McNamara (McGrath) v Consumer Trader and Tenancy Tribunal and Anor (295-04)

[2005] HCATrans 24

[2005] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S95 of 2004

B e t w e e n -

JILL McNAMARA (McGRATH)

Applicant

and

CONSUMER TRADER AND TENANCY TRIBUNAL

First Respondent

ROADS AND TRAFFIC AUTHORITY

Second Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 FEBRUARY 2005, AT 11.31 AM

Copyright in the High Court of Australia

__________________

MR S.C. CHURCHES:   If it please the Court, I appear for the applicant. (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 (NSW))

McHUGH J:   Yes.  We might hear from you first, Mr Sexton:

MR SEXTON:   Your Honours, I would give three reasons, your Honour, why it is not a suitable case for special leave ‑ ‑ ‑

McHUGH J:   Just before you do, the Registrar has certified that she has been informed by the solicitor for the first respondent that the first respondent submits to the orders of the Court save as to costs.  Yes, Mr Solicitor.

MR SEXTON:   Your Honours, the decision in Wynyard Investments has stood now for 50 years, and, in our submission, it has not been doubted in decisions of this Court over that period of time.  The New South Wales Parliament has been entitled to act upon its correctness, and we would say that is why provisions such as this one still remain in the legislation.  We would say it would be an extraordinary thing after that period of time to reconsider the decision in Wynyard Investments and to overturn what has, in effect, been half a century of reliance upon it.

McHUGH J:   But the argument against you is that the reasoning of the majority depends upon two legal propositions which subsequent cases have rejected.

MR SEXTON:   Your Honour, not so, in our submission.  There are certainly remarks in the majority decision which have been overtaken by later decisions of the Court in those areas that your Honour refers to, but the central proposition and the finding by the majority is the interaction between the two statutes.  In effect, that is exactly the same proposition that is before the Court.

GUMMOW J:   Well, there has been the intervention of the Crown Proceedings Act 1988, has there not, which has this phrase, “statutory corporation . . . representing the Crown”.

MR SEXTON:   For the purposes of that legislation.

GUMMOW J:   As to who gets sued.

MR SEXTON:   Yes, your Honour.  In our submission, that does not answer the question of the connection here and the construction link between the two relevant statutes, in other words, the reference to the Crown in the Landlord and Tenant legislation and the reference ‑ ‑ ‑

GUMMOW J:   I am just looking at section 46 of the Transport Act, “Constitution of RTA”.  It says: 

(2)      The Roads and Traffic Authority: 

. . . 

(b)      is, for the purposes of any Act, a statutory body representing the Crown.

Well, the most notable such Act would now be section 3 of the Crown Proceedings Act 1988, I think, which actually uses the phrase, you said.

MR SEXTON:   It does, your Honour.  That is correct.  The one thing that perhaps my learned friend has clearly established in his materials, in our submission, is that there really is not a consistent pattern as between these statutes in New South Wales in terms of these kinds of expressions, which is why it is important to focus on the two statutes in issue.  If one does that, one is, in a sense, asking exactly the same question as was asked and answered in Wynyard Investments.

While that was, of course, a case in which there were two dissenting judgments, it may have been possible then, and obviously was, to have an argument about that question.  We say that the majority’s construction is the preferable one, as it happens, but, in any event, the real point is that it is a half a century that that construction has stood and the Parliament, we would say, has been entitled to rely on it, and has relied upon it, over that period of time.

It is certainly possible, as your Honour points out, to find instances in New South Wales statutes where the Parliament may have taken a different approach, but, really, what has to be resolved here is the interaction between the Landlord and Tenant legislation and the Transport Administration Act.  Other statutes really can, we would say, only be of limited use in answering that question.  Your Honour, that is the first point, we would say, in relation to special leave.

The second point is that, in any event, because of the nature of the problem of construction here, it is one that could be, of course, quite readily addressed by a straightforward statutory amendment and one would think that if this Court cast any doubt now on the decision in Wynyard Investments that that might be what would occur.  It really underlines, in a sense, the first point, that after half a century it is hard to see why the Court would undertake that reconsideration in a situation where the decision has not been doubted in this Court and has been relied upon by other courts and by the Parliament.

Can I just say in relation to other courts – these are in my learned friend’s materials – they were cases that have been reported since the summaries of argument went in.  At 23 in my learned friend’s bundle of materials, Williams v State Transit Authority of NSW, your Honours will see at the bottom of page 26 in the materials the relevant provision.

McHUGH J:   There is a special leave application in that case, is there not?

MR SEXTON:   I was not aware of that, your Honour, but I was just going to give ‑ ‑ ‑

McHUGH J:   Yes.  According to the judgment, it has been filed.

MR SEXTON:   Yes, your Honour is quite right.  I assume that has not been heard.  I am not sure what the grounds are.

McHUGH J:   When you are talking about decisions standing for 50 years, take the decision in Bropho itself.  It must have shocked the daylights out of the Crown all around the country.

MR SEXTON:   But, your Honour, that was a question of a point of principle, a broad question of construction.  That is not true in this case.  It is a particular statutory provision, and, as I say, one that is susceptible of ready change.  From the point of view of a special leave application, they are important considerations, we would say.

GUMMOW J:   Do you say the RTA is “the State” for the purposes of section 75(iv) of the Constitution?

MR SEXTON:   There could be an argument about that, your Honour.  It depends, in a sense, on the construction of its legislation, which is the Transport Administration Act.  It is certainly a State instrumentality.

GUMMOW J:   Yes.

MR SEXTON:   Whether it is “the State” for those purposes perhaps might be a matter of more argument.  Your Honours will see at the bottom of page 26 of Williams the provision in the Conveyancing Act saying that:

No dedication or grant of a way shall be presumed . . . against:

(a)   The Crown –

is the phrase used. On the following page at paragraph 56 and 57 there is the provision of the Transport Administration Act which constitutes the State Transit Authority in the same terms as the RTA in this case.  It will be seen there that paragraph 58 is where Justice Mason says that – and in paragraph 57 – the effect of that is that it falls within the provision.  The reference to “the Crown” in the Conveyancing Act, we would say, seems to be on all fours with this situation.  Again, it is simply a reliance, really, on Wynyard Investments. 

To a similar effect, not quite as specific, is the decision of the Full Federal Court in Lin v State Rail Authority of NSW, the next case, page 28.  On page 29 at the very bottom of the page there is a reference to, again, the Transport Administration Act and to the provision constituting the State Rail Authority in the same terms, and that gave it the “immunities of the Crown” for the purposes of the Trade Practices Act.  There is a reference to:

P W Hogg and P J Monahan, Liability of the Crown ­

That is a general discussion of that point of the text, but dealing with the question of immunities.  There is a situation where the Court of Appeal in New South Wales and the Full Federal Court have essentially relied upon Wynyard Investments, as, indeed, other courts have done, and, indeed, we would say, the Parliament has done over that period of time.

Your Honours, they are the three matters that we raise in relation to the special leave application.  I do not think that there is anything I can really usefully add to that, unless there is something your Honours want to ask me about.

McHUGH J:   Thank you, Mr Solicitor.  Yes, we need not hear you, Mr Churches.  There will be a grant of special leave in this matter.  We will dispose of it in one day?

MR CHURCHES:   I would have hoped half a day, your Honour.  Well, maybe a day.

McHUGH J:   Yes. 

AT 11.43 AM THE MATTER WAS CONCLUDED