Mcnamara (Mcgrath) v Consumer Trader and Tenancy Tribunal
[2005] HCA 55(2005) 221 CLR 646
(2005) 221 ALR 285
(Judgment by: Gleeson CJ)
Mcnamara (Mcgrath)
v Consumer Trader and Tenancy Tribunal
Judges:
Gleeson CJMcHugh J
Gummow J
Hayne J
Callinan J
Heydon J
Judgment date: 29 September 2005
Judgment by:
Gleeson CJ
[1] I agree with the orders proposed by McHugh, Gummow and Heydon JJ, and with their reasons for those orders.
[2] Section 46(2)(b) of the Transport Administration Act 1988 (NSW) ("the 1988 Act"), provides that, for the purposes of any Act, the Roads and Traffic Authority of New South Wales ("the RTA") is a statutory body representing the Crown. Section 5 of the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the LTA Act"), provides that the LTA Act does not bind the Crown in right of the State of New South Wales. The question is whether the combined effect of those two provisions is that the LTA Act does not bind the RTA.
[3] In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1] this Court, by a narrow majority [2] , held that an identically worded provision in s 4(2) of the Transport (Division of Functions) Act 1932 (NSW) ("the 1932 Act"), in combination with the LTA Act, had the effect that the LTA Act did not bind the Commissioner for Railways. The competing views as to the meaning of s 4(2) were summarised in the dissenting judgment of Kitto J as follows [3] :
In the Supreme Court a majority of their Honours treated this provision as if it meant that, in considering the applicability of any provision of any Act to the commissioner, he shall be deemed to represent the Crown. If that were the true meaning, the result in this case would necessarily be that the immunity of the Crown from s 62 of the [LTA Act] would involve the immunity of the commissioner as a notional agent of the Crown in relation to the possession of the subject land. But the language of s 4(2) does not appear to me to bear this construction. It is, no doubt, more than a definition section, but its natural meaning would seem to be that whenever you find in an Act a provision dealing with statutory bodies described as representing the Crown, you are to deem the Commissioner for Railways to be such a body and apply the Act to him accordingly.
[4] There were, and still are, numerous provisions in Acts dealing with statutory bodies described as representing the Crown. In brief, Kitto J, with whom Fullagar J agreed, rejected the view that s 4(2) meant that any reference in any Act to the Crown included a reference to the Commissioner for Railways. (If the Commissioner were to be given all the privileges and immunities of the Crown, why would that be limited to those given by statute and not include those given by common law?) Rather, he considered it meant that, where a provision in an Act referred to statutory bodies representing the Crown, then that reference would include the Commissioner for Railways.
[5] Section 46(2)(b) of the 1988 Act presents the same question of construction as arose in relation to s 4(2) of the 1932 Act, and this case presents the same problem of the interaction with the LTA Act as arose in Wynyard Investments. Even though, technically, the decision in Wynyard Investments concerned a different statute, and therefore does not govern the present case directly, nevertheless a preference for the reasoning of the minority in that case would not of itself justify a different conclusion in the present case. The point of construction is one on which different views are fairly open. Having regard to the subject matter, it may readily be inferred that the 1988 Act was drafted with an understanding of the judicial interpretation that had been placed upon the words of the 1932 Act. This Court would undermine its own authority if it departed from the effect of a previous decision on a question of statutory construction merely because of a later preference for another view [4] . There is, however, more to it than that.
[6] First, as both Kitto J and Fullagar J emphasised, the outcome in Wynyard Investments is difficult to reconcile with the earlier decision of this Court in Rural Bank of NSW v Hayes [5] .
[7] Secondly, the issue runs deeper than the interpretation to be placed upon a particular statutory formula. As Kitto J pointed out in Wynyard Investments [6] , the question that must be decided is whether the application to the subject (there, the Commissioner) who invokes the Crown's immunity (there, conferred by s 5 of the LTA Act) would be, in legal effect, an application of it to the Crown. It is not merely one of attributing to someone the status of a representative of the Crown. It concerns the relationship to the Crown in which the subject stands "in respect of the particular matter in which the impact of the relevant provisions is incurred".
[8] Thirdly, the correct approach to such a question is that stated by Gibbs CJ in 1982 in Townsville Hospitals Board v Townsville City Council [7] :
All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention.
That was the approach that prevailed in this Court at the time of the enactment of the 1988 Act, and that has prevailed ever since.
[9] Fourthly, even if the minority view as to the meaning of s 4(2) of the 1932 Act had been accepted in Wynyard Investments, the statutory formula there employed would have had useful work to do, and would probably have been repeated in the 1988 Act. It is, therefore, far from clear that the New South Wales Parliament enacted s 46(2)(b) of the 1988 Act on the faith of the decision of this Court in Wynyard Investments. In argument in the present appeal, close attention was given to whether the New South Wales Parliament had so acted, but that was not shown to have been the case.
[10] In those circumstances, this Court should not be inhibited from giving effect to its own opinion on the issues of principle and of statutory construction that arise in the present case.