R&R Fazzolari Pty Ltd v Parramatta City Council
[2008] HCATrans 368
[2008] HCATrans 368
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S384 of 2008
B e t w e e n -
R & R FAZZOLARI PTY LIMITED
Appellant
and
PARRAMATTA CITY COUNCIL
Respondent
Office of the Registry
Sydney No S385 of 2008
B e t w e e n -
MAC’S PTY LIMITED
Appellant
and
PARRAMATTA CITY COUNCIL
First Respondent
MINISTER ADMINISTERING THE LOCAL GOVERNMENT ACT 1993
Second Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON THURSDAY, 6 NOVEMBER 2008, AT 10.02 AM
(Continued from 5/11/08)
Copyright in the High Court of Australia
__________________
FRENCH CJ: Yes, Mr Walker.
MR WALKER: Your Honours, may I briefly return first to the use of the word “function” to be found in section 186(1) to which some reference was made yesterday. Your Honours will have seen in our written submissions, as well as the dictionary, given effect by section 3 of the Local Government Act which defines “function” to include “power, authority and duty”, there is the usage of the word “function” and its relation to ancillary functions or what in English would be called “powers” to be found in the combination of sections 21 and 22 of the Local Government Act to which we have drawn attention.
Your Honours will note, though it does not have the force of an enactment, that there is a reference in the print of the Local Government Act drawing to attention section 50 of the Interpretation Act. We have set that out in the extracts under section 22 of the Local Government Act. Now, in the Interpretation Act in the ordinary way one sees that there is a reference to the powers which, of course, is included as defined in the notion of function the:
purchase, exchange, take on lease, hold, dispose of and otherwise deal with property –
thus sale or resale. But one sees in the ordinary way that that is given:
for the purpose of enabling it to exercise its functions –
That is unquestionably why, in the relevant part of the Local Government Act that we are concerned with, which is Chapter 8, the heading is in the conversational style adopted “What ancillary functions does a council have?” They are ancillary functions, that is, they subserve some other function. They are means to an end. Substantially one can see that that must be so observing the parallel of language in 186(1) upon which we have already sufficiently dwelt and in Part 2 of the Chapter, 191(1).
In our submission, there is, as a matter of substance, a parallel between the relation of the acquisition of land under 186(1), which is for the purpose of exercising a function, not itself ancillary, and when one looks at the power of entry, exactly the same conclusion, namely, the Council has a power of entering premises, which is regulated in the following provisions, again for the purpose of enabling it to exercise its functions. One does not get to and does not have to be deterred by the fact that functions are also defined said to include powers. Powers include power to enter land. But no one would suggest that the power to enter premises is, as it were, an end. It is only ever a means. It is for those reasons, in our submission, that the ancillary nature of the power to acquire land like the power to enter premises is plainly spelt out by the position of Chapter 8 in the Act, notwithstanding the definition of “function” in the dictionary set up by section 3.
HAYNE J: In construing the Act, what use may one make of the introduction that is printed under the heading “Chapter 8”?
MR WALKER: Your Honour, if it is a marginal note – I wonder if I might take it on notice. There is a particular provision about marginal notes ‑ ‑ ‑
HAYNE J: It is that I am after ‑ ‑ ‑
MR WALKER: Yes. It is in the Interpretation Act, your Honour. I think the answer is you may not, but I will have that checked.
HAYNE J: Thank you.
MR WALKER: Yes, I am obliged to my friend. Section 6 is a specific provision for this statute which, as I say, was to an extent experimental in its drafting style:
Introductions to Chapters, notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding.
Your Honours, section 6 is itself part of the enactment and it tells you what those parts of the print are there for. They are there to assist understanding. I am not sure whether that has enabled me to assist the understanding of the Court as to what is the status of those notes and introductions.
FRENCH CJ: At the very least, they would have been before the Parliament, I suppose, so one can treat them in the same way, at least as an explanatory memorandum?
MR WALKER: It would be unfair and inaccurate to call them extrinsic in the technical sense of that word. They were part of the material the legislators had, but within rather than without. Second, section 6 actually recognises them and is an enacted provision that does tell the Court that these are things which surely the Court and not merely everyone else in the world may draw upon to assist understanding. I think that is as far as I can put it, because section 6 is itself a little ambivalent.
Your Honours, can I complete what I wanted to say in supplement to our written submissions on the interpretation of the critical provisions by turning briefly to conclude what I wanted to say about paragraph 188 (2)(a) – and this is only in slight supplementation. Your Honours will have noted in the written submissions that we are taken to task for not paying sufficient regard in the interpretation to the other part of the connection between one piece of land and another piece of land set up by the expression “forming part of”, which is the first of the three possibilities. “Forms part of” is the first, “adjoins” is the second, “lies in the vicinity” is the third. As we understand the position between the parties, it is either the second or third that applies in this case in relation to Church and Darcy Streets. They are joined or lie in the vicinity of our clients’ lands.
“Forms part of” is put by our learned friends in their written submissions as if it indicates what might be called the topographical meaning of the word “land”. Well, there is no doubt about that as a matter of English. It certainly is consistent with it, but it is also consistent with the notion of interests, that is, some but not all of the bundle of rights because the acquisition legislation permits the acquisition of interest in land and not only the whole of the land in what might be called a topographical sense. It is for those reasons that “forming part of” does not indicate to the exclusion of references to “carved out” or “lesser interests”. It does not exclude that so as to found only a topographical sense.
In our submission, this is not of any relevance to the interpretation question before the Court, not least because if, and we do not understand it is, but if that were called in aid on the facts of this case, however one understands the notion of one piece of land forming part of another piece of land, it is unquestionably the case that it is the intended fate of parts and interests in both the Church and Darcy Street land, that is, the land which is presently public road already owned by the Council – it is unquestionably the intended fate of part of that to be resold, as we put it, to the developer. We have given the references to all of that in our written submissions.
Could I then move, to complete everything I wanted to say about all the statutory interpretation issues. to the point that we have latterly raised about section 7B of the Just Terms Act. This has importance, if at all, because of the expression, “under this Part” in the phrase “acquired at the same time under this Part” found in paragraph 188(2)(a) of the Local Government Act. The trigger for the application of the exception on the exception is that there is land acquired at the same time “under this Part”.
This Part includes section 186 and we apprehend that the obvious proposition relied upon against us is that the public roads to be acquired at the same time by simultaneous gazettal, as was the proposal, is being acquired by reason of, by using the power given by section 186. That is in this Part therefore the phrase “under this Part” is satisfied and we raise a contrary possibility
The contrary possibility starts with the ordinary English of “acquired” and denies the possibility as a matter of ordinary language and logic of acquiring that which you already have, that the very notion of “acquire” emphasised by the prefix in it is that something comes to you which was not already there.
Section 7B of the Just Terms Act takes a power found elsewhere – in this case section 186 – and does one or other of two possible things. It either as an act of supererogation tells the world what that power found elsewhere – here section 186, already permitted or authorised ‑ and if this the possibility that the Court prefers then this argument should be rejected – our argument should be rejected. The alternative which we submit is greatly to be preferred is that section 7B of the Just Terms Act does something not redundant and not merely declaratory of what in any event was the case but adds an authority or power to that which was not adequate to give the extent supplied by section 7B itself.
Now, what was not adequate in section 186, we submit, is the notion of acquiring that which you already have. That not being empowered by section 186 section 7B is necessary ‑ not redundant – is necessary in order to supply that power. Therefore it cannot be said that it is by invocation of section 186 that the acquisition of the public roads owned by Council is being carried out at the same time.
KIEFEL J: Is section 7B intended to reflect a landholding in some other capacity other than as owner, local authority as owner?
MR WALKER: No, because there is no difference of capacity in this case. Your Honour, however, with respect – I am trying to avoid the word “capacity” because they are owners, come what may, but your Honours are aware that – and the most obvious example is community land, that there are certain statutory inhibitions upon disposition, for example. There is also roads which are owned which are, of course, public roads and there are statutes – quite apart form the common law – there are statutes regulating what may and may not be done even by, or especially by, its owner in relation to a road. There is no outstanding or further ownership interest, though, or title that is being acquired upon one of these compulsory acquisitions.
KIEFEL J: Do local authorities also hold land as trustees for particular purposes?
MR WALKER: In some cases, yes, but section 7B is most certainly not confined to that.
KIEFEL J: Addressed to that, right.
MR WALKER: It may well address that although I think I can tell your Honours that that is not a means by which those trusts can be extinguished.
HAYNE J: Well, if 7B is engaged, does that have the consequence that section 20(1)(b) of the Just Terms Act is engaged and the discharge is from amongst other things?
MR WALKER: That is a very important and intended consequence of section 7B’s exercise of power.
HAYNE J: In particular, dedications, reservations, et cetera.
MR WALKER: Yes, I need, however, to draw to attention, as I think I did when I first went through the provisions, there is subsection 186(3) which has particular reference to community land and which addresses what would otherwise be the effect of paragraph 20(1)(b) of the Just Terms Act. So there is a scheme. Community land is, as it were, specially protected, but otherwise one of the most obvious and intended effects of section 7B is to permit what I will call the section 20 effect, which I apprehend, with respect, is the matter that Justice Kiefel was raising with me, yes.
KIEFEL J: Mr Walker, could I ask you, in relation to section 188(2)(a), is that a provision that is found in other legislation elsewhere in relation to compulsory acquisition, particularly by councils?
MR WALKER: Not to my knowledge, and it ‑ ‑ ‑
KIEFEL J: It just seems to strike something in my vague memory. Is part of its intention to deal with land which is acquired but which might be surplus to needs, that is, land acquired in conjunction with other but knowing that part of what you are acquiring will not be utilised and therefore be sold?
MR WALKER: Yes.
KIEFEL J: So part of the land purchased is with resale in mind, but the balance has a proper use, that is how it is intended to operate?
MR WALKER: Yes, there are two ways – I am sure your Honours are aware of this in practice – in very ordinary cases of acquisition such as road widening, that an acquiring authority may deal with the private parcel which is in question. Mostly I think they take only that which they need for the road widening, leading under the Just Terms Act to questions on compensation of the effect that needs to be reflected in monetary compensation upon the balance retained. It is not just the market value of the strip taken, that is a compensation question.
An alternative way of proceeding would be to take the whole parcel, to pay market value for the whole parcel, always intending, having as the intended fate of what I will call the surplus land, that it will be resold, to use the language of these provisions. Paragraph 188(2)(a) seems to recognise that alternative way of proceeding ‑ ‑ ‑
KIEFEL J: There is some old case law dealing with the problem with the exercise of power of compulsory acquisition where there was to be a surplus.
