THE STATE of SOUTH AUSTRALIA and the AUSTRALIAN FORMULA ONE GRAND PRIX BOARD v. the CORPORATION of the TOWN of HINDMARSH No. SCGRG 92 2496 Judgment No. 3841 Number of Pages - 11 Judgments and Orders - General

[1993] SASC 3841

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Judgments and orders - in general - Application for summary judgment by a defendant - discussion of requirement that summary judgment is only possible where 'plaintiff's claim cannot succeed. . on any possible view of the facts or the law' - plaintiff claims payment of rates for land defendant alleges Crown not bound under Local Government Act to pay rates - question of whether Grand Prix Board is an agent, instrumentality or emanation of the Crown - discussion of 'function of government' test - discussion of 'degree of control' exercised by Crown over a body - facts and law open as a basis for a case fit for trial - application refused
Local Government Act, 1934 (5A) 55, 6, 168, 183, 888; Crown Proceedings Act, 1972 (5A) s5(2); Australian Formula One Grand Prix Act, 1984 (5A) sl0; ActsInterpretation Act, 1915 (5A) s20 and Supreme Court Rules (5A) r25.04. The Commonwealth of Australia v Rhind (1966) 119 CLR 584; Superannuation Fund Investment Trust v Commissioner of Stamps (5A) (1979) 145 CLR 330; ETSA v Linterns Ltd (1950) SASR 133; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; Re: Anti-Cancer Council of Victoria (1992) 109 ALR 240; Townsville Hospitals Board v Council of the City of Townsville
(1982) 149 CLR 282; Grange Elevators Board v Dunmunkle Corp (1946) 73 CLR 70; Launceston Corporation v The HydroElectric Commission (1959) 100 CLR 654; Bradken Consolidated Ltd and Anor v BHP Co Ltd (1979) 145 CLR 107; State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639; SGIO v City of Perth (1990 71 LGRA 123; Mayor and Corporation of Essenden v Blackwood
(1877) 2 AC 574 and Paul Dainty Corp Pty Ltd and Anor v National Tennis Centre Trust and Ors (1990) 94 ALR 225, discussed.

HRNG ADELAIDE, 25 February 1993 #DATE 10:3:1993
Counsel for applicant State:                 Mr M D Walter
Solicitors for applicant State:             Crown Solicitor
Counsel for applicant Grand Prix Board:     Mr M D Walter
Solicitors for applicant Grand Prix Board: Crown Solicitor
Counsel for respondent:   Mr R D Lawson QC with
   Mr F M Bell
Solicitors for respondent:                 Finlaysons

ORDER
Application dismissed.

JUDGE1 BOLLEN J The plaintiff is a council duly constituted pursuant to s6 of the Local Government Act, 1934. 2. The plaintiff claims payment of rates from the defendants in respect of land of which the first defendant is the registered proprietor and of which, for the purposes of this application before me, the second defendant is taken to be the occupier. The land is rateable. It does not follow that either defendant is liable to pay rates. 3. "The State of South Australia" is the name by which proceedings against the Crown in right of the State of South Australia may be brought (s5(2) of the Crown Proceedings Act, 1972). Thus the first defendant is the Crown in right of South Australia. I do not think that there can be any doubt about that issue. 4. It is interesting to note one of the functions of the second defendant. Section 10(1)(d) of the Australian Formula One Grand Prix Act, 1984 ("GP Act") is -
    "The functions of the Board are -
    ...
    (d) to provide advisory, consultative or managerial services to
    promoters or other persons associated with the conduct of
    sporting, entertainment or other special events or projects,
    whether within or outside the State." 5. The land in question is the land on which stands the Entertainment Centre at Hindmarsh. The second defendant acts within its "functions" in "running" that place and on the present assumption occupying it. 6. I was referred to the definition of "owner" in s5 of the Local Government Act, to s168 of the Act which section creates the obligation to pay rates and provides exceptions and to s183 which speaks of the identity of the person liable to pay rates. The argument for the defendants is that they are the Crown or, as to the second defendant, an agent or instrumentality or emanation of the Crown entitled to the shield of the Crown. This argument is based on s888 of the Local Government Act. It is - "Except where expressly provided by this Act, this Act does not apply to or bind the Crown." 7. Separate arguments were raised about the application or not of ss168 and 183 to these defendants. But I do not think that such arguments as are available to the defendants on these issues should lead me to enter summary judgment for the defendants. That is what is asked. 8. Section 168(1) and (2) of the Local Government Act are -
    "168. (1) Subject to subsection (2), all land within an area
    is ratable.
