WESTERN AUSTRALIAN SPORTS CENTRE TRUST and TOWN OF VICTORIA PARK - [2021] WASAT 78

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   WESTERN AUSTRALIAN SPORTS CENTRE TRUST and TOWN OF VICTORIA PARK [2021] WASAT 78
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD:   11 AND 12 NOVEMBER 2020
DELIVERED          :   31 MAY 2021
PUBLISHED           :   31 MAY 2021
FILE NO/S:   CC 1157 of 2019
BETWEEN:   WESTERN AUSTRALIAN SPORTS CENTRE TRUST
First Applicant
RIVERBRIDGE HOSPITALITY PTY LTD
Second Applicant
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Whether land leased to Riverbridge Hospitality Pty Ltd is rateable land under the Local Government Act 1995 (WA) Western Australian Sports Centre Trust Act 1986 (WA) Meaning of 'trust property' Whether land leased by the Western Australian Sports Centre Trust to Riverbridge Hospitality Pty Ltd is leased for a purpose not directly related to the performance of the functions of the trust

Legislation:

Duties Act 2008, s 4(3)
Interpretation Act 1984 (WA), s 18, s 19(1), s 19(2)
Land Act 1933, s 33
Land Act 1950, s 33
Land Administration Act 1997 (WA), s 3, s 41, s 46
Local Government Act 1995 (WA), s 6.26, s 6.76, s 6.77, s 6.79
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Trading Concerns Act 1916 (WA)
Western Australian Sports Centre Trust (Traffic) Regulations 2017
Western Australian Sports Centre Trust Act 1986 (WA), s 3, s 4, s 5, s 6(1), s 8, s 9, s 16

Result:

Objections upheld.

Category: B

Representation:

Counsel:

First Applicant	:	Ms R Panetta
Second Applicant	:	Mr MJ Keating
Respondent	:	Mr H Jackson SC

Solicitors:

First Applicant	:	State Solicitor's Office
Second Applicant	:	Williams & Hughes
Respondent	:	Thomson Geer - Perth

Case(s) referred to in decision(s):

Goldsmith v Law Complaints Officer [2021] WASC 69
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84: (2016) 50 WAR 84
The City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 168
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for the Environment; Disability Services [2019] WASCA 102
Western Australia v Ward (2002) 213 CLR 1
Port Kennedy Resorts v Rockingham City Council (2000) 112 LGERA 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Camfield is a large bar, restaurant, function venue and microbrewery which is located close to Optus Stadium (the Stadium) on reserve 51940 (the Reserve), the care, control and management of which has been placed with the Western Australian Sports Centre Trust (the Trust) pursuant to s 46 of the Land Administration Act 1997 (WA) (LAA). The Reserve is within the district of the Town of Victoria Park (the Town). Riverbridge Hospitality Pty Ltd (Riverbridge), the proprietor of The Camfield, holds the land pursuant to a lease entered into between it and the Trust. Riverbridge and the Trust have objected to rates notices issued by the Town requiring Riverbridge to pay rates for the 2018/2019 and 2019/2020 financial years. Riverbridge and the Trust object to the rates notices on the basis that the land on which The Camfield is located (the Relevant Land) is not rateable land.
Pursuant to the Local Government Act 1995 (WA) (LG Act) the Town may issue rates notices in respect of rateable land within its district. The LG Act provides that land within a district is not rateable land if it is exempt by operation of a written law.
Section 16 of the Western Australian Sports Centre Trust Act 1986 (WA) (WASCT Act) provides that 'Trust property' is exempt from rates unless it is leased to, or occupied by, some other person for a purpose which is not directly related to the performance by the Trust of any of its functions.
The Trust and Riverbridge claim that the exemption from rates applies because the Relevant Land is Trust property as that term is defined in the WASCT Act and because the lease to Riverbridge is for a purpose which is directly related to the performance by the Trust of its functions.
Conversely, the Town says that the Relevant Land is rateable because the Relevant Land is not Trust property and because the lease to Riverbridge for the purposes of 'bar, function venue, restaurant, microbrewery and offsite catering' is a purpose which is not directly related to the performance of any of the functions of the Trust.

Issues to be determined

The ultimate issue to be determined in these proceedings is whether the Trust's and Riverbridge's objections to the 2018/2019 and 2019/2020 Rates Notices should be upheld on the basis that the Relevant Land is not rateable land.
Answering that question will require consideration of:
1.whether the Relevant Land is 'Trust property' for the purposes of s 16 of the WASCT Act; and
2.if it is 'Trust property', whether the lease to Riverbridge is for a purpose which is not directly related to the performance by the Trust of any of its functions.
Resolving that last sub-issue will require consideration of:
1.whether the reference to functions of the Trust in s 16(1) of the WASCT Act is confined to functions conferred under the WASCT Act or includes functions conferred on the Trust by the Land Administration Act 1997 (WA);
2.the purpose for which the lease has been granted; and
3.the meaning of the expression 'directly related' in s 6(1) of the WASCT Act.
Before considering each of the issues it will be useful to set out in some detail:
(i)some information about how this matter comes to the Tribunal;
(ii)the facts which I have found which are relevant to the resolution of the dispute; and
(iii)the relevant legislative framework including provisions of the Local Government Act 1995 (WA) and the Western Australian Sports Centre Trust Act 1986 (WA).
After resolving those issues I will deal with the Trust's application for suppression of certain information which it considered was commercial in confidence.

Conclusion

For the reasons which follow, I have concluded that the Relevant Land is not rateable land for the purposes of the LG Act because:
1.it is 'Trust property' for the purposes of the WASCT Act; and
2.the lease to Riverbridge is a lease which is for a purpose directly related to the performance by the Trust of its functions.

Issuing of Rates Notices under the Local Government Act 1995 (WA), Standing of the Applicants in these proceedings and review by the Tribunal

Section 6.76 of the LG Act provides that a person issued with a rates notice under the LG Act may object to it on the grounds that the rates record contains an error. It was not in issue that the Town issued rates records for both the 2018/2019 and 2019/2020 financial years including the Relevant Land as rateable land within its district and issued rates notices as a result. It is also not in issue that both the Trust and Riverbridge had standing to object to the rates notice issued for the 2018/2019 financial year and that Riverbridge had standing to object in relation to the rates notice issued in respect of the 2019/2020 financial year and that each had standing to bring proceedings under s 6.77 of the LG Act when their objections against the rates record were dismissed by the Town[1].
[1] The proceedings in respect of each rates record were consolidated by order of the Tribunal on 27 November 2019.
Section 6.79 of the LG Act provides, among other things, that on a review under s 6.77, the Tribunal may consider new grounds of objection and new reasons for the local government's decision which is under review. The effect of s 6.79 of the LG Act is that the Tribunal's review proceeds as a hearing de novo.
Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

Factual background – history of the development and use of the Reserve and the Relevant Land

