Grain Elevators Board (Vic) v Dunmunkle Shire
[1946] HCA 13(Decision by: Starke J)
Grain Elevators Board (Vic)
vDunmunkle Shire
Judges:
Latham CJ
Rich J
Starke JDixon J
McTiernan J
Williams J
Judgment date: 31 May 1946
Decision by:
Starke J
The appellant is the registered proprietor and the occupier of certain lands within the Shire of Dunmunkle. It is a body corporate constituted under the Grain Elevators Act 1934 Vict. and acquired the lands pursuant to the powers contained in that Act, erected buildings, elevators and machinery thereon necessary for the bulk handling of grain and uses the land for that purpose.
The Shire, pursuant to the Local Government Act 1928 Vict., s. 249, levied a rate for the year ending in the month of September 1943 upon all land within its municipal district. The Local Government Act , s. 249, provides: -
All land shall be ratable property within the meaning of this Act save as is next hereinafter excepted (that is to say): -
(1) Land the property of His Majesty which is unoccupied or used for public purposes.
The appellant claims that the land registered in its name and occupied by it is not ratable property by reason of this exception.
In England the exemption of the Crown from ratability is based upon the doctrine that the Crown is not bound by statute unless specially named or clearly intended. But in Victoria there is the express statutory exception already mentioned.
The land must be the property of His Majesty, but the provision does not require that it be vested in His Majesty (cf. s. 249, sub-ss. (3) (a) and (b)). Land may be the property of His Majesty because it is vested in him or because the land is held in trust for him or for his use by some other person or body ( Essendon Corporation v. Blackwood [ [22] ]; Commissioners of Government Savings Bank v. Temora Municipal Council [ [23] ]; Public Trustee v. Waipawa Council [ [24] ]).
Land, however, vested in or belonging to statutory bodies for purposes defined in the statutes constituting them and which confer upon them discretionary powers of their own in relation to the use of the land is not property vested in or belonging in any sense to His Majesty (cf. Fox v. Government of Newfoundland [ [25] ]; Metropolitan Meat Industry Board v. Sheedy [ [26] ]).
The land must also, if not unoccupied, be used for public purposes. "It is not easy," said the Judicial Committee in Essendon Corporation v. Blackwood [ [27] ], "to define generally what is meant by the words of the exemption the property of the Crown used for public purposes, though land used for the public service, or as a public park, may be mentioned as instances which would clearly fall within them." It was long ago held in Victoria that the land must be used "purely and solely" for public purposes ( Hanna v. Seymour Road Board [ [28] ]; Essendon Corporation v. Blackwood [ [29] ]). In Hanna's Case [ [30] ] a bridge the property of His Majesty was occupied by the Board. The only question was whether it was used for public purposes. The public had a right of passage over the bridge but only on payment of a toll "so that it was not for public purposes only, it subserved a private purpose also, and was therefore ratable."
Lastly, though property may belong to His Majesty it may yet be used and occupied by persons or bodies, other than for public purposes, and be ratable in respect of that occupation or use ( Melbourne Tramway and Omnibus Co. v. Fitzroy Corporation [ [31] ]).
In my judgment, the land of which the appellant is the registered proprietor and occupier is neither the property of His Majesty nor used for public purposes. It is vested, as already indicated, in the appellant for the purposes of carrying out the powers, authorities and obligations conferred upon it by the Grain Elevators Act 1934 . The appellant acquired the land for those purposes and upon it erected buildings, elevators and machinery for the storage and bulk handling of grain. It was empowered to and did store in the elevators under its control all grain of the prescribed quality offered for that purpose and it was required to afford all reasonable, proper and equal facilities for the storage of grain in elevators under its control and for receiving, forwarding and delivering of grain so stored. It was empowered to make by-laws for the operation, control and maintenance of all elevators of the Board and appurtenances connected therewith and also for a scale of charges for the handling and storage of grain and all operations connected therewith in its elevators and for many other purposes.
It is true that the members of the Board were appointed by the Governor in Council, that many of its powers and functions were subject to the approval of the responsible Minister and that the Government of Victoria might within prescribed limits guarantee the Board's debentures or its overdraft with any bank. But the Board had wide discretionary powers for carrying on its operations and bulk handling and storing grain.
And it was empowered to and did make charges for its services in handling and storing grain on the rated land which is plainly not a use of the land for public purposes.
It is unnecessary, I think, to examine the Act in more detail for the Grain Elevators Act 1942 Vict., passed after the making of the rate, provided in s. 3 that "notwithstanding anything in any Act, land used exclusively for any grain elevator under the Principal Act shall not be deemed to be rateable property within the meaning of any Act."
So, it is improbable that the matter involved in this appeal will again arise.
The appeal should be dismissed.