McNamara (McGrath) v Consumer Trader and Tenancy Tribunal
[2005] HCATrans 348
[2005] HCATrans 348
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S56 of 2005
B e t w e e n -
JILL McNAMARA (McGRATH)
Appellant
and
CONSUMER TRADER AND TENANCY TRIBUNAL
First Respondent
ROADS AND TRAFFIC AUTHORITY
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 26 MAY 2005, AT 11.59 AM
Copyright in the High Court of Australia
MR S.C. CHURCHES: If it please the Court, I appear with MR S.D. OWER for the appellant. (instructed by Marrickville Legal Centre)
MR M.G. SEXTON,SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.M. JAGOT, for the second respondent. (instructed by Crown Solicitor for New South Wales)
GLEESON CJ: Yes, Mr Churches.
MR CHURCHES: Your Honours, first a housekeeping matter. The appeal book contains a summons at page 42 in respect of an application for leave to file and serve a proposed amended notice of appeal which appears beginning at appeal book 47 and we seek leave in that respect.
GLEESON CJ: Is that opposed?
MR SEXTON: Your Honours, we consented except as to paragraph 3.2 which seemed to us to raise a question that is not really before the Court as to what perhaps the status of this body would be separate from the statute, and to date this case has only proceeded on the basis of an argument about the meaning of the statute.
GLEESON CJ: We will note your objection. If it becomes necessary to deal with it, then we can deal with that in due course.
MR SEXTON: If the Court pleases.
MR CHURCHES: Your Honours, this case goes off on the single point of whether the second respondent, the Road Traffic Authority of New South Wales, is the Crown in right of New South Wales for the purposes of the Landlord and Tenant (Amendment) Act 1948 (NSW). It is the case for the appellant that the determination of this question is, because of the statutory basis for the existence of the Road Traffic Authority, one to be determined by the process of statutory interpretation, and that process exclusively, not by reference to common law tests as to Crown personality.
The matter of Crown personality is of considerable import in general terms, your Honour, and of course, your Honours, crucial to this matter, because the Crown is consistently favoured at both common law and in statutes so that it has advantages over the remainder of the populus. It has advantages which take it outside the otherwise universal application of legal standards and it is because of that advantage, which so often accrues to the Crown, that it is the appellant’s submission that where the question of Crown personality arises, that is, where a body, and in this case a statutory body, is to be examined as to whether it takes the shield of the Crown or has the personality of the Crown, that matter should be construed restrictively because of the advantages for escape from the ordinary coils of the law.
Indeed in this case, the instant case, it is common ground that the Crown is specifically and expressly not bound by the Landlord and Tenant Act at section 5, and that is why, of course, the question of the personality of the Road Traffic Authority is critical and, indeed, the only real question before the Court.
We submit that if it is the statute that provides, arguably anyway, for Crown identity, the intention of Parliament must be clear as to that identification. It is that clarity of intent that we submit is at stake in this case. “Crown personality” does arise, however, in the material before the Court and in particular of course the very critical case at stake here, Wynyard Investments determined in this Court in 1955. “Crown personality” does appear most frequently for discussion in terms of the common law tests.
It is appropriate, in our submission, to note that those tests emerge in the context of a modern governmental structure, a bureaucratic society, emerging from the mid‑19th century and most obviously in the decision of the House of Lords in Mersey Docks v Cameron in 1865, where the question of which bodies might take on the personality or the shield of the Crown first arose. It is from that time that tests emerged to allow the identification of bodies as Crown bodies and those tests, both in England and Australia, have been substantially first the function test and, secondly, a control test. Indeed, those tests are set out at considerable length and discussed at length in the majority decision in Wynyard Investments.
Those tests are problematical and difficult to apply. They were dismissed, in our submission, as regards statutory bodies in the 1982 decision of this Court in Townsville Hospitals Board. In particular, we refer to the passage from the judgment of Chief Justice Gibbs in that decision which we have set out in our submissions at page 7 at paragraph 5.10. In our submission, that is critical to the analysis that is now appropriate over the last two decades as opposed to where jurisprudential thinking was 50 years ago at the time of Wynyard Investments.
The point of the quote at 5.10, your Honours, is that there should not be an accession of special privileges and immunities to a statutory body. It is a statutory body that was under review in that case and similarly here. His Honour, speaking for the Court, the other members of the Court were in agreement with what the Chief Justice said, there should not be that accession of:
special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention.
That is at the heart of our submissions, your Honour, that what has been provided for by the New South Wales Parliament in this case lacks that clarity to accord to the Road Traffic Authority special privileges and immunities. The instant case revolves on the meaning to be given to the statutory provision in the Transport Administration Act 1988 (NSW) which empowers or calls into existence a number of statutory bodies, but in particular the Road Traffic Authority at section 46(2)(b) and that provision is set out in the annexure to the appellant’s submissions at page 5.
GLEESON CJ: What is the significance for the interpretation of the Transport Administration Act 1988 (NSW) of the fact, as distinct from the correctness, of the decision in Wynyard?
MR CHURCHES: If Wynyard is binding authority, your Honour, and is accepted by this Court as binding in respect of the interpretation of the Transport Administration Act, then we would have to concede, and we have in our written submissions, that the provision set out in 46(2)(b) would allow the Road Traffic Authority to dress itself as the Crown.
GLEESON CJ: I understand you say that Wynyard was wrongly decided.
MR CHURCHES: Yes, your Honour.
GLEESON CJ: But did it represent a decision of this Court upon which the New South Wales Parliament acted in 1988, for example?
MR CHURCHES: In response to that, your Honour, we have noted in our written submissions that there are at least 17 instances since Wynyard where the New South Wales Parliament – and we have set these out in our schedule at page 17 of the appellant’s submissions - has expressly provided exemption or special provision for the Crown under a statute and gone on to especially enumerate also a special position for statutory bodies representing the Crown. There are also five statutes in that time period, most obviously the Local Government Act (NSW) from the early 1990s. We have set out these five statutes in which the Crown is defined within the statute to embrace statutory corporations representing the Crown.
Now, in other words, we submit that there has been no adoption by the New South Wales Parliament of the dogma or the doctrine that should have perhaps emerged from Wynyard Investments if it were accepted as a legislative drafting matter. There has been no acceptance that reference to a statutory body representing the Crown will automatically, for drafting purposes, make such a body the Crown. The draftsperson has eschewed that ‑ ‑ ‑
GUMMOW J: Have you looked at section 308 of the Duties Act of 1997?
MR CHURCHES: I am sorry, your Honour.
GUMMOW J: The modern Stamp Duties Act in New South Wales is the Duties Act of 1997.
MR CHURCHES: Yes, your Honour.
GUMMOW J: Section 308:
in this section, the “Crown” includes any statutory body representing the Crown.
Then there is detailed provision as to who is and who is not exempt. That is an example of adoption of the majority in Wynyard, is it not?
MR CHURCHES: We submit, your Honour, that if the draftsperson really adopted the principle of the majority in Wynyard, such words would be unnecessary. The Crown would automatically embrace statutory corporations representing the Crown. That is, in our submission, a legislative process of reaching out to reach the same conclusion that the majority reached in Wynyard, but if the majority ruling in Wynyard prevails, then the New South Wales Parliament does not need to go on providing specially for the position of statutory bodies representing the Crown if it wants them to be exempted, because the word “Crown” should embrace them, whereas it is our case, as is apparent from our written submissions, that there will be statutes which make special provision ‑ ‑ ‑
GUMMOW J: What I am trying to put to you, Mr Churches, is that this expression “statutory body representing the Crown” seems perhaps, on one view of it, to have been accepted in New South Wales in their drafting as answering the statement by Chief Justice Gibbs in Townsville that you look to some express terms and that that formula seems to have been treated as an express term.
MR CHURCHES: Your Honour, in our submission, if, for example, in the Duties Act, there is special reference to an exempt or privileged position for the Crown and the Crown is spelt out as also including all statutory bodies representing the Crown, then that is express for the purposes of the Duties Act. That, in our submission, is exactly what has not occurred in respect of the Landlord and Tenant Act where the reference to a special position not being bound is exclusively referred to the Crown.
If the New South Wales Parliament wanted the Road Traffic Authority to be not bound by the provisions of the Landlord and Tenant Act, the remedy is simple: to write in those words which we found in the Duties Act. This Act does not bind the Crown nor does it bind statutory bodies representing the Crown. The remedy is simple and they did not do that in respect of the Landlord and Tenant Act and, therefore, in our submission, there is a failure of the necessary express words that Chief Justice Gibbs required in his formula in Townsville Hospitals.
GUMMOW J: But take the Crown Proceedings Act – we mentioned this in the leave application, I think – “Crown” includes:
a statutory corporation, or other body, representing the Crown in right of New South Wales;
Does not section 46(2) answer that if you accept the majority in Wynyard?
MR CHURCHES: Your Honour, in our submission, 46(2)(b) of the Transport Act necessarily involves the Road Traffic Authority being the Crown for the purposes of, I think, section 3 of the Crown Proceedings Act where we have (a), (b) and (c), the third being specifically statutory bodies representing the Crown, but that is all that the Road Traffic Authority gets out of that. For Crown proceedings it is deemed to be the Crown, but then when we come to the process of suing, in section 5, the legislature makes a specific demarcation there between Crown and statutory bodies representing the Crown. They are to be sued in their name whereas the Crown is to be sued otherwise.
In our submission, the Road Traffic Authority gets no more aid from that than it does from any other specific statutory reference to it. Indeed, it is our submission that that is the whole point of the phrase, as Justice Kitto said in his dissent in Wynyard, for having the reference to a statutory body representing the Crown. It acts as a connector to other specific statutes which refer usually to a privileged or accepting position for the Crown and, very often, statutory bodies representing the Crown. If the legislature wants such bodies to be exempted or privileged, then very often in New South Wales it does so quite expressly, but in this case and in the case of the Landlord and Tenant Act it has not done so, and therein lies the difference.