The factual background to this matter is generally not in dispute between the parties. I make the findings of fact set out in paragraphs 15 43 which facts were not in dispute.
The Relevant Land is located on the Burswood Peninsula and is part of the Reserve. The Camfield is operated on the Relevant Land by Riverbridge.
The purpose of the Reserve is expressed in the Minister's order by which the land was reserved pursuant to s 41 of the LAA. The purpose is 'multipurpose stadium, sports and recreation and entertainment precinct and for purposes ancillary or beneficial to that purpose'.
Also located on land within the Reserve is the Stadium which is presently known as Optus Stadium.
In June 2011 the State government announced the development of Perth's new multi-purpose stadium to be built on the Burswood Peninsula and established the Perth Stadium Steering Committee to guide the delivery of the stadium, associated precinct and services infrastructure.
The Steering Committee proposed that the new stadium would transform the Burswood Peninsula and create a gateway to the City. The stadium was to be the catalyst for future development in the area, creating a new sports and entertainment precinct for Perth.
In December 2011 the State government announced that the new stadium would be located in the northern portion of what was then the Burswood Park Golf Course within a sports precinct. The location was chosen on the basis that it provided the 'potential to create extensive passive and active entertainment and recreational precinct' in the inner metropolitan area where there was an unmet need for recreational space.
On 27 August 2012 the State's New Perth Stadium Project Definition Plan was endorsed by Cabinet. It included a Master Plan. The Master Plan was the framework to guide the development of the new stadium within a sports and entertainment precinct.
The principles set out in the Master Plan[2] included:
iv.support ancillary commercial uses within the Stadium and the Precinct consistent with the MRS 'parks and recreation' reservation to enhance the visitor experience and to create destinations which activate the Stadium and Precinct year round.
ix.establish a safe and efficient Precinct clearance rate, plan for the safe management of large crowds, and minimise conflict between pedestrians and vehicles, as well as utilise existing parking infrastructure in the CBD and maximise the value of the Swan River Pedestrian Bridge.
[2] Exhibit 1, First applicant's Bundle of Documents, HB page 513.
Based upon visions and principles developed through the Master Plan, a Development Concept Plan was prepared in a document called the State's Initial Development Concept Plan.
On 4 December 2012 the State invited interested parties to participate in a procurement process for a Design Build Finance Maintain (DBFM) contract in relation to the New Stadium Project.
In July 2013 the State issued a Request for Proposal (RFP) to the parties who had been shortlisted after the evaluation of the expressions of interest which had been submitted. The design brief in the RFP was based on the visions and principles contained in the Master Plan.
The DBFM project objectives included the delivery of a stadium and sports precinct designed to maximise year round use.
The operating phase objectives which were set out in the Master Plan and included in the design brief for the RFP included the operation and maintenance of a stadium and sports precinct that, among other things, ensures the safety and security of all stadium users. The design brief in the RFP also acknowledged that the development of the sports stadium and precinct created opportunities for allied commercial operations provided that they were consistent with the overall amenity and objectives of the stadium and sports precinct. It also made specific reference to the refurbishment of the then Burswood Park Golf Course Club House for the purpose of accommodating commercial facilities.
In September 2013 the Trust was appointed as the governance agency for the project. That meant that it was the body responsible for the oversight functions of the Stadium and Precinct including the setting of strategy and the evaluation of performance.
On 8 August 2014 the State awarded the DBFM contract to Westadium consortia.
On 26 August 2014 the WAPC endorsed the New Perth Stadium Management Plan which was to 'facilitate the construction and operation of Perth Stadium and the associated sport and entertainment precinct'.
In August 2014 the Trust commenced discussions with Riverbridge about the possible redevelopment of the Burswood Golf Course Club House and the leasing of the Relevant Land.
In September 2015 the Trust's board considered that it was appropriate for the Relevant Land to be leased with a permitted use of 'bar, restaurant, function venue and for the preparation of off-site catering', because it would 'encourage active community use of the Sports Precinct on non-event days, as well as broadening hospitality and retail options on Event days'.[3]
[3] Exhibit 1, First Applicant's Statement of Issues Facts and Contentions, HB page 373; Board Meeting Minutes September 2015.
On 29 October 2014 the three Crown Land title lots which, at that time, covered the land which ultimately became the Reserve were made the subject of one single Crown Land Title, Lot 1001 on Deposited Plan 403881 and that lot was designated the Reserve by order of the Minister made under s 41 of the LAA.
On 29 October 2014 pursuant to s 46 of the LAA the Minister also made a management order for the Reserve by which he placed its care, control and management with the Minster for Works for the purpose for which the land was reserved under s 41 of the LAA and for purposes ancillary or beneficial to that purpose, subject to the conditions specified in that management order.
On 20 December 2017 the management order made 29 October 2014 was revoked and a new management order for the Reserve was made, again pursuant to s 46 of the LAA (Management Order). The Management Order placed the care, control and management of the Reserve with the Trust. There were two conditions specified in the Management Order: They are:
1.To be utilised for the designated purpose of 'multi-use stadium, sports, recreation and entertainment precinct' only; and
2.Power to grant a lease, sublease or licence for the designated purpose or purposes of the whole or any part of the land in the reserve for any term not exceeding 50 years (including the term of any option of renewal).
On 21 April 2016 the Minister for Works and Riverbridge executed the Hospitality Site, Burswood Agreement for Lease in respect of the Relevant Land (Agreement for Lease). By the Agreement for Lease it was agreed, among other things, that Riverbridge would construct the buildings that are now known as The Camfield and that Riverbridge would take a lease of the Relevant Land.
The lease between the Trust and Riverbridge (the Lease) commenced on 22 February 2018 pursuant to clause 14.3 of the Agreement to Lease.
The terms of the Lease require Riverbridge to have, clean and maintain public toilets that are external to The Camfield and to make those available to members of the public who are not necessarily patrons of The Camfield.
The Camfield is located approximately 100 metres from the Stadium. It has a capacity of 6,000 people. It is open to the public for the sale and consumption of food and drinks, functions and entertainment
1.from Monday to Sunday;
2.from 11am until late; and
3.whether or not there is any event taking place at the stadium or elsewhere within the Precinct.
Optus Stadium has a seated capacity of 60,000 people with provision to expand that capacity to 70,000.
The Stadium is open for tours on non-event days.
There is limited car parking available in the Precinct. There is a strong emphasis on patrons attending the Stadium via public transport facilities including train, bus, taxi, pedestrian bridges and paths.
Mr Etherton is the Chief Executive Officer of Venues West, which is the approved trading name of the Trust. He has held that positon since January 2008.
Mr Etherton gave essentially unchallenged evidence, which I accept, that in relation to the Perth Stadium Project he led the State Project Team through the transition from construction phase to operations phase and that he was also on the Perth Stadium Steering Committee, the Optus Stadium Initial Operations Committee, the Project Control Group Operations, the State Negotiating Team, the Contract Management Team Operations and the Design, Build, Finance, Maintain Contract Management Team. He gave evidence about the roles of each of those Committees and Teams. From that evidence I find that Mr Etherton has extensive knowledge of the history of the development of Optus Stadium and the development of the other features located on the Reserve. I find that he also has extensive knowledge of the issues concerning the management of the Stadium and stadiums generally.
Mr Etherton gave evidence, which I accept, about the strategic objectives of the Trust. He said they were:
1.to deliver outstanding customer experiences;
2.to ensure their portfolio of sport and entertainment venues is fit for purpose;
3.to engage a workforce that is aligned, highly capable and adaptable;
4.to realise commercial success to subsidise high performance sport and enable reinvestment into our venues; and
5.to secure worldclass events.
Mr Etherton's evidence, which I accept, is that he is well versed on issues concerning safety at venues such as the stadium and on ensuring patrons are satisfied with their experience on attending events at venues such as the stadium.
Mr Etherton's evidence, which I accept, was that:
1.the operation by Riverbridge of The Camfield serves a very important function on event days because it serves to draw crowds to the area early and keep patrons in the Precinct after events held at the Stadium have concluded and thereby assists in crowd arrival and dispersal reducing the risk of a crush of patrons; and
2.in order to safely manage ingress to and egress from the Stadium by patrons on event days the Trust also adopts measures such as the presence of food trucks, kids' activities, pop-up bars and merchandise outlets on the land surrounding the Stadium, screenings on the large screen erected outside the Stadium and the maintenance of the ovals and the playground and the provision of other external facilities.

The Trust

The Trust is established pursuant to s 4(1) of the WASCT Act. It is a body corporate (s 4(2)) and is an agent of the Crown in right of the State with all of the status, immunities and privileges of the Crown except as otherwise prescribed (s 4(3)). The management of the Trust is placed in a board pursuant to s 5 of the WASCT Act. The WASCT Act s 4(4) allows it to operate under a trading name or business name approved by the Minister. It was not in dispute that the Trust has been approved to trade under the name 'Venues West'.
The functions of the Trust are set out in s 8(1) of the WASCT Act. They are:
(a)to establish and maintain a comprehensive sports and recreational complex, to be known as the Western Australian Sports Centre, comprising –
(i)facilities for holding competitive sporting events of international, national and State standards; and
(ii)training facilities for training sportspersons who are seeking to improve their sporting standards, performance and skills; and
(iii)sports education facilities for the purpose of developing the skills or potential skills of sports administrators, coaches and sportspersons; and
(iv)such accommodation or other ancillary facilities as may be required for the effective operation of the Centre;
and
(b)to encourage, promote and facilitate the use and enjoyment of the Centre by members of the public; and
(c)to do such other things consistent with the use and enjoyment by the public of the Centre as the board considers appropriate.

