not involve any presence, any activity, any effect materially on the land at all.  Not least because, as Justice Edelman has pointed out, it has to do with the effect in law of dealings with the abstraction which is an estate.

In our submission, if I am right about what Justice Gordon has handily called the distributive reading of 36(1)(b), so “lawfully” and “lands”, which are relevant aspects of the phrase “used or occupied”, they all mean the same thing, and you are simply asking:  is it one or the other?  It might be both, because they overlap – see Berrima – but is it one or the other?  Can you say you have at least one of used or occupied, or not used or occupied?

And in our submission, there is absolutely no call for the notion that in answering that question you must, of course, restrict yourself to what I am calling physical relations with the material, the part of the earth, for “occupied”, but you do not do so with “use”, which, in our submission, takes a filleting approach to the context to which reference has to be made in understanding whether a boilerplate definition, in its full inclusivity, operates.  That takes it to a degree that has never been seen ever before.  There is no precedent for taking that kind of approach to the contextual inquiry in question.

It is for those reasons that once error in 118 is exposed, it was not possible for the Court of Appeal to conclude that the trial judge must have been wrong in rejecting judicial review because, on the facts of the case, the mere existence of the lease had to constitute its use – had to constitute its use in order to be a jurisdictional error, rather than simply a difference of opinion about a matter involving evaluation.

As all the cases in this Court so far have said, the question of whether or how land is being “used or occupied”, in all the cases under this statute to date in this Court, it has been stressed to be factually contextual, requiring consideration of matters which are always relevant, such as the circumstances of the way in which people resort to the land.  And all of that is swept aside by this, in our submission, odd approach to definition and the syntax of 36(1)(b) which culminates in 118.  And that is why, if we are correct in exposing that error, then the appeal should have been dismissed in the Court of Appeal and this Court should decide accordingly.

That is propositions 7 to 11.  I have several times referred to the fact that you see in proposition 12, that is, a solid foundation for the whole of our argument.  Proposition 13 is perhaps - to anticipate an answer, can I simply say this about the leasing under the Crown Lands Act.  We are bereft – that is, the applicant for judicial review did not set out to explore or to test any of the prehistory of the dealings with the land, including that lease.

There is a very broad power under section 34A of the Crown Lands Act.  There was no evidence in the judicial review proceedings about matters concerning the grant of that lease or the administrative decision to do so available to cast any light on the proposition of whether there had been jurisdictional error in determining that there had been no “use” for the purposes of the grant.  In the absence of any such evidence, with respect, nothing is available, including by way of an illegitimate inference in the Court of Appeal concerning that matter for the purposes of 36(1)(b).

That involves our propositions 13, 14 and 15.  There is simply nothing to be gained by speculations and there is no inference properly available in an appeal from a judicial review process in relation to that history.

GORDON J:   What do we take from the purposes identified in the lease itself?  Do we take anything from that?

MR WALKER:   We certainly do.  In an ordinary case of a lease – and it is not necessary for leases to stipulate anything with respect to use, but they very commonly do, and this lease was in a very common form, namely, there are permitted uses and they are the only uses, that is, all others are prohibited.  This is not one of those cases where there is mandatory use, as you will often see, for example, in commercial premises.

So, what you would get from that, in an ordinary case, is exactly the kind of thing that, in a different tax context, one got in Macquarie University.  The permitted use under the lease in those cases, of conducting a shop to offer goods and services to staff and students was in fact the indirect way by which the University itself was using the land, because, in that case, that is what was actually happening.  In this case, there is one description of permitted use.  No doubt there are different facets of that permitted use, and the Bowling Club and associated facilities is a fair summary.  It is accepted that when the claim was made, nothing was being done – and I do mean nothing.

The cases show that you do not have to be able to show a complete blank, there are questions of degree which can produce differences of kind – and your Honours are familiar with the arguments, for example, that occurred in Wagga Wagga and in Berrima in their different ways, both of which mandated close attention to the particular facts of the particular sites in question.  In this case, in answer to Justice Gordon, yes, this is very telling, because in terms of permitted use by the person who had exclusive possession, that is, permitted under the lease, we know nothing was happening.