MR WALKER: Yes.
KIEFEL J: That is why I wondered if there were other statutes which had a similar provision and some case law arising out of it dealing with the construction of the clause.
MR WALKER: The old case law that your Honour has referred to in particular includes that in which the issue raised with me by the Chief Justice yesterday was important, namely, whether there was an improper purpose or lack of good faith ‑ ‑ ‑
KIEFEL J: Yes, that is right.
MR WALKER: ‑ ‑ ‑ a vitiating factor in the acquisition itself, and the cases divide into classes according to their results. One class is where the purpose for which the land to be retained upon resumption for, say, the road is enough to justify the fact that from the very inception of the project it was always intended that other parts of that land would be resold, and in order to add the political sting to it, at a profit if needs be. We, as I tried to make clear yesterday, have no point of power in this case. We do not protest that the intended fate of some of the land after acquisition to be resold ‑ ‑ ‑
KIEFEL J: No, but subsection (2)(a) is addressed to a perceived problem that is no doubt addressed in the older case law which you have mentioned.
MR WALKER: Yes. It is actually really a response to the outcomes of those cases, which depend very much on their individual resumption statutes and on their facts. This is the legislative response, which I think, your Honours, does not reflect, that is, as a matter of language, either any ratio or holding of any of the cases, and I do not think it has any analogue in other statutes. It is, however, a familiar position which the legislature has addressed, namely, acquiring more than you actually need for what I will call the permanent purpose of use of land. There is of course the temporary purpose of using land to generate revenue upon resale. That was the one that Parliament turned its attention to a number of times, including in the unsuccessful amendment to which we have drawn attention in our written submissions.
Your Honours, that completes what we want to say about section 7B. I stress, if it is regarded as supererogatory, adding nothing to 186, then our argument must be rejected. If it does add something, then we submit as a matter of ordinary understanding, it cannot be said that the acquisition of those public roads is being accomplished “under this Part”.
HEYDON J: That acquisition of Darcy Street and Church Street is going to take place in the future. Is that right?
MR WALKER: Yes. It had always been proposed, I think, in the same gazette.
HEYDON J: As the acquisition of private ‑ ‑ ‑
MR WALKER: As our clients’ land, yes.
HEYDON J: But part of that land would in fact not be returned.
MR WALKER: Yes, that is correct.
HEYDON J: Part will remain open space in the ownership of the Council.
MR WALKER: Yes. I think we have made that clear in our written submissions and in our reference. It is part only, both horizontally and vertically subdivided, which would be resold if we are correct in our understanding of the expression “resale”.
HEYDON J: Is it not the case then that the Mac’s and the Fazzolari land will adjoin or lie in the vicinity of a piece of Church and Darcy Street acquired at the same time for a purpose of retention as open space, in other words, a purpose other than resale?
MR WALKER: Yes.
HEYDON J: How do you avoid paragraph (a) injuring your claim?
MR WALKER: The way we have attempted to do it is to say that the proper reading does not require that the other land, if I may call it that, be wholly devoted to resale, that if part of it is to be devoted to resale, then it cannot be said that it is to be acquired for a purpose other than resale. If any of the purposes for its acquisition include resale, then it cannot be said that it is being acquired for a purpose other than resale.
HAYNE J: So you have two arguments. There is that argument and then there is the ‑ ‑ ‑
MR WALKER: That might be called the as well as argument. If you can say it is being required as well as for resale as for library or park purposes, then you cannot say it is other than resale.
HAYNE J: Your other argument is the one you just finished explaining, the 7B argument?
MR WALKER: Yes. We accept, with great respect, that what Justice Heydon has raised with me is a textual crutch that we have to succeed on. As soon as it can be said that there is a purpose or some purposes other than resale, question, does that mean that 188(2)(a) applies so as to remove the protection of 188(1)? In supplement to what I have already put in answer to Justice Heydon, we call in aid the fact that resale is only ever going to be ancillary. It will only ever be a means to an end, from which it follows there always will be another purpose, always.
It is for those reasons, in our submission, that as a matter of context and purpose one would not read these provisions so as to remove a protection which bespeaks the ownership importance simply by what is almost always going to be the case, namely, the existence of some purpose as well as the purpose of resale. That is how we try to give effect to the expression “other than” so as to meet the position that Justice Heydon has raised with us.
HEYDON J: Just one other small matter on this 7B argument, how do you decide whether it was acquired under Part 1 of Chapter 8 of the Local Government Act or whether it was acquired under 7B? Will that emerge from the notice of acquisition that is to be prepared and issued in future?
MR WALKER: No, it will simply be because the notice must stipulate the land. The land must have registered title. If the registered title be in the Council then 7B must be used. So that is how you ‑ ‑ ‑
HEYDON J: Because under the general rule you cannot acquire your own property?
MR WALKER: Yes. Section 7B is necessary, we say, in order to acquire your own land. You know at the time of it being done that that is what is being done simply because the land must be specified in the acquisition and the title will tell you whether or not 7B is necessary or not. If 7B is necessary then it is no longer under this Part.
There is a variant to that argument. It may be that one could see section 7B as, in a sense, an amendment of all the provisions that may be found in other statutes by which an authority may acquire land, but in our submission that will not have the effect of this being under this Part. Section 7B, in our submission, is posited on an inadequacy of bestowal of power elsewhere to meet what would otherwise be the legally impossible proposition of acquiring that which you already have. It is for those reasons that section 7B is necessary to be invoked as the authority.
Your Honours, may I then go briefly to supplement what we have put in writing concerning the errors in the Court of Appeal on resale. As we have drawn to attention in our written submission, there does not actually seem to have been a holding against us on this, subject to how one understands Justice Palmer’s concurrence with Justice Tobias. And we have drawn to attention that, though there is concurrence, his Honour also refers to resale in a way which rather cuts across the notion that he accepted the conclusions to which Justice Tobias came on resale. As we have drawn to attention, Justice Hodgson expresses doubt but deliberately, very explicitly, does not decide it.
In the core documents, at page 267, starting in paragraph 190, Justice Tobias turns to the question of resale within the meaning of subsection 188(1). At paragraph 192, about line 52, I draw to attention the word “solely” which his Honour uses to explain his reasoning.
GUMMOW J: Sorry, which line?
MR WALKER: About line 52, your Honour, the second last line of the text. One sees “solely for the purpose”.
GUMMOW J: Yes, thank you.
MR WALKER: And that, in our submission, is an error, for the reasons we have been putting, concerning the fact that resale can only ever be ancillary. If it is ancillary there is something else, so it will never be sold. In paragraph 193 on page 268 his Honour refers to Chan v Dainford and in paragraph 195, by reason of what his Honour says in 194, he should be read as holding that what Chan v Dainford said, as it were, governs. The most important and, in my submission, sufficient thing to say about Chan v Dainford is that it is not an authority at all distinguishing between money on the one hand and money’s worth on the other hand in relation to what is or is not a sale. That was a case, as your Honours will recall, which distinguished the situation which looked forward to “lots yet to be created” in a proposed strata subdivision for the purpose of the application or not of the instalment contracts safeguards in Queensland legislation. It had nothing to do with the money or money’s worth distinction.
One then goes to what is the matter of substance relied upon by Justice Tobias which is, it appears, in paragraph 195, about lines 33 or so, where his Honour characterises the development agreement as “the complex financial arrangements”. For the reasons we have put when opening the appeal and going to the material, the complexity does not defeat characterisation. The structure does not prevent substance from being seen and that is shown as well by the summaries, essayed long before any litigation by the Council, as by the fact that both parties before your Honours have been able to summarise what are unquestionably the barbarous praise of those documents. Your Honours, in any event, there is money and in the core documents volume at page 289, in paragraph 14 of those written submissions, you see the makeup of the $190 million in
question. There is of course lots of money’s worth as well. The development opportunity bespeaks that.
FRENCH CJ: There was no allocation to these two lots, was there?
MR WALKER: No, but, in our submission, the same would be true on a walk‑in/walk‑out basis, “I bought a partial property including”, as I have put in the written submissions, “all the equipment, leases, et cetera, for one very large sum of money”, or perhaps in some seasons, in some economic climates, one very small sum of money. The fact that there was not allocation between the sheep, the cattle, the fixtures, the non‑fixtures and the land and the lease would not, in our submission, deny the characterisation of the transaction as either wholly or in part that of sale. In our submission, for those reasons, the judgment and declaration of Justice Biscoe should be restored. May it please the Court.
FRENCH CJ: Thank you, Mr Walker. Mr Robertson.
MR ROBERTSON: Thank you, your Honours. Your Honours, in terms of the respondent’s written submissions, there is a document, which your Honours should have, filed on 23 October called “Respondent’s Updated Submissions”. Those are the same as the ones in the core documents, but they contain references to the pages in the appeal papers and that is where one will find references to the evidence in a relatively accessible form. Your Honours, I need to go in some detail to the factual matters, and we prepared, I think with the agreement of the appellants, a document which provides cross‑references to where one can find the material to the extent that it is reproduced in the appeal books. I will hand that up in due course.
Can I say at the outset, your Honours, in relation to the question of construction, which is ground 1 of the amended notice of appeal, that the first respondent does not accept the reasoning which, as we understand it, is this; that is because the acquisition power is ancillary or, to put it in the form of 186(1), is to be for the purpose of exercising any of its functions, that that leads to the conclusion or the approach that when one is asking the question under 188(1) of the Local Government Act, what is the purpose of the acquisition, that as a consequence of 186 the purpose of the acquisition is to be approached in any way different to the way one asks, how does one identify the purpose where there is more than one purpose in the way the cases have decided that be done?
So although there was some dispute before the Court of Appeal as to what was the appropriate test for multiple purposes, the present appellants then submitting that it was the Thompson and Duggan approach and the present respondent submitting that it was Samrein and CC Auto Port that provided a better guide, on neither view, we submit, does one get to the point where there is a test of section 188(1) engaged whenever, to use a word my learned friend used, there is an inkling of a resale or an inkling of a purpose of resale.
Although it is true to say that Thompson and Duggan – and I will take your Honours to those because I think they may have been what your Honour Justice Kiefel had in mind in terms of what was then the narrower version of section 188(2)(a) – but we would submit that to ask what is the substantial purpose or is there a substantial other purpose can be applied when one is asking – 188(1), that was what the appellants then sought – but all members of the Court of Appeal held that whichever of those tests that I have just described were applied, 188(1) was not engaged.
That is presumably why the appellants now say, well, it is sufficient to engage 188(1) if there is something less than a purpose of any of those natures, whether one uses adjectives such as initiating a binding purpose that one gets from CC Auto Port and applied in Samrein or whether one applies a different test. That, in my submission, is the main difference, as we understand it anyway, between the parties in relation to the purpose of acquisition question under 188(1).