Section 8(2) of the WASCT Act provides that it is not necessary for all of the facilities of the Centre to be established at a single location or at adjoining locations. Indeed, the facilities maintained by the Trust include facilities which are not within the Reserve. The Parliamentary Debate in respect of the Western Australian Sports Centre Trust Bill reveals that the first of the facilities to be managed by the Trust was the facility established at what was referred to as the 'McGillivray Complex'.
Section 8(3) of the WASCT Act empowers the Minister to direct the Trust to manage or operate facilities which are of a similar kind to those mentioned in s 8(1)(a) but which do not form part of the Centre and provides that while such a direction is in effect, it is a function of the Trust to manage those facilities and the WASCT Act applies to them as if they formed part of the Centre.
The word 'Centre' as used in the WASCT Act is defined in s 3 of that Act to mean:
The Western Australian Sports Centre established under section 8 and includes any facility that forms part of the Centre.
I will return to the issue of what comprises the Centre later in these reasons.
Powers are conferred on the Trust by s 9 of the WASCT Act. That section provides:
(1)The Trust has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2)Without limiting the generality of subsection (1), or any other provision of this Act by which a power is conferred on the Trust, the Trust has power –
(a)to use or authorise the use of the Centre for activities of a sporting, recreational, educational or cultural nature or for the purposes of public entertainment or any public purpose approved by the Minister; and
(b)to provide or permit any other person to provide refreshments for consumption by persons using or visiting the Centre and to apply for, hold and dispose of any licence, permit or other authority required in connection with the provision of those refreshments; and
(c)to acquire property or an interest in or over property by purchase, lease, licence or exchange or in any other manner and to dispose of property or an interest in or over property by sale, lease, licence, or exchange or in any other manner; and
(d)to carry out or arrange to be carried out work in connection with the maintenance, development, alteration and maintenance of property and, in particular, for the purpose of making the Centre suitable for the activities referred to in paragraph (a); and
(e)to provide tuition and instruction for the purpose mentioned in section 8(1)(a)(iii); and
(f)to promote and provide exhibits, lectures, films, publications and other types of instruction relating to sporting and recreational activities; and
(g)subject to the regulations, to charge and receive fees or other sums for, or in connection with –
(i)the hire or use of the Centre or any other Trust property; or
(ii)admission to the Centre or parking of vehicles at the Centre; or
(iii)any service provided, article sold, permission given of licence granted by or on behalf of the Trust;
and
(h)to enter into any contract or arrangement with any person including a partnership or arrangement for the sharing of profits; and
(i)to appoint or engage agents or attorneys; and
(j)to act as agent for other persons; and
(k)to do anything incidental to any of its powers.
…
(6)Where any property has been vested in the Trust the operation of subsection 2(c) in relation to that property is subject to the conditions upon which the land was vested in the Trust and, in the case of land to which the Land Administration Act 1997 applies, to the provisions of that Act.

What is rateable land under the LG Act?

LG Act s 6.26(1) provides that all land within a district is rateable land, except as provided otherwise.
The only exception relied upon by Riverbridge and the Trust is that which is found in s 6.26(2)(a)(j) of the LG Act which provides that land which is exempt from rates under any other written law is not rateable land.

What does the WASCT Act say about exemptions from rates?

Section 16 of the WASCT Act provides as follows:
(1)Without limiting the generality of section 4(3) a rate or tax shall not be made, charged or levied by or under any law of the State or in respect of any Trust property unless that property is leased to or occupied by, some other person for a purpose which is not directly related to the performance by the Trust of any of its functions.
(2)Without limiting the generality of section 4(3) the Duties Act 2008 does not apply to or in respect of –
(a) a gift, bequest or devise made to the Trust; or
(b)an instrument executed after the coming into operation of this section by which any real or personal property is transferred to, leased to or vested in the Trust, or agreed to be so transferred, leased or vested, for the purposes of this Act.
If land is exempt from rates under s 16(1) of the WASCT Act then it will not be rateable under the LG Act because the land is exempt from rates under a written law such that s 6.26(2)(j) of the LG Act applies.

Issue 1 Is the Relevant Land 'Trust property'?

The term 'Trust property' is defined in s 3 of the WASCT Act as follows:
Trust property means real or personal property owned by, leased to or vested in the Trust
It is not asserted that the Relevant Land is owned by or leased to the Trust. Rather, the sole basis upon which the Trust and Riverbridge claim that the Relevant Land is Trust property is on the basis that it is land which is 'vested in' the Trust.
The words 'vest' and 'vested' are not defined in the WASCT Act.
Section 46 of the LAA provides as follows:
(1) The Minister may by order place with any one person or jointly with any 2 or more persons the care, control and management of a reserve for the same purpose as that for which the relevant Crown land is reserved under section 41 and for purposes ancillary or beneficial to that purpose and may in that order subject that care, control and management to such conditions as the Minister specifies.
…
(3)The Minister may –
(a)by order confer on a management body power, subject to section 18, to grant a lease or licence over the whole or any part of the Crown land within the reserve in question for the purposes of the Crown land within the reserve in question for the purposes referred to in subsection (1); and
…
The Management Order[4] provides that the Reserve:
be placed with the [Trust] for the purposes for which the land comprising the reserve is reserved…and for purposes ancillary or beneficial to that purpose subject to the conditions above.
The conditions referred to in the Management Order are the conditions which limit the use of the reserve to that of the designated purpose of 'multi-purpose stadium, sports, recreation and entertainment precinct'.
[4] Exhibit 1 page 170, Management Order dated 20 December 2017 published in Government Gazette.
On the face of it, it would seem then, as the Town contends, that the creation of the Reserve and the placing of its care, control and management in the Trust pursuant to a management order under s 46 of the LAA does not amount to a vesting of that land. That is because the word 'vest' is not used in either s 46 of the LAA or in the Management Order itself.
However, the Trust and Riverbridge submit that the absence of the word 'vest' in both the Management Order and s 46 of the LAA is not determinative of the issue. They submit that because the word 'vest' is not defined in the WASCT Act, its ordinary meaning applies and that because the word 'vest' has been found to be a word of 'elastic import'[5] and a term that takes its meaning from the context in which it appears[6], its use in s 3 of the WASCT Act includes land reserved under s 41 of the LAA and in respect of which a management order has been conferred under s 46 of the LAA.
[5] The City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 168.
[6] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 at [172].
In order to determine whether the Relevant Land is 'vested' in the Trust and is therefore, 'trust property', it is necessary to construe the meaning of the word 'vest' in s 3 of the WASCT Act.

Principles of statutory construction

The principles of statutory construction are well established. They can be summarised as follows:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[7] That task begins with consideration of the ordinary and grammatical sense of the statutory words which are to be interpreted having regard to their context and legislative purpose.[8] As Tottle J noted in Goldsmith -v- Law Complaints Officer[9]:
Context must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. (footnote omitted)
[7] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2006) 77 MVR 306 at [46].
[8] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27.
[9] Goldsmith v Law Complaints Officer [2021] WASC 69 at [44].
Buss JA summarised the proper approach to statutory construction in Caratti v Mammoth Investments Pty Ltd[10] as follows:
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (citations omitted)
[10] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84: (2016) 50 WAR 84 [390] – [392].
A construction that promotes the purpose or object of the law is to be preferred to a construction that does not promote that purpose or object.[11]
[11] Interpretation Act 1984, s 18.
In Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for the Environment; Disability Services[12] Buss P and Beech JA observed at [84]-[85]:
…The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.
The material provisions of the Act must be understood, if possible, as part of a coherent whole. Where the text, read in context, permit of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each meaning with the scheme of the statute and its identified objects or policies. (citations omitted)
[12]Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for the Environment; Disability Services [2019] WASCA 102.
Reference to extrinsic materials is permissible to confirm the ordinary meaning conveyed by the text of the provision, or to determine its meaning where the text is ambiguous or where the application of the ordinary meaning would give rise to a result that is manifestly absurd or unreasonable.[13]
[13] Interpretation Act 1984 (WA), s 19(1).
Extrinsic material to which regard may be had includes second reading speeches in the Legislative Council and the Legislative Assembly.[14]

Resolution

[14] Interpretation Act 1984 (WA), s 19(2).