And that, in our submission, is in every sense a satisfying way of reaching the conclusion:  this land was not being lawfully used.  There was one person only – a corporate person – with a right to exclusive possession.  It held that under a lease which permitted it to use the land – the word “use” is used in the lease – to use the land only in certain ways, and none of those ways were occurring.

It is in that sense that we say that this is an entirely clear case of showing that the mere lease itself does not amount to use of the land.  It can only be use of the land by the tenant where the tenant, of course, doing the things which, on the facts, found it was not doing – conceded facts, declared facts, asserted facts, by the tenant.

It was not, in our submission – and this is the cardinal point of the case – it was not within a possible understanding of section 36 to say:  notwithstanding the tenant with exclusive possession is not using the land in any of the ways permitted, nonetheless, the lessor is using the land by having parted with vacant possession by creating a leasehold and stipulating for permitted uses – which, of course, have nothing in common with the Macquarie University indirect benefit.  It is not suggested the Crown has a relevant interest in lawn bowls, or, for that matter, a cafe.

So, we are left with the oddity that nothing other than the leasing, which, even more strangely, in this case, is for permitted uses, and they are not being engaged in, nonetheless withdraws this land from being claimable.  Now, that is particularly odd when one goes back to paragraph (a) in subsection 36(1), because, in fact, being:

able to be . . . leased –

is one of the qualifying features.  Part of a scheme which fairly clearly says that there ought to be available, as part of this historical amends that the statute plays a role in, there ought to be available lands which, after all, the Crown is in a position to sell or lease.  So, that is one of the aspects of paragraph (a).  So, the alienability, which is a hallmark of being claimable, this is land that it is within the ability of the Crown to sell or lease.

Oddly, if you do one of them – lease – you automatically, if there has been resort to that ability, you have automatically rendered it not claimable by reference to another limb.  That, in our submission, is such a disruptive and anti‑purposive reading of section 36, which is designed to define but also to create a class of claimable land – it is not designed to be a frustrating by which all land which his able to be leased, having been leased, is no longer available.  In our submission, it is at that point that as a matter of interpreting this text, bearing in mind what I have just said concerning what it means to be:

able to be lawfully sold or leased –

an ability which will very often be demonstrated by it having occurred, particularly in the case of leasing, as Justice White found.  Could I take you in the book of authorities to page 179, which is Schedule 4 of the Act – Schedule 4 being “Savings, transitional and other provisions” – to its clause 8.  Clause 8 has, as its premise, “lands” that:

would be claimable Crown lands –

nonetheless transitionally, and I stress, this is not forever, this is just for the transition, and the lease in our case is after the transition, after the appointed dates:

Where, but for this clause, any lands would be claimable Crown lands . . . those lands shall not –

be claimable lands:

if they were . . . the subject of a lease, licence or permissive occupancy –

and even then, it is not forever, it is only transitional:

until the lease, license or permissive occupancy ceases to be in force –

by the way, that could occur, in some cases, by the revocation of a reserve, as is obviously possible – see 36(1)(a).  We submit that it is only by sidelining clause 8 – as it was put politely, for more abundant caution.

That must involve the proposition that those who wrote this did not understand what, otherwise, section 36 was doing with respect to leasing.  There is just no call for that as a proposition at all.  That completes – very satisfyingly, in our submission – a reading which, we submit, prevents it ever being said that the mere existence of a lease, regardless of the fact that nothing is physically being done on the land by anyone, is enough to constitute its lawful use for the purpose of 36(1)(a).

Could I take your Honours back to some other matters of a more subsidiary kind in section 36 itself.  Your Honours see that these are provisions which include a number of modifications to what might otherwise be the case in order to expand, not contract, the availability of land for grant – see, for example, the scheme that you will see in (5) and (5A).  So, (5) is the principal scheme turning on the satisfaction of the Minister, relevantly, of it being claimable in whole or in part.

In (5A), there is reference back to one of the negative criteria in the definition of “claimable Crown lands” – that is 36(1)(c) – and you see that there is, as it were, a modification of the scheme which has the evident intent of expanding that which is eventually available, and one sees that that is done by an adjustment whereby, rather than treating that need as a complete rebuff to a claim, consideration can be given to whether or not:

a condition –

for example, a:

covenant or easement –

can be imposed:

relating to the use –

I stress the “use”:

of the lands –

That must surely be what you can do with it, and on it – as being a means by which such a claim can be made.  So, these are provisions which surely should not produce a reading, as the current outcome of the Court of Appeal does, which very greatly contracts the availability of land.  In subsection (7) you see, as I say, the one‑sided appeal right, only available to disappointed claimants.

One sees in subsection (10) the notion that a transfer of land revokes “any dedication or reservation”, and so any lease – that is not true in this case, but any lease which, as commonly, subtends a reservation – or through a manager, that would go as well – 3.43 of the relevant aspect of the Crown lands legislation nowadays achieves that effect.

I wanted to draw to attention in particular the combination of subsections (11) and (12).  Again, there are matters which, but for their enactment, might have produced by reference to at least the lawful use or occupation possibility, the land not being claimable.  So, in subsection (11) forestry rights and, generally speaking, easements which, as it is put:

could not, but for this subsection, be regarded . . . as claimable Crown lands –

that would be by reason of, surely, 36(1)(b):

The Crown Lands Minister may –

does have power to:

treat the lands as claimable Crown lands.

One of the outcomes of that, obviously, which is pretty straightforward when one talks about transferring a fee simple, is under subsection (12)(a), those easements, which can be removed as obstacles to the land being claimable under subsection (11), will continue, of course, in effect, after that transfer.

That, in our submission, shows an approach to the availability and then the implementation of claimable land and claims being permitted which, as I say, runs quite opposite to the tendency of the reasoning against us in this case, which simply says even if nothing whatever is being done under the lease that exists – even if nothing is being done physically in relation to the land at all – that is land which is not claimable simply because there is a lease – which, by the way, if true, would be regardless of whether it was for peppercorn rent or on terms which, as in this case, I am afraid to say, show that the lessor was not at all, in the public or any other interest, enforcing covenants, say, for the maintenance of the land.

That is an extraordinary position of a carve‑out from what would otherwise be, one would have thought, completely within the intendment – if one has to use the word, the “spirit” – of the Act and its core provisions in section 36.  And there is no possible justification to be found anywhere, contextually or otherwise, for that extraordinary carve‑out.

It is for those reasons, in our submission, that we submit that the Minister had been administering this Act previously was unexceptionable in this regard.  There is no sensible way in which it can be said that for that to have continued would bring in its train terrible consequences of a kind which tell against our interpretation, an interpretation which, as I say, finds no opposition in any of the cases to date about these provisions.

Now, of course, we accept this is the first time the contention that the mere existence of a lease, notwithstanding the land is not being used by anyone for anything, is enough to constitute “use” within the meaning of section 36.  And in that sense, we accept that there is no authority directly against us.  But all of the authorities in relation to their discussion of the notion of “use” very strongly support the idea that it is a matter which must always include consideration of physical activities, concrete relations with the concrete piece of material which is land.

That makes no sense if one of the most obvious ways in which an owner can exploit land, that is, to lease it, is enough in every case, without any more and despite any other evidence, to demonstrate that the land is being used.  And that is why we submit that this decision is not only an outlier but is actually contrary to the obvious intendment of this beneficial legislation.

May it please the Court.

GAGELER CJ:   Mr Walker, could I just ask two really technical questions?

MR WALKER:   Of course, your Honour.

GAGELER CJ:   There is a definition of “land” in section 4(1).

MR WALKER:   Yes.

GAGELER CJ:   Is that to be read with the rather more extensive and technical definition in the Interpretation Act, or is it self‑contained?

MR WALKER:   First of all, I have, in the past, looked and not found what I will call an authority on this but perhaps one would not expect one.  It is a matter of construing all the statutes.  It is difficult to avoid a preference for the specific over the general but – and it is a big “but” – the Interpretation Act is no ordinary statute, it is intended to apply all the statues which, obviously, are specifically dealing with things of a kind the Interpretation Act is not dealing with.

So, so far, I have reached the position of “I do not know” but, in this case, we do submit that no difference, for purposes of our argument, appears – depending whether the somewhat more elaborate, slightly more old‑fashioned – that is not a criticism – Interpretation Act text is used rather than the section 4, Land Rights text.  I am sorry ‑ ‑ ‑

GAGELER CJ:   No, no.

MR WALKER:   ‑ ‑ ‑ I certainly do not know of an authority on that.  The principles do not seem to yield anything very sensible.

GAGELER CJ:   The other technical question – you may have already addressed it in your submissions, I just did not pick it up – if there is, on your submission, a transfer of claimable Crown lands which, at the time of the Minister’s decision – or at the time of the claim and continuing – are the subject of an existing lease, what happens to that lease?  It just persists?

MR WALKER:   Yes.  The relation of what I will call a fee simple in its role as reversioner is utterly unremarkable and does not need any particular dealing with.

GAGELER CJ:   Good.  Thank you.  Mr Lim.  I am sorry, Mr Lim, we will take our morning break.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

GAGELER CJ:   Mr Lim.

MR LIM:   Your Honours, contained in proposition 1 of my outline was an observation on the changing scope of this case, which has perhaps changed again or been clarified.  The question in the Court of Appeal was, of course, whether the Minister was bound, on the materials before him at the time of his decision, to conclude that the land in question was being used.

Relevantly, the materials before him included the lease, the fact of the lease and the lease itself, together, we say, with the unavoidable inference that the statutory preconditions to the grant of the lease had been satisfied.  But in addition to the lease itself, particular evidence of its enforcement:  shortly before the date of claim, the Minister’s Department had threatened to forfeit the lease unless compliance with the lease occurred, and the lessee in fact undertook steps to comply, and the lease was not forfeited.

So, there were those facts as well, which distinguishes this lease from some hypothetical category of what was called, in argument in the court below, “paper leases”, where perhaps there was different considerations at play.  That evidence of enforcement of the lease is contrary to what fell, presumably in error, from Mr Walker at the end of his address this morning.  The references to that evidence are collected in paragraph 5 of our written submissions.

GAGELER CJ:   Was that relied on in any way by Justice White in his reasoning?

MR LIM:   No, he mentions it at judgment 10 or 11, but it is not being carried through into the reasoning.

GAGELER CJ:   I mean, his reasoning, as I understand it, was it is enough that there is a lease for there to be use.

MR LIM:   Yes.

GAGELER CJ:   So, this point, if you want to rely on it, is it not really a notice of contention point?

MR LIM:   No, your Honour.  It was certainly part of the ground of appeal below ‑ ‑ ‑

GAGELER CJ:   But not decided in your favour on that factual scenario by the Court of Appeal.

MR LIM:   That is so.  The way it was but below was, if it is necessary to rely on those facts, then we call them in aid, and they are certainly referred to in the judgment.

STEWARD J:   Is the point you are making, Mr Lim, that this is not a delinquent lessee but a compliant one?

MR LIM:   Yes – compliant with the terms of the lease.  Yes.

STEWARD J:   Yes, paying rent and responding to the landlord’s requests.  I see.

MR LIM:   Yes.

GORDON J:   Can I ask one other factual question.  I assume it is not relevant, but what is the position with the Wentworth tennis courts?  Is that relevant at all?

MR LIM:   It is no longer relevant.  There was a point in the Land and Environment Court about the use of the tennis courts by the tennis club.  That has fallen away.

GORDON J:   Thank you.

MR LIM:   The purpose of paragraph 1 of the outline was to recall for your Honours that special leave was granted in this case on the Land Council’s argument that the reason why Justice White’s conclusion was said to be erroneous was because “use” means physical use, at a level of principle, and that point does now seem to linger in the argument, and so I will deal with it as I come to it.

We say “use” includes non‑physical uses such as leasing.  We also say that “leasing” is no different in kind from the purposeful vacation of land such as that in cases like Newcastle Hospital and Nowra Brickworks (No 1), which my learned friends accept are uses of land in the relevant sense. 

GAGELER CJ:   So, what is our category of case?  How do you describe it?

MR LIM:   I characterise what my learned friend said as that those cases involve purposeful vacation or inactivity, nonetheless on the physical land.  And one of my answers to that is that when the owner of land grants exclusive possession to a tenant, that is a purposeful vacation of the land – the foregoing of the owner’s rights to occupy it and, indeed, foregoing of the rights to undertake any activities on the land.

GORDON J:   But you do not need to go that far, do you?  Because, as I understand, your argument is there is a purposeful vacation, and here, that purposeful vacation was identified, consistent with the grant of the lease, for public purposes.

MR LIM:   That is right, so I get to the point, if the Court were to hold that one needs physical use and that inactivity on the land can be physical use, then meeting the argument that leasing is something different from inactivity on the land, and I am seeking to draw out it is not, it is exactly the same, because of the purposeful vacation – the foregoing of the right to undertake activities on the land.

EDELMAN J:   But purposeful vacation might introduce another whole realm of issues because, I mean, in one sense, selling land is the purposeful vacation of land, but I do not think you would say the sale of land is a use of land.

MR LIM:   No, I do not.  When I say “purposeful vacation”, I am not extending it to sale.  I am really trying to capture how it is that Mr Walker accepts that Newcastle Hospital is a use of the land, Nowra Brickworks (No 1) is a use of the land, but leasing is not a use of the land.

JAGOT J:   It depends on the purpose as well, as indicated by Justice Fullagar, that some uses for some purposes, physical activity is a necessary essential part of that purpose; in the case of the hospital, physical inactivity is an essential part of the use for that purpose – the passivity – but where is the analogy between that, where you have a hospital, which is undoubtedly a use, and you have a curtilage which protects that use or provides amenity or whatever it does, it takes on – it is a passive use for the same purpose as the hospital, then.  What is the purpose in the lease or the granting of an estate in land that might say there is a passive use of the land?  Those cases turn on the purpose.

MR LIM:   Yes, and in the case of a lease granted under Crown lands legislation of the kind here, it is granted for the purpose that the Minister thinks fit, and rental proceeds have to be applied in the public interest.  The Minister has ‑ ‑ ‑

JAGOT J:   But that is not a purpose.  The purpose the Minister thinks fit is not the purpose.  So, I am just trying to work out how you get an analogy with those cases where there is absolutely no doubt that any form of curtilage, buffer, garden – whatever you want to call it – takes its, has a, involves a purpose, and it can be ancillary to another purpose like the hospital or a purpose in and of itself, as in, say, a garden, which is a purpose, and it may only require – it may require no visits by a human being.  It may just be there for that purpose – a garden.  That is still a use.  Leased, as the Minister thinks fit, is not a purpose that you can – it is just, conceptually, wholly different in my mind, so I am just not following.

Now, leaving aside the colourful nature of the landlord in Monaco being described as using land by getting receipts stipulated to be received there, in our submission, there is, for all the reasons we have put that I do not want to repeat, no reason to regard the receipt of rent as involving what is properly to be regarded as use of the land in the physical material sense upon which we depend.  Furthermore, query whether – even if estates were in question, rather than physical material being in question – it is using an estate to receive rent. 

Our learned friend said, rather – or said, in particular – concerning leasing, that the use by the lessor is constituted by the lessor foregoing the right to conduct its own activities on the land.  In our submission, that does produce something in the nature of an absurdity.  That is, you use it by giving up the right to use it.  You certainly are doing something of legal effect when you part with exclusive possession, there is no question about that.  But that, of course, is not in itself using the land to part with exclusive possession.