Your Honours, it is quite apparent from that short discourse that it is the case for the appellant that Justice Kitto, with whom Justice Fullager agreed, is the basis of our submissions. We say, inter alia, we do not want to restrict ourselves exclusively to what Justice Kitto put in his dissent but we certainly adopt that line of reasoning.
The problem, we submit, with the majority in Wynyard Investments is that, as my friends put in their written submissions, the majority have reasoned by way of statutory interpretation and they say that anything else in the majority by way of reference to the control and the function tests is mere obiter. They make that quite plain at 6.4 of their submissions.
Now, that may well be true, but unfortunately the reasoning of the majority at page 388 of Wynyard Investments is sparse in the extreme when it comes to reasoning as to why this statutory body – in the case of Wynyard, of course, it is the Railways Commissioner for New South Wales who has the same phrase about being a statutory body representing the Crown for the purposes of any statute. There at line 6 on page 388 of Wynyard we have the words:
The only way a statutory body could represent the Crown would be to act as the agent or servant of the Crown and this must be the meaning of the word “represent” in this special provision.
Now, in our submission, this is by way of assertion and there is no body of reasoning underlying the process by which the majority have reached that conclusion. But what the majority have done, for some pages prior to 388 and then again through pages 389 to 391, is analysed the work and the functions of the Railways Commissioner in terms of the function and control tests. The process of reasoning would appear to be one of belt and braces, that the majority can buttress their assertion that “represent” must mean becoming an agent or servant, and agent or servant of the Crown is, of course, the standard rubric for taking the shield of the Crown.
Now, the function and control tests relied on by the majority do have antecedents and are clearly appropriate for the period 1955. Indeed, my friends have then cited three New South Wales Full Court decisions pre‑dating Wynyard Investments, each of which expressly dealt with Crown identification but in each case on the basis of control or function tests. The best example is the first of those three, the decision of Chief Justice Jordan in the Full Court in Skinner, which is No 3 on our list of authorities, at pages 269 and 270. His Honour is quite clear that he is analysing by reference to control and function – again, a railways case – but it is also notable that Skinner does not even contain a setting out of the statute which was at stake. It is not a statutory interpretation approach at all.
In our submission, time has moved on. Chief Justice Gibbs in Townsville Hospitals has rung the bell very clearly that we are now in a statutory era where, if bodies are to claim Crown advantage, specifically, of course, where they are statutory bodies, then statutory provisions should be very clear as to that. The distinction about 55, 60 years between the approach in Skinner and that in Townsville Hospital Boards is very clear. Where a statute was at stake in Skinner, nonetheless, the Chief Justice analysed by common law tests, and we submit that that is completely inappropriate.
The point about Townsville is, of course, that it is specifically related to a statutory body, in that case the hospital board, and that is, of course, directly analogous with the instant case. In such a situation the process of determining Crown personality must be by way of determining the intention of Parliament. In our submission, the best method for Parliament to express its intention that a body have Crown personality is by express words. Chief Justice Gibbs expressed that as setting out that the body would have the immunities and privileges of the Crown. There is then no question as to that matter.
It occurs to me, your Honours, that there is a number of explicit examples which I have not before the Court but I will have copies for the Court after lunch. I am aware that in the 1980s following the decision in Townsville Hospitals Board, the Western Australian Parliament expressly redrafted the provisions for all its Crown bodies. I will bring to the Court some examples of how the Western Australian Parliament went about it, which was to say that in all cases, first, this is a body which is the Crown in right of Western Australia and, secondly, this body has all the immunities and privileges of the Crown in right of Western Australia, so that the matter was express and without doubt. I will bring them to the Court after the luncheon break.
There is a matter which we touch upon lightly because it was raised at the special leave application. That is a matter which arises out of the joint judgment of Justices McHugh and Gummow in the State Authorities Superannuation Board Case 189 CLR 253. It is apparent from that joint judgment that it may be that statutory bodies may or may not take the shield of the Crown according to, we would say, certainly according to statutory interpretative analysis, but that the question that arose in that case but which we submit does not arise in this case is the question of whether such a statutory body will be or may be the State for the purposes of the Federal Constitution, particularly section 75.
In the joint judgment at pages 282 and 284 there are references to analysing whether such bodies would be the State for the purposes of the Constitution. The test at page 284 is substantially by way of reference to, certainly analogous to, the control and function tests. In our submission, while that may be the case where a body such as the State Superannuation Board in that case was calling in aid the jurisdiction of this Court, that is, of course, why the matter arose in that case. It called in aid the immediate jurisdiction of this Court by claiming that it had the personality of a State. That does not arise in this case and, in our submission, it is strictly statutory interpretative processes which will go to determine whether or not the Road Traffic Authority is the Crown for the purposes of, in particular, the Landlord and Tenant Act.
The joint judgment, however, in the State Superannuation Board Case did also raise the matter of detriment to the Crown. It is true that from the decision in dissent of Justice Kitto in Wynyard Investments, there has been a steady thread of analysis in this Court of the question of whether bodies which may or may not be the Crown if impacted upon will in turn – will such impact lead to detriment to the Crown itself? Indeed, as recently as last year in the Northern Territory Power Case Justice Kitto on that point was quoted approvingly by the majority in Northern Territory Power. The matter of impairment to the Crown is set out in the appellant’s submissions at paragraph 5.4 with the reference to Justice Kitto and further at 5.26.
The point about impairment is that the Road Traffic Authority has in the course of this litigation at no point sought to claim that the Crown has been adversely impaired or suffered detriment. By Crown at this point, of course – and we noted in our written submissions – we are adopting the third meaning of “Crown” in Sue v Hill, that third meaning being the Executive Government, in this case the Executive Government of New South Wales. It is our submission that should there be any impact on the Road Traffic Authority – and, indeed, there is if it is bound – there may well be and inevitably will be detriment to the Road Traffic Authority. If it is bound by the Landlord and Tenant Act, it will not be able to evict the appellant. It is as simple as that. She is a protected tenant. That is the whole point of this litigation. If it is bound, it cannot have its way with her.
The question then in terms of the detrimental analysis is: will that pass detriment to the Executive Government in New South Wales? In our submission, that has never been raised at any stage of the litigation and, in any case, we would submit, not so. The point being that the Road Traffic Authority is a separate body. It has been hived-off from central government.
GLEESON CJ: Is it off balance sheet?
MR CHURCHES: I am not sure about its accounting standards, your Honour. We did not go into the history of this in our written submissions but I think it is common knowledge between all of us here today that the history of why such bodies are hived-off from central government in Australian colonial and then State history has been dealt with by then Professor Finn in his book on colonial government. The general proposition was that in the later 19th century such bodies were so open to a corrupting influence on politicians that it was thought that they should be kept away from direct political influence, that there still had to be responsibility, of course, to elected governments but that elected politicians should be deprived of the ability to direct on an immediate basis. So without getting into a function and control test, that is why we submit the Road Traffic Authority is away from the central executive core of the New South Wales Government.
Indeed, Justice Kitto in Wynyard Investments at pages 395 and 396 refers to the decision of this Court in Rural Bank v Hayes which we refer to in our submissions at 5.27. That was a case where there was a corporate landlord as lessor holding land on behalf of the government but the Landlord and Tenant Act – again the same Act – was held to apply to the corporate lessor even though it held the land on behalf of the government because the detriment was not found to pass to the government. Of course, in the instant case the property in issue is owned by the Road Traffic Authority, not by the Crown in right of New South Wales.
That takes us, your Honour, to the matter which we raised briefly in our written submissions of whether there should be a process of interstitial articulation in this case. That is a phrase used by Bennion in his major work on statutory interpretation. The point being that, in our submission, an understanding of the phrase “a statutory body representing the Crown for the purposes of any statute”, an understanding of what that means can be reached by reading that phrase in the light of additional words. We are careful not to present to the Court a proposition that the Court write in words on top of that which has emerged from the legislature ‑ ‑ ‑
McHUGH J: It is not really a question of riding inwards, is it not? In fact, it might fairly be said against the majority judgment in Wynyard that they deleted words from the legislation because they seem to give the words “for the purposes of any Act” no meaning. In other words, they read the expression as saying, translated to the present legislation, the Roads and Traffic Authority is a statutory body representing the Crown or, the Roads and Traffic Authority represents the Crown, or is deemed to be the Crown.
MR CHURCHES: Is deemed to be, yes.
McHUGH J: And they seem to give no weight to the words “for the purposes of any Act” which seem, prima facie to me at all events, have the meaning which Justice Kitto gave to them.
MR CHURCHES: Indeed, your Honour, if I could adopt that noting that that takes us to the interpretative approach of having work to do for the words. The majority in Wynyard Investments appear not to have given work to those words, “representing the Crown” for the purposes of any statute. In our submission, those words are connector words up to the sorts of statutes that Justice Gummow raised with me, where the legislature has said, here is a special position for the Crown and also for statutory bodies representing the Crown. Then those words have the words in, for example, the Transport Administration Act at section 46, have work to do. But on the majority approach in ‑ ‑ ‑
McHUGH J: The way Justice Kitto looked at it at 401 was to say that they mean that whenever you find in an Act a provision dealing with statutory bodies described as representing the Crown, you deem the Commissioner for Railways, in that particular case, to be such a body and apply the Act to him accordingly.
MR CHURCHES: Yes.
McHUGH J: But the contrary view is that they really do not have any effect except perhaps in a common law situation where the Road Transport Authority would not be a Crown body for the purposes of the common law, or equity does not seem very a likely meaning.