HAYNE J: Could you therefore state what you say is the proper construction of 188(1), in particular, what you say is the proper construction of the expression “if it is being acquired for the purpose of resale”.
MR ROBERTSON: Yes. It is a question of identifying what is the purpose. One can accept, and we do accept, that on one alternative there may be more than one purpose. That is a question of fact, as the Court said in Samrein’s Case, and if the purpose of acquisition – I will start again. One asks the question, what is the purpose of acquisition? Was it the initiating and abiding purpose? If not, then 188(1) is not engaged.
GUMMOW J: Do we not have to start thinking about the provenance of this provision and what was said in the second reading speech about it, which Justice Biscoe deals with at page 154.
MR ROBERTSON: The section, going back to earlier manifestations of the ‑ ‑ ‑
GUMMOW J: Paragraph 279 of his Honour’s reasons at page 154.
MR ROBERTSON: Yes, and your Honour Justice Tobias also sets that out and deals with it at page 267 at paragraph 190. In my submission, what was being then spoken about, that is, “a major variation occurs” ‑ if your Honour sees that language ‑ the major variation there referred to is the concept of owner’s approval in any circumstances. The preceding legislation did not involve owner’s approval. The preceding legislation did involve a narrower scope of resale, which I think was referred to in the cases as broadly “recoupment” in relation to adjoining land, but we would submit the major variation is that 188(1) is no longer limited to the purpose of acquisition for resale in relation to adjoining land. It is broader than that and that is why, in terms of the broader reach of 188(1), before one gets to the exception to the exception, as my learned friend described it, one looks at the approval of the owner of the land and then one has the exception that where it is more classically adjoining land, which is what the earlier cases were concerned with, one does not have that limitation to do with the approval of the owner.
HAYNE J: Do I understand the proposition you seek to advance to be that recognising that there may be more than one purpose for acquiring land, section 188(1) requires the identification of what you have described as the initiating and abiding purpose being a purpose of resale, otherwise it is not engaged?
MR ROBERTSON: Yes, that is my submission. And just to complete my answer to Justice Gummow, there is then a reference in that second reading speech material – and, of course, perhaps I should say by way of preface, the earlier parts of the second reading speech, or second reading speeches – there was a 1992 Bill and a 1993 Bill – but the earlier parts of it point out at some length the difference between the topic approach to powers, that is, specified topics – dog pounds, health centres and so on – to the shift to a much broader section 24 articulation of powers.
FRENCH CJ: I think the word “permissive” was used somewhere, was it not?
MR ROBERTSON: “Permissive”, yes. Justice Tobias sets out what we would submit are the relevant extracts from the second reading speech, 1992, in paragraph 133 on page 249 ‑ that may have been what your Honour the Chief Justice had in mind ‑ at paragraph (b) on page 249:
a fundamental shift from prescriptive to a permissive expression of local government law.
And there are other paragraphs or subparagraphs that his Honour sets out. But of course it was the specificity, the particular narrow powers, that underlay the decisions in Thompson and Duggan because this Court proceeded on the basis that when you had to link it to, for example, embellishment then that had a consequential effect on what otherwise might be taken to be broad powers of acquisition or acquisition by compulsory process. But to come back to the passage that your Honour Justice Gummow drew my attention to, so one has that major variation, and then the Minister says:
A council may not acquire land by compulsory process without the approval of the owner –
So the Minister is not referring at that point to 188(2) but merely to 188(1), and he then says:
re‑sale is not strictly a legitimate Local Government purpose.
What I submit the Minister meant by that was that it is not, as it were, simpliciter, or by itself, and 186(1), as I have earlier submitted, may acquire land for the purpose of exercising any of its functions. So the question always has to be asked, what is the purpose of the acquisition? Is it for exercising its functions?
We do not see anything exceptional in relation to that. When one comes to the question, which I will come to later of course, which we say is the question, was there here in fact resale, as opposed to the question I am now dealing with, which is the purpose, 188(1) purpose, then one has to return to this question of what in context is the mischief to which the limitation – that is, what is the purpose of acquisition? Is it the purpose of resale? In fact, one has to, of course, return to what is the point, the mischief to which that is directed and that then allows one to approach the resale, in fact, question, does it just mean sale? Is it limited by the idea of compulsory acquisition, which your Honour Justice Hayne was putting to my learned friend yesterday afternoon.
Perhaps to complete the reference, your Honours, to those earlier cases and in so doing in part perhaps to answer your Honour Justice Kiefel’s question, because we are not aware – we will have a look for it – of any corresponding State legislation. There may be one. I will come back to that. But your Honour may well have had in mind these earlier cases. When I say earlier cases, they really are two cases or three cases in the 1950s and then CC Autoport and Samrein perhaps proceed, certainly more recently, but on a slightly different basis.
Your Honours should have, I hope, a folder called “First Respondent’s Bundle of Authorities”. What we have sought to do there is reproduce Thompson v Randwick Municipal Council. That is at tab 8, I hope, and Duggan’s Case 83 CLR 424. That should be at tab 9. We sought to reproduce the form of the Local Government Act both at the time those two cases were decided and the amendments that were directed to reversing the effect of those cases and it is those amendments that your Honour Justice Kiefel may have had in mind.
In terms of the legislation as it existed at the time those cases were decided, if your Honours look at tab 5 there should be there some sections from the 1919 Act as enforced before what I will call the 1951 amendment. There were, as I say, in those days specific lists, ever lengthening lists, of what it was that the councils could do and the sections that their Honours were construing in Thompson one can see at tab 5, 321:
(d)the improvement and embellishment of the area.
322. The council may purchase or resume, as elsewhere in this Act provided, any land, and may thereupon do all or any of the following things . . .
(d)close any existing public road . . .
(h)sell or lease the whole or any portion of such land, in one or more lots, as elsewhere in this Act provided.
If your Honours turn over the page of the pages that are reproduced there, your Honours should see section 532:
The council may acquire land within or outside the area –
And, of course, that is still is reproduced in section 189 now –
for any purpose of this Act by lease, purchase, appropriation, or resumption in accordance with this Part.
Those were the provisions that were then being construed.
KIEFEL J: Does 535 have anything to say?
MR ROBERTSON: 535, yes. It was linked back to 477, which I do not think we have reproduced, but certainly 535 was, your Honour, referred to. I am sorry, I should have referred to that.
If your Honours now go to Thompson at tab 8 and, in particular at page 103, it is a single judgment of three members of the court then sitting. At page 103 point 8 of the page, their Honours recite those provisions beginning at “Section 322 provides”. It refers to (d) and (h). Then, at the top of page 104, your Honours will see a reference to 535 being “not an independent but an incidental power” and so on and their Honours, reverting to the facts of that case at the foot of 104:
the only work the Council proposes to do is to construct the new road and path. It proposes to resume far more land than is required . . . It does not propose to do any work upon the balance . . . It only proposes to sell this balance. It was contended that it was necessary –
And then their Honours apply the law to those facts at the foot of 105 and at the top of 106 treat that part of the exercise as “an ulterior purpose” which they then summarise a couple of lines below that, because there was more than one purpose:
But in our opinion it is still an abuse of the Council’s powers if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re‑sale.
So the same test or the same approach was applied in Duggan, decided shortly thereafter, which is at tab 9. In the report of Duggan, tab 9, the first page in the footnote, or the editor’s note, which I will come back to, the editor there adverts to the amending Act, No. 46 of 1951, which we have reproduced. I will come back to those pages in a moment, but the same test was there applied at the foot of 445. Your Honours will notice that the language here is re‑sale – the way it is described is “re‑sale” on 445. Then, at the foot of 445, the court agrees with the remarks of his Honour, the primary judge:
no serious attempt was made to distinguish the present case . . . It was not disputed that it was –
and this was the same approach –
a substantial purpose of the resumption of the residual lands to make a profit out of their re‑sale, and that no attempt would have been made to resume these lands if it had not been the desire of the defendant Council to reduce the cost of the construction of the new road in this way.
GUMMOW J: They failed to mention section 477 as well.
MR ROBERTSON: Well, there was some complaint ‑ ‑ ‑
GUMMOW J: At the bottom of page 446.
MR ROBERTSON: ‑ ‑ ‑ made that the earlier case, Thompson, there had not been a reference to, I think, 477. There is a long discussion of 477 at page 451, but I think there was some ‑ ‑ ‑
GUMMOW J: They say it is a South African import.
MR ROBERTSON: Yes.
GUMMOW J: It does not seem to be a combination.
MR ROBERTSON: In any event, that was the immediate history. Then your Honours will see at tab 6 that 321 and 322 were omitted by the 1951 Act and restructured. What I meant before by the more limited resale, or to use the language that was then being used, not in the statute I think, recoupment. One can see from what was then put in as 532(3)(b):
may be so acquired for sale or re‑sale and applying the proceeds thereof in defraying in whole or in part the expenses incurred by the council in carrying out any work upon lands:–
(i)acquired for any purpose of this Act; and
(ii)of which the lands acquired . . . form part –
KIEFEL J: I am sorry, Mr Robertson, where are you reading from? Tab 6?
MR ROBERTSON: I am reading from the last page of tab 6 and it is a photocopy page with 329 at the very top.
KIEFEL J: Section 535(2). Yes, thank you.
MR ROBERTSON: So your Honours will see there some forebears, as it were, of the present language of 188(2)(a) and that may have been what your Honour Justice Kiefel had in mind. For historical completeness, perhaps your Honours would note that the subsection reproduced about point 6 of that page made the amendment retrospective to 1919 but apart from obviously cases that have already been decided.
So that is perhaps a historical excursus. Section 188(1), if I just repeat the point that I was making, is by reference to Justice Gummow’s question about what the Minister said in 1992 or 1993. That is the background to it and why we would submit the major variation is as I have described it because there was no consent provision then, albeit a more limited power. Resale was then linked to adjoining lands, which is ‑ ‑ ‑
GUMMOW J: No, the resale provision went in to 532. It was a limited provision, was it not?
MR ROBERTSON: That is right.
GUMMOW J: To defray expenses?
MR ROBERTSON: Yes, and in relation to adjoining land and all I am pointing out, your Honour, is that those limitations of defraying, as it were, those specific expenses in the adjoining land are not part of 188(1) as reformulated. But, in my submission, the major variation is still the introduction of the notion of the approval of the owner in terms of the limitation that the Minister was talking about. That was not there before.