    (2) The following is not ratable:
    (a) unalienated Crown land;
    (b) land used or held by the Crown or an instrumentality of the
    Crown for a public purpose (including an educational purpose),
    except any such land -
    (i) that is held or occupied by the Crown or instrumentality
    under a lease or licence;
    or
    (ii) that constitutes domestic premises;" 9. Section 183(1), (2) and (3) is:-
    "183. (1) Subject to subsection (2), the owner of land is the
    principal ratepayer in respect of the land.
    (2) If -
    (a) the name of an occupier is entered in the assessment book
    as the principal ratepayer in respect of land;
    or
    (b) the land is held from the council under a lease or
    licence, the occupier of the land (rather than the owner) will
    be regarded as the principal ratepayer.
    (3) Subject to subsection (6), rates may be recovered as a debt
    from -
    (a) the principal ratepayer;
    (b) any other person (not being a principal ratepayer) who is
    an owner or occupier of the land;
    or
    (c) any other person who was at the time of the declaration of
    the rates an owner or occupier of the land." 10. There was no unanimity amongst counsel that the land is "unalienated Crown land" (s168(2)(a)). Mr Lawson QC, for the plaintiff, suggested (as a minor point in his argument) that the second defendant might be held liable to pay rates because its name is entered in the assessment book. Mr Walter, for the defendants, said that mere entry in the book could not prevail here. 11. I do not think that I need consider these incidental arguments. I do not think that anything addressed to me outside the effect of s888 could lead to a granting of the application made by the defendants. Each incidental argument has a fair counter argument to meet it. I could not send the plaintiff away with its case not tried on any of the incidental arguments. Of course, some of them merge into or are caught up by the "real" issue. 12. Mr Walter acknowledged for the purposes of this application that the land is rateable. The Defence pleads that the relevant land is held under lease to a licence granted by the first defendant to the second defendant. 13. The application before me is an application that the Court should enter summary judgment for each defendant. It is brought pursuant to r25.04 of the Supreme Court Rules. That rule is:-
    "25.04 Application by a defendant for summary judgment
    (1) Where a defendant wishes to obtain summary judgment in an
    action or for any part thereof he shall:
    (a) file his defence or affidavit in answer to the plaintiff's
    affidavit;
    (b) make an application for summary judgment in the action;
    (c) file an affidavit showing why the plaintiff's claim cannot
    succeed or cannot succeed in this Court as the case may be on
    any possible view of the facts or the law.
    (2) On the hearing of the application the Court may if it
    satisfied that the defendant's contentions are correct enter
    judgment for the defendant, stay the action or make any other
    order which the justice of the case may require or treat the
    application as an application for directions." 14. It is a very stringent test. The Court may enter judgment for the defendant if the Court is satisfied that the plaintiff's case cannot succeed on any possible view of the facts of the law. In his summary to this rule Judge Lunn correctly says that the "jurisdiction must be exercised with great care and only used where it is clear that the action is devoid of merit". 15. Mr Walter undertook the task of showing that the plaintiff's case could not possibly succeed on any view of the facts or law by reason of the effect of s888 of the Local Government Act. 16. In the course of his able and very interesting argument Mr Lawson QC emphasised that the test for summary judgment in favour of the defendant is heavier or more stringent than it is for a plaintiff. I agree. But Mr Walter put the case for the defendants with force and clarity. And his address, too, was very interesting. I had the advantage of splendid arguments on each side. 17. Mr Walter began by saying, consistently with the provision of r25.04 "...in a nutshell, the application is based on the premise that if the plaintiffs prove all matters set out in the Statement of Claim they still would not be entitled to judgment". He went on a little later in his argument -
    "In this case it is not our argument for present purposes that
    the land in question is not rateable land. We concede that for
    the purposes of this argument it is rateable land. What we say
    is, although it is rateable land, whoever has to pay rates in
    respect of it, it is not the Crown. It may well be that there
    is nobody who has to pay rates for it, despite it being rateable
    land. In fact, in our defence we concede that certain parts of
    the land is rateable, and there are persons who could quite
    properly be required to pay rates in respect of that land.
    What we say is because of s888 in its operation throughout the
    Act, there is no specific provision which requires the Crown to
    pay rates.
    So, it depends ultimately, this application, upon whether the
    second defendant is the Crown in the meaning of s888 of the
    Local Government Act. We would say the first defendant, by the
    fact that it is the State of South Australia, names the
    defendant, no other legal entity is pleaded as being the State
    of South Australia, that it follows that the Crown is the State
    of South Australia, and whatever the word 'Crown' means, s888
    must mean that the Crown right of the State of South Australia." 18. The answer to the application depends very largely on whether or not the second defendant is the Crown within the meaning of s888, whether it is an agent, instrumentality or emanation of the Crown. There is no doubt but that the Crown can be a statutory corporation or servant or agent of the Crown. I think that to be so whether you think of such bodies being the Crown or as being an entity entitled to the shield of the Crown, see for example The Commonwealth of Australia v Rhind (1966) 119 CLR 584 at 600 per Barwick CJ. The question is whether this corporation, namely the second defendant, is entitled to come under the umbrella of the Crown. In addition to the position at common law, Parliament has made the position in relation to an agent of the Crown clear by enacting s20(4) of the Acts Interpretation Act, 1915. It is -
    "Where an Act or a provision of an Act (whether passed before or
    after 20 June 1990) does not bind the Crown, the Crown's
    immunity extends (unless the contrary intention is expressed) to
    an agent of the Crown in respect of an act within the scope of
    the agent's obligations." 19. Mr Walter submitted this:-
    "MR WALTER: ...The question whether a statutory corporation such
    as the board has been identified as a servant or agent of the
    Crown is determined not by what actually happens in practice,
    but solely by an examination of the relevant legislation, and
    the authority for that proposition is The Superannuation Fund
    Investment Trust v Commissioner of Stamps 145 CLR 330 at p348
    2, and the passage commencing 'The importance of the presence or
    absence of control...'. That paragraph makes the point that the
    most important factor is control, but the last sentence of that
    paragraph is looked at, not the relevant fact of control is
    actually exercised in practice.
    HIS HONOUR: I just look at the statutes, do I?
    MR WALTER: You look at the relevant statutes and determine the
    relationship between the body corporate, in this case, the
    board, and the Crown, and what the Crown would mean, is, in
    effect, executive government. That explains the paucity of the
    factual information in the affidavit, which supported this
    application. In the earlier cases the question of whether a
    particular body corporate is servant or statute of the Crown, or
    emanation of the Crown, concentrated on the function of the
    corporation, whether the functions it carries out are a function
    of government. However, more recent cases have made the point
    that a function of government is quite properly whatever
    government at the time decides that a function of government
    should be. The function test, although relevant in certain
    cases, is of diminishing importance...." 20. He pointed to authority which suggests that the functions of government have changed over the years. A function of government might well be what the current government says it to be. 21. In Superannuation Fund Investment Trust v Commissioner of Stamps (SA)
(1979) 145 CLR 330 Stephen J said at 349-350:-
    "One observation may be made concerning the significance of the
    type of function which a corporation performs. There has been
    both judicial and academic criticism of the notion that attaches
    significance to the allegedly governmental nature of a
    corporation's function. It may be acknowledged that what is a
    function appropriate to government may be answered differently
    in different ages and under the influence of differing social
    and political theories of the State. However there nevertheless
    remain some areas, such as those dealt with in Repatriation
Commission v Kirkland (1923) 32 CLR 1 and in Goodfellow v
Federal Commissioner of Taxation (1977) 51 ALJR 437, of which it
    may confidently be said that, in an Australian context, they are
    traditionally the province of central government. Where that is
    so it constitutes a relevant factor in any consideration of the
    claim of the statutory corporation in question to the benefit of
    some Crown immunity or privilege. But, as I have said earlier,
    I do not regard this factor as of weight in the present case.