MR CHURCHES: Yes, that being one of the questions raised as to why would you make a body the Crown for the purposes only of statutes and not generally. Indeed.
McHUGH J: Yes.
MR CHURCHES: It is notable that the majority in Wynyard Investments expressly rejected the concept of a reading in, even a notional reading in of words, because it is apparent that counsel there argued that words should be implied in, and those words being “where the expression statutory body representing the Crown occurs in that Act”, that Act being another Act to which then the body at stake might attach itself, the point then being that the majority rejected such an approach in 1955 because they said that was not an appropriate interpretative technique. But right midway between 1955 and today we have the decision of the House of Lords in Wentworth Securities [1980] AC 74 and Lord Diplock in his speech at page 105 –we have referred to it in our list of authorities. It is a very brief passage at page 105 in the speech of Lord Diplock where he sets out the three key bases upon which there might be this process of interstitial articulation. We have set that out in our reply at paragraph 5 on page 2.
The three bases which were required to allow such interstitial articulation were - Lord Diplock referred to “mischief”, but we submit that times have moved on and the issue now at stake is the purpose of the legislature. He overlooked “eventuality” and finally, “certainty” as to additional words, and we submit that the three matters there are raised in this case: that the purpose of the legislature was to provide for bodies such as the Road Traffic Authority to be able to connect up to particular statutory provisions that provided exemption or privileged position for such bodies; that the overlooked eventuality is that interpretation has unfortunately gone off course to allow such bodies to take on Crown personality at large rather than only in restricted situations and finally, the certainty as to additional words is apparent from that which was offered by counsel back in 1955 and set out in the judgment of the majority.
So we have certain words available to make absolutely clear that which the legislature had intended. But we note, your Honours, that although my learned friends have submitted that we make this a crucial aspect of our argument, we say not so. We say that the argument as to the incorrectness of the majority in Wynyard Investments does not rest on whether there may or may not be interstitial articulation.
GUMMOW J: I do not think any of the judgments in Wynyard referred to what may be the genesis of this expression, “statutory body representing the Crown”. In the definitions section, section 4 of the Local Government Act of 1919:
“statutory body representing the Crown”, includes the Metropolitan Water, Sewerage and Drainage Board, the Hunter District Water Supply and Sewerage Board, the Sydney Harbour Trust Commissioners –
railway commissioners –
and any public body proclaimed under this Act as a statutory body representing the Crown.
One suspects that Justice Kitto had that at the back of his mind. This was a particular identification idea. Then when you look at section 132 of the 1919 Local Government Act, ratable land did not include land of these bodies. That is the way it was done.
MR CHURCHES: Yes. Well, in our submission of course ‑ ‑ ‑
GUMMOW J: As an identifier.
MR CHURCHES: Yes, that is right. The legislature has specifically identified these bodies as with the Crown for these purposes and one of the purposes is we do not rate either the Crown or the land of bodies of corporations.
GUMMOW J: And we can proclaim them from time to time if other bodies come into existence.
MR CHURCHES: Yes, yes. So, in our submission, the ‑ ‑ ‑
GUMMOW J: Now, the submissions I think for your opponent, start with the 1932 legislation, do they not? Transport (Division of Functions) Act 1932, but there was an anterior history is what I would say.
MR CHURCHES: Yes, and it is notable, of course, that the Local Government Act (NSW) has continued on that path, so that the 1992 Act specifically provides that Crown will embrace statutory bodies representing the Crown, so that the theme has continued. Of course, that is to deal particularly with the problem of rating land. So we submit that even if there is no interstitial articulation of words into the statute, nonetheless, the connector device which the phrase “a statutory body representing the Crown for the purposes of any statute”, that connecting device works.
HAYNE J: Why then is there a deeming? If it is bare definitional or connection, what is achieved by deeming?
MR CHURCHES: I am sorry, your Honour, I will just look at the exact words, but my memory is that we have no deeming in 46(2).
HAYNE J: But in Wynyard, for the purposes of any Act, the Commissioner for Railways shall be deemed a statutory body representing the Crown. This expression is one that seems to be the original form, is it not, deeming?
MR CHURCHES: Yes. Much and all as I am in favour of finding work for every word in the statute, your Honour, I suspect that “deeming” there does not advance the case.
GUMMOW J: There is a judgment of Sir Victor Windeyer which explains the various uses of the word “deem”.
GLEESON CJ: It can include “shall be taken to be”.
MR CHURCHES: Yes.
GUMMOW J: Or “is identified as”.
MR CHURCHES: Yes. In our submission, that would not advance the Crown personality quality of the body.
GUMMOW J: It is called Perma Blinds, is it not. It is worth a look.
MR CHURCHES: Over the luncheon break, your Honour. That takes us to our final point, your Honours, which is to look for a new paradigm to replace Wynyard Investments, and that involves the process of varying the interpretation of a statute where there appears already to be an analysis, in this case, by an ultimate appellate court. For this purpose, the appellant relies on the decision in John v Federal Commissioner of Taxation in 1989. We have set out quite a deal of material from John in our submissions at 5.17 to 5.19, pages 9 to 10.
That case deals with the reasoning to be taken when a previous approach to construing a statutory provision should be altered. There are four justifications given in the decision of five members of the Court in that case, four justifications for departure from a previous analysis. They are set out at 5.17 of our submissions.
GLEESON CJ: One of the things that one would hope would be present when a court departs from a previous interpretation is that the court either knows or thinks it knows the consequences.
MR CHURCHES: Of such alteration?
GLEESON CJ: Yes.
MR CHURCHES: In our submission, your Honour, there are no adverse consequences because the draftsperson in New South Wales has effectively been ignoring the majority decision in Wynyard for a very long time.
McHUGH J: But courts have to be very reticent about overruling. You cited John to us which overruled Curran’s Case. It probably never occurred to the Justices who decided John, as a solicitor pointed out to me not long after the decision, that the decision in Curran’s Case had been used in many bona fide company transactions which had nothing whatever to do with tax, and it caused real problems. So the Court is not a Law Reform Commission. We cannot seek submissions from interested parties.
MR CHURCHES: I think it fair to suggest that my learned friend will have received submissions certainly from his client who may well be representing a group view. I mean, there are three bodies alone in the Transport Administration Act. It is hard to believe they have not noticed what is going on. It is notable because it was raised by my friend in his submissions that he says only two of those justifications may actually arise here but only the first two actually applied in John’s Case where the question was whether the interpretation of section 51 of the Income Tax Assessment Act had been correctly handled in Curran.
As to those matters of justification, the first one in respect of Wynyard Investments, insofar as the ratio consists of the assertion – that is at page 388 of Wynyard Investments – that “represents” must imply a servant or agent relationship of the Crown, that assertion does not, in our submission, rest on any principle worked out in a significant succession of cases. In our submission, that is the acme of what is at stake here and set out in John’s Case, that it is not as though Curran at stake in John, or here Wynyard Investments, was based on a rock solid foundation. There is merely an assertive approach taken by the majority in Wynyard Investments.
GLEESON CJ: Perhaps you could pursue this John argument after lunch. We will adjourn until 2.00 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.04 PM:
GLEESON CJ: Yes, Mr Churches.
MR CHURCHES: Your Honours, I have copies for the Court of the Insurance Commission Act of Western Australia 1986 and the Western Australian Treasury Corporation Act 1986. The relevant passages included in the photocopies are section 4A headed “Agent of the Crown” in the first Act and similarly 5A “Agent of the Crown” in the second Act. Also for your Honours, the headnote page and the relevant page of Hunter Douglas Australia v Perma Blinds 122 CLR 49. I am indebted to Justice Gummow for having pointed that out. The relevant passage is page 65 and at about point 8, I suppose, below the reference to “a deemster, although, except in the Isle of Man”, the sentence after that:
The words “deem” and “deemed” when used in a statute thus simply state the effect or meaning which some matter or thing has . . . It may be simply the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant.
So it is really an extensive form of the verb “to be” in that formation and we submit that in the original 1932 New South Wales legislation it did not advance the cause in any way.
Your Honours, I had taken the Court to John’s Case 166 CLR 417 just before the luncheon adjournment. The four factors going to justifying alteration of an interpretative approach are set out at pages 438 to 439, set out in our submissions at 5.17. I dealt with the first of those principles that there was no fundamental “principle carefully worked out”, in this case upon which the majority in Wynyard Investments had rested. The quotation goes on:
The second –
that is, the second justification –
was a difference between the reasons of the justices constituting the majority in one of the earlier decisions.
Despite the generosity of my friend in conceding to us on that point, nonetheless on a closer look of course, the majority judgment in Wynyard Investments is of course a joint judgment. There is no room for a difference between their Honours, but we note that in John’s Case at 440 this Court noted that amongst the reasons for overturning a previous interpretation might be a “persuasive dissent” in that former authority. Of course, it is our submission that the dissent of Justice Kitto, with whom Justice Fullagar agreed, was ‑ ‑ ‑
GUMMOW J: Where do we see that – 440?
HEYDON J: About point 2, the first sentence.
MR CHURCHES: Yes, maybe 2 or 3.
HEYDON J: The second sentence after the indentation.
MR CHURCHES: Yes.
HEYDON J: Again, there was no division of opinion amongst the Justices constituting the majority. There was just a “persuasive dissent”.
MR CHURCHES: It is our submission that is just such the case in Wynyard Investments. Of course, it is after that sentence that what we might call the peroration to the judgment in John appears, and we set that out in our submissions at 5.19:
in the end the justification for not following an earlier decision construing a statute must be that in the view of the Court that earlier decision was wrong, that it was wrong in a significant respect, and that the Court should give effect to the intention of the Parliament.