Your Honours, to go back to some – perhaps one other matter of statutory construction is this that although there is now no issue about 186(1) in the sense that this project is now accepted as being within 186(1) and that the purpose of the acquisition is now accepted as “the purpose” or “a purpose” of the Council exercising any of its functions. The way my learned friend put the matter yesterday is unduly, we would submit, unduly narrow in the sense that – and I think your Honour Justice Kiefel yesterday raised this question in part. Because what the Court of Appeal decided and what we submit is not relevantly challenged is that it is not only section 400 and so on which is the relevant function of the Council that was engaged and one can see that from the findings, particularly of Justice Tobias beginning on page 251.
What the Court of Appeal found – and we would submit is not challenged and is correct – is that the functions that were engaged in terms of 186 were the functions in section 24 of the Local Government Act, as well as – and there is a reference to it later – the Part 6 provisions to which my learned friend addressed the Court. Justice Tobias at paragraph 134,two‑thirds of the way through it:
in my opinion whatever might be the ultimate width of s 24, its ambit includes the implementation of the Civic Place Master Plan.
His Honour then sets out a passage from the judgment of Justice Stein in JR & EG Richards which perhaps encapsulates the difference between the 1919 Act and the 1993 Act, but at paragraph 136 at the foot of page 251 his Honour says:
The project or scheme contemplated by the Master Plan and which the council was empowered by s 24 to “carry out” was a scheme “appropriate to the … future needs ‑
et cetera. Then at paragraph 137 his Honour then goes on to consider the “Part 6 of Chapter 12” question, and says at 142 – and this was the point, perhaps, although I do not think this paragraph was drawn to your Honour’s attention:
But once those procedures have been followed, as they were in this case and, relevantly, the Project Review Committee had advised that it was satisfied that the requirements of the PPP guidelines had been complied with in relation to the Civic Place project, s 400I(3)(a) expressly empowered the Council –
So no doubt the appellants emphasise the Part 6 additional power, as we would see it, for purposes that narrowed the focus to where they wanted to be in relation to 188. But the finding of the court unchallenged was that it was a much broader basis and that therefore, in my submission, one cannot, as it were, approach the question of purpose by reference to the narrower focus that the Part 6 process would give it.
HAYNE J: Could I just understand that a little better than I presently do. Section 24 is cast in very broad terms. It finishes with the expression “subject to this Act, the regulations and any other law”. It is not immediately apparent to me that standing alone section 24 provides a power to Council to engage generally in land and property development, yet that seems to be the nature of the reasoning that he has identified in paragraph 134 of the Court of Appeal reasons. Now, have we got to get into this?
MR ROBERTSON: I do not think so, your Honour.
HAYNE J: What are we going to it for, Mr Robertson? What is the point you want to draw from this reference to section 24 which seems to open up a vista of an ocean without much of a chart?
MR ROBERTSON: What I wanted to get from it, your Honour, was this, that that was the approach of the Court of Appeal. That is unchallenged. It is true to say that the Court of Appeal also held that insofar as the additional powers, we would submit, in Part 6 of Chapter 12 were concerned, they also were available. The procedural parts of it had been complied with, but ‑ ‑ ‑
HAYNE J: We observe the history in the Court of Appeal. I observe it. What do I draw from it for the purpose of your argument?
MR ROBERTSON: What I am wishing to do, your Honour, is to meet the argument that was put by my learned friend yesterday afternoon and that is, as I understood it, that the only relevant power and therefore the spectacles through which one looked at what had happened here for the purpose of asking an answering questions about 188(1), was the Part 6 of Chapter 12 power.
KIEFEL J: Are you saying that there is a wider purpose of the provision of facilities to a community and that you should view resale in that context?
MR ROBERTSON: Yes. View the question of purpose in that context and the question of resale in that context. So that is what I am seeking to get from it.
HAYNE J: That seems to have Anthony Hordern walking across the stage, I would have thought, Mr Robertson. You have the particular provisions dealing with public‑private partnerships. They are said to be engaged. That is the mechanism that is chosen to effect this apparently amorphous notion of carrying out activities appropriate to current and future needs. Why should we look at anything through spectacles other than those which are provided by Council’s avowed engagement of the PPP provisions?
MR ROBERTSON: My only point is this, your Honour, that I would put it not that the engagement of Part 6 of Chapter 12, as it were, absorbs from section 24 all the relevant powers, but that section 24 was engaged at a point of time before the procedural steps of Part 6 of Chapter 12 were engaged, and as I say, the only contention that I would seek to draw out of it is that one looks at it more broadly when one is looking at the question of what was the purpose that the Council had in mind. So my submission, your Honour, is that it is not Anthony Hordern in that sense.
HAYNE J: Could I come to taws about it with you, Mr Robertson?
MR ROBERTSON: Yes, your Honour.
HAYNE J: Is it intended to deflect from the conclusion reached at first instance at page 155 at line 8 or so that even on the construction of 188(1) that you advance the purpose of the acquisition of the land was to transfer it to Grocon for consideration? Would you have us look at this through spectacles, of whatever tint they may be, marked section 24 saying, this is all for the good of the community and the purpose was to benefit the community?
MR ROBERTSON: Yes, I would, your Honour, yes, because what the difference was in terms of 186 between the – or one of the differences anyway between the Court of Appeal and the primary judge – was in a sense just that.
HAYNE J: Yes.
MR ROBERTSON: That the series of events to which the Court of Appeal referred and to which therefore they found was the relevant purpose of the acquisition was the broader series of events to which I have adverted, so not limited to the point of time at which the PPP provisions were engaged.
GUMMOW J: Well, just looking at Justice Tobias for a minute, page 264, paragraph 181:
As his Honour had earlier held that the purpose of the proposed acquisition . . . was to transfer the respondents’ land to Grocon for consideration ‑
Then paragraph 182:
For the reasons I have given above, it was not.
What are the reasons given above?
MR ROBERTSON: The reasons as to that not being “the purpose” were going back to the discussion that begins at I think conveniently 147 and going through to – including the discussion perhaps of Griffiths Case in this Court – but ending at paragraph 176. The point the appellants seek to raise, your Honours, is ‑ ‑ ‑
HAYNE J: Sorry, just before you develop that, that is that the Council’s sole dominant purpose was implementing the project is what his Honour seems to be saying at 255, par 147 in the last two lines? Is that right?
MR ROBERTSON: Yes.
HAYNE J: Yes. Sorry I interrupted you.
MR ROBERTSON: Why this question arises is not so much a challenge – well, not at all a challenge to the findings of the Court of Appeal about 186 – the question that our learned friends seek to advance is, as I earlier sought to articulate, because the purpose of acquisition must always be for the purpose of exercising the Council’s functions, therefore, when one gets to 188(1), that purpose there referred to – that purpose and acquisition – must have some narrower approach to it other than the usual approach to which I have taken your Honours by reference to the decided cases.
Could I draw your Honour Justice Hayne’s attention, if I may, and I realise we are moving on from here, but if your Honour looks at the introduction to Chapter 6.
HAYNE J: Yes.
MR ROBERTSON: And again perhaps it is for extrinsic purposes only, but your Honour will see a series of examples, including – perhaps that is why your Honour put that question to me; I am not sure, but ‑ ‑ ‑
HAYNE J: It is not unconnected, Mr Robertson.
MR ROBERTSON: So without wishing to take up time unduly with questions of fact, we would wish to put the facts more broadly than our learned friends did yesterday, that is, by focus on the particular provisions to which they have referred, and the paragraphs to which we would draw your Honours’ attention, and they are conveniently to be found in the judgment of Justice Tobias in the Court of Appeal begin at paragraph 33 ‑ perhaps I can go further back ‑ begin at page 205 and the reason that I go back that far is that, of course, your Honours have only those parts of the papers that were before the Court of Appeal that are relevant really to the 188 question. In other words, much of what his Honour Justice Tobias refers to in the factual background, which begins at paragraph 22, is not before your Honours, because of the limited nature of the challenge, not including the challenge to the 186 findings.
Your Honour the Chief Justice referred yesterday, in a question to my learned friend, to some of the statutory or subordinate statutory background and that begins at the top of page 206, and your Honours can find that Sydney regional environmental plan at page 370 of the evidentiary documents appeal books.
FRENCH CJ: What statute is that made under?
MR ROBERTSON: That is the Environmental Planning and Assessment Act (NSW), as also is the Civic Place Master Plan to which your Honour the Chief Justice referred yesterday. It has the status of a development control plan under the same Act, the Environmental Planning and Assessment Act. So that is all referred to and then his Honour refers to various resolutions and at paragraph 33, at the foot of page 209, he finds that:
At all material times it was the intention of the Council to acquire land within the Civic Place site not already owned by it, including the respondents’ land . . . were regarded as necessary to implement the Civic Place redevelopment, as contemplated by the Civic Place Master Plan.
And then there is a series of references to the master plan and that begins at page 393 and those extracts are at pages 402 through to 411. Your Honours will see that one of the findings, or one of the matters included in the master plan, at paragraph (e) on page 210, was encouraging “land amalgamation” and it is stated:
it is critical that the open space, pedestrian circulation, parking and access and the retail planning are integrated across the whole site”
Again at 42 – and this is a matter that underlies, in my respectful submission, the conclusion to which the Court of Appeal came – paragraph 42 on page 213, the “Subdivision and land amalgamation”, one was looking at minimum lot sizes of 1,200 square metres; the land here being 260 square metres in one case, 631 and 648 in the other. There are references as well to expressions of interest at paragraph 54, the request for tender at paragraph 67. All of this, in my submission, informs the conclusion that when his Honour comes to apply the tests which were then being submitted on behalf of the various parties and allows his Honour to reach the conclusions that he did at the passage I have taken your Honour to, 147 and paragraph 151:
documentary material is overwhelming that at no time did the Council retreat from the objectives of the Master Plan that encouraged land amalgamation to create minimum lot sizes of 1,200 m² in order to achieve the best possible outcomes –
et cetera. That then got to the position that was stated at 176. Perhaps as well on page 262, where his Honour points out the differences in paragraphs 170, 171 and 172 to the circumstances in Griffiths, which his Honour had then analysed at some length. Then at 176 his Honour refers at the foot of page 263 to:
the Council’s purpose in acquiring the respondents’ land and, for that matter, all the Darcy Street properties. was at all times and remained the implementation of the Civic Place project as contemplated by the Master Plan.
FRENCH CJ: Can you remind me, the two lots were to be part of, in one case, an apartment development and in the other case a commercial office building, is that right?
MR ROBERTSON: Yes. I will find where the matter is summarised, but there was also underneath public access to a car park. It was being built under the strata.
FRENCH CJ: There was a public element in relation to those?
MR ROBERTSON: Yes.
FRENCH CJ: Both of them?