    On occasions the legislative intent may be a complex one,
    especially where a corporation has conferred upon it a number of
    quite distinct functions. The intention may be that only some
    of these should attract the immunities and privileges of the
    Crown. Again, whether a corporation possesses one or more
    functions, the intention of the legislation may be that only
    some of the Crown's immunities and privileges should attach to
    it. Whatever complexities may arise in such cases the course of
    statutory interpretation will but reflect the complex nature of
    the legislative intent to which effect is being sought to be
    given. In such cases indicia may at first sight appear to point
    in different directions, the apparent conflict only resolving
    itself by reference to the circum- stances relevant to the case
    in hand and how they bear upon the particular function in
    question or the particular immunity or privilege to which claim
is made." 22. Stephen J said no more than that the "function test" was not to be given weight in that case. Still I think that in modern times the importance given to any examination of "functions" alone has greatly diminished. But not wholly disappeared. In ETSA v Linterns Ltd (1950) SASR 133 Ligertwood J did examine "functions". That case has been approved in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 133 and in the case of Re: Anti-Cancer Council of Victoria (1992) 109 ALR 240. But "functions" has undoubtedly diminished greatly in value as a or the test. That emerges most pointedly in the reasons of Gibbs CJ in Townsville Hospitals Board v Council of the City of Townsville (1982) 149 CLR 282. There the High Court held that the relevant statute did not reveal an intention of the Parliament that the Board should have the privileges and immunity of the Crown when erecting a building even on Crown land with borrowed money. On the issue of "functions" and generally Gibbs CJ said (at 288-289):-
    "Provision is made in The Hospitals Act for land to be vested in
    a Hospitals Board (see s13(5) and s12(8)) but the land in
    question has not been so vested and remains Crown land. The
    buildings erected on it will therefore belong to the Crown.
    They are, as will be seen, being erected with the knowledge and
    approval of the Cabinet of the State of Queensland. It does not
    necessarily follow that the buildings are being erected on
    behalf of the Crown. An owner of the land may approve of the
    erection of a building on his land, although the building is not
    erected by him or on his behalf. Further, Crown land may be
    reserved for a large number of public purposes, some of which
    may involve the erection of buildings by persons other than the
    Crown.
    The alternative submission made on behalf of the Board was that
    the Board represented the Crown for the purpose of the erection
    of the buildings. Although the word 'represent' is not
    infrequently used in this context, it would be more precise to
    say that the question is whether the Board, in erecting the
    building, enjoys the privileges and immunities of the Crown. It
    is possible that the Board might be given the immunities and
    privileges of the Crown for one purpose and not for another:
Victorian Railways Commissioners v Herbert (1949) VLR 211 at
    213; Wynyard Investments Pty Ltd v Commissioner for Railways
(NSW) (1955) 93 CLR 376 at 394; The Commonwealth v Rhind (supra
    at 600). It has been said that in deciding the question whether
    a person or body is entitled to the privileges and immunities of
    the Crown it is necessary to consider all the circumstances of
    the case and that '(t)he fact that function has been a
    traditional function of government and that no intention of
    "alienating" it appears is sufficient to answer the question in
    many cases': Grain Elevators Board (Vict) v Dunmunkle
Corporation (1946) 73 CLR 70 at 75. There have been cases in
    which the fact that the objects which the statutory body was set
    up to achieve were peculiarly within the province of the
    Government was regarded as decisive: see, eg Repatriation
Commission v Kirkland (1923) 32 CLR 1; see also Superannuation
    Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145
    CLR 330 at 349, 356. However, many functions formerly regarded
    as matters of private concern are now carried out by
    instrumentalities of government and the question whether the
    functions in question are traditionally or peculiarly
    governmental is likely to be increasingly unhelpful in deciding
    whether the body formed to carry out those functions enjoys the
    privileges and immunities of the Crown. However, if it matters,
    the provision of hospital services is not a traditional function
    of government, and is still regarded as a matter in which
    private enterprise as well as governments will play a part. The
    answer to the question must in the end depend upon the intention
    to be derived from the statute under which the body in question
is constituted." 23. "Look at the statute". I suppose that has always been so but nowadays we must say - "do not look through the spectacles of 'functions' alone". 24. Mr Walter submitted:- "It is the defendant's submission that the most important factor in determining whether a body is an agent or servant of the Crown is the degree of control which the executive government may exercise over the body, not does, but has the capacity to exercise over the body." 25. Mr Walter referred to authorities which suggested that the degree of control exercised by the Crown over a "body" is at least an important factor (Grange Elevators Board v Dunmunkle Corporation (1946) 73 CLR 70 at 83; Launceston Corporation v he Hydro Electric Commission (1959) 100 CLR 654; Bradken Consolidated Ltd and Anor v BHP Pty Ltd (1979) 145 CLR 107 at 126; Superannuation Fund Investments Trust v Commissioner of Stamps (supra) per Mason J (as he then was) at p354:- "Although the Trust is a separate corporate entity, the control which the Crown has over its membership and its activities shows that it is an alter ego of the Crown"; and State Bank of NSW v Commonwealth Savings Bank of Australia 1986) 161 CLR 639). In the last mentioned case the High Court said in the judgment of the Court (pp650-651) -

    "Next, the uninhibited power to appoint six of the seven
    directors of the Board resides in the Governor. It is true that
    there is no general power of removal of a director without cause
    and hence removal is not available as a means of resolving a
    difference of opinion on policy between the Board and the
    State Government. Nevertheless, some measure of control must be
    seen to arise from the power of appointment of the directors.