There is no explanatory memorandum to the WASCT Act.
In this case very little assistance is gained from the long title of the WASCT Act which is:
[A]n Act to establish the Western Australian Sports Centre Trust, to amend certain other Acts and for incidental and related matters.
The ascertainment of the purpose of the WASCT Act is, however, assisted by reference to the functions and powers of the Trust. Section 8 of the WASCT Act sets out the functions of the Trust. Those functions were set out in full at [49] above. The primary purpose of the WASCT Act is to establish a world class sporting and recreational Centre (comprised of various venues) on land controlled and managed by the Trust, which Trust was established under the WASCT Act specifically for that purpose. It was Parliament's expectation that athletes, those involved in sports administration and the public will benefit from the Trust's activities.
The primary purpose of s 6 of the WASCT Act is to ensure that the Trust, which is an agent of the Crown, is not required to pay any rate or tax charged or levied under Western Australian law in respect of Trust property. It puts the Trust on equal footing in that respect with the position that applies to the Crown in respect of Crown land because the Centre comprises facilities provided by the government of Western Australia for the benefit of the public generally.[15] It also recognises that the Trust may carry out its functions by entering into commercial agreements with third parties and extends that same benefit or exemption from rates or taxes to that third party when that occurs.
[15] In the Parliamentary debates concerning the Western Australian Sports Centre Trust Bill Minister Hallahan, the Minister for Community Services who had the responsibility for the Bill in the Legislative Council, responded to a question about whether the sports centre would be paying State taxes, particularly payroll tax. The Hon. Minister said:
In regard to clause 16, the exemption from rates, stamp duty and taxes was raised. That is not an usual provision for a community owned facility. The Government makes no apology for it. Hon. Phillip Pendal raised the example of the WACA ground which is a freehold property owned by the Western Australian Cricket Association; it is not owned by the people of Western Australia at large as the sports centre is; so we are looking at different arrangements and therefore different exemptions apply, quite logically.
See Hansard 3 December 1986, page 5392.
Relevantly, the Macquarie Dictionary Online defines the word 'vest' as follows:
14. to become vested in a person or persons, as a right.
15. to pass into possession; to devolve upon a person as possessor.
–phrase 16. vest something in someone, to place or settle something (especially property, rights, powers, etc.) in the possession or control of someone.
The Encyclopaedic Australian Legal Dictionary Online (Lexus Nexus) defines 'vest' to mean 'to place property in ownership, control or possession of another'.
Stroud's Judicial Dictionary of Words and Phrases (9th Ed)[16] defines the word 'vest' as follows:
'Vest' in the absence of context, is usually taken to mean vest an interest rather than vest in possession.
[16] Stroud's Judicial Dictionary of Words and Phrases (Ninth Edition), 2016; Sweet & Maxwell.
The Town contends that the Relevant Land is not 'Trust property' because the Reserve is not expressed to be 'vested' in the Trust. In support of that contention the Town relies upon the absence of the use of the word 'vest' in s 46 of the LAA, which is in contrast with the inclusion of that word in s 33 of the Land Act 1933 (Land Act) prior to its deletion from that section in 1948.
The Town relies upon the finding of the plurality of the High Court in Western Australia v Ward[17] (Ward) that a vesting of land pursuant to s 33 of the Land Act for a purpose, including those which were not charitable, is to be understood as the passing to the person or body in whom the land was vested, of a legal estate in fee simple together with the creation of a statutory trust enforceable by the Attorney General, by which the person or body to whom that estate was passed could be compelled to devote the land to its stated purpose and not any other purpose.[18]
[17] Western Australia v Ward (2002) 213 CLR 1.
[18] Western Australia v Ward (2002) 213 CLR 1 at [209] [248], esp [235] [241].
The Town submits that in enacting s 46 of the LAA, the Parliament made a deliberate choice to omit the word 'vest' and instead to use the words 'place… care, control and management' in circumstances where the Land Act had used both forms of language in different, and adjoining sections (being sections 33 and 34), and, thereby, distinguished one from the other. The Town submits that this shows that Parliament clearly intended that reserves which were created under s 41 of the LAA and placed in the care, control and management of a management body under s 46 of the LAA would not be 'vested' in that management body.
The Town submits that at the time s 46 of the LAA was drafted Parliament was aware that the effect of 'vesting' of land under s 33 of the Land Act may have involved the transfer of an estate in fee simple and made a deliberate choice not to use the language of vesting in s 46 of the LAA in order to avoid that possibility because that consequence was thought to be inappropriate for Crown land. The Town submits that the change in terminology from the Land Act to the LAA was deliberately made so as to ensure that the conferral of a management order upon a person or body pursuant to s 46 of the LAA could not be construed as the passing of a legal estate to (i.e. a vesting in) that person or body.
When considering the Land Administration Bill in 1997 Parliament was certainly aware of the possibility that a vesting order made under the Land Act might be regarded as the creation of a legal estate in fee simple. As the Town submitted, the reason for adopting the language of care, control and management in s 46 of the LAA was to avoid that consequence. This is apparent from the Motion and Clause Notes found in the Clause and Committee Notes, Legislative Council for the Land Administration Bill 1997 in which, in relation to clause 46, it was said:
This has been brought across from the Land Act 1933 in an amended form. Reserves in Crown land will be placed under the care, control and management of management bodies by the Minister rather than vested in a person or corporate bodies by order of the Governor. Crown land is to be registered in accordance under the TLA and the term 'vest' in the freehold sense may, in certain cases mean the transfer of ownership of that land. This is not appropriate in Crown land administration where the term 'vest' in the Land Act 1933 means the placing of control and management. The term 'place the care, control and management' in the Bill has the same meaning as 'vest' under the Land Act 1933 for practical and administrative purposes.
It is clear, therefore, that the creation of a legal estate in fee simple was not what Parliament thought had been intended to be the outcome of a vesting under s 33 of the Land Act nor what Parliament thought was an appropriate outcome for Crown land administration.
The Town submits that there is no reason to think that Parliament intended the term 'vest' in the WASCT Act to have any meaning other than that which ultimately accrued to the term under s 33 of the Land Act.
The Town also submits that textual and contextual indicators in the WASCT Act support the conclusion that Parliament intended the term 'vest' to have the same meaning as that in s 33 of the Land Act. The indictors to which the Town points are that:
1.the body corporate established under the WASCT Act is a trust: s 4(1);
2.the Trust as an agent of the Crown: s 4(3);
3.the Trust is governed by a Board of Trust, the members of which are known as trustees: s 5(1); and
4.at the time the WASCT Act was enacted Crown lands were generally dedicated to public purposes by being reserved for the relevant purpose and vested under s 33 of the Land Act. It was anticipated that this would be the case with the land which was to form the Centre when the WASCT Act was enacted.