MR ROBERTSON: Underneath both of them, yes. My learned friend said – I do not think I mis‑stated – public access I said.
FRENCH CJ: I see, yes.
MR ROBERTSON: I will find where that is summarised and give your Honour a reference to it.
KIEFEL J: All the background that you have referred to, which you have referred to us as informing Justice Tobias’ approach, is it really saying no more than that there was a positive and consistent purpose in the acquisition of the land, a purpose properly connected to its powers as a local authority? Is there anything more to be derived from it than that?
MR ROBERTSON: What I am about to go to, your Honour, summarises, as it were, by reference to paragraph 44 of our submissions, what it was that the Council had an interest in doing but it feeds into what I have described as the resale in fact, question. Your Honour will remember that our learned friend yesterday took your Honours to some of the documentation and to put the submission in summary form said, well, there is money and real estate and therefore one can say resale in fact.
What I am seeking to do is to show that that was much more involved and perhaps I have gone about it at greater length but the way it is summarised in our paragraph 44 perhaps brings together those threads.
GUMMOW J: What about your paragraph 45? Does that fully speak in the same tone as paragraph 171 of Justice Tobias on page 262?
MR ROBERTSON: Yes, what ‑ ‑ ‑
GUMMOW J: There is this entity called “the community of Parramatta” which seems to be the salus populi est supreme lex.
MR ROBERTSON: I think the proponents would regard it as perhaps of broader ‑ ‑ ‑
GUMMOW J: And the private interests of Grocon seem to be some form of lesser concern. You do not seem to be singing in exactly the same tune in paragraphs 44 and 45.
MR ROBERTSON: As paragraph 171, your Honour?
GUMMOW J: Yes.
MR ROBERTSON: All I am trying to emphasis in 44 and 45 is that what passes between one entity and the other is broader than the proposition our learned friend’s were putting, that is, when one is asking the question of characterisation ‑ and we accept it is a question of characterisation ‑ is this the acquisition of land for the purpose of resale, the picture is more, if I may use the ‑ ‑ ‑
KIEFEL J: But does it come down to anything more than a not for money’s worth proposition?
MR ROBERTSON: We submit that primarily “resale” is limited to money’s worth, as your Honours would have seen in the written submissions and here we are advancing the submission that because of the breadth of interests – I do not mean that in a legal technical sense but the breadth of interests of which we have referred in paragraph 44 ‑ it is not the correct or preferable characterisation of the purpose of what was occurring to say that it was the ‑ ‑ ‑
KIEFEL J: If a council – if a local authority swapped and acquired compulsorily acquired land and then swapped it for other land that was more useful for something it wanted to do, would that not be a resale?
MR ROBERTSON: We submit not but even if it were this is not that case.
KIEFEL J: But to answer that do you not have to inquire what it is that in the notion of purpose of resale that section 188 reflects on what the policy underlying that is, otherwise you really just engage in a rather semantic exercise about sale and resale. Is not what 188(1) does is to recognise a limitation on the power of a local authority to deal with land for profit?
MR ROBERTSON: In part.
KIEFEL J: A local authority does not have the power to acquire land for other than its own purposes, that is what it is directed to, is it not?
MR ROBERTSON: No, we would submit not, your Honour, although it was said by my learned friends yesterday that there was no power or function of sale, we would submit, that plainly if land is Council’s land there is a power of sale.
KIEFEL J: That is when it has already got it, but and we are looking at the point of acquisition, councils do not have the power to acquire land and resell it and dealing with land in that way, in the way a developer would, councils just do not have that power.
MR ROBERTSON: That is close to what we would submit the mischief is, your Honour, with respect.
KIEFEL J: What section 188(1) provides for is by way of saying, is it not, that where the Council wishes to deal with land in the way in which ordinary citizens do, it should do what ordinary citizens do and that is deal with the land owner on commercial terms?
MR ROBERTSON: We would submit, your Honour, putting it as broadly as what ordinary citizens do is wider than the mischief to which it is directed, but ‑ ‑ ‑
KIEFEL J: It is not really if it does not have the power. The whole point of it is, is it not, the section is recognising a limitation, a restriction upon the matters that councils are entitled to engage in, and one of them is not acquiring land and selling it for a profit?
MR ROBERTSON: If I could answer your Honour this way. It is certainly a restriction on the power in 186(1). I would accept that. It is obviously as well subject to the exception in 188(2), but in terms of the mischief to which it is directed, we would submit that it is directed to – and I may be putting to your Honour what your Honour was putting to me – but the Council is not to be, as it were, conducting a real estate business. Although resale is no longer connected to adjoining land and so on, as it was under the pre‑1993 Act, that is the mischief. So our submission therefore is that when one is looking at the word “resale” here – and I am dealing now with what I have called the factual question of resale rather than the subservient purpose question, which is the main issue between the parties in relation to 188(1), what we submit is that that mischief is addressed if you say, is it a sale that is the purpose?
KIEFEL J: The point I am really coming to, Mr Robertson, is that if it is correct that the section is simply identifying a restriction on a council’s ability and maintaining it and enforcing it, in relation to resales, there would not seem to be any particular need to find another purpose of the Council which makes that restriction any better or in any way rather more justified. You say, well, the Council does not actually have the power to resell land, but it makes it rather better that the Council is doing it for a good purpose. Do you see what I mean?
MR ROBERTSON: I think I do, your Honour.
KIEFEL J: The purpose, however community orientated or for social benefit, cannot add anything if the section is simply focusing upon a restriction and maintaining it.
MR ROBERTSON: I think I understand what your Honour is putting to me. My submission is that that is not the way in which 188(1) is cast. If that was what was intended to be achieved, one would leave out the words “the purpose of”. One would just say that you cannot acquire land by a compulsory process without the approval of the owner if it is being acquired for resale.
KIEFEL J: Perhaps you could reread it “where an intention is resale” – “where it is intended to resell”.
FRENCH CJ: That just shifts the word “purpose” into “for”.
MR ROBERTSON: Yes. The issue, your Honour, is – and I think I understand what your Honour is putting to me – but the issue is whether one takes a different approach both to the expression “for the purpose of” to the approach that is traditionally been taken, and indeed in similar vein whether one gives the words “for the purpose of” in 188 a different meaning even though it is the same language, we would submit, as 186. So that is the issue to be resolved, as it were.
HAYNE J: Well, do you accept that a purpose for Council acquiring the land is to permit it, the Council, to fulfil its obligations under the agreements it has made with Grollo.
MR ROBERTSON: On the facts of this case, your Honour?
HAYNE J: Yes.
MR ROBERTSON: No, I do not, no, for the reason – no.
HAYNE J: It does not acquire the land for the purpose of fulfilling its contractual obligations with Grocon?
MR ROBERTSON: Not when one looks at the purpose.
HAYNE J: No, I am not asking you what the purpose is. Is a purpose of Council acquiring this land putting it in a position to meet the contractual obligations it has stipulated for with Grocon?
MR ROBERTSON: No, we would submit not, your Honour.
GUMMOW J: Well, you would have to be fairly careful in saying that, do you not, because this is a public/private partnership? All of these contractual obligations are only there because this is permitted. It is a public/private partnership, is it not, between this developer and the Council? It looks at first blush – and this may be a question for another day – these provisions certainly turn your client into a trading corporation of some sort, and the problem you have to face then is that the Act has done that much for you but it did not alter 188.
MR ROBERTSON: Yes.
GUMMOW J: Now, the public/private partnership provisions went in much later, did they not?
MR ROBERTSON: Yes, they did. Yes, some years later, yes.
GUMMOW J: Where falls the consequences of the “drafting oversight” by those who are promoting the private partnership inclusion, injection, into this statute? Why does it fall on Mr Walker’s clients? How is it really adequately dealt with by starting to dance on a pinheaded purpose when we all know what practical realities are?
MR ROBERTSON: Well, your Honour, the question of the purpose still remains. 188, as your Honour points out, was not amended and one still has to ask, although in no doubt differing factual contexts, what was the purpose of the acquisition?
HAYNE J: Well, why is Council doing it? Council is doing it because it has made a PPP with Grocon. Why is it doing it? Because it has got to fulfil the PPP with Grocon, and part of it requires it to transfer this land to Grocon. What is wrong with that chain of reasoning, Mr Robertson?
MR ROBERTSON: Well, your Honour, we with respect rely on what appears at 266, paragraph 186 and that is an orthodox analysis and these were the paragraphs, beginning at 182, not “the purpose . . . For the reasons I have given above”, your Honours have seen that. Then the present appellants asked the Court of Appeal to apply Thompson and at 186 their Honours say, this is the last sentence:
The documentary history of this matter makes it clear in my view that the Council proposed and needed to proceed with the acquisition, if necessary by compulsory process, of the respondents’ land irrespective of whether it was ultimately transferred to Grocon or any other developer.
And in 187:
Given the integral nature of the respondents’ land to the overall Civic Place scheme, it does not follow that the Council would have made no attempt to so acquire the respondents’ land if it had been unable to transfer title to Grocon whether at the outset of the project or upon its completion.
So it comes to, in a sense, how broadly or narrowly one looks at the question of purpose. Whether one looks at it as, for example, this Court did in CC Auto Port if I can take your Honours to that for a moment, where the question, although in part – this is at tab 10 of that bundle, your Honours, 113 CLR 365. Although in part it was directed to section 2 of the Municipality of Fremantle Act (WA). As the Court pointed out in Samrein’s Case the analysis that appears on page 380 – the paragraph that begins on that page – is not so limited. The reference to Samrein is to the case at tab 12, 41 ALR 467 at 470 point 8 where their Honours say:
In that case, the court was concerned with s 2 of the Municipality of Fremantle Act . . . but it remained necessary to consider the bona fides of the resumption, and the discussion (at 380‑1), from which we have cited a few words, did not depend entirely on s 2, but depended, also, on the proper characterization of the purpose of the resumption.
That is the last long paragraph in Samrein at 470. What their Honours are referring to is the part of the judgment of the court in CC Auto Port that begins at page 380, which is where the discussion of section 2 of the Fremantle Act largely finishes. In my submission, although the question is couched in terms of did the Council act bona fide, the real question was, was it intra vires or not?
Their Honours do not, as it were, focus on the last event or the penultimate event, their Honours look at the entire history – the broader, we would submit, purpose – of what it is that the Council was doing. Then it was at that point, at about point 8 of 381, that the court said that resuming the residue:
was not an end in itself . . . part of a means to an end. But that end was the widening of the three streets and this was, in our view, both the initiating and the abiding purpose of the resumption.
KIEFEL J: This is in the context of needing to find good faith?
MR ROBERTSON: That is why I submitted, your Honour, that the question, although framed in terms of good faith – can I take your Honour to page 374, which is where that issue was – or the way it was pleaded was explained? At page 374, the last 10 lines or so, does your Honour see:
The allegation of the absence of [bad] faith –
that paragraph, and the first particular was:
the real purpose of the resumption was not as alleged,
That is why I submitted that, although it is couched in terms of bad faith, it is really recognisable as “you did not have the power to do it”.
FRENCH CJ: You have here a chain of purposes, do you not, a number of purposes? You have the purpose of giving effect to the Civic Place master plan.
MR ROBERTSON: Yes.
FRENCH CJ: You have the purpose then, the subsidiary purpose, which serves that purpose of giving effect to the private/public partnership arrangement which is ultimately reflected in the development agreement. Is that correct?
MR ROBERTSON: Yes, one can see – if I have understood your Honour correctly, yes.
FRENCH CJ: I am just looking at the chain of purposes, of sort of narrowing purposes. And then in relation to the acquisition, which is what we are focusing on here, the immediate purpose ‑ if I can use that term ‑ of the acquisition, pursuant to the terms of the development agreement, is to effect a transfer of the land to Grocon as part consideration for moneys to be paid by Grocon. So accepting that the acquisition itself is a sale which then allows one to use the word “resale”, you would accept that the immediate purpose of the acquisition is for resale to Grocon? It is just that you say we disregard that immediate purpose?
MR ROBERTSON: I do not say that you disregard it.
FRENCH CJ: For the purposes of 188(1), I mean.
MR ROBERTSON: Yes, because the way that we respectfully submit the Court of Appeal has analysed it correctly in light of the authorities is that you do not approach questions of purpose of acquisition in that way by saying every step, every end, answers the description of the purpose of the acquisition. In other words, you characterise it by reference to the entirety of the events, and that is what their Honours have done.
FRENCH CJ: The question reduces to whether, as a matter of construction, 188(1) says in pursuit of these higher purposes you cannot go down this path ‑ this procedural path.
MR ROBERTSON: That is certainly a way of putting it, yes, your Honour. One has to give, in my respectful submission, weight to the words in which the restriction has been cast, that is, it does not say, for example on the question of purpose, it does not omit any reference to that at all. It uses the same criterion as in 186 and, of course, when one gets to the question of was there a resale at all, it does not use the word “transfer”.
We submit that resale really means, in effect, sale and we have given in our written submissions at paragraphs 41 and following the reasons we say that what happened here was not a resale, and there are a number of reasons, partly textual. There is a reference to your Honour the Chief Justice’s decision, in an entirely different context of course, in Sun World in paragraph 48.
FRENCH CJ: That was about selling plants.
MR ROBERTSON: That is so. We should add to that the Full Court reference which is 87 FCR 405. Here one has to, in the process of characterisation, take into account the amalgamation of the other titles, the matter we refer to in paragraph 52, no resale of the land because the land which will ultimately be transferred will have substantially and physically changed. They are described by the primary judge at paragraphs 68 and 69 and that sets out what ultimately will be built on the – that was the reference I was looking for in answer to an earlier question of your Honour the Chief Justice – what will ultimately happen in relation to the land; a 31‑storey residential flat building, 40‑storey commercial office, et cetera. The subsurface of both areas will form part of a publicly accessible retail concourse and the surface of the Archer Building includes a publicly accessible laneway, et cetera. It is a process of characterisation.
HAYNE J: This point seems to be that a property developer does not resell the land it acquires. Is it developed?
MR ROBERTSON: No. It comes back to the mischief at which 188 is directed, and that is resale, not dealing with the land in a particular way, with an ultimate transfer, is my submission, your Honour. The matters that we seek to draw attention to in paragraph 44, again on the question of is it resale – and, of course, in part this is reflective of what meaning is to be given to “resale”, whether it is sale simpliciter or whether one can just say, well, the result is that the title was ultimately transferred and therefore there is a resale.
We have in paragraph 44 listed what it is that the Council receives. I draw attention to those matters because they are additional to and are broader than, we would submit, as our learned friends were articulating; there is money involved and there is land involved and so on. So there is the redevelopment in accordance with the design proposal. One can see that, if I can give your Honours some references, in the appeal book at page 106 line 10 ‑ ‑ ‑
HAYNE J: Of the evidence appeal book?
MR ROBERTSON: Of the evidence appeal book. I will not take your Honours through it all. Perhaps I will just list them. Appeal book page 106 line 10, 107 line 1, 108 line 1, 109 line 20, 110 line 30, 114 line 1, 117 line 20, 112 line 30 and 131 line 50. As well, what is received by the Council is those other matters that we have listed. Of course, there are payments of monetary amounts, but as your Honour the Chief Justice observed this morning, there is no specificity or identity as between any particular amount paid and ‑ ‑ ‑
FRENCH CJ: There was no allocation of any part of the consideration to a purchase price for those lots.
MR ROBERTSON: Exactly. So that as well, in our submission, goes to whether or not one says that resale in fact is what has happened here. Your Honours, I did say a while ago that I would hand up what is called “Evidentiary Documents Joint Index of Reference”. I think our learned friends have it. It provides a cross‑reference, if your Honours need to find where a particular piece of evidence is, where it is either referred to in the judgment of the primary judge or in the judgment of the Court of Appeal or in the relatively few cases reproduced in full, where it is to be found.
FRENCH CJ: The primary judge tracked through, in a fair amount of detail, the process, did he not?
MR ROBERTSON: Yes. Quite so. We do not cavil with the factual findings and, as your Honours would have seen, they are set out at some length. Your Honours, in terms of coming back perhaps to the structure of Part 1 and approaching 188 in that way, 186 there is a power which is conditioned in terms of purpose and it would include therefore the power to acquire for resale. One can acquire for resale by other than compulsory process. That plainly fits within 186(1) and subject obviously to the limitation and the exception to the limitation at 188. Section 187 addresses the question of how that is done and 188, as I have submitted, is a restriction on the mode of acquiring, that is, a restriction on acquiring by compulsory process if the land is being acquired or, to put it the other way, if the purpose of the acquisition is resale.
As to the purpose of resale, as I have submitted, resale is generally within 186(1) subject to the restriction and whether one is looking at it as the purpose in 188(1), whether it is the sole or the initiating and abiding purpose as to CC Auto or substantial purpose applying Thompson, as the present appellants contended below, the question is, if there is more than one purpose, what is the, if I can call it, characterisation or what is the degree of the accepted purpose? In our submission, the Court of Appeal approached it in the orthodox way.
Insofar as the premise of our learned friend’s approach is to say, well, sale or resale is not ever a function of the Council, we would submit that that is not the correct position in general terms because of, say, section 22 and the relevant provision, section 50 of the Interpretation Act giving a statutory corporation particular powers or capacities. I have made the point about the difference between this legislation and the predecessor legislation, that is, the 1951 Act, post the decision of this Court, and the difference between the predecessor Act and the 1993 Act, both in terms of the general approach to Council’s powers and in terms of the restrictions in 186, 187 and 188.
I should say, your Honours, that the general question of, in administrative law terms, how does one assess the question of purpose when looking at multiple purposes, more than one purposes, Professor Aronson’s book discusses this topic at page 298 to 300, the third edition, and does it by reference to a catalogue of possibilities that Professor de Smith has in his fifth edition. But the end result of it is that Thompson, was it a substantial purpose or can you apply the but for test, is, if I can put it this way, the orthodox position under the approach to multiple purposes when one is looking at a vitiating purpose, whether that it is cast as bad faith or ultra vires.
So then we submit that in terms of those tests and, indeed, the way in which the Court of Appeal addressed those matters, I would remind your Honours of what Justice Hodgson said at page 200, paragraph 6, where his Honour says:
This same approach also provides an answer to the question arising under s 188(1) . . . must be the dominant purposes, or at least a substantial element of the dominant purpose, or a substantial purpose which is independent of the dominant purpose . . . re‑sale is neither the dominant purpose nor a substantial element of it, nor is it a substantial purpose independent of what I consider to be the dominant purpose of putting into effect ‑ ‑ ‑
GUMMOW J: The.....in that statement is the concluding phrases, “putting into effect the substance of the Master Plan”.
MR ROBERTSON: That is what his Honour characterises as the purpose.
GUMMOW J: I know. It elides the significance of the private‑public partnership.
MR ROBERTSON: Your Honour, perhaps that brings one back to section 24, what it is that one is asking when you say, well, what is the purpose of the acquisition of the land? In my submission, the existence of the procedural steps leading then to ‑ ‑ ‑
GUMMOW J: A bit more than procedural steps.
MR ROBERTSON: Leading then to the function.
GUMMOW J: Your client encounters substantial legal obligations to Grocon. Ordinarily in administrative law you talk about procedure. You are not talking about engagement of financial obligations in a commercial world.
MR ROBERTSON: What the Act is concerned with, your Honour ‑ ‑ ‑
GUMMOW J: The Act is concerned with an attempt to mix it together. I will not repeat what I said earlier, but that is the whole source of this controversy.
MR ROBERTSON: We would submit not, your Honour. The self same question would arise, has arisen, before any time at which Part 6 of Chapter 12 was introduced and what I meant by procedural was that ‑ ‑ ‑
GUMMOW J: Those cases in 1950 are in a different world, really, to the world of local government today, I suspect, in New South Wales.
MR ROBERTSON: Yes, I accept that, your Honour, but one still has to answer the same question. The planning purposes or whatever adjectives one wants to put before purpose, the approach has not changed. The facts may in a particular case have changed, but what is being put against us is that the relationship between 186(1) and 188(1) is not, as it were, informed as a matter of fact by Part 6 of Chapter 12.
What is being put is that the power to acquire must always be for the purpose of exercising its functions, which it always was, we would submit, and then what is put against us is therefore one takes a new approach to the inquiry under 188(1). So, certainly, I would accept that the factual environment, as it were, has changed but that does not, in my submission, lead to a change in the tools of analysis that have been used.
FRENCH CJ: I suppose coming back in a sense to I think what Justice Kiefel might have been putting to you earlier, assuming for the moment that the word “purpose” does not bring a trail of baggage into section 188, if one simply sees section 188 as saying you cannot do this, whatever the higher purposes may be, then the only question becomes what is the immediate purpose and the only reason for the word “purpose” being there is to protect a kind of situation where you might acquire and make a resell because whatever purpose you acquire for it then has fallen away for some reason.
MR ROBERTSON: Well, I certainly understand that, with respect, but we would submit that looking at its words and indeed its provenance, its history, does not lead one to construe it in that much more limited way.