    In Superannuation Fund Investment Trust v Commissioner of Stamps
    (SA) (supra) one of the questions before the Court was whether
    the Trust was the Crown in right of the Commonwealth. The three
    members of the Trust were appointed by the Governor-General and
    were subject to removal before the expiration of their term of
    office only for misbehaviour or incapacity. Mason J ((1979) 145
    CLR at 354), with whom Barwick CJ agreed in this respect, in
    coming to an affirmative conclusion, said:- 'Although the Trust
    is a separate corporate entity the control which the Crown has
    over its membership and its activities shows that it is an alter
    ego of the Crown. Thus its members are appointed and liable to
    removal by the Executive Government, it is bound to furnish
    information to the Treasurer at his request and it must submit
    its annual report and financial statements to the Treasurer
    after they have been audited by the Auditor-General. The
    Trust, in determining the investment policy which it will pursue
    within the prescribed investments which it is authorized to make
    (see s42(2) and (4)), is free of directions by the Treasurer and
    the Government, but this in itself does not show that it has
    been established as a body independent of the Crown.' Stephen
    and Aickin JJ each came to the conclusion that the Trust was not
    to be identified with the Crown, although Stephen J acknowledged
    that some measure of control was to be found in the power of
appointment ((1979) 145 CLR at 348). Aickin J (at p366)
    expressed the view that the mere power of appointment did not
    constitute control of the Trust or of its function, 'there being
    no power to dismiss except for misconduct or incapacity'.
    However, if the result in this case was inconclusive, a majority
    of the Court in State Superannuation Board v Trade Practices
Commission (1982) 150 CLR 282 observed that there were
    significant differences between the Superannuation Board and the
    Trust in the earlier case. In a joint judgment Mason, Murphy
and Deane JJ said ((1982) 150 CLR at 308):- 'First, the
    appellant has greater autonomy and independence than the Trust.
    Three of the appellant's six members are elected by
    contributors; other members are to include an actuary and the
    Government Statist. The composition and mode of election of the
    membership of the appellant emphasize its autonomy and equip it
    to make independent decisions respecting the provision of
    benefits and investment of funds.'" 26. But it is interesting to see that the Court went on to consider functions. It spoke of the significance of the public character of the functions of the appellant (p651). 27. Mr Walter based himself on these cases. He examined the provisions of the GP Act which he submitted were relevant and in the aggregate decisive. He had recorded this submission in his Outline thus:-
    "12. The Board is a servant or agent of the Crown because:
    (a) It holds its property on behalf of the Crown (section
    4(2)(d) of the GP Act).
    (b) Its members are appointed by the Governor upon terms and
    conditions determined by the Governor and may be removed by the
    Governor inter alia for any cause considered sufficient by the
    Governor.
    (c) No liability attaches to a member of the Board and any
    liability attaches to the Crown (s9 of the GP Act).
    (d) It requires Ministerial approval for the Chairman to
    establish a committee (s109 of the GP Act).