Why there are not many lease cases under this statute is that mostly when people – for substantial valuable consideration – lease land, it is because they are going to use it and/or occupy it.  Those are cases where it is not the existence of the lease, let alone elaborate ways of describing what a lease is from the point of view of the lessor, that renders the land non‑claimable.  It is simply that it is usually to be expected that there will be identified a use and/or occupation of the land by reason of activities undertaken because there is a lease.

In our submission, that is the reason why the Court should look askance at the idea that these are provisions in section 36 which extend the notion of the relevance of a lease beyond the qualifying ability in paragraph (a) – upon which I have already addressed – to an occult inclusion by an extended definition which is anti‑contextual of the word “land” as it applies from the chapeau, for the purpose of understanding the extent of the concept of “use” in paragraph (b).  That, in our submission, is an approach which says that the drafting that could use the words “sale” or “leasing” of land in paragraph (a), requiring it to be able to do so in order for the land to be claimable, in paragraph (b) did not go on to say:  is not leased.  It would not have to say:  is not sold; because if it is sold, of course, it is out of the authority of the State to grant. 

But if it was intended that, notwithstanding, it had to be able to be leased in order to be claimable – oddly, strangely, if it had been leased it was not claimable – then why on earth would they not in the very next printed line say:  not leased, used, occupied, et cetera.  In our submission, that adds further as a contextual answer to the way my learned friend Mr Lim has put the operation of these provisions.  The notion of performance of lease informs, we think, the argument on the notice of contention and some other aspects of the argument against us.

The performance of the lease, which is referred to in the notice of contention, including in the cited passages, does include conduct of the lessee, but it has to be understood by reference to the fact that there is not a challenge to the position obviously accepted by the Minister administratively, and then held by the judge at first instance, and we think also in the Court of Appeal.  Namely, that it is not any conduct of the lessee which is relied upon for the use.  That is all that matters, we would think.  We can go further and say that the matter was put plainly in the courts below and in the administrative decision‑making, that the lessee was not using the land at all in any way at the relevant time.

Understanding – perhaps adjusting – the notice of contention accordingly, in our submission, this notion of performance of lease gets no traction as being used by the lessor because the lessee is performing in the sense that the lessee is responding to complaints about serious breaches of covenant or the lessee is paying rent.  The lessee paying rent, for the reasons I have already put, does not amount to use by the lessor of the land.  At most, it is enjoyment of a covenant, regardless of the fact that nobody is using the land for anything.

In Macquarie University, the rating issue – that form of tax issue – turned, as you know, on whether or not the use of the land was solely for the purposes of the university, a colocation which is not quite the same as appears in our statute.  The emphasis, obviously, in the use of the facts to reach the majority conclusion in that case was on understanding the way in which the university had organised that part of its campus; it happened to be by way of lease.  It could have been directly by just putting university staff into part of the premises, as Sir Ninian Stephen notes.

It was said against us that we had wrongly suggested in Macquarie University some resort to, reference to, or use of what was actually happening in the shopping centre – the market, I think, it was called – whereas the Court had not called that in aid. We dispute that and, without having to take you to the text, simply refer you to the passages in the Commonwealth Law Reports at 640, as well as 638 and then 646, 647 and 653. Obviously enough, their Honours are referring to the way in which the premises, by reason of the activities of lessees, were being used for things solely – that those uses were solely for the purposes of the university.

GORDON J:   It was put against you that was because of the terms of the questions posed at the top of page 637. 

MR WALKER:   That might be so, your Honour, but it remains the case that that does not mean that the reasoning in that case can somehow be used against us here.  It contains only reasoning in favour of us concerning the significance of how you look at the physical activities in relation to physical material. 

May it please the Court.

GAGELER CJ:   Thank you, Mr Walker.  The Court will consider its decision in this matter and will adjourn until 10.00 am on Tuesday, 1 April.

AT 3.03 PM THE MATTER WAS ADJOURNED