FRENCH CJ: Yes, I understand that, but that would bring it back to a simple immediate purpose test of the kind that I suggested earlier. I am not suggesting it as the test but just if you accept that construction.
MR ROBERTSON: If one said that that was the mischief to which it was directed, then no doubt that would follow. But, as your Honours would have gathered, our contention is, of course, that it is not so limited and needs to be resolved by reference to the same sort of inquiry as 186.
HAYNE J: In identifying that purpose, is it relevant to take account of the fact that Council has undertaken contractually stipulated obligations?
MR ROBERTSON: It would be relevant, yes, your Honour. I mean, my submission is that the entirety of what preceded the event is relevant to the question of characterisation.
HAYNE J: But it follows that the purpose is to be identified in a landscape broader than consideration of fulfilment of statutory powers and obligations. It is to be considered in a landscape in which an element of the landscape is the voluntarily undertaken set of privately stipulated obligations found in the PPP?
MR ROBERTSON: Certainly, the factual matters to which your Honours have referred would be relevant. I would not accept, with respect, that the enactment of Part 6 of Chapter 12 changes the nature of the inquiry in the way that I have been seeking to articulate. I have referred your Honour to what Justice Hodgson had said. I think I have taken your Honours to what Justice Tobias said at 186 through to 188, those paragraphs, and Justice Palmer at paragraph 202. As I have submitted, the restriction in 188 is by reference to purpose and not merely by reference to resale.
I should say, and it is probably entirely irrelevant, apart from the fact my friend has mentioned it twice, those sections of the Bill never got to Parliament, so whether one can look at them for any purpose, we would submit not seeing it was never enacted but fell by the wayside at an earlier point.
Then, your Honours, turning to 188(2)(a), the live issues, as we would see it, in relation to 188(2)(a) are the question of other land acquired, and then, secondly, under this Part and then, thirdly, for a purpose other than the purpose of resale, and we deal with these matters in paragraphs 64 to 69 of the submissions. One of the elements, as we understand it, of our learned friend’s argument is whether the land that is being considered is land by reference to title or land by a physical sense of land; we would submit the latter.
If I could give your Honours two references, perhaps three references, to decisions of this Court where the expressions “land as a portion of the surface of the earth”, or “land as a defined portion of the terrestrial globe” have been used, and that is what we submit is the meaning of the word “land” in 188(2)(a). One reference is the Commonwealth v Western Australia 196 CLR 392 at paragraph 96, and another reference is Risk v Northern Territory 210 CLR 392 at paragraph 82. The effect of that, or the relevance ‑ ‑ ‑
FRENCH CJ: That was the Seabed Case, was it?
MR ROBERTSON: Yes. The relevance of this issue, as we understand what our learned friend has put, is whether or not the other land needs to be the whole of a particular title and we submit that that is not the way that the word “land” is used in 188(2)(a). It is looking at land in a physical sense and therefore parts of the roads can answer that description. In terms of the roads themselves, could I hand up to your Honours because we did not put them in the bundle some of the relevant sections of the Roads Act.
Neither of these roads, Church Street and Darcy Street, were Crown roads. If your Honours look at what I have just handed up, the Council was by virtue of 145(3) – I am using the word “was” because all of this is sort of being argued on an anticipatory basis because none of these things, of course, have happened, yet – but 145(3):
All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.
One can see from section 7(4), which we have reproduced, that the Council does not define it as the appropriate roads authority but says that it “is the roads authority for all public roads within the area”. Then going back to 146, that describes the nature of the ownership of the public roads and one can see that that does not affect, looking at paragraph (b):
right or liabilities of any person under any easement . . .
(d)does not constitute the owner of the road as an occupier of the land, and
(e)does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land –
Then a section that I think we did previously reproduce, section 41 is in the same bundle, still of the Roads Act 1993:
A public road that is compulsorily acquired under this or any other Act or law ceases to be a public road as a consequence of its compulsory acquisition.
The relevant purposes are referred to by Justice Tobias in paragraphs 59 to 61 of the judgment in relation to Darcy Street and in paragraph 87 as to the part of Church Street and the net result, in our submission, is that the capacity in which if the compulsory acquisition were to occur would change and the effect of the Lands Acquisition Act would be that rather than the Council merely being the roads authority and having those rights of ownership, the Council would be as a result of the acquisition the owner of the land freed from the interests, et cetera, which are dealt with in section ‑ ‑ ‑
FRENCH CJ: Section 146.
MR ROBERTSON: Thank you, your Honour.
FRENCH CJ: And also free of the limitations on disposition, of course.
MR ROBERTSON: Yes, exactly. So that the land acquired in 188(2)(a) does not prevent land acquired by compulsory process with that change of capacity or character answering that description. So the roads would cease to be a public road and therefore those roads or parts of them would be land acquired at the same time. In summary, that submission is that the section is not limited to acquisitions from a third party, but includes a change in capacity, as here, and that is supported by 186(3), that is, you can have an acquisition from a council as a road authority by council as a local authority, which is what has happened or would happen, here.
Then the two remaining aspects of 188(2)(a) are the 7B aspects. Our submission in relation to that is in paragraph 69 of the written submissions. In short, the section 7B argument, in our submission, does not prevent the land being acquired under this Part, that is, under Part 1. There is an element perhaps of circularity, but 7B proceeds by reference to an authority of the State that is authorised by law to acquire land. That is a reference to section 4(2) where the expression, “an authority is authorised to acquire land by compulsory process” is defined and in the result, we would submit, that 7B was enacted out of perhaps an abundance of caution, but does not prevent 186 and 187 operating according to their terms so that the acquisition is under this Part.
Section 7B uses the expression “even if the land is vested in the authority itself”. Of course, the Roads Act itself, 145(3), talks about the public roads “vested in fee simple in the appropriate roads authority”, but we would submit that under 186(1):
A council may acquire land . . . for the purpose of exercising any of its functions –
and by means of, in 187:
agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act –
sufficiently answers the description of “acquisition” under this Part, even though it is a road and a change in the capacity. Then one comes to “for a purpose other than the purpose of re‑sale”, and here it is factually uncontroversial that the relevant parts of the land – and I am looking now at paragraph 63 of our written submissions – that is, that the appellants’ land lies in the vicinity of those parts of Darcy Street which are being acquired by Council and which will ultimately remain in Council ownership and, we would submit, those parts of Darcy Street and Church Street, that is, the surface, are being acquired therefore for a purpose other than the purpose of resale.
In our submission, there is no occasion to read “for a purpose other than the purpose of re-sale” in any artificial way. We would ask your Honours to reject the submission that, as we understood it, the entirety of the purpose or the land in question has to be entirely for the non‑purpose, that is, the purpose other than resale before those words are engaged. If one accepts one is looking at land in a physical sense, which is the earlier part of the submission, then it follows that that land is being acquired for a purpose other than the purpose of resale on the facts of this case.
HAYNE J: Can I just go back to a question of fact which I know you have explained, and forgive me for going back over it. Church Street will see a stratum created and transferred to Grocon, is that right? I am looking at page 230, paragraph 87.
MR ROBERTSON: The surface, I think, your Honour?
HAYNE J: The surface remains in Council.
MR ROBERTSON: Surface remains with Council.
HAYNE J: But a subsurface stratum is created and transferred to Grocon, is that right?
MR ROBERTSON: Yes, that is so, your Honour.
HAYNE J: Now, it is Darcy Street that I am unsure about. Is there any equivalent, some division of Darcy Street, or does Darcy Street remain wholly with the Council, or what happens to Darcy Street?
MR ROBERTSON: The part of Darcy Street that is Station Square – I will get your Honours the reference to it – but it is retained by the Council.
HAYNE J: Does any part of Darcy Street or any stratum carved out of that land go to Grocon?
MR ROBERTSON: Yes, it does.
HAYNE J: It does?
MR ROBERTSON: Yes. Your Honours, perhaps the last thing I should refer to – does your Honour – if I can find some further either paragraph or page references ‑ ‑ ‑
HAYNE J: It would be helpful if you could, but either immediately or by note, I am not fussed.
MR ROBERTSON: Thank you, your Honour. Perhaps the last matter I should refer to, your Honours, your Honour Justice Gummow at the end of yesterday afternoon’s hearing raised the question of the form of the order. I do not disagree with what my learned friend put in relation to the declaration aspect. I should say in terms of the form of order that we had articulated at the end of the written submissions, there was a reference to a question that has now fallen away which was a question of confidentiality. This is paragraph 71 of the submissions in the Fazzolari matter. That has
fallen away, so your Honours do not need to pay any attention to that part of it.
Perhaps I should say something on the question of costs, that is, if the appellants were successful on the new argument, we would submit that an appropriate order, given the length of the hearing times on the now discarded arguments and before Justice Biscoe and before the Court of Appeal, that an appropriate costs order would be that there be no order for costs below, but that the respondent would pay the appellants’ costs here. But I do not wish to say anything more about it than that.
GUMMOW J: On the subject of Grocon, Mr Robertson, Grocon was never joined as a party?
MR ROBERTSON: No.
GUMMOW J: There was some discussion of this by Justice Biscoe at page 133, paragraph 226, but we can proceed on the footing that there was no issue as to joinder?
MR ROBERTSON: There certainly was not, even on the view that his Honour took, because he said that nobody was impugning the arrangements as between the Council and Grocon.
GUMMOW J: That seems to be so here in this Court.
MR ROBERTSON: Yes, I would accept that. I do not think this is what your Honour Justice Kiefel had in mind, but in case it was, there is a provision in the Roads Act, section 179, that is in similar terms to 188 of the Local Government Act (NSW). Those are the submissions, if your Honours please.
FRENCH CJ: Thank you, Mr Robertson. Yes, Mr Walker.
MR WALKER: References to supply further answers to the question addressed by your Honour Justice Hayne to my friend can be found via our paragraph 12 of our written submissions in‑chief and see particularly in Justice Biscoe’s judgment in the core volume pages 32 to 33, paragraph 12. That is concerning the fate of the two streets.
HAYNE J: Thank you.
MR WALKER: In the case of both roads, significant portions are to be transferred to Grocon.
KIEFEL J: I am sorry, what was the reference again to Justice Biscoe?
MR WALKER: It is pages 32 to 33 of the core volume, paragraph 12. While giving some references to his Honour’s reasons at first instance, in our submission, the passage that your Honours have I think already noticed at page 146 and both before and after that page of the core volume, particularly paragraphs 257 and 258, supply as part of what I will call the legislative pre‑history the context of what might be called a precursor provision, but it is not a precursor in the ordinary way. That was the state of affairs permitted but to be in effect prohibited. The taking that was authorised under the provisions set out by his Honour at paragraph 257 was prohibited by section 188(1). It is a very different precursor that explains the parliamentary utterances to which attention has already been given in the second reading speech.
