Grain Elevators Board (Vic) v Dunmunkle Shire
[1946] HCA 13(Judgment by: Dixon J)
Grain Elevators Board (Vic)
vDunmunkle Shire
Judges:
Latham CJ
Rich J
Starke J
Dixon JMcTiernan J
Williams J
Judgment date: 31 May 1946
Judgment by:
Dixon J
We are not here concerned with a question arising under the rule that the Crown is not bound by statute unless the intention to bind it is expressed or positively indicated. It is under that rule that the occupation of premises for the naval, military, judicial and administrative purposes of the central government of the country has been considered to lie outside the area of liability for rates under the Poor Law of England. It is an occupation of the land which, if not that of the Crown itself, is at least to be regarded as part of the use and service of the Crown. In England it was necessary to find a ratable occupier.
The Local Government Act 1928 Vict. contains a general but emphatic formulation of the principle that all land shall be ratable subject to specified exceptions and it proceeds to name the Crown as the object of an exemption the conditions of which are distinctly defined. "In this country," said Sir Montague Smith for the Judicial Committee in Essendon Corporation v. Blackwood [ [32] ], "the exemption of Crown property rests on the omission in the Poor Law Acts of any words to bind the Crown. In Victoria the exemption is defined and limited by express enactment." The basis of the exemption is property not occupation, and, though the distinction would not perhaps matter much were we considering the ambit of the immunity arising from the failure of a rating statute to affect the Crown (see per Lord Watson in Coomber v. Justices of Berks [ [33] ]), in the Victorian legislation it means that this particular condition of the exemption depends on conceptions of property rather than upon governmental relations. It is true that the governmental character of the person or body actually rated may be relevant to the question where the property resides. But, in the end, it must be found that the land is the property of the Crown before it can qualify for the particular exemption. It is only in that event that the question arises whether the land is unoccupied or is used for public purposes. If it is claimed that the land is used for public purposes, the governmental character of the occupier may then again become relevant, but, in my opinion, it is not upon that question that this case turns. It turns upon the fact that the Grain Elevators Board, a statutory corporation authorized, for the purposes of and subject to its statute, to purchase, take, hold, sell and dispose of real and personal property, is the owner in fee simple of the land rated. That is not conclusive because the fact that the legal estate is vested in the corporation leaves it possible that the equitable or beneficial interest is in the Crown. There should not be left out of account the further possibility of the statute itself creating in the Crown a special right or interest, or congeries of rights or interests, in relation to the land which, either because of the degree of control they involve or of the beneficial enjoyment they confer, should be regarded as amounting to a form of property, not common law or equitable, but statutory.
But it appears to me to be clear that under the Local Government Act the expression "land the property of His Majesty" is not used in any loose or figurative sense to include property vested in public bodies simply because they are answerable to or controlled by the central government of the State. For, if it were so used, there would have been no need for the specific exemptions in sub-s. (3) of s. 249, in sub-s. (1) of which the exemption occurs of land the property of the Crown unoccupied or used for public purposes. Sub-section (3) exempts land vested in, among other bodies, the Victorian Railways Commissioners, the Minister for Public Instruction and the Board of Land and Works. These are corporations closely related to the government of the State.
The parties seemed inclined to argue the case as if the question was whether the Board was an agency of the Crown enjoying the Crown's privileges and immunities and as if the consequence of an affirmative answer to that question would be that the land rated, though vested in point of property in the Board, would enjoy the exemption conferred upon land the property of His Majesty. I cannot agree in the adoption of any such test. The exemption under s. 249 (1) does not attach unless, according to some legal sense of the word "property," it can correctly be said that the land is the property of the Crown. This, in my opinion, cannot be said of land vested in the Grain Elevators Board. The Board is clearly an independent corporation established by statute to perform the services and carry out the duties, indicated particularly by ss. 10 and 11 of the Grain Elevators Act 1934 Vict., in connection with what the long title describes as "the handling of grain in bulk by means of the elevator system." That in the fulfilment of its functions it is subject to ministerial control, at all events at many points, is undeniable. Moreover, the closeness of its relation to the government of the State is shown by the constitution and mode of appointment of the Board and by the financial provisions of the legislation, especially those contained in the Grain Elevators (Financial) Act 1934 Vict. and the Grain Elevators (Financial) Act 1939 Vict. considered together. It is probably correct to say, as counsel for the Board said, that it conducts what is just as much a governmental undertaking as the State railways and that it falls within the Department of the Minister of Agriculture of the State of Victoria.
But that appears insufficient to overcome the plain intention of the legislation that, like the Victorian Railways Commissioners, the State Savings Bank Commissioners, the State Electricity Commission and many other statutory governmental bodies, the Grain Elevators Board should be an independent corporation owning its own property legally and beneficially and acquiring its own rights and incurring its own obligations.
In a case in pari materia , viz. Commissioner of the Government Savings Bank v. Temora Municipal Council [ [34] ], an example will be seen of an express provision that the corporation should hold property vested in it for and on behalf of the government. This, it was held, created property in the Crown. No such provision is contained in the Grain Elevators Acts , nor do they imply any such consequence. On the contrary, they appear to intend to constitute a body for the conduct of what may be regarded as a public utility, as a separate responsible entity, owning its own undertaking both in law and in equity.
The draftsman of the legislation recognized that this was so when he considered it necessary by s. 44 to add the Board to the list of agencies protected from income tax by s. 21 of the Income Tax Act 1928 Vict.. Whether, at that time, the legislature overlooked liability for municipal rates or decided against exempting the Board cannot, of course, be known. But in 1942 a specific exemption was conferred. The Grain Elevators Act 1942 Vict., which was enacted only three weeks after the striking of the rate now in question, provides by s. 3 that, notwithstanding anything in any Act, land used exclusively for any grain elevator under the Grain Elevators Act 1934 shall not be deemed ratable property within the meaning of any Act. "Elevator" is defined comprehensively by the Grain Elevators Act 1934 , s. 3, to mean "any elevator warehouse building or depot under the control of the Board at which grain is received ... for storage or forwarding and whether the same is provided with mechanical grain handling appliances or not." The exemption, therefore, covers the substantial part of the Board's undertaking. But, at the same time, it is carefully guarded by the word "exclusively" and it does not extend to mere offices or to land not yet put to use for receiving, storing or forwarding wheat.
Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile.
In my opinion the appeal should be dismissed.