Mcnamara (Mcgrath) v Consumer Trader and Tenancy Tribunal
[2005] HCA 55(2005) 221 CLR 646
(2005) 221 ALR 285
(Judgment by: Callinan J)
Mcnamara (Mcgrath)
v Consumer Trader and Tenancy Tribunal
Judges:
Gleeson CJ
McHugh J
Gummow J
Hayne J
Callinan JHeydon J
Judgment date: 29 September 2005
Judgment by:
Callinan J
[68] If a New South Wales enactment states, as do many other enactments of that State, that for the purposes of any Act, a statutory creature represents the Crown, does that creature enjoy the benefit of the immunities that another enactment confers upon, or reserves to the Crown? This is the question that this appeal raises.
[69] The facts, the relevant sections of the legