Moreton Bay Regional Council v Mekpine Pty Ltd

[2015] HCATrans 270

[2015] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 2014

B e t w e e n -

MORETON BAY REGIONAL COUNCIL

Applicant

and

MEKPINE PTY LTD

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.N.S. SKOIEN, for the applicant.  (instructed by Moreton Bay Regional Council)

MR G.J. GIBSON, QC:   If it please the Court, I appear for the respondent with my learned friend, MR P.D. HAY.  (instructed by Hillhouse Burrough McKeown Pty Ltd)

KIEFEL J:   Mr Gibson, we would be assisted by hearing from you in the first case.

MR GIBSON:   Your Honours, dealing with the first question raised by the application, there are, in our submission, four primary reasons why special leave ought not be granted in respect of that question.  First, the applicant’s submissions do not correctly characterise the conclusions or describe the reasoning process of the majority.  The majority decision was not that the amalgamation of the two lots had the effect of varying the respondent’s lease so as to confer a leasehold interest over all the new amalgamated lot.  We particularly refer to the applicant’s submissions at paragraphs 11 and 13 in that regard where they submit that the majority concluded – and this is at paragraph 13(c) at page 93 of the record – that:

reference to a lot number will mean that that description automatically will vary each time that that lot number changes –

and similarly at paragraph 13 in the opening words, towards the foot of page 92, and the characterisation of the judgment at paragraph 11 of the applicant’s summary, subparagraph (i).  As we will explain, that was not the reasoning process adopted by the court.  Secondly, the judgments of the majority turned on the construction of that part of a lease agreement has conferred a contractual licence or right to use the common areas of a shopping centre. 

Thirdly, and in consequence, the decision of the majority does not create a precedent of wide‑ranging application, contrary to the submissions made by the applicants at paragraph 19 of their summary at page 94.  Furthermore, the construction adopted by the majority was open to be adopted.  Accordingly, there is no or no sufficient prospect of success of an appeal and therefore, in our respectful submission, no warrant for a grant of special leave.

KIEFEL J:   Putting aside the correctness of the applicant’s approach, is there not a question of principle and a matter of public importance involved in the issues here both with respect to the Land Title Act and the Retail Shop Leases Act?

MR GIBSON:   In our submission, dealing with the Land Title Act provision firstly, your Honour, no, because as we submitted in our written outline and introduced a moment ago, the point upon which the majority determined the case – indeed, the point of departure between the majority and the minority – concerned not the operation of provisions of the Land Title Act as a matter of law, but rather the proper construction of that part of the lease agreement which conferred a contractual right to use land and ‑ ‑ ‑

KIEFEL J:   But does not the majority’s reasoning start with the notion that the instrument for the purposes of the Land Title Act is the plan of survey?

MR GIBSON:   Yes, it does and her Honour Justice Holmes took a contrary view adopting a similar view to that of the Land Appeal Court.  However, in the result, that difference between their Honours was not instrumental to the outcome.  It does not matter whether the instrument in question was the plan of survey as the majority held, or the lease, as her Honour Justice Holmes concluded.

KEANE J:   But it does, does it not, because if the relevant instrument is the lease, then the rights and duties which it creates are determinative.

MR GIBSON:   Save for the fact that the view of the majority was that in consequence of the amalgamation of the two lots, and as a matter of construction of the relevant provision of the lease agreement, which conferred the contractual right of user, their Honours concluded that the parties’ intention in the lease was to confer that right with respect to so much of the shopping centre as was not the subject of an existing lease or licence.

KEANE J:   And on that approach, the operation of the amalgamation provisions is an essential part of the reasoning.

MR GIBSON:   No, with respect not, your Honour.  In our submission, it is the fact of the amalgamation is an important fact.  Without the amalgamation the issue does not arise, but in consequence of the amalgamation the question of – it was the amalgamation that gave rise to the question of construction.  Absent that fact, no question arose.  With that fact, a question arose as to whether the parties’ intention, as reflected in the wording of the lease agreement, was that the right of use in respect of the common areas was extended to the whole of the amalgamated lot, or rather, so much of it as was not the subject of a lease.  That is the nub of our submission.

I can take your Honours – perhaps I should briefly – to paragraphs of the judgments, including the judgment of Justice Holmes, which indicate that to be so.  Paragraphs [18] and [19] of the judgment of the president address the point.  We see in those two paragraphs in particular how her Honour’s reasoning unfolded.  It is true that her Honour refers to the “instrument” and identifies it as being the plan of survey, and then ‑ ‑ ‑

KEANE J:   Then her Honour in paragraph [18] at line 25 says – gives her Honour’s view of the effect of section 182.