It is our submission of course that in the light of what was said in Townsville Hospitals, that the intention is not clear to do that which was done in Wynyard Investments.
There are third and fourth justifications set out in John for variation or alteration of a former analysis. Of those, it may be said that the fourth has some relevance to the instant case because it is apparent that there is not a body of law which is built up on Wynyard Investments clearly relying on that process of interpretation. We say that given that there are, between the two sets of submissions, only three references to cases that either rely directly on Wynyard – there are only two – and there is recently in the |Full Federal Court in Lin v State Transport Authority and that case itself does not actually rely directly on Wynyard Investments at all; it just makes, dare we say, a stab in the dark. In our submission, that is another reason that it is appropriate that this Court construe very narrowly and very much to the point on the meaning of these words which apparently are used only by the New South Wales drafting office because it appears not to appear in other Australian drafting.
As to what was raised by Justice McHugh just prior to the luncheon adjournment as to the concerns for where there may have been reliance in the case of what rested upon Curran prior to it being overruled by John, the answer, in our submission, lies in what was said by Chief Justice Mason in Babaniaris set out in our submissions at 5.18. The words there are peculiarly apposite, we think, to the instant matter:
If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute . . . It is no part of the court’s function to perpetuate error, and to insist on an interpretation which, it is convinced, does not give effect to legislative intention.
GLEESON CJ: Do you mean intention?
MR CHURCHES: I am sorry, yes I am sorry, legislative intention. It is at this point, your Honour, that we think it appropriate to refer to our footnote 40 on page 9 of our submissions where Babaniaris was cited, but in the company of the decision of the Full Federal Court in Brennan v Comcare. Although we have not set out Brennan v Comcare at length, the four pages of the judgment of Justice Gummow then in the Federal Court, we submit are useful to an understanding of why it is that an ultimate appellate court should bravely address the issue of correct statutory interpretation because the thread of what was said in Brennan v Comcare was that the process of addressing the statutory interpretation is quite different and distinct from the work of the court in working out and elucidating the common law, where general precepts and the words of previous judgments and judges are at stake.
But, of course, the work of the court in dealing with what Parliament said is quite otherwise and it may be said, to put the case at its highest, that if the Court were to adhere to previous statutory interpretative approaches, once convinced that they are wrong, and to adhere to that wrongness, would be to be untrue to the concept of the separation of powers in which it is the function of this Court to work out the intent of Parliament as it sees fit and correct from time to time. So it is not appropriate for the Court to simply say, “This was the work of a previous court. They thought that, even though we think it wrong, we should adhere to it”. That would be an inappropriate approach to statutory interpretation, and quite different from the issues at stake where common law precepts are in debate.
GLEESON CJ: Which particular statute are we interpreting here?
MR CHURCHES: The Transport Administration Act, your Honour, but in the context of whether it will flow to the provisions of the Landlord and Tenant Act.
GLEESON CJ: But is the question of interpretation one of the 1988 Act?
MR CHURCHES: Yes.
HAYNE J: When the history is that the particular formula which is under consideration was in Wynyard given a wider operation than the narrow connecting operation identified by Justice Kitto, what if anything do we make of the adoption of that same formula in subsequent legislation?
MR CHURCHES: Your Honour, in our submission, the adoption, as it were, the notional adoption is something of the grin of a Cheshire cat, because the examples we gave the Court earlier today of instances where the New South Wales Parliament has expressly picked out references to statutory corporations representing the Crown and then added them into particular provisions for exemption for the Crown, they are the examples that stand out, whereas a utilisation of the majority formula in Wynyard Investments is not something that will be apparent in drafting technique.
It is only when the draftsperson says, “I will make special provision for the Crown and also specifically for statutory bodies representing the Crown” we can see the thought process, whereas if the draftsperson specifically adheres to the majority in Wynyard, any reference to Crown will embrace statutory corporations representing the Crown for the purpose of any statute.
HAYNE J: But does it matter then, in assessing the argument, to notice what you had earlier pointed out, that this particular formula is one adopted only in New South Wales legislation, and that there are other formulae out there to which drafters might have resort - see, for example, the Western Australian legislation you give us - which could have been chosen, but were not? Or is this all an exercise that I am positing and exercising fiction, that is, do we come at this separated in entirely from the history of Wynyard?
MR CHURCHES: My response to that, your Honour, is that Wynyard itself rests on a previous history of probably 35 years of drafting references to the Crown and, as Justice Gummow pointed out just before lunch in the 1919 Local Government Act, Crown specifically embracing a number of bodies and allowing for a proclamation of others to be included in. There has been a growth in references to statutory corporations since that time.
In our submission, what matters that, as Wynyard Investments was not built on any body of principle, it simply appears as the test case at that point in time and it is appropriate, in our submission, 50 years later, to say, no, in the light of modern statutory interpretative techniques statutory bodies need to be construed for their “Crown-ness” in the light of explicit and strict tests. The most obvious one is if the Parliament wants them to take Crown personality, it should say so expressly. The Western Australians got it exactly right, as the Chief Justice prescribed in Townsville, by saying expressly they get the immunities and privileges of the Crown.
McHUGH J: What do you say though as against that of what was said in the Geelong Harbour Trust Case? There you had this Court in the Townsville Harbour Case putting a construction on a particular section thinking it was following the construction applied in River Wear back in the 1870s, and then the House of Lords departing from that in 1928 and, nevertheless, this Court by majority followed the Townsville Harbour Case. Justice Kitto said in those circumstances the Court should hesitate long before holding that the construction was wrong and where legislation - well, if the Court thinks the construction is wrong, then Parliament can fix it up. I mean, is there any case in this country where a decision has stood for 50 years and then been overruled as a matter of statutory construction?
MR CHURCHES: Our response to that, your Honour, is the vigour with which Chief Justice Mason expressed himself in Babaniaris leaves no room for stepping aside on the part of an ultimate appellate court. Once convinced ‑ ‑ ‑
GUMMOW J: I am not sure we have to overrule. I do not quite see how we have to overrule the earlier case. We just have to construe the 1988 Act.
MR CHURCHES: Well, indeed ‑ ‑ ‑
HAYNE J: The question becomes what, if any significance, is to be given to Wynyard?
GUMMOW J: In the light of other cases that have happened, for example, Chief Justice Gibbs.
MR CHURCHES: Well, indeed, your Honour. Yes, we would say that Wynyard has simply fallen away in its reasoning process.
GLEESON CJ: Wynyard is not authority for the reasoning process that commended itself to the majority. Wynyard, as its headnote indicates, was a decision that a particular form of words in a statute had a particular meaning. A question with which we are confronted is what is the relevance, for the construction of the 1988 Act, of the fact of history which is that back in the mid-1950s this Court decided that a similar, although not identical, body of words had a particular meaning. To put it a little more bluntly, what ought to be the weight we give to the consideration that is at least hinted at by your opponent that the intention of Parliament in the 1988 Act ought to be discerned against an historical background that would attribute to the parliamentary drafter a knowledge of the decision of Wynyard and acting on the faith of it?
MR CHURCHES: The response to that, your Honour, must be that the 1988 Act was framed and presented to Parliament after the decision of this Court in Townsville Hospitals. The fact that there had not ‑ ‑ ‑
McHUGH J: Yes, but as Justice Kitto said in the Geelong Harbour Trust Case the legislation they were considering in Geelong Harbour Trust was not identical in terms, but was of the same general character and the legislation had been enacted with the decision in the Townsville Case prominently in mind. Now, one might think those words would apply here. I mean, speaking for myself at the moment, I have a reasonably strong view that the view of Justice Kitto in Wynyard was a correct view and I think, if anything, there might even be a stronger argument here but should we give effect to our own views when it may well be, probably is, the case that in enacting 46 Parliament had the decision in Wynyard prominently in mind?
MR CHURCHES: Well, true it is, your Honour, that the 1988 Act is using words almost identical with those of the 1932 Act in Wynyard but nonetheless we submit that the reasoning process is equally clear to the draftsperson because drafters are legally trained. It may be that Wynyard speaks directly to the wording that was at stake in section 46, but nonetheless, the drafter has to work within the confines of what this Court said unanimously in Townsville Hospitals. If you want a body to be a Crown body and take Crown privileges and immunities, say so outright. Do not couch it in half terms, half truths.
GLEESON CJ: People sometimes say, and with a lot of force, that the theory that legislation now is enacted in the light of all sorts of court decisions of earlier times is a fiction, but like a lot of generalisations, that may overstate the position. It might depend on the topic that you are talking about, and where the topic that you are talking about is Crown immunity, that might be a circumstance where you really are entitled to assume that at least the drafters of statutes work according to precedents. If a particular phrase has been held to work to achieve a particular result, they will not lightly depart from it.
McHUGH J: And the case is a fortiori when it is relevantly the same department or close enough to it, that is affected by it. They have input into the statutory process.
MR CHURCHES: One other response to what is raised by Justice McHugh and relates back to what his Honour raised prior to lunch is that the New South Wales Parliament is alert, in particular, to financial imposts that might fall on the statutory bodies. We note a number of statutes in which - I think from memory it is footnote 58 of our materials - we have listed statutes which – yes, it is footnote 58 on page 14 - define “Crown” to embrace the statutory corporations representing the Crown, the point being that some, at least, of those statutes like the Local Government Act 1993 and the Land Tax Management Act and the Building and Construction Industry Long Service Payments Act are about the possibility of imposts on these bodies, and they are specifically cushioned and buffered against that.
So in other words, it is open to the Parliament, the Parliament is alert to this issue. So where your Honour correctly and understandably raised the possibility of financial issues in the light of the Curran and John imbroglio, we submit that that is not the case here, that Parliament can address those issues. The question here is whether a tenant may be evicted or not, according to whether a public body, a statutory body, is the Crown or not, and we submit that is not on the same scale as a possible impact on the State’s finances. Your Honours, unless there are further questions, that concludes the submissions.
