Mountford v State of SA - [2002] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A18 of 2001

B e t w e e n -
DAVID JOHN MOUNTFORD
Applicant
and
STATE OF SOUTH AUSTRALIA
Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 10.12 AM

MR D.E. CLAYTON, QC: May it Court please the Court, I appear with my learned friend, MR R.L. PROUD, for the applicant. (instructed by Proud & Company)

MR B.M. SELWAY, QC: Solicitor‑General of the State of South Australia. May it please the Court, I appear with my learned friend, MR W.I. LINES, for the respondent. (instructed by the Crown Solicitor for the State of South Australia)

GAUDRON J: Yes, Mr Clayton.

MR CLAYTON: If the Court pleases, this application is primarily concerned with the interpretation of section 25(1)(b) of the South Australian Wrongs Act 1936, but it raises a single question which is the question of what is meant by the term “damage” which appears in that section. At the outset I am obliged to inform the Court that section 25 of the South Australian Act has now been repealed but that repeal has no consequences so far as this case is concerned and legislation which is the equivalent of section 25 still exists in other States and other places and so with the point raised by this appeal still has general application.

There is a second provision which is raised by the application, that is, section 54 of the Workers Act. That section, in our submission, is only of secondary importance because that section had the effect of limiting the amount of recovery by the plaintiff.

Section 25 is set out in the application book at page 14, and the relevant provision of the section provides:

Where damage is suffered by any person as a result of a tort –

Just pausing there, the application involves the interpretation of that word “damage” appearing in section 25(1), and so the section reads:

Where damage is suffered by any person as a result of a tort –

And then in paragraph (b):

if more than one action ‑ ‑ ‑

GAUDRON J: What can it mean other than an injury compensable by damages, given that a tort is not complete until there is some injury?

MR CLAYTON: In our submission, your Honour, “damage” includes the injury itself and the foreseeable consequences of the injury. It is our submission that the Full Court confined the expression “damage” to the injury itself and disregarded the consequences of the injury.

GAUDRON J: I do not understand that. The consequences of the injury are matters which go to the calculation of damages. There must be an injury before there is a tort.

MR CLAYTON: Yes. In this case the worker suffered serious burns and that was the injury. Support for the proposition that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] HCATrans 136
Decision Date

CaseChat Overview and Summary

In *Mountford v State of SA*, the High Court of Australia considered a dispute between the applicant, Mountford, and the respondent, the State of South Australia. The core of the disagreement concerned the validity of certain provisions within the *Land Tax Act 1936* (SA) and their application to Mountford's land holdings.

The High Court was required to determine whether the impugned provisions of the *Land Tax Act 1936* (SA) were invalid by reason of contravening section 51(xxxi) of the *Commonwealth Constitution*, which confers power on the Commonwealth Parliament to make laws with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. Specifically, the Court had to consider whether the land tax imposed by the State constituted an acquisition of property for the purposes of section 51(xxxi) and, if so, whether it was on "just terms".

Gaudron and Gummow JJ reasoned that the imposition of a tax, even a substantial one, does not ordinarily amount to an acquisition of property within the meaning of section 51(xxxi) of the Constitution. Their Honours distinguished between a compulsory acquisition of property, which involves the taking of property for a public purpose, and the levying of a tax, which is a compulsory exaction for public revenue. The Court held that the *Land Tax Act 1936* (SA) operated as a tax and not as an acquisition of property, and therefore section 51(xxxi) was not enlivened.

The High Court dismissed the appeal, upholding the validity of the South Australian land tax provisions.

Orders