MR GIBSON:   Yes, that is quite right, and that then ‑ ‑ ‑

KEANE J:   Is not the view of the effect of section 182 of the Land Title Act an essential aspect of the point of departure between the two judges on one side, two judges on the other side?

MR GIBSON:   In our submission not, your Honour, because – can I turn to make that good to Justice Holmes’ reasoning where her Honour proceeded upon a different footing.  At paragraph [54] at the top of page 67, her Honour expresses the contrary view as to the registration of the relevant instrument which her Honour concluded was the lease.  However, as her Honour’s reasoning unfolded ‑ ‑ ‑

KIEFEL J:   That is relevant instrument for the purpose of section 182.

MR GIBSON:   It is, indeed, but as we see in the second and subsequent sentences at paragraph [54], her Honour concluded that the rights and interests of the applicant depended on the terms of the relevant registered instrument, namely the lease, which – I should emphasise that:

defined by the relevant registered instrument – the registered lease – which created it.

Then her Honour continued in the next sentence which, in our respectful submission, reflects also a process of construction of the lease agreement, admittedly producing a different outcome to that reached by the majority, but that was the point of construction to which we referred.

KEANE J:   But their starting points are different, are they not?

MR GIBSON:   The starting points are different, your Honour, that is quite right.

KEANE J:   And the starting points are different because they take a different view of the operation of a rather critical provision, a rather important provision, of the Land Title Act. 

MR GIBSON:   Yes.

KEANE J:   Well, if you have got evenly divided judicial opinion – if you count up all the judicial heads that have turned their mind to this – in relation to a provision of the Land Title Act which has analogues throughout the federation, is it not starting to look a bit like a case for special leave?

MR GIBSON:   Your Honour, we do not for one moment take issue that their Honours adopted a different starting point.  Our submission is that that difference in the starting point which they adopted in the result was not material to the outcome.  Now, I have made the submission and I do not think I can make it any differently.

Now, with respect to the Retail Shop Leases Act point, there is of course no utility in granting special leave on that question if leave is not also granted in respect of the first question, and vice versa.  In our submission again, however, no point or principle is raised by this issue. 

KEANE J:   Mr Gibson, is there not a difference, in that the Chief Justice and Justice Lyons in the Land Appeal Court take the view that section 6 is a pure definition section?

MR GIBSON:   Yes.

KEANE J:   Whereas the majority in the Court of Appeal took the view that it is an operative provision.

MR GIBSON:   Yes.

KEANE J:   And this is the Retail Shop Leases Act, a statute of some importance.

MR GIBSON:   We do not deny that for one moment.

KEANE J:   Well, is that not starting to look like a special leave point as well?

MR GIBSON:   In our submission, what we have – what this case is, it stands for no point of principle.  The case is an illustration of an approach to statutory interpretation and no more.  We make that submission for this reason.  That the principle stated in Gibb v Federal Commissioner of Taxation was not challenged by this judgment, certainly not expressly nor impliedly.  To the contrary, all members of the court recognised the principle and referred to it in their reasons.

The point of departure between the majority and the minority concerned whether there were sufficient circumstances revealed by the

context and the object and evident policy of the legislation to warrant a departure from the operation of that principle in this case.  There was nothing unique or unusual about that.  It is a conventional approach to statutory interpretation and it is a conventional approach to the application of case law and general principles to a particular statute. 

Recognising, as we do, the subject matter of the legislation, the fact of the matter is that interpretation of any legislation will necessarily have an effect throughout the jurisdiction in which that legislation operates.  This is no different from that.  It is an example of that and, in our submission, because there is no error of principle, in our submission, once again, there is no warrant for a grant of special leave.

KIEFEL J:   Thank you, Mr Gibson.

MR GIBSON:   Thank you.

KIEFEL J:   We do not need to trouble you, thank you, Mr Jackson.

There will be a grant of special leave in this matter.  Would counsel’s instructing solicitors please see the Deputy Registrar before they leave?  This matter may be listed in the December sittings in the second week for hearing and, as a result, the timetable will be somewhat expedited to permit that.  Thank you.  Time – more than half a day?

MR JACKSON:   Your Honour, I think it could go into the afternoon.

KIEFEL J:   Do you agree with that, Mr Gibson?

MR GIBSON:   Yes, one could not deny that prospect.

KIEFEL J:   Yes, thank you. 

AT 9.45 AM THE MATTER WAS CONCLUDED