The Trust and Riverbridge submit that the decision in Ward does not determine the meaning of the word vest in the WASCT Act because it concerned the meaning of the word vest in the Land Act.
They each contend that the word vest should be given its ordinary meaning and that the placing of the care, control and management of a reserve in a management body pursuant to an order made under s 46 of the LAA comes within that ordinary meaning, with the result that the Reserve and thus the Relevant Land, which forms part of the Reserve, is Trust Property.
The Trust and Riverbridge each contend that while the cases concerning the meaning of the word vest in other legislation do not determine the meaning to be given to the word in the WASCT Act they do support the conclusion that the Relevant land is Trust property.
They submit that even if the word 'vest' in s 16 of the WASCT Act has the narrow meaning contended for by the Town it still captures land held pursuant to a management order under s 46 of the LAA. They rely on Bropho v City of Perth[19] and Shire of Ashburton v Bindibindi Community Aboriginal Corporation[20] to make good that submission.
[19] Bropho v City of Perth [2016] FCA 1098
[20] Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108
In Bindibindi Wheeler J noted that the effect of an order made under s 33 of the Land Act and a management order made under s 46 of the LAA were similar in that they both resulted in the creation of a public or statutory trust. Her Honour said that Parliament had not intended there to be any substantial differences in the regimes relating to reserves under the two Acts but had intended by the change to the LAA only a modern terminology and clearer and more streamlined procedure.
In Bropho the Court was concerned with the effect of an order made under s 33 of the Land Act in 1950 when the words 'in trust' no longer followed the word 'vested' in s 33 of the Land Act. In that case McKerracher J concluded that the removal of those words 'in trust' from s 33 of the Land Act in 1948 'did not alter the proper characterisation of the effect of the vesting as creating a statutory trust'.[21]
[21] Bropho v City of Perth [2016] FCA 1098 at [69]
The Trust and Riverbridge submit that the effect of a management order made under s 46 of the LAA is similar to an order made pursuant to s 33 of the Land Act in that both create a form of statutory trust which imposes obligations on the body or person to use the land only for the permitted purposes. They submit that it is the creation of that statutory trust which carries with it that obligation which determines whether the land is Trust property. They submit that the other feature identified in Ward as a result of a vesting under s 33 of the Land Act, which was the conferral of an estate in fee simple, is not determinative of the issue of whether Relevant Land is vested in the WASCT (and thus is Trust property) because:
1.Parliament did not at the time understand that to be the effect of a vesting under s 33 of the Land Act;
2.Parliament would not have intended there to be a distinction between land held by the Trust in terms that are practically and administratively the same merely because of the legal form the land holding took; and
3.If the distinguishing feature were the passing of an estate in fee simple then the words 'vested in Trust' in s 16 of the WASCT Act would have no work to do. They say this would be at odds with the principle of statutory interpretation that all words should be given meaning.
I have come to the conclusion that the word 'vested' when used in the definition of 'Trust property' in s 3 of the WASCT Act should be given a broad meaning encompassing a situation where the Trust has been conferred with a power (or obligation) to care for, control and manage a reserve pursuant to a management order granted under s 46 of the LAA. Several considerations have led me to that conclusion.
First, the WASCT Act was enacted in 1986, well before the LAA was enacted in 1997 and well before Ward was determined by the High Court in 2002.
It is clear from the passage of the Clause and Committee Notes for the Land Administration Bill 1997 quoted above that irrespective of the meaning which the High Court ultimately gave to the use of the word 'vest' in s 33 of the Land Act, in 2000 there was a growing awareness of the possibility that the vesting under s 33 of the Land Act could be found to be the passing of a legal estate. It is also clear that at the time Parliament was of the view:
1.that that was not what had been intended to be the consequence of a vesting order made pursuant to s 33 of the Land Act; and
2.that would not be an appropriate consequence for Crown land management in Western Australia.
Thus, while the legal effect of a vesting under s 33 of the Land Act was clarified by the High Court in 2002 in Ward, in my view it cannot be said that when enacting the WASCT Act in 1986, Parliament understood that this was the effect of a vesting under s 33 and intended, by use of the word 'vest' in s 3 to include within the definition of 'Trust property' only land in respect of which an estate in freehold had been passed to the Trust.
Second, whatever the effect of a vesting under s 33 of the Land Act or the creation of a management order under s 46 of the LAA, the Tribunal's task is to consider the ordinary and grammatical sense of the words 'vested in the Trust' in s 3 of the WASCT Act having regard to their context and the legislative purpose of the WASCT Act.
As already noted above, the High Court in Ward was concerned with construing the word 'vest' in the Land Act. In doing so the plurality expressly accepted that the word 'vest' was a word of 'wide and elastic import'[22] and that the Court's task was to construe the statute in which the word was used. At [228] the plurality said:
As always, in a question such as the present, the relevant starting point is the legislation; it is not what has been held about other statutes, even by courts of high authority.
So, while cases which give that same word meaning in other legislative contexts are important to consider, they do not dictate the outcome in this case.
[22] [255] where Gleeson CJ and Gummow, Gaudron and Hayne JJ said: 'so much may readily be accepted but that does not answer the questions which now arise'.
Third, the definition of 'Trust property' in the WASCT Act does not refer to reserves vested in the Trust under either the Land Act or the LAA. It merely refers to land 'vested in the Trust'. While the vesting in the Trust of a reserve pursuant to s 33 of the Land Act is certainly one way in which land could come to be vested in the Trust in 1986, and up until when the LAA was enacted in 1997, it is not the only way a vesting of land could have occurred at that time. For example, land might have been vested in the Trust as a beneficiary under a will or via the creation of a private trust. As much is acknowledged in the WASCT Act itself. Section 9(2)(c) of the WASCT Act provides that the Trust has the power to acquire property or an interest in or over property by sale, lease, licence or exchange or in any other manner and s 9(4)(a) provides, among other things, that where the Trust acquires property by gift, bequest or devise the Trust may agree to carry out the conditions of the gift, bequest or devise, while s 9(5) provides that the law of remoteness of vesting does not apply to a condition to which the Trust has agreed under s 9(4)(a). Section 9(6) provides that where any property has been vested in the Trust, the operation of s 9(2)(c) in relation to that property is subject to the conditions upon which the land was vested in the Trust and, in the case of land to which the LAA applies, to the provisions of that Act.
The word 'vest' therefore, needs to be given a meaning capable of encompassing land which may have become vested in the Trust by various means, not merely under the Land Act or, the LAA. In my opinion, therefore, a meaning akin to the conferral of ownership, control or possession rather than one limited to the creation of a freehold interest coupled with the creation of a statutory trust, is to be preferred.
Fourthly, in my view, as the Trust and Riverbridge submitted, if the meaning is limited to the creation of an interest which passes an estate in fee simple then the words 'or vested in' have no work to do as that meaning would be encompassed by the words 'owned by' in the definition of 'Trust property'.
Fifthly, consideration of where the expression 'Trust property' is used throughout the WASCT Act supports the broader construction of the expression 'Trust property'. Apart from being defined in s 3 of the WASCT Act, the expression 'Trust property' is used in only four places in the WASCT Act. Section 9(g)(i) of the Act empowers the Trust to charge and receive fees or other sums for, or in connection with, the use or the hire of the Centre or any other Trust property. Section 12(2)(a) provides that, subject to the control of the Trust, the General Manager is responsible as the chief executive officer for the day to day management of the affairs of the Trust and the administration of the Centre and all other Trust property. Section 15(1)(c) provides that the money derived by the Trust from the sale, leasing or other disposal of Trust property forms part of the funds available to the Trust. Finally, s 16(1) provides that Trust property is exempt from rates and taxes unless it is leased to or occupied by some other person for a purpose which is not directly related to the performance by the Trust of any of its functions.
If the Town's construction of the definition of 'Trust property' is correct and the term 'Trust property' does not encompass land for which the Trust has the responsibility to care, control and manage under a management order made pursuant to s 46 of the LAA, then it would seem to follow that the WASCT Act says nothing about how the Trust can manage and deal with such land where it is not also part of the Centre. The exception to that position would be where the Minister had given a direction under s 8(3) that the Trust manage and operate facilities which is of a kind similar to those which comprise the Centre but which do not comprise part of the Centre. No such direction has been made in respect of the Reserve.
The Town submits that it is not necessary for land reserved under s 41 of the LAA and placed with the Trust by a management order made pursuant to s 46 of the LAA for the Land to come within the definition of 'Trust Property' because the Trust's powers to manage land reserved under the LAA are conferred upon the Trust by the management order and s 46(7) of the LAA itself.
Section 46(7) of the LAA provides:
A person with whom the care, control and management of a reserve is placed by order under subsection (1) has, by virtue of this subsection, the capacity, functions and powers to hold and deal with the reserve in a manner consistent with the order, any order conferring power on that person under subsection (3)(a) and this Act to the extent that the person does not already have that capacity or those functions and powers.
That subsection expressly recognises that people or bodies with whom the care, control and management of a reserve is placed may already have functions and powers which permit them to manage the reserved land. Where that is the case, s 46(7) of the LAA does not operate to confer power to manage the reserve because s 46(7) only confers powers 'to the extent' that the person does not already have the capacity or functions and powers to enable them to do so.
Effectively then, on the Town's construction, two parallel management regimes would exist. The Trust would:
1.manage land which is 'Trust property' and land which, although it is not 'Trust property', forms part of the Centre (e.g. the Stadium) through the exercise of its powers and for the purposes of carrying out its functions under the WASCT Act; and
2.manage land which is neither 'Trust property' nor part of the Centre but for which it has the responsibility to care for, control and manage under a management order by exercising the powers conferred under s 46 of the LAA.
Section 5(2) of the WASCT Act recognises the possibility of the Trust having functions derived from two sources because it provides that the board has the authority, in the name of the Trust, to perform the functions conferred or imposed on the Trust under the WASCT Act or any other written law.
Thus, while the Town's argument that the powers conferred under the WASCT Act are not necessarily required in order for the Trust to manage the Reserve is correct, construing the definition of Trust property in the WASCT Act in a manner that results in the management powers which apply being dependent upon the means by which the Trust came to have rights and obligations in relation to the particular land concerned would result in some difficulties that do not arise if the other construction is adopted and the Reserve is Trust property.
If the Reserve is neither Trust property nor part of the Centre then the terms of the WASCT Act would seem to prevent the Trust from charging and receiving fees or other sums for the hire of or use of the land. That is because the power to charge and receive fees is expressed to be, subject to the regulations, 'for the hire or use of the Centre or any other Trust property'.[23] So, while in that scenario receiving rent from the leasing of that land would be permitted as a result of the conferral of the power to lease the Reserve under the Management Order, if the Reserve is not Trust property the Trust would not have the power to charge or receive fees as part of arrangements for those more temporary types of use of those parts of the Reserve which do not form part of the Centre.
[23] WASCT Act, s 9(g)
Additionally, if the Trust's power to lease the Reserve (or parts thereof) is derived only from the Management Order and the LAA, then the rent derived from any such lease of land within the Reserve which is not part of the Centre would not, in my view, form part of the funds available to the Trust. This is because s 15 of the WASCT Act provides that the funds available to the Trust includes:
(a) any money appropriated by Parliament for the purposes of the Trust; and
(b)all money derived by the Trust from fees and other sums mentioned in s 9(2)(g); and
(c)all money derived by the Trust from the sale, leasing, or other disposal of Trust property; and
(d)all other money received by the Trust for the purposes of this Act.
While the description of the money available to the Trust in s 15 of the WASCT Act is expressed to be inclusive, I consider that funds which are not of a kind enumerated in the list in s 15 would not be regarded as funds available to the Trust. Having regard to the list of the sources of funds and in particular the reference to 'all other money received by the Trust for the purposes of this Act' in s 15(d), I have come to the conclusion that the preferable interpretation is that s 15 sets out all of the sources of funds which are to be regarded as funds available to the Trust. That is, in my view the matters in s 15(a) - (d) are an exhaustive list of the funds available to the Trust.
That being the case, then there is nothing in the WASCT Act that would allow the money derived from a lease of a reserve which is neither 'Trust property' nor part of the Centre, to be said to be money received for the purposes of the WASCT Act.
That would seem to be an anomalous outcome. While it could be overcome by the appropriation by Parliament to the Trust of a sum equal to the rent derived from such a lease, that it would be dependent upon the will of Parliament.
In my view, these difficulties are avoided by a construction of the term 'vested in' which encompasses land reserved under s 41 of the LAA and placed with the Trust by a management order pursuant to s 46 of that Act.
For all of those reasons I find that the preferable construction of the term 'Trust property', in s 3 of the WASCT Act, is one which encompasses land controlled and managed by the Trust by virtue of a management order made s 46 of the LAA. Such a construction is, in my view, permitted by the text and context of the WASCT Act, is in accordance with the ordinary definition of the word 'vest' which is acknowledged to have a 'wide and elastic import', and is also the construction which avoids the problems to which I have adverted which arise if the alternate construction is applied.
It follows, therefore, that I conclude that the Relevant Land, being reserved under s 41 of the LAA and cared for, controlled and managed by the Trust pursuant to the terms of the Management Order made under s 46 of the LAA, is for the purposes of the WASCT Act 'vested in the Trust'. It then follows that I find that the Relevant Land, is Trust property for the purposes of s 3 of the WASCT Act.