Related to that, in our submission, force is given to the proposition which informs our argument that there is no need for the epithets initiating or abiding or any of the similar epithets to be applied to the question of purpose as required by section 188(1). It would have been, bearing in mind the history that was plainly considered and sought to be reversed, that is, the contrary position achieved. It was plainly available to draft in terms that recognised ordinary legal discourse concerning what happens when there is more than one purpose and whether you need to have sole, dominant, et cetera. None of that was chosen.
Partly that is because the evident mischief and the attempt taken, whether ineptly or not it does not matter, to meet it would never have produced a satisfactory answer to the proposition by a citizen, but this is for the purpose of resale for a local council or resuming authority to say, “No, no, no the land that will be resold is not being got for the purpose of resale. It is in the interests of the community of Parramatta” and that would have been treated as a non sequitur; never has an answer.
In short, there are purposes existing simultaneously and no doubt multiple, both on the same level of generality as resale and even more strikingly at higher levels of generality, such as one finds in section 24. Section 188 would be rendered a complete mockery if it was ever supposed that one would hope would always be true, namely, that what the Council was doing fitted within section 24. Indeed, if it did not, one wonders what would they be doing and why would they be called a Council? It could never be possible to say, “No, this is section 24. This is not the purpose of resale.” Rather, Parliament was saying in section 188(1) when acting, pursuant to your, if I may use the expression, virtually plenary powers of section 24, subject to this Act is a phrase that must be given weight to and 188(1) is one of those subjections.
The other important one of those subjections is to be found, of course, in the provisions of Part 6 of Chapter 12, namely, the PPP regulation. Your Honours will recall the emphasis we laid upon the fact that at the very highest level of central government, that is, the highest level of bureaucracy, there was an assessment, a judgment to be made non‑reviewably as to the appropriate undertaking of risk in a PPP. Your Honours will have seen the references to the parliamentary material which, of course, has referred to the history relatively recent in Sydney which produced those amendments.
In our submission, it cannot possibly be the case that the PPP provisions, mandatory to be followed in the circumstances that applied in this case, mandatory in the sense that none of this project could proceed except with that approval, it is impossible to submit that that does not qualify and supply content to the expression “subject to this Act” to be found in section 24 of the Local Government Act. Indeed, the fact that it is added later only bespeaks all the more clearly that a limitation restriction and regulation is being enacted where there was none before. That is why, in our submission, section 400I(3)(b) of the Act is that which provides the power or authority, that is, the function which is being exercised by the acquisition empowered under section 186 in this case. Thus, in our submission, there is nothing in the distinction that ‑ ‑ ‑
GUMMOW J: So you say the phrase “subject to this Act” in section 24 is its own Anthony Hordern’s flag, as it were?
MR ROBERTSON: Yes, it is. And (a) it does that textually, that is, that is a perfectly ordinary literal meaning of it and (b) when one looks at the quite extraordinary generality, it leads me to suggest the evocative word “plenary” in section 24, bearing in mind that this is a local government council, it must be so. It must be that the regulatory provisions which are constraints on the exercise of power, are to be observed mandatorily and provide the occasion therefore and the context in which one then asks a question such as, is there a purpose of resale? There is very little limit provided except by the guidelines which may change from time to time with respect to PPPs. Anything from a blast furnace to a bank would appear to be a possible enterprise by local government but, fortunately for the rest of us, to be assessed as to an acceptable and appropriate risk undertaking by the committee in question.
Your Honours, it is for those reasons we submit in reply to our learned friend’s argument that there is nothing in the distinction or contrast or difference which was offered but not, in our submission, specified between what Justice Tobias was referring to in his paragraph 134 at page 251 of the appeal book and his paragraph 137 of the appeal book at page 252. Section 24, yes, of course, describes a function, but describes it in terms which literally require then observance of anything else which becomes applicable to the activities in question.
Section 400I and all the accompanying parts of Part 6 of Chapter 12 became applicable. They cannot be elided, they cannot be ignored. They are in fact, to turn against him, my learned friend’s metaphor, that is what provides the proper focus. That is not an excessively narrow focus, in our submission, it is the appropriately specific focus.
In any event, in our submission, it does not matter whether one looks at section 24 all on its own, only a possibility for the reasons we have put, but even if you did, it would not make any difference to the argument that we have put, namely, that the resale is only ever going to be ancillary. It is never going to be, cannot be a sole purpose. And we stress Justice Tobias’ reasoning, although using from time to time the epithet “dominant” at all the critical points, as we pointed out in chief, employs the notion of sole.
Justice Kiefel raised with my learned friend the land swap example. It is to be recalled, of course, that a land swap is one way of achieving, Council starting off with no land and ending up with the land it wants. Another way of doing it is to resume white acre, sell it and with the proceeds buy the desired black acre. In our submission, if that were true, if that happened, how could anyone possibly deny that the purpose of the resumption of white acre was for resale in order to supply the proceeds, in order to buy the desired black acre. Of course that would be resale.
If the same thing were done, whether by a set of conditions, that is contingencies, or whether in one simple land swap transaction, in our submission, it would fly in the face of a proper and purposive reading of section 188 not to regard that as a resale. It would be a transfer for good consideration, for valuable consideration, manifestly for money’s worth.
CC Auto says nothing to the contrary of our argument. Indeed, in the quite different set of – or dispute which was being settled in CC Auto, namely, whether there was a lack of proper purpose or good faith so as to invalidate a resumption at all, the argument about means and ends was successfully deployed. And one sees the reflection of Mr Burt’s argument, recorded at page 372 of 113 CLR 365 and compare that with the holding to which my learned friend took your Honours at page 381.
In our submission, wherever something which is identified as a purpose can only be a means to an end or is held to be a means to an end, one can immediately say that means for sure there are at least two purposes; the purpose which is the means and the purpose which is the end. That is always going to be true with resale. That means that the following reasoning, in our submission, draws in support of us on CC Auto rather than CC Auto supplying any principle which is against us. The first step is that there will always be another purpose, not just resale. The second step is that that resale purpose will always be ancillary. One sees that, indeed, in the headings of the relevant part of the Local Government Act.
One sees that in the Interpretation Act provision. It is called a purpose. Dealing with property is for the purpose of exercising a function. Therefore, it is a false search, an idle search, to look for something which is dominant or sole as being the character of resale, because it can never be dominant or sole. In particular, it can never be sole. That would mean that 188(1) posed an impossibility as a trigger, which means that, contrary to the evident intention both by identification of mischief and the means chosen, it would mean that the provision provides no protection at all; a statutory mockery and that, in our submission, would be rejected.
The next step is that it follows from the same propositions that you would not require for the purposes of paragraph 188(2)(a) that the other land in question will be the subject of only one purpose, a sole purpose, that is, of resale, because for the same reasons there will always be at least two, that is, the end as well as the means, and no doubt more. That follows because otherwise again the case which is posited under 188(2)(a) would be an impossibility. That is the case of a sole purpose of resale. That being impossible, it would again work a mockery and, in our submission, a case which starts with a protection which turns out to be illusory, or alternatively, applies an exception which is invariable is a sign of a wrong reading of the provisions.
The multiple purpose inquiry, as my learned friend elaborated it, was one which, depending upon the focus and depending upon how much of the background you looked at, would justify or vindicate the approach taken by Justice Tobias in the passages to which specific reference has been made. In our submission, there are absurdities immediately produced by the notion that where there are multiple purposes you must chose one, partly first for the reasons I have already put, namely, resale is always going to be one of multiple purposes. But, second, if one uses the so‑called but for test, it is intended to operate in this fashion.
Borrowing from the discourse of the bad faith cases, the no real exercise of statutory power cases, one apparently tests it by saying, would the project have gone ahead but for the impugned exercise, say, taking most of the block of Fremantle, or taking the whole block of Fremantle, for a street widening scheme and using the residue which is in fact larger than that which is required to widen the streets as a retail development which can be then sold to defray most of the costs of the project, those being the facts in that case, CC Auto.
Now, in our submission, the but for test immediately produces the absurdity that one supposes the absence of what actually happened. There are many more ways than one of skinning the cat of beautifying the middle of Parramatta in this vicinity. There are many ways that could be adopted. One might even just borrow the money and do it all yourself without any private developer involved. In other words, it cannot be said that it is ever essential that it be done in a particular way.
The but for test then leads to the absurdity that you ignore the choice which has actually carefully been made by resolution and put through the statutory mill of the PPP process, you ignore what is actually being done, and test the matter of purpose of resale by asking could it have been done otherwise? Of course it could have been done otherwise. It would not need a PPP at all. In fact, in our submission, the Court would then be reduced to the absurd position of asking of the case which actually obtains, is there a purpose of resale? Answer, no, because it could have been done without a resale. For those reasons, in our submission, the multiple purpose inquiry as put by our learned friends is another false direction which ought not to be followed.
Your Honours, a deal of reference has been made, of course, to the sloganesque nature of PPP. I ought to supplement both an answer I gave Justice Gummow yesterday and reply to what was said today about the matter. There were choices made in this development agreement as to the so‑called structure, to use the expression of the Council’s solicitors, and I need to point out that although the generic term “partnership” is found not only with the label public‑private but also just partnership is found in Part 6 of Chapter 12, and although partnership clearly used technically as a legal term of art is in the definition of “entity” to which I drew attention yesterday, these parties happen to have chosen to stipulate against there being any partnership in this case.
So just to complete the reference to partnership, in volume 1 of the evidentiary volumes, page 163, line 40, you will find clause 26.10, which in a familiar way excludes partnership and any of its fiduciary consequences as between these parties. It does not add anything to our argument, but I omitted to draw that to attention yesterday.
GUMMOW J: Well.....clauses like that come before courts before today. I will not say anything more.
MR WALKER: And sometimes they remind one of trying to project liquid in the face of a strong wind, yes, your Honour. Your Honours, those are our submissions.
FRENCH CJ: Mr Walker, do you want to say anything on the question of costs raised by Mr Robertson?
MR WALKER: It is true that the contentions we have advanced in this Court are not as they were advanced below, so that I think is the premise of my learned friend’s argument. I cannot deny that premise. In our submission, however, in a contest between a private land owner and a public authority concerning the power to do what is proposed in this case, what matters at the end of the day is who is right. Costs should follow that event.
FRENCH CJ: Thank you, Mr Walker. I thank counsel. The Court will reserve its decision and adjourns to 10.15 am on Wednesday, 12 November 2008.
AT 12.47 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Standing
-
Jurisdiction
0
0