GLEESON CJ: Thank you very much.
CALLINAN J: Mr Churches, I just draw attention to the fact that it was pointed out in Brodie v Singleton 206 CLR at 647, a case where non-feasance and misfeasance was argued, that section 17 of the State Roads
Act actually used the word “immunity”, but notwithstanding that, this Court held that that was in effect a misnomer, and it depends what interpretation you put upon the majority opinions in that case. But certainly on one view, the Court was not impressed by the fact that the legislature had actually used the word “immunity”, and was prepared to take the view that there was no immunity. It may be of some assistance to you.
MR CHURCHES: I would have to say on hearing that and without it in front of me, I would feel on fairly thin ice if I were counsel urging the Court to ignore a statutory reference to an immunity going to a public body if it was there.
CALLINAN J: The Court did, the Court said that it did not matter, and you ‑ ‑ ‑
McHUGH J: It was a question though, of what was the content of a common law doctrine. There were some powerful dissents in the case, but ‑ ‑ ‑
MR CHURCHES: I do not think I had better take our case any further onto the thin ice.
GLEESON CJ: No, I think there might be some stirring going on here, Mr Churches.
MR CHURCHES: If it please the Court.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR SEXTON: If the Court pleases. Your Honours, if it be accepted that there are two available constructions to the relevant form of words – and we would say that, given the decision in Wynyard, that that must be so – then, in our submission, there is strong authority to say that the decision in Wynyard should not be overruled. We say it has to be overruled if my learned friend is to succeed in this case.
McHUGH J: But are there two decisions? Does not the majority judgment in effect write out of the statute the words “for the purposes of any Act”? Secondly, why would Parliament only intend to make the body the Crown for the purpose of an Act and not for the purpose of equity? Does it mean that in equity you can get discovery or any of the equitable doctrines can apply, that the Authority has no protection there?
MR SEXTON: Your Honour’s question goes to the merits of the statutory construction, about which I propose to say something as well after those initial propositions, but I will just deal with that briefly now. We say, in fact, that what happened in Wynyard is that the minority wanted to write in words to the section, not that the majority needed to do so. We say that it gave work to the phrase “for the purposes of any Act” by saying that when in any Act the term “Crown” alone is used, that it extends to a statutory body representing the Crown as that is referred to in another Act.
As to why that would be so, it is difficult, in our submission, to really find any logical pattern in the way in which immunities have been given or not given to the Crown in New South Wales statutes over the years.
McHUGH J: But under this statute could the Authority claim public immunity doctrine?
MR SEXTON: Perhaps not, your Honour.
HAYNE J: Justice Kitto identified the view that had been adopted in the Supreme Court as being, as he described it:
in considering the applicability of any provision of any Act to the commissioner, he shall be deemed to represent the Crown.
That is at the foot of page 400. What do you say as to understanding the section as having that effect more limited than the effect posited by Justice McHugh’s question?
MR SEXTON: Your Honour, there are obviously competing constructions on the face of the decision in Wynyard.
McHUGH J: There always are with questions of statutory constructions.
HAYNE J: It does not tell me much to say there is a question, Mr Solicitor. I assume that is why we are here.
MR SEXTON: No, I realise that, your Honour. I had another sentence. Many of them are not as perhaps finely balanced as this one is, and that perhaps goes to our first point. We have just said that the majority construction does give all the parts of the formula work to do. Of course, it is possible to take a narrower approach to it, which is what Justice Kitto did.
GLEESON CJ: And what the Chief Judge in Equity had done in the Full Court.
MR SEXTON: Yes. I can only say again that if one looks for a logical pattern in relation to a question of Crown immunity and the formula that is used in New South Wales legislation over that long period of time, it is not possible to discern one. It is still not, as it happens, as my learned friend points out. There are some pieces of legislation that do not give rise to the problem in this case because they include in the definition of “the Crown” a reference to a statutory body representing the Crown. Some statutes, as in the case of this one – and there is more than one body, of course, in this Act in this category – some do not.
So that one is left with the competing constructions and, of course, ultimately, the choice between those cannot be reduced beyond a preference based upon the legislation itself and the history and what is gleaned to be the intention of the legislation.
HAYNE J: But is it sensible to treat the words “for the purposes of any Act” as intending to give what you might call limited Crown immunity in respect of statutes but not give Crown immunity beyond that? Is that a sensible consequence? It seems to be the consequence that you get to on this understanding.
MR SEXTON: Your Honour, what the majority said was that that would, of course, largely provide immunity because the majority of the actions that might be brought would fall under statute, this being an example of it. It may be that in terms of the full use or the way in which the definition of the Crown is expanded in some of those other pieces of legislation that that was done by the draftsman out of caution without, we would say, believing it to be necessary because of the decision in Wynyard. I will come back to that in a moment. We would say that the one thing that must be certain is that when some of this legislation was being drafted in New South Wales, and particularly the statute that is before the Court here, the 1988 legislation, that the Parliamentary Counsel would have been perfectly aware of Wynyard – this is a decision of this Court about a formula used in New South Wales legislation concerning Crown immunity – and naturally relied upon it.
GLEESON CJ: It may be that it is taking too narrow a view of the problem to say that it is a question of the construction of the 1988 |Act. It is a question of the relationship between the 1988 Act and the Landlord and Tenant Act. The particular question that arose in Wynyard was the question about the interaction between the formula that was used in the Transport (Division of Functions) Act and the Landlord and Tenant Act and the interaction between some words in the Transport Administration Act 1988 and the Landlord and Tenant Act, the issue of interaction being whether the Authority qualifies for inclusion in the term “the Crown in right of . . . the State” in the Landlord and Tenant Act. It might not be unreasonable to suppose that the drafter headed for the result for which it was thought Wynyard stood.
MR SEXTON: Particularly, your Honour, relevant to our first argument, that it is the same piece of legislation in the form of the Landlord and Tenant Act that is being considered in both cases, so that the more so would the draftsman, we say, have been entitled to rely upon the decision in Wynyard. Your Honours, that really takes me back to the first argument.
I wanted to take your Honours to just a short number of authorities, some of which are in our written submissions and some not and some of which have been referred to by my learned friend.
However, if I could go briefly back to John 166 CLR 417 at 438, your Honours will see there that there is a reference to what was to be done about Curran’s Case and then there are the four conditions or four matters that might justify a departure from earlier decisions – this is at about point 8. The first is not a problem here. The second, the difference between the reasons of the majority, does not exist in this case.
The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience.
That can hardly be so here, we would say, that it has led to any inconvenience.
The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration, as had been the case in Queensland v The Commonwealth.
GUMMOW J: Well, there is inconvenience because you now have this little Alsatia represented by Wynyard from the later articulation of principles in many cases, in particular, Townsville.
MR SEXTON: It is not, we would say, an inconvenience, your Honour. It might be ‑ ‑ ‑
GUMMOW J: It is inconvenience for the citizen. We keep hearing about drafters.
MR SEXTON: In our submission, it has not resulted in inconvenience in this case. The question of whether for the citizen there will be Crown immunity or not will depend upon the terms of the statute and it will almost inevitably be a statute that the citizen has not ‑ ‑ ‑
GUMMOW J: Yes, but you do not suggest that these are express words, do you, within the meaning of Townsville?
MR SEXTON: In our submission, your Honour, Townsville ‑ ‑ ‑
GUMMOW J: They are not, in any event, because they do not give full immunity.
MR SEXTON: But Townsville, in our submission your Honour, does not really have much bearing on this case. It was a case where, in a sense, the issue was whether the hospital board ‑ ‑ ‑
GUMMOW J: No, I am thinking about the general warning that Sir Harry Gibbs gave to drafters. What you are saying is that they can say, “Yes, that is right but we have this little island there”.
MR SEXTON: What we say is that the draftsman would have been entitled to rely on the island in relation to this and other pieces of legislation subsequent to Wynyard as long as that decision stood. That fourth matter, your Honours, was “that the earlier decision had not been independently acted on”. We would say that Wynyard has been acted on here, acted on by the New South Wales Parliamentary Counsel, and that this and other legislation are examples ‑ ‑ ‑
GUMMOW J: Now, what is the other legislation? We need to know this.
MR SEXTON: I am not sure, your Honour, that one can exhaustively list the way in which there are different sets of provisions but there is certainly some legislation which is in these terms and, as I say, in the case of the Transport Act, I think State Transit is another body about which this phrase is used later in the legislation.
HAYNE J: But surely we can be given a list of every New South Wales statute now in force which uses this phrase?
MR SEXTON: I imagine so, your Honour, yes.
GLEESON CJ: Well, it is of some importance I think, Mr Solicitor, for this reason. If we were to take the view that the minority reasoning in Wynyard is persuasive, then we would be confronted with this problem of the circumstances in which it is appropriate or inappropriate to attribute to Parliament an intention to rely upon a decision of this Court as authoritatively settling the meaning of a verbal formula in a particular context.
Now, that might be a consideration that would be given a certain amount of weight if there are two or three statutes that look as though they are in that category and might be given quite a different degree of weight if there were many statutes that were in that category. So I think it is important that we should be informed of exactly what has been done, if anything, by way of relying upon, or apparently relying upon, the decision in Wynyard, because whether they are parliamentary drafters or whether they are drafters of standard forms of legal document in solicitors’ offices, people tend to follow precedents.
HAYNE J: And since part of your argument seems to be this argument of reliance, it would be necessary, I would have thought, to take account of any legitimate extrinsic material to which one might properly have resort.
GLEESON CJ: Like a drafting manual.
