Mcnamara (Mcgrath) v Consumer Trader and Tenancy Tribunal
[2005] HCA 55(2005) 221 CLR 646
(2005) 221 ALR 285
(Judgment by: Hayne J)
Mcnamara (Mcgrath)
v Consumer Trader and Tenancy Tribunal
Judges:
Gleeson CJ
McHugh J
Gummow J
Hayne JCallinan J
Heydon J
Judgment date: 29 September 2005
Judgment by:
Hayne J
[61] I agree with McHugh, Gummow and Heydon JJ.
[62] In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [70] the Court held, by majority, that the Commissioner for Railways was the Crown in right of the State of New South Wales within the meaning of s 5(a) of the Landlord and Tenant (Amendment) Act 1948 (NSW). The majority (Williams, Webb and Taylor JJ) considered [71] that this conclusion followed from the provision in s 4(2) of the Transport (Division of Functions) Act 1932 (NSW) ("the Division of Functions Act") that "for the purposes of any Act" the Commissioner "shall be deemed to be a statutory body representing the Crown". As the dissenting reasons of Kitto J reveal, however, this conclusion about the construction of s 4(2) of the Division of Functions Act was not inevitable.
[63] The present appeal concerns s 46(2)(b) of the Transport Administration Act 1988 (NSW). It provides that the second respondent, the Roads and Traffic Authority ("the Authority") is, for the purposes of any Act, a statutory body representing the Crown. This verbal formula is not materially different from the expression used in s 4(2) of the Division of Functions Act and considered in Wynyard. If the expression in Wynyard was construed as requiring the application of s 5(b) of the Landlord and Tenant (Amendment) Act to the Commissioner for Railways, the statutory body then in question, why does s 5(b) not apply to the Authority? Does not using the same verbal formula in s 46(2)(b) of the Transport Administration Act as was used in s 4(2) of the Division of Functions Act require the same conclusion about the Landlord and Tenant (Amendment) Act as was reached in Wynyard?
[64] The arguments in favour of that conclusion would be powerful if, in the years between the decision in Wynyard and the enactment of the Transport Administration Act, there had been no development of the law relating to the privileges and immunities of the Crown. Those developments, in response to what was subsequently described [72] as the reach of "the activities of the executive government ... into almost all aspects of commercial, industrial and developmental endeavour", included the recognition, in Townsville Hospitals Board v Townsville City Council [73] , of three propositions of particular relevance.
[65] First [74] , "[i]t 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." Secondly, as had been pointed out by Kitto J in Wynyard [75] , and was noted in Townsville Hospitals Board [76] , a statutory body might be given the privileges and immunities of the Crown for one purpose and not another. Thirdly [77] , "[a]lthough the word 'represent' is not infrequently used in this context, it would be more precise to say that the question is whether [the body concerned, in performing a particular function,] enjoys the privileges and immunities of the Crown."
[66] The legislation now most immediately in question (s 46(2)(b) of the Transport Administration Act) was enacted in 1988 against the background not only of the decision in Wynyard, but also the subsequent development of the law relating to the privileges and immunities of the Crown. It follows that what was decided in Wynyard does not require the conclusion that the present appeal should fail. The construction of s 4(2) of the Division of Functions Act adopted in Wynyard should not be applied to s 46(2)(b) of the Transport Administration Act. It should not be applied because to do so would fail to give proper effect to the later recognition, in Townsville Hospitals Board, that the fundamental principles concerning Crown privileges and immunities require consideration of more than the single question regarded as determinative by the majority in Wynyard [78] : is the particular statutory body "to be regarded as an agent or servant of the Crown"? Rather, s 46(2)(b) is engaged by the various provisions found in other New South Wales legislation which use the phrase "statutory body representing the Crown" as a point of reference [79] .
[67] For these reasons, and the reasons given by McHugh, Gummow and Heydon JJ, the appeal should be allowed with costs against the Authority and consequential orders made in the terms their Honours propose.