Issue 2 Is the land leased to Riverbridge for a purpose which is not directly connected to the performance by the Trust of any of its functions?

Section 16(1) of the WASCT Act provides that even where land is Trust property, the exemption from rates and taxes will not apply where the Trust property is leased to, or occupied by, a person other than the Trust for a purpose which is not directly related to the performance by the Trust of any of its functions.
The Town submits that the Relevant Land is leased to Riverbridge for a purpose which is not directly related to the performance of its functions and, therefore, even if it is Trust property, it is, nevertheless, rateable land within its district.
Conversely, the Trust and Riverbridge each submit that the lease of the Relevant Land to Riverbridge is a lease for a purpose which is directly related to the performance by the Trust of its functions.
It is axiomatic that the Trust may only act in the performance of its functions. If it were to grant a lease to a third party for a purpose which is not related to the performance of its functions it would be acting without power. However, s 16(1) of the WASCT Act contemplates that some leases will be granted for purposes which are directly related to the performance of its functions and others may be less directly related. I am required to determine, therefore, whether the lease to Riverbridge is for a purpose which is directly related to the performance of any of the Trust's functions.
Before determining whether the Lease has been granted to Riverbridge for a purpose directly related to the performance of any of the functions of the Trust it is necessary to determine whether the reference to the Trust's functions in s 16(1) of the WASCT Act is a reference only to its functions conferred by s 8 of the WASCT Act or is a reference to those functions supplemented by functions (if any) conferred by s 46(7) of the LAA. If s 16(1) has that broader meaning, then the functions against which the lease is to be assessed would include the function of managing the Reserve for the purposes of 'multi-use stadium, sports, recreation and entertainment precinct' which was the purpose designated by the order made under s 41 of the LAA.
For the reasons set out in [125] [127] I have come to the view that s 16(1) is referring to all functions conferred upon the Trust irrespective of their source.
First, s 16 of the WASCT Act does not expressly identify whether the functions referred to in s 16(1) are confined to those conferred by s 8 of the WASCT Act or instead encompasses functions conferred by other written laws. But it does use the expression 'any' when referring to its functions which suggests a broad interpretation and does not use language which expressly limits the functions to functions conferred under the WASCT Act itself.

Second, the fact that the use of the words 'any of its functions' is a reference to both functions under the Act and those conferred upon the Trust by other means is supported by the fact that s 5 of the WASCT Act expressly recognises that functions can be conferred on the Trust under the WASCT Act and by other written laws. The language of that section, which expressly distinguishes between functions conferred under the WASCT Act and those conferred by other written laws, suggests that where Parliament intended to refer solely to functions conferred under the WASCT Act, it expressly said so.
Third, I can see no reason in principle that Parliament would have intended a difference in tax treatment dependent solely on how particular land came to be Trust property.

If 'functions' include functions under the LAA

Having determined against which functions the purpose of the lease is to be assessed, it is necessary then to determine whether the lease by the Trust can be said to be for a purpose directly related to the performance of any of those functions.
The words 'directly' in s 16(1) bears its ordinary meaning of 'in a direct way, or manner'[24] or 'without intervening factors or intermediaries'[25] and 'direct' means 'not oblique…, without intervening agency, immediate'[26].
[24] Macquarie Dictionary Online.
[25] Macquarie Dictionary Online.
[26] Macquarie Dictionary Online.
The word 'related' means 'associated, connected'.[27]
[27] Macquarie Dictionary Online.
I have already made findings as to the uses permitted by the Lease. They are purposes which can, in my view, be said to be furthering the Reserve's use as an entertainment and recreation precinct. Accordingly, I find that the Lease has been granted to Riverbridge by the Trust for a purpose which is directly related to the performance of the functions conferred under the LAA that the Trust manage the reserve as a 'multi-use stadium, sports, recreation and entertainment precinct'.
It follows from that conclusion that I find that the Relevant Land is not rateable land.