MR SEXTON: Well, your Honours, we will do a search in relation to the statutes. We would say that whatever has happened in other statutes that certainly in relation to this 1988 legislation, we would say that one could assume that the draftsman relied upon the decision in Wynyard.
GLEESON CJ: Well, is there anything in the parliamentary history of the 1988 legislation that bears upon this? Was there an explanatory memorandum, for example?
MR SEXTON: No – well, not that bears upon this, your Honour. As I said, there are three bodies ‑ ‑ ‑
HAYNE J: So there is nothing in the EM that refers to the relationship with the Crown? If that is the case, that is the case. I am just a little surprised.
MR SEXTON: Yes.
GLEESON CJ: Usually the explanatory memorandum goes through it clause by clause and tells the readers, the parliamentarians, what it means.
HAYNE J: Giving you a not very elegant paraphrase of the drafter’s language.
MR SEXTON: And a not very helpful paraphrase in my experience, your Honours. That can be checked as well, but as far as I am aware it does not bear upon this question.
GLEESON CJ: We would be grateful if it could be checked.
MR SEXTON: Yes. I did mention, your Honours, there were three bodies in this legislation about which that phrase is used – that is referred to in paragraph 8.8 of our written submissions – the Road Transport Authority, the State Transit Authority and something called the Independent Transport Safety and Reliability Regulator.
GLEESON CJ: These are all the successors of the Commissioner of Main Roads, are they?
MR SEXTON: No, your Honour. State Transit runs the buses and ferries – perhaps only the buses now – and the Independent Transport, et cetera is a rail safety body. Your Honours, on the following page in John on page 439 at about point 8 again, the members of the Court refer to the:
special considerations applicable to the doctrine of stare decisis in cases of statutory construction.
They quote Justice Mason in Babaniaris where he said:
If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand –
A little further on, on page 440 at about point 4 or 5, the Court said:
But in the end the justification for not following an earlier decision construing a statute must be that in the view of the Court that earlier decision was wrong, that it was wrong in a significant respect, and that the Court should give effect to the intention of the Parliament.
We would say that phrases such as “plainly erroneous” and “wrong in a significant respect” really could not be applied to this particular case where there are two constructions, and certainly both of them are arguable, despite the fact that minds might differ and one might prefer one to the other.
Justice Brennan at page 451 at about point 5 said:
The fact that Curran’s Case was a majority decision reached on differing grounds and over a cogent dissenting judgment is not, in my opinion, something which diminishes its authority or denies weight to the considerations in favour of following Curran’s Case. The authority of this Court’s decisions and the reliance which can and must be placed upon them are not dependent on the constitution of the Court or on the cogency of dissenting reasons.
There is a reference to Baker v Campbell, and a little further down at about point 8 or 9 he said:
a decision of this Court has authority as a precedent precisely because it is the Court’s decision, not because it is the decision of the participating justices or a majority of them. The overruling of a decision is in a sense a diminution of the Court’s authority as well as an acknowledgement of Justices’ past error. An overruling must therefore be an exceptional course to adopt.
On page 452 at about point 3 he said:
If a subsequent Court prefers another construction of the statute that mere preference is not sufficient to warrant an overruling of the prior decision. But if the later Court is satisfied that the interpretation placed on the statute by the earlier decision was erroneous in the sense that it is opposed to the undoubted intention of the Parliament as enacted in the statute, it cannot adhere to the earlier error and refuse to apply the law as enacted unless the Parliament has itself accepted or adopted the earlier error and enacted a further law on the assumption that the earlier decision was correct.
We say that would be the situation here.
GUMMOW J: Where do we start in this process of construction? Is it section 5 of the Landlord and Tenant Act?
MR SEXTON: In a sense, your Honour, because the question is: is the RTA entitled to the immunity that ‑ ‑ ‑
GUMMOW J: Mr Churches’ client asserts that she is protected by that Act.
MR SEXTON: Yes, that is right. She is protected by the other parts of that legislation.
GUMMOW J: That are still in existence. And then your client responds, “No, we can rely on the words, ‘This Act shall not bind the Crown in right of . . . the State’ in section 5, because of what is said about us in our own Act”.
MR SEXTON: Yes.
GUMMOW J: But 5 also has 5(b). Do we know what the Housing Commission statute is?
MR SEXTON: There have been some decisions about that. The question of why it was put in as a single entity, as it were, in (b) seemed to be because of its own legislation which did not certainly use the words, “statutory body representing the Crown”, did not, I think, use any particular language except to establish it.
GUMMOW J: Is that the body established by the Housing Act, is it?
MR SEXTON: Yes. If your Honour looks at paragraph 5.3 of our written submissions, discussion there of Skinner v Commissioner of Railways and then North Sydney Council v The Housing Commission of New South Wales, a 1948 decision, your Honour will see there that the Act did not contain any provision to the effect that the Housing Commission was deemed to be a statutory body representing the Crown for the purposes of any Act but it subjected the Commission to ministerial control and direction. It is a rather unusual piece of legislation in the way it established the Commission but did not describe it.
GUMMOW J: But the net result of that decision in 48 SR seemed to be that paragraph (b) is unnecessary in section 5.
MR SEXTON: Yes.
GLEESON CJ: If you expressed the problem underlying this in slightly more modern terms it would be whether the relevant provisions of the Landlord and Tenant Act protect government tenants.
MR SEXTON: Yes, tenants of government instrumentalities.
GLEESON CJ: If you substituted the word, the “government” for the Crown”, that is what it would be about, would it not?
MR SEXTON: As I say, your Honour, if one were examining the question completely freshly then there might be a range of considerations that would apply but we would say that, in a sense, the strongest argument on our side is the existence of Wynyard and the reliance on it. Whatever view one might take now, in a sense, is a matter of preference between the two statutory constructions because it is obvious that there could be two views although I should give the warning again that, in relation to the provision that Justice Gummow has just raised, it is hard to find rhyme and reason in this statutory maze.
GLEESON CJ: It might depend on the level of obstruction. At the highest level of obstruction you ask whether it is consistent with the rule of law to have exceptions from the operation of particular laws. At a lower level of obstruction it is whether it was the intention of the New South Wales Parliament that the protections given by the Landlord and Tenant Act to tenants of private landlords should extend to government tenants.
GUMMOW J: Which was not addressed in 1948, other than through section 5.
MR SEXTON: But it is safe to assume, in our submission, that if, for example, Wynyard Investments had gone the other way, that there might well then have been a different formula used in relation to some statutory bodies at least, where it was designed to give them the protection of particular pieces of legislation. Of course, it is something of a coincidence that it is the same piece of legislation, the Landlord and Tenant Act that is relevant in both cases.
Your Honours, can I say something very briefly about Geelong Harbour Trust 122 CLR 504 which Justice McHugh raised. In the decision in the High Court at page 518 Justices McTiernan and Menzies said at about point 1 that:
a decision of this Court has stood without question for over fifty years –
the same length of time as here –
and has, inevitably, been present to the minds of those responsible for legislation made during this time, including the Act now under consideration.
Justice Kitto, at about point 9 on the same page –
This decision has stood for more than half a century, and not a little legislation in the several States has been framed by draftsmen who have had it before them.
In the same case in the Privy Council, which is at 129 CLR 576 at pages 583 to 584, at the bottom of page 583 at about point 9 the Board said:
When for the first time a court of final instance interprets a written law as bearing one of two or more possible meanings, as the High Court did in the Townsville Case, the effect of the exercise of its interpretative role is to make law. The issue involved in the application of the doctrine of stare decisis to judicial decisions on statutory construction is: at what point as a matter of legal policy should the interpretative role of the court be treated as spent? Ought it to be regarded as exhausted once the court of final instance has expounded the meaning of the statute, as was the practice of the House of Lords in England until it was changed in 1996? Or should it be regarded as continuing so as to entitle the court to correct a previous erroneous interpretation if experience shows that this has caused confusion or difficulty in its practical application?
Not this case, we would say –
Under a system of law which admits exceptions to the strict rule of stare decisis there is no simple answer to these questions. It depends upon striking a balance between many factors whose relative importance may vary considerably from case to case. If it can be inferred from the terms in which subsequent legislation has been passed that Parliament itself has approved a particular judicial interpretation of words in an earlier statute this would be decisive in both Australia and England in favour of adhering to it.
GLEESON CJ: What are you reading from?
MR SEXTON: It is the Privy Council Decision in Geelong Harbour Trust 129 CLR 576 at 583 to 584.
GLEESON CJ: Thank you.
MR SEXTON: That is the passage that I was intending to read to your Honours, which we say is again – there can of course, be argument as to what is meant by Parliament approving a particular judicial interpretation in many cases, but we would say that it would be hard to get a better example than this case, given the decision in Wynyard and subsequent legislation in New South Wales.
GUMMOW J: What was the heart of Sir Garfield’s dissent in ‑ ‑ ‑
MR SEXTON: In the High Court decision?
GUMMOW J: Yes.
MR SEXTON: He had ‑ ‑ ‑
GUMMOW J: If the Privy Council is really saying in the last paragraph, “Gee, we are a bit edgy at ‑ ‑ ‑
MR SEXTON: Yes, they are, but the majority in the High Court, we would say, took the same approach without, of course, taking that point which would have been impossible for them.
GUMMOW J: I know, but what was Sir Garfield’s point?
MR SEXTON: Well, he took a very strong view about the meaning of the statute and thought that in those circumstances that the previous decision should be overruled.
McHUGH J: He also took the view that the Townsville Harbour Board Case had misinterpreted River Wear.
MR SEXTON: Yes, your Honour, that is right, but he ‑ ‑ ‑
McHUGH J: And it did not have the ratio that the Townsville Harbour Board Case had given to it.