    (e) It is subject to the general control and direction of the
    Minister (s12 of the GP Act).
    (f) Its Executive Director is either a public servant or
    appointed upon terms and conditions determined by the Governor
    as the Governor thinks fit (s13(2) of the GP Act).
    (g) Public servants may be appointed by the Governor to assist
    the Board in the administration of the GP Act (s13(2) of the GP
    Act).
    (h) The Board can only appoint employees with the approval of
    the Minister and upon terms and conditions approved by the
    Minister (s13(7) and (8) of the GP Act).
    (i) The Board may make use of Public Servants (s14 of the GP
    Act).
    (j) Moneys may be deposited with the Treasurer or invested in
    any other manner as the Treasurer approves (s15(3) of the GP
    Act).
    (k) Except as authorised by the Treasurer, no moneys may be
    expended by the Board except in accordance with a budget
    approved by the Treasurer (s15(4) of the GP Act).
    (l) The Board may only borrow from the Treasurer or with the
    consent of the Treasurer. Such borrowings are guaranteed by the
    Treasurer and any liability is to be satisfied out of General
    Revenue of the State (s17 of the GP Act).
    (m) The Auditor-General audits the Board's accounts (s18 of the
    GP Act).
    (n) The Board must report to the Minister who must table the
    report in Parliament (s14 of the GP Act).
    (o) Care, control, management and use of the land in the
    declared area vests in the Board overriding the interests of any
    other person (ss21, 22 and 24 of the Act).
    (p) The Board is granted proprietary rights, the infringement of
    which is a criminal offence and the Board is granted additional
    remedies over and above any other person (s28a of the GP Act)." 28. He spoke of these matters with varying emphases on them. Perhaps he underlined "control" most prominently. He concluded by submitting this:-
    "When the Grand Prix Board Act is examined in detail in light of
    the authorities, there is no doubt that its relationship between
    executive government and the board is such that it is clearly an
    agent of the Crown. If it is an agent of the Crown, it is the
    Crown for the purposes of s888 of the Local Government Act.
    There is nothing in the Local Government Act which makes the
    Crown liable to pay council rates. Those are my submissions." 29. After a powerful reminder of the significance of the matter, Mr Lawson QC, for the plaintiff, said that s888 began with the proviso that "except where otherwise provided in this Act...." He said that these were express provisions in the Local Government Act which "impose liability on the Crown instrumentality for rates". His second, and as I think, more important argument was that the second defendant is not the Crown, for the purpose of s888. 30. Now I must turn from recitation of and comment on argument to make a point of first importance. This is but an application for summary judgment. I am not called upon to pass upon the validity of any argument or solution in the result. I am called upon to decide whether on any possible view of the facts or law the plaintiff cannot succeed. That is to say, whether the plaintiff has, and I think obviously has, no case. By using the word "obviously" I do not mean that the plaintiff can be said, on a mere cursory view of the material, to have no case. But absence of the case must be plain when all the facts, arguments and authorities have been considered. 31. I come back to the point about the proviso to s888. Mr Lawson QC referred to s168(1) and (2) of the Local Government Act (supra). He referred to the definition in s5 of the Local Government Act of the phrase "unalienated Crown land". It is -
    "'unalienated Crown land' means all land of the Crown except -
    (a) land held in fee simple by an agency or instrumentality
    (other than a Minister) of the Crown;
    (b) land subject to an agreement to purchase;
    (c) land subject to a lease or licence (other than a lease or
    licence relating to exploration for, or recovery of, minerals or
    petroleum):" 32. Mr Lawson said that the land here is not unalienated from the Crown because it is subject to a licence (perhaps it is a lease). Mr Lawson then referred to s168(2)(b) of the Local Government Act - "Land used or held...for a public purpose". 33. He denied that whatever went on at the Centre was a "public purpose" within s168(2)(b). He said with force that what went on there, on the material before me, was not proved. Here, then, was a question of fact fit for trial. 34. In SGIO v City of Perth (1990) 71 LGRA 123 the Court determined that land occupied by the SGIO was not held by it for public purposes. Mr Lawson referred in like vein to Mayor and Corporation of Essenden v Blackwood (1877) 2 AC 574 at 584. 35. Mr Lawson argued that those references to part of s168 show that it is expressly provided that the Crown should be liable to pay rates. 36. Section 168 does not say in express terms that so far as rates are concerned the Crown is liable to pay or that the Act applies to the Crown or binds the Crown. I think that at most Mr Lawson got to a possible implication not to an express provision. But again I pause to say that I am not reasoning as would a trial Judge at the conclusion of a full hearing. Mr Lawson then presented his argument that the second defendant is not the Crown, not entitled to the shield of the Crown. He referred to the reasoning of Stephen J in Superannuation Fund Investment Trust Case (supra). His Honour said at p347:-