If 'functions' limited to those under s 8 of the WASCT Act

In case I am wrong about the functions against which the lease is to be assessed, I next turn to consider whether the lease to Riverbridge is for a purpose which is not directly related to the performance of the Trust's functions under s 8 of the WASCT Act.
There are two bases upon which the Trust and Riverbridge contend that the lease has been granted for purposes directly related to the performance of its functions under s 8 of the WASCT Act. I will deal with each in turn.
First, the Trust and Riverbridge submit that The Camfield forms part of the Centre. They both submit that it follows from the fact that The Camfield forms part of the Centre that its establishment and maintenance via the terms of the Agreement to Lease and the Lease amounts to the grant of a lease to Riverbridge for a purpose directly connected with the performance of the function of the Trust specified in s 8(1)(a) of the WASCT Act: being 'the establishment and maintenance of a sporting and recreational complex comprising, among other things, such accommodation or other ancillary facilities as may be required for the effective operation of the Centre[28].
[28] Those accommodation and other ancillary facilities being, by virtue of s 8(1)(a)(iv), part of what is said to comprise the Centre.
The Centre, which is a comprehensive sports and recreational complex, comprises the facilities set out in s 8(1)(a) of the WASCT Act. That subsection identifies the facilities which form part of the Centre by type. The definition is, therefore, ambulatory. There is no requirement for there to be any public notification, for example by notice published in a gazette, of the facilities which form part of the Centre.
It is not in dispute and I find that the establishment and operation of the Stadium is directly connected with the performance of the Trust's functions in s 8(1)(a)(i): the establishment and maintenance of the Centre compromising facilities for holding competitive sporting events of international, national and State standards.
In resolving this basis for asserting that the Relevant Land is not rateable it is necessary to determine whether The Camfield forms part of the Centre either because it is a facility of the type referred to in s 8(1)(a)(i) s 8(1)(a)(iii), or because it is an ancillary facility required for the effective operation of the Centre (s 8(1)(a)(iv)). This is because, if it forms part of the Centre then the leasing of it to Riverbridge is in my view, self-evidently directly connected with the performance of its functions.
Riverbridge contends that the entirety of the Reserve forms part of the Centre. The Trust, however, contends only that the Stadium and The Camfield each form part of the Centre, from which it must follow accepts that it accepts that some parts of the Reserve would not form part of the Centre.
The Town, however, submits that while The Camfield provides services and facilities for persons who use or visit the Stadium, it does not itself form part of the Centre. The Town submits that this view is correct because:
1.section 8(1)(a)(i) – 8(1)(a)(iv) of the WASCT Act strongly suggest that the Centre is limited to those facilities which are concerned with the holding of elite sporting events, training for such events, sports education and facilities such as change rooms, ablutions and seating;
2.section 9(2)(b) of the WASCT Act also strongly suggests that one or more areas for the sale of liquor and food may also be considered an ancillary facility but only if it is for the consumption of food and beverages by persons visiting the sporting facilities;
3.it is consistent with fact that the Western Australian Sports Centre Trust (Traffic) Regulations 2017 (WASCT (Traffic) Regulations) state that the Stadium is a 'facility' that forms part of the Centre but make no mention of any other part of the Reserve; and
4.it is consistent with the Management Plan which, at page 23, differentiates between the Stadium and the Precinct and the commercial opportunities available at each.
While the WASCT (Traffic) Regulations and the Management Plan cannot be used to construe the meaning of the WASCT Act they may support or tend against a construction of the Act and in that way they can use to confirm a particular meaning.
In my view the fact that the Management Plan distinguishes between the Stadium and the Precinct says nothing about whether The Camfield forms part of the Centre. At page 23 of the Management Plan the purpose was to identify the location of the Stadium[29]. Its purpose was not to identity those parts of the Reserve which form part of the Centre.
[29] Exhibit 1 HB, page 253.
Regulation 4(1) the WASCT (Traffic) Regulations provides:
These regulations apply to the following facilities that form part of the Centre-
(a)…
(ea) the facility known as the Optus Stadium located at Victoria Park Drive, Burswood.
The fact that The Camfield is not included in the list of facilities which form part of the Centre in Regulation 4(1) does, as the Town submits, tell against the notion that it forms part of the Centre. However, the list in the Regulations is not expressed to be a list of all facilities which make up the Centre. It is expressed to be a list of those facilities which form part of the Centre to which the WASCT (Traffic) Regulations apply. There would be no reason at law why a facility could form part of the Centre but not be a facility to which the WASCT (Traffic) Regulations apply. In my view, the fact that The Camfield is not listed in regulation 4(1) is not determinative of the issue and assists little in its resolution.
The Oxford English Dictionary defines the term 'facilities' relevantly as:
c. Originally U.S. In plural: the physical means or equipment required for doing something, or the service provided by this; frequently with modifying word, as educational facilities, postal facilities, retail facilities, etc. In singular: a service or feature of a specified kind; (also) a building or establishment that provides such a service.
The Macquarie Dictionary defines 'facilities' to mean:
a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests, launching of rockets, etc.
Bearing those definitions in mind, I conclude that Riverbridge's contention that the entirety of the Reserve forms part of the Centre cannot be correct. Much of the Reserve is public open space dedicated to what could be described as more passive types of recreation (for which no building is required); for example picnicking. In my view those parts of the Reserve which might be described as public open space could not be said to form part of the sporting and ancillary facilities which make up the Centre.
That conclusion, however, does not answer the question of whether The Camfield, being a building used for the provision of food, beverages and entertainment, forms part of the Centre.
In my view, The Camfield is not a facility of a kind specified in s 8(1)(a)(i) s 8(1)(a)(iii). Therefore, The Camfield would only form part of the Centre if the words of s 8(1)(a)(iv) apply. That subparagraph provides that the Centre comprises facilities 'such accommodation or other ancillary facilities as may be required for the effective operation of the Centre'. Not being a facility providing accommodation, it would only be possible to regard The Camfield as part of the Centre if it is found to be an 'other ancillary facility required for the effective operation of the Centre'.
The term 'ancillary' is defined in the Oxford English Dictionary Online relevantly to mean:
1.subservient, subordinate, ministering (to);
…
3.designating activities and services that provide essential support to the functioning of a central service or industry…';
The Concise Oxford Dictionary defines the word as:
providing support to the main activity.
The Macquarie Dictionary defines the word 'ancillary' as follows:
an accessory, subsidiary or helping thing or person.
For reasons which I have already set out I have accepted the evidence of Mr Etherton, that the operation of The Camfield is a necessary part of the Trust's strategy for ensuring the safe ingress and egress of patrons using the Stadium on event days and that the existence of and operation of a facility to fulfil that purpose was an essential part of overall planning and design of the Stadium and associated infrastructure. Mr Etherton's evidence was to the effect that the Trust regards The Camfield as a facility which is required for the effective operation of the Stadium because crowd management and safety is essential to its effective operation.
The Town's view is that while the operation of The Camfield may assist in ensuring the safety of patrons attending the Stadium by providing for a staggered entry and exit from the Stadium that is not sufficient to bring it within the terms of s 8(1)(a)(iv) because it is not its primary purpose, which, says the Town, is revealed in the permitted purposes specified in the Lease.
I have already found that the operation of The Camfield on event days is part of the Trust's strategy for managing safe ingress and egress of the Stadiums patrons on event days.
From that evidence I find that The Camfield does indeed form part of the Centre as it is a facility which supports the effective operation of the Stadium.
As I have found that The Camfield forms part of the Centre then it must necessarily follow that the Lease to Riverbridge is to be regarded as being for a purpose directly connected with the performance of the Trust's functions, specifically that of establishing and maintaining a comprehensive sports and recreation complex, to be known as the Western Australian Sports Centre, which is the purpose specified in s 8(1)(a) of the WASCT Act.
It follows that on that basis I would also conclude that the Relevant Land is not rateable land.
The Town submitted that the Relevant Land is not part of the Centre. In case I am wrong in my conclusion that it does, I next consider whether, if it is not part of the Centre, the Lease can be regarded as having been granted by the Trust for a purpose directly related to the performance of any of its functions under s 8 of the WASCT Act. If it is not, then the land would be rateable land (had I not already concluded for alternative reasons that it is not rateable).
Accepting that the Trust uses the operation of The Camfield as part of its strategy for managing safe ingress and egress of patrons of the Stadium on event days does not mean that it follows that that is the purpose for which Riverbridge operates The Camfield pursuant to the lease. Indeed, while there is no evidence from its directors as to its motivations in entering into the lease, in my view it is reasonable to infer and I do so infer, that its purpose in entering into the lease was to profit from the commercial operation of a bar, restaurant, microbrewery and a facility for the preparation of off-site catering, as permitted by the terms of the Lease.
The Town, relying upon Port Kennedy Resorts v Rockingham City Council[30] (Port Kennedy), submits that the purpose for which the lease is granted is to be determined by reference to the predominant purpose for which the Relevant Land is leased from the perspective of the lessee at the time the rates records were compiled.
[30] Port Kennedy Resorts v Rockingham City Council (2000) 112 LGERA 296.
Port Kennedy concerned the issue of whether a rates notice had been validly issued by the Rockingham City Council to a developer who was developing Crown land the subject of the rates notice (and adjoining land) pursuant to an agreement with the State. Being Crown land, the land the subject of the rates notice would have been exempt from rates under s 6.26 of the LG Act if it were being used or held for a public purpose. The agreement between the State and the developer required the development to include, among other things, construction of family holiday units, a marina, golf courses, a liquor store, boutiques and sporting goods shops together with roads and a building to be used for a combined surf lifesaving club, sailing club, first aid station and child minding centre and the construction of administration offices which were to be leased for use by government officials from the Department of Fisheries and the Department of Education among others.
Justice Pidgeon, with whom Ipp and Parker JJ ultimately agreed, held that the legislation required a determination of the predominant or primary purpose of the user or holder of the land at the time the rates notice was issued. In that case the Full Court accepted the primary judge's assessment that the agreement was essentially made for the purposes of getting a private development off the ground and thereafter to ensure the development continued. The Full Court concluded that while there were some elements of public purpose in the development, the purpose of both the Crown and the developer at the time of the issue of the rates notice was predominantly or primarily a non-public purpose, such that the rates notice was valid.
The Town submits that because it is the purpose for which the Relevant Land is leased that is determinative of whether the exemption from rates applies, any intention of the various State parties in leasing the Relevant Land which might be able to be discerned by reference to the new Perth Stadium Definition Plan or the New Perth Stadium Management Plan or the history of the development of the precinct or the evidence of Mr Etherton is of little assistance in resolving the matter.
The Town also relies upon Swan Yacht Club Inc v Town of East Fremantle[31] in support of its position that it is the purpose of the Lease under consideration that is determinative and not the subject purposes of the lessor.
[31] Swan Yacht Club Inc v Town of East Fremantle [205] WASCA 99.
The Town submits that that purpose of s 16 of the WASCT Act is evident in its introductory words, which themselves refer back to s 4(3) of the WASCT Act which provides that the Trust is an agent of the Crown with all of its status, immunities and privileges, unless otherwise prescribed.
The Town submits that the purpose of s 16 of the WASCT Act is to ensure that a tenant does not pay rates where the purpose of the lease is for the performance of a function that would, but for the lease, have been performed by the Trust. The Town submits that the status of the Trust as an agent of the Crown strongly suggests that the distinction between what the Trust would or would not 'ordinarily' do is to be determined by reference to concepts such as 'ordinary' governmental functions and the distinction between private and public purposes.
The Town submits that the 'operation of a bar, restaurant, microbrewery, function centre and the preparation of off-site catering' which are the purposes for which the lease was granted to Riverbridge, fall well outside the ordinary functions of government and must be regarded as private purposes. It submits that that is the case even though the functions of the Trust under the terms of the Management Order and s 46(7) of the LAA include holding and dealing with the Reserve for purposes including entertainment.
The Town accepts that the purpose of the Reserve permits the granting of a lease for the operation of a venue such as The Camfield, but says that the exemption of the lessee of such a venue from the requirement to pay rates would offend the purpose for which s 16 of the WASCT Act exempts Trust property from the payment of rates: i.e. the protection of the Trust as an agent of the Crown and those tenants that act in its stead.
The Town says that a distinction between The Camfield and a bar providing refreshments within the Stadium can and must be drawn. The Town submits that the operation of the Stadium by the Trust is properly characterised as being for a public purpose and amounts to an ordinary governmental function. It submits that in operating the Stadium the Trust would be required to provide refreshments to members of the public attending the Stadium. Accordingly, it submits, no rates would be payable by a private operator who leased from the Trust a bar within the Stadium and provided the public with refreshments from it.
In contrast, Riverbridge and the Trust submit that the history of the development of the Stadium and the Precinct more generally and documents such as the Perth Stadium Definition Plan or the New Perth Stadium Management Plan are very relevant to determining whether the purpose of the lease is, or is not, directly related to the performance of the Trust's functions. They each submit that those documents establish that it was always contemplated that a facility such as The Camfield would be necessary to allow for staggered ingress to and egress from the Stadium when events were being held and to encourage the use of the Precinct more generally. They submit that whether the Lease has been granted for a purpose directly related to the performance of the Trust's functions requires consideration of the reasons for which it was granted by the Trust rather than merely the uses permitted to the lessee by the terms of the Lease.
The difficulty with the Town's submission that the matter should be determined by reference to whether the activity undertaken by the lessee pursuant to the Lease is one that can be said to be is an ordinary function of government is, to my mind, that government performs many functions which might be said to have a commercial quality to them and the government would not be required to pay rates for premises or land from which those activities are carried out. Identifying some core functions of government may perhaps be easily done but, on the margins, the issue become harder to determine. As noted by Stephen J in Superannuation Fund Investments v Commissioner of Stamps (SA):[32]
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.
[32] Superannuation Fund Investments v Commissioner of Stamps (1979) 145 CLR 330.