MR SEXTON: Well, he thought there was more uncertainty about the previous decision than some of the other members of the Court.
HAYNE J: But at base it was, at 512:
the words of s.110 are in themselves unambiguous and intractable –
That is the essence of his Honour’s view, is it not?
MR SEXTON: Yes. Your Honours, if I can just refer briefly to two further authorities. Your Honours, in Baker v Campbell (1983) 153 CLR – I am just looking at pages 102 to 103. It is from the judgment of Justice Brennan at about point 6 or 7, where he says:
This Court has not regarded itself as bound by its previous decisions, but it would be wrong to depart from an earlier decision, albeit a majority decision, merely on the ground that a different conclusion now commends itself to a majority of the Court.
He refers to what Lord Wilberforce said in Fitzleet Estates v Cherry where his Lordship said:
It requires much more than doubts as to the correctness of such opinion to justify departing from it.
Then, Justice Brennan goes on, at the bottom of ‑ ‑ ‑
GUMMOW J: He was in dissent, was he not?
MR SEXTON: Yes, but he was in terms of ‑ ‑ ‑
GUMMOW J: This is a classic case of the Court reversing itself, is it not?
MR SEXTON: But, as a matter of general principle, what he is saying ‑ ‑ ‑
McHUGH J: Well, Justice Wilson reversed himself; that is what happened.
MR SEXTON: I should have said he was in dissent on the result but we would not suggest that there is any perhaps real ‑ ‑ ‑
GLEESON CJ: If you want an example of reversal try Ord Forrest.
MR SEXTON: We are assuming that the majority would agree in principle with these remarks. At any rate, your Honours, we say they are unexceptional in a general sense. His Honour goes on to say:
To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult area of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor, as the judgments in the present case illustrate. In such cases, the decision itself determines which solution is, for the purposes of the current law, correct . . .
A party who seeks reconsideration of one of this Court’s decisions, particularly a decision recently given, has a heavy burden to discharge.
In Geelong Harbour, of course, Sir Garfield Barwick took the view that the words of the statute really only admitted of one meaning but one matter on which we rely is that in this case that could hardly be said to be so.
Now, your Honours, the final authority on this particular question to which my learned friend has already referred is Babaniaris. I have already referred to the quotation from Justice Mason which is expanded at pages 13 and 14. If I could just take your Honours to (1987) 163 CLR 1 at 14, his Honour says at about point 2:
Although the use of expressions as “plainly” and “manifestly” erroneous has been criticized in contexts where the question is one on which different minds might reach different conclusions, this criticism does not diminish the utility of the expressions in their application to a case in which the question on analysis is capable of but one answer.
We would say that is not this case.
The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions. This is very often the case when a court is called upon to reconsider one of its earlier decisions. Then it is a matter of ensuring that a change in the law does not proceed from mere personal choice and result in injustice or inconvenience, as, e.g., by impairing actions and transactions undertaken on the faith of the law as it had been declared previously. In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome.
GLEESON CJ: That technique of prospective overruling referred to on page 15 has been definitively rejected, has it not, in this Court?
MR SEXTON: It certainly has not been adopted, I do not think, your Honour.
McHUGH J: We rejected it in Ha, did we not?
GLEESON CJ: Yes.
MR SEXTON: It was raised in this case, of course.
GLEESON CJ: I do not think anybody is suggesting, but it would be an interesting suggestion – I am not saying it is open, but nobody is suggesting that we could say in future when statutes are being drafted in New South Wales this drafting technique is not going to achieve the result that it was held to achieve in Wynyard.
McHUGH J: We said something very similar to that in Bropho. There were two classes – Bropho provides for two classes of statutes.
MR SEXTON: The language that the Court uses, of course, is always, no doubt, carefully scrutinised by the Parliamentary draftsmen, which is really one of our points in this case.
GLEESON CJ: But if the theory on which it all rests ultimately is one of legislative intention, there being different views about what exactly that means, then the justification for departing from Wynyard would be that that decision did not reflect the intention of the New South Wales Parliament. We now are having to ask ourselves what was the intention of the New South Wales Parliament in 1988 after Wynyard.
MR SEXTON: But there are two answers to that in a sense, your Honour. One is that if there is more than one available construction, then that is a reason not to overrule the earlier decision, even if now one were to look back and say that in the view of the members of the court or a majority that that did not represent the intention of the New South Wales Parliament at the time. Secondly, coming forward to 1988, as to the intention at that time, we would say that the best evidence of the intention is the fact that that would have been done in the light of and it really can be assumed, in our submission, in reliance on the earlier decision of Wynyard Investments.
McHUGH J: What we said in the joint judgment in Bropho at page 23 was:
it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted. If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail.
Then we said as for the future.
MR SEXTON: That is where there was a change of principle in a sense, your Honour, which affects the drafting. What you have here is a form of words, which really raises a different problem.
HAYNE J: But one of the complaints about the form of words is that the form of words does not take account of the change in principle reflected in Townsville, or the development of principle, if you like.
MR SEXTON: We say when there was a judgment about the very form of words in essence, that that would enable the draftsman to rely upon it, even if with other forms of words one might need to look at them in the light of, for example, decisions that affect principle. It is a very narrow class here in the sense of almost the identical words and, in fact, as it turns out, the same piece of legislation to which they, we say, have application.
GUMMOW J: Still focusing on section 5 of the Landlord and Tenant Act and the phrase “the Crown in right of . . . the State” and then looking at the Transport Act 1988, there is no submission, is there, that, section 46 aside, nevertheless on a full interpretation of the Transport Act, it would end up as the Housing Commission ended up back in paragraph 5(a) anyway?
MR SEXTON: That has never been in issue in the case below or therefore in this Court, your Honour. I suppose an argument could be made, although the trend has been the other way in relation to these kinds of statutory bodies, but it has not been made, no.
GUMMOW J: To put it more accurately, so that it would have, as it were, the full position of the Crown in respect to discovery and so on.
MR SEXTON: Yes, at common law and statute. No, it just has not been made. This has been a case about the application of the statutory formula from start to finish.
McHUGH J: One area where overruling this decision may have effect would be, for instance, in terms of local government rates, might it not? I do not know what the equivalent of the old section 132 of the 1919 Local Government Act was, but the Crown was exempted from rates. Under Wynyard I assume that the Authority’s properties would be exempt from local government rates.
MR SEXTON: I would have to look at it, your Honour. I am trying to remember. Your Honour will remember in Paliflex there was the land tax cases – references I think there only to the Crown. There are cross‑references in a number of these pieces of legislation.
McHUGH J: We need to have all this and we need to have information as to the effect financially on the Authority if we were to overrule Wynyard, particularly, as I just mentioned, rates, maybe land tax, all sorts of ‑ ‑ ‑
GUMMOW J: I mentioned the Duties Act.
MR SEXTON: Yes, your Honour.
HAYNE J: That is, as I understand it, if you are going to maintain the argument founded ultimately in inconvenience, we need to know every Act which the Wynyard construction of these provisions would work a benefit to this body and rejection of Wynyard construction would work a consequential detriment.
MR SEXTON: Your Honour, we do not put the argument in that way.
HAYNE J: If you do not want to put it, Mr Solicitor, that is up to you.
MR SEXTON: I am just adding two parts, your Honour. The first is that we put the argument that one can assume that the draftsman relied upon Wynyard Investments and that that would be sufficient for our purposes.
HAYNE J: What, to stroke the drafter’s ego?
MR SEXTON: No, your Honour.
HAYNE J: No, it has to be much more fundamental than that, Mr Solicitor, surely.
MR SEXTON: If it is a provision that is in a number of statutes, including this one, and that was the intention to rely upon the decision, we would say that would be extremely significant for this Court.
McHUGH J: That is a factor of weight, but it hardly compares in terms of weight with evidence or material that indicated that a change of interpretation would have financial ramifications of very considerable importance.
MR SEXTON: Of course, your Honour. A list of the legislation will presumably demonstrate what the consequences would be, for example, if one ‑ ‑ ‑
McHUGH J: It may have fringe benefits tax – there are all sorts of problems.
MR SEXTON: But any rate, your Honour, we will assemble the list and then ‑ ‑ ‑
GLEESON CJ: I presume there would be – I am only guessing really – many government employees who would be tenants of the government.
MR SEXTON: I am not sure how many are left, your Honour, but there would be some.
GLEESON CJ: Presumably this question of whether the Landlord and Tenant Act operates to give protection to government tenants, as distinct from private tenants, might have considerable practical significance even at the level of the terms and conditions on which rental agreements or arrangements are entered into.
MR SEXTON: Whether that goes beyond the notion of protected tenancies, which, of course ‑ ‑ ‑
McHUGH J: This is pretty unique, I suppose, because there was no 5(a) leases here.
MR SEXTON: One would imagine that protected tenancies are declining in number in New South Wales, although there are still some in existence, of course, but the question that the Chief Justice raises may depend on ‑ ‑ ‑
McHUGH J: But we need to have this material fairly quickly. I will not be sitting in major cases after the end of June and Justice Hayne will be away, I think, next month, so we need this information.
GLEESON CJ: I think we can give you 14 days to put on any additional written material you would want to put on of the kind that you have been asked about?
MR SEXTON: Yes, we will, your Honour, and my learned friend can respond.
GLEESON CJ: Then have a further seven days to put on any answering material or comments.
MR SEXTON: Your Honour, two final references that I will not read on that first question in a sense why Wynyard Investments should not be overruled. I was looking at Babaniaris, at 23 there is a quote from Justices Wilson and Dawson quoting from Hanau v Ehrlich in the House of Lords at about points 3 to 5. Finally, Justices Brennan and Deane at page 29 quoting from Lord Buckmaster in Bourne v Keane, that is at about point 1 to 2.
