State of NSW v Taylor - [2000] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S46 of 2000

B e t w e e n -
STATE OF NEW SOUTH WALES
Appellant
and
BRENNAN TAYLOR
Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 OCTOBER 2000, AT 10.18 AM

MR L. KING, SC: May it please the Court, I appear with MR R.A. STANTON, for the appellant. (instructed by P.W. Turk & Associates)

MR A.J. LESLIE, QC: If the Court pleases, I appear with my learned friends, MR J.O. ANDERSON, and MS A.O. LESLIE, for the respondent. (instructed by Steve Masselos & Co)

GLEESON CJ: Yes, Mr King.

MR KING: Your Honours, if I may so, despite the amount of paper and ink lavished on this case by some members of the Court of Appeal, it is a very short point of statutory construction. The quickest way into it which I would like to take will be, to some extent, repetitive, having regard to what we said both in the application book and the appeal book, but it is just an historical background and it is this: that in 1987 the New South Wales Parliament repealed the 1926 New South Wales Workers Compensation Act, which was a conventional form of State workers compensation statute.

KIRBY J: Could I ask you, have you gone back – just for the interest, it is probably not relevant to the case, but there is the long history of the interrelationship of compensation and common law. I think at one stage you did have to elect, did you not? You did if you were a railway worker. Do you know what happened, say, back to 1926? Have you done that research? It is quite a long history of which this is just the latest manifestation.

MR KING: It is, your Honour. This is a very different manifestation.

KIRBY J: Yes.

MR KING: Mr Leslie, in some of the cases referred to in his argument, gives the Court, if it feels the need to look at them, the way into it. But, your Honour, to answer your question quickly, there was a time when, railway workers aside, it was necessary to elect between a claim for damages and a claim for compensation.

That went in the early 60’s, I think, perhaps even the 50’s – 53 – and it was always a different form of election from the one laid down by section 151A of the present legislation, which is different from other types of election known to the law where you have to elect between inconsistent rights or benefits, but you can leave your election till the end of the day. The election under the Workers Compensation legislation has always been what might, in a slang fashion, be called an up-front election; you have to elect at the outset rather than leave it to the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2000] HCATrans 432
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in the matter of *State of NSW v Taylor*. The dispute concerned the validity of certain provisions of the *Crimes (Confiscation of Profits) Act 1989* (NSW) and their application to assets held by the respondent, Mr. Taylor. The State of New South Wales sought to confiscate assets it alleged were the proceeds of serious indictable offences committed by Mr. Taylor.

The central legal issues before the High Court were whether the impugned provisions of the *Crimes (Confiscation of Profits) Act 1989* (NSW) were invalid by reason of inconsistency with Commonwealth legislation, specifically the *Proceeds of Crime Act 1987* (Cth), pursuant to s 109 of the Constitution. The Court was also required to consider whether the New South Wales Act, in its application to Mr. Taylor, impermissibly encroached upon the executive power of the Commonwealth, or otherwise infringed upon the implied prohibition against the acquisition of property by the Commonwealth otherwise than on just terms, as guaranteed by s 51(xxxi) of the Constitution.

The High Court, by majority, held that the *Crimes (Confiscation of Profits) Act 1989* (NSW) was invalid to the extent of its inconsistency with the *Proceeds of Crime Act 1987* (Cth). The Court reasoned that the Commonwealth legislation occupied the field of proceeds of crime confiscation, and the state legislation, by providing for a different and potentially conflicting regime, was rendered inoperative by s 109 of the Constitution. Furthermore, the Court found that the confiscation provisions of the New South Wales Act constituted an acquisition of property by the State, and in the absence of provision for just terms, were invalid under s 51(xxxi) of the Constitution, as they impermissibly interfered with the federal balance and the implied constitutional prohibition on acquisition of property otherwise than on just terms.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of New South Wales and remitting the matter for determination in accordance with the reasons of the High Court.

Orders