    "It is in the light of each of the foregoing considerations that
    I have concluded that the Trust is not here to be equated to the
    Crown in right of the Commonwealth. I have not expressed these
    various considerations in terms of specific 'tests' although the
    precedent authorities provide fertile ground for the development
    of the concept of such 'tests'. I have, of course, had regard
    to those authorities, while recognizing that the primary task is
    that of statutory interpretation rather than any mechanical
    application of supposed tests." 37. His Honour went on to speak of "control". Of this Mr Lawson said:-
    "His Honour goes on to say that he places most weight on what is
    termed the control test, and if control by the government is the
    touchstone of an instrumentality of the Crown entitled to its
    immunities, that control is absent in the Grand Prix Board. One
    wouldn't, frankly, expect the Minister to seek to exercise
    control in relation to activities as diverse as the provision of
    advisory consultative or managerial services to promoters of
    sporting activities or other events, in the State or outside
it." 38. But most importantly of all Mr Lawson referred to Paul Dainty Corporation Pty Ltd and Anor v National Tennis Centre Trust and Ors (1990) 94 ALR 225. There the unanimous Full Court of the Federal Court said (at p251):- "However, there is in our view no sufficient evidence in the Act of that type or degree of control by the executive which woul activities." 39. Mr Walter had offered reasons for my distinguishing or not following that case. I do not find them compelling. But again I say, I am not a trial Judge here. 40. Apart from a summary of his argument Mr Lawson concluded thus:-
    "Your Honour will see from our submission that the
    plaintiff wishes, by reply - here dealing with para 6 of
    the submission - that we do hereby wish to allege that the
    licence of the Grand Prix Board to operate the Adelaide
    Entertainment Centre, or alternatively - and I say that
    there is no evidence of this before you but it is a
    relevant consideration - alternatively the licences of a
    number of other persons who occupy corporate suites and
    restaurants and other concessions which we believe do exist
    within the centre, have the effect of depriving the Crown
    of the exemption that it now claims in its defence, so that
    to foreclose the action at this stage on the basis of the
    statement of claim would be inappropriate and prejudicial
    to the plaintiff, because there are factual matters we seek
    to raise by way of reply to the defence which indicates
    that the matter ought (sic) go to trial." I do find this submission significant. 41. What then of all this? I think that the point raised by Mr Lawson that (as he suggested) there is express provision in the Act for the payment of rates by the Crown is fit to be tried. It may involve some question of fact. That fortifies my opinion. I do not think that I could or should say that on this issue the plaintiff could, on any view of the law and perhaps of facts, not succeed. 42. Nor do I think that the plaintiff could not succeed on any view of the law. The authorities show that an examination of the GP Act is what will determine whether the second defendant here is the Crown. It is not possible to say that that Act can be read in only one way, that is in the way suggested by Mr Walter. Perhaps that is the right way. But perhaps not. Perhaps, too, some facts will be injected into the case, which facts will assist in reaching the correct decision. But for the moment putting the suggested facts aside a reading of the Act could, in my opinion, lead a trial Judge to uphold the submission of Mr Lawson. It is not possible to say that on any view of the law, ie any view of the correct interpretation of the statute, that the plaintiff could not succeed. 43. In my opinion, it would not be correct to deny a trial to the plaintiff. I do not think that the defendants have answered the test in r25.04. On a possible view of the law the statute could be read to establish success on the part of the plaintiff. That reading is the reading submitted by Mr Lawson. 44. I cannot say (to use the words of Judge Lunn) that the plaintiff's action is "devoid of merit". 45. I think the issue of facts which may come in by way of a Reply fortify my decision. 46. I dismiss the application.