Now your Honours, can I say something briefly, simply about the merits of the statutory construction argument as opposed to what should happen irrespective of its merits. I think perhaps most of this has already been canvassed, but we would, of course, say that in any event, the majority construction is the preferable one, that it does not require the reading in of any words, that it gives the phrase an operation that we say could certainly and we would say, does reflect the intention of the Parliament.
If one goes to Wentworth Securities, Lord Diplock’s judgment which my learned friend referred to, those rather steep tests, we would say, could not be met in this case. The notion, for example, that it is possible to state with certainty the additional words that would have been inserted, that it must be apparent that the draftsmen had inadvertently overlooked something that really could not be said in this case.
CALLINAN J: Mr Solicitor, in Townsville Hospitals Board there is a reference to Wynyard in the judgment of the Chief Justice with which the other members of the Court agreed. At page 288, and the relevant section is set out at page 287 and the language seems to be the same as here, “represents the Crown”. But it is a unanimous decision of the Court. There does not seem to have been any close attention paid to Wynyard except to ‑ ‑ ‑
MR SEXTON: Sorry, what page was the section, your Honour?
CALLINAN J: I think it is on page 287.
GUMMOW J: It is set out in full on 286.
MR SEXTON: Yes.
CALLINAN J: Page 286, but the key provisions are in the second complete paragraph on the page, “erection” of a building “on behalf of the Crown” and then there is a reference to “by or on behalf of a person or body who represents the Crown” and then at page 288 about point 5, his Honour said:
It is possible that the Board might be given the immunities and privileges of the Crown for one purpose and not for another –
and then Wynyard is mentioned and there is no further reference to it.
MR SEXTON: Well, it is a different form of ‑ ‑ ‑
CALLINAN J: You might say that that comes fairly close to an overruling implicitly anyway.
GUMMOW J: The citation of Wynyard is to Justice Kitto’s judgment at 394.
MR SEXTON: Yes, that is right. Well, of course, the reason for that, your Honour – I will come back to….. – but the reason for that is that ‑ ‑ ‑
CALLINAN J: It is not your fault that the Chief Justice did not deal in detail with Wynyard, but we might have to draw some inference from the fact that it is a unanimous decision apparently preferring Justice Kitto.
MR SEXTON: No, your Honour, just let me answer that in two parts. The point about Justice Kitto’s judgment is that almost all of it up until the last page is not something that we would disagree with. There are statements of principle about Crown immunity and we would say obviously so.
CALLINAN J: Well, I am not too sure that you can reconcile what you do not disagree with with the majority’s reasoning in Wynyard.
MR SEXTON: Well, your Honour, the only thing that we disagree with is construction of this particular form of words in that piece of New South Wales legislation and as it interacted with some other pieces of legislation.
CALLINAN J: It very much makes your best point that the New South Wales legislature has acted on the basis of the correctness of the majority in Wynyard.
MR SEXTON: Well, I have said, your Honour, if one was starting de novo that, of course, there might be ‑ ‑ ‑
CALLINAN J: Yes, I do not think you have much else.
MR SEXTON: It is not the strongest vote of confidence we have had today, your Honour, but we do say that the majority’s construction can be justified and we do justify it but obviously it is a matter on which minds might differ and that some members of this Court might prefer the approach of Justice Kitto, some might prefer the approach of the majority. It would be impossible to be dogmatic about that, but we do not think that Townsville Hospital Board really answers that question.
McHUGH J: The citation by Chief Justice Gibbs of Herbert, Wynyard and Rhind appears to owe its origin to the argument of Mr Davies and Mr Keane recorded at page 283 where those three cases are advanced apparently in support of the proposition that a body may represent the Crown for one purpose and not for another. Indeed, the reference made in argument was a reference to Justice Kitto.
CALLINAN J: There does not seem to have been any reference to the striking similarity of language. That is really my point.
MR SEXTON: Well, it is really a different form of language in a sense in a – I mean, it is not surprising.
CALLINAN J: It is not your fault, Mr Solicitor.
MR SEXTON: No, but we do not see it as surprising, your Honour, and the reference to Justice Kitto there, we would say, is that that does not cause a problem for us because that is a point that he makes. How that is quite analysed is for some purposes but not for others may be a matter, of course, that is quite difficult in practice.
Your Honours, I have referred to some of the other bodies about which this form of words is used in the 1988 legislation. There are some bodies established by the 1988 legislation, as your Honours will see, which are established as what are called in New South Wales State‑owned corporations which are a different kind of entity and the formula is not used about those. RailCorp is one under the legislation and the Transport Infrastructure Development Corporation and the Rail Infrastructure Corporation which owns the tracks is another one. So there are two
different kinds of bodies in this legislation and the words are only used in relation to ‑ ‑ ‑
GUMMOW J: They are completely outsourced, are they not? Is that not the scheme of the legislation?
MR SEXTON: Yes. They are commercial operators and they have two shareholders; two Ministers hold the shares, the policy Minister and usually the treasurer. Just finally on this question, we have made reference in our written submissions to the Crown Proceedings Act which was raised on the special leave application. It perhaps illustrates in a sense the rather varied drafting and the lack of a pattern in New South Wales because his Honour Justice Gummow pointed out at the special leave application the definition of “Crown” there for the purposes of that Act includes “a statutory . . . body, representing the Crown”, but the Attorney‑General’s second reading speech, which we have set out at paragraph 9.4 of our written submissions, indicates that he was assuming that that phrase already gave a body the shield of the Crown and what he was concerned with there was that it did not get any further immunities that were greater than those of the Crown itself. So it perhaps illustrates really that it is not easy to draw conclusions from differences in wording between different pieces of legislation. Your Honours, unless there are any other matters, those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Churches.
MR CHURCHES: Your Honours, the Solicitor‑General very candidly conceded early on that there was no pattern in New South Wales legislation on this topic. We think that makes our case exactly. It is not as though – and, indeed, it cannot be supported – that the New South Wales Parliament has a consistent approach to adopting what was said by the majority in Wynyard Investments. There has been an approach which is haphazard, perhaps capricious, but where there is financial impact or impost that may fall on these statutory bodies representing the Crown, there we do see some pattern of care for their position. Otherwise, there appears to have been no approach by the legislature to taking up the cause of those bodies in particular.
In general terms, the most important thing that would appear to have come out of the Solicitor-General’s submissions is that the place of Wynyard Investments within the legal framework of this country is now, to use the expression of Justice Gummow, “an Alsatia” and that is something which we should, we submit, always be careful about, very careful about. That point indeed, we submit, goes to the opening for the appellant that prima facie, and we adopt the words of Chief Justice Gibbs in Townsville, the law should be applied evenly throughout a community and it is open to a parliament to vary that but express words are the way a parliament should go about it if it sees fit to vary the impact of the law from an equal operation.
As to the references to the Geelong Case 122 CLR, that is the High Court decision, we submit that that is a decision now well back in time and prior to the reasoning of this Court in Babaniaris in 1987 and later in John and John, of course, picked up what Justice Mason had to say in Babaniaris and quoted it at length, the point being that, as we said in our submissions earlier, the work of this Court, in particular, in the process of statutory interpretation is not one simply analogous to the work of the Court in construing the common law. It is finding the intention of the legislature that is really at stake and it is not appropriate to adhere to what judges had themselves thought previously if the present Court thinks that those judges were in error.
It is not enough to say well, there is a longstanding decision and we should adhere to it for the sake of it because as Justice Gummow pointed out in Brennan v Comcare 50 FCR, in the pages that we have cited, to take that attitude is, in fact, to be in breach of the proprieties of the separation of powers. It is the function of this Court to get to the intention of the Parliament and find it as exactly as it can, rather than to ‑ ‑ ‑
GLEESON CJ: On that point of the intention of the Parliament, I think we can find, from the decision in Wynyard, examples of the statutes to which, on the minority view, the relevant words would have had application, but I am not sure how up‑to‑date our information is about that. As at 1988, what do you say were the acts of the New South Wales Parliament to which, on your construction of section 46(2)(b) of the Transport Act, reference was being made.
MR CHURCHES: I am looking at the schedule to the appellant’s submissions, your Honour, page 17. We can see there from the dates of the legislation set out there – I think there were 17 Acts – some are pre‑1988, one of course, the Crown Proceedings Act, is 1988. The first, the Building and Construction Industry Long Service Payments Act is 1986, the Environmental Planning and Assessment Act 1979, the Land Development Contribution Management Act 1970, so, yes, at a scan, there is a considerable number which, pre‑1988, indicate that the draftsman thinks that statutory corporations representing the Crown should be specially dealt with along with the Crown and enumerated so that that was a pattern already clear in 1988. Indeed, my junior has just pointed out that at about line 25 on that page, the Land Tax Management Act 1956, only one year after Wynyard Investments, is dealing with issues of financial burden as they might impact on statutory bodies.
GUMMOW J: There is a reference there to the Duties Act also.
MR CHURCHES: Yes, your Honour, that, of course, though being a 1997 Act, but a similar issue about financial burden, yes. My friend finished with a reference to the second reading speech of the Attorney‑General. It is set out at 9.4 of the respondent’s submissions. In our submission, the references to the “shield of the Crown” there are very general ones indeed and do not advance the position about the interpretation of this exact phrase. “Shield of the Crown” is a very general reference, and indeed is one which is raised in terms of the common law tests, function and control, and the terminology used by the Attorney‑General, we submit, is not apt to advance the understanding of what Parliament intended with this legislation. If there are no further questions, that concludes the reply.
GLEESON CJ: Thank you, Mr Churches. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Sydney.
AT 3.34 PM THE MATTER WAS ADJOURNED
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