Is it really a core function of government to provide and operate a major stadium such as the Stadium where cricket and football for the most part is to be played for the entertainment of only a segment of the community? This was an issue about which may people had different opinions as the construction of the Stadium was being contemplated and undertaken. If it is a core function of government, why is it that supplying patrons with food and beverages within the Stadium would be a usual function of government such that a lease to a third party by the Trust for that purpose would not require the lessee to pay rates as the Town contends?
However, from the evidence it is clear that it serves that purpose for a lot less time than The Camfield is open and its fulfilment of crowd management purposes is, in my view an incident of its operation by Riverbridge of the purposes permitted by the terms of the Lease rather than the purpose of the Lease.
Accordingly, I consider that the lease to Riverbridge cannot be regarded as primarily having been granted by the Trust for the purpose of the management of crowd safety on arrival and disbursement from events at the Stadium. I conclude that the predominant purpose for which it was granted is for its use by Riverbridge for the commercial purposes permitted by the terms of the Lease. That purpose is not directly related to the performance of the functions of the Trust as set out in s 8 of the WASCT Act.
It follows from that conclusion that if that were the sole basis upon which it had been contended that the land was not rateable, I would have held that the land was rateable.

Conclusion

For the reasons which I have set out above I have found:
1.The Relevant Land is Trust property; and
2.The Relevant Land is leased by the Trust to Riverbridge for a purpose directly related to the performance by the Trust of its functions, being functions conferred under the LAA.
It follows from those conclusions that the exemption from rateability provided in s 16(1) of the WASCT Act applies and that the Town made an error in identifying the Relevant Land as rateable land within its district in the rates records for the 2018/2019 and 2019/2020 financial years.
The correct and preferable decision in relation to the objections made by the Trust and Riverbridge, therefore, is to uphold those objections on the basis that the Relevant Land is not rateable.
I will hear the parties as to the form or orders which should be made as a consequence of my decision and in respect of other application they may make as a consequence of the decision.

The Trust's application for non-publication or suppression orders in relation to certain matters which were said to be commercial in confidence

The Trust provided both a redacted and a non-redacted copy of the Lease in the course of these proceedings. The Trust made an application for orders preventing the publication of those portions of the Lease which had been redacted in the redacted version of that document. In support of its application the Trust filed a witness statement dated 20 November 2020 of Michael Harlow Paarup in which Mr Paarup stated that the redacted portions where regarded by the parties as commercial in confidence.
I have not had to refer to those portions of the lease in coming to the conclusions set out in these reasons. Accordingly, it has not been necessary to deal with the application which I note, for the sake of completeness, was not opposed by either Riverbridge or the Town.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
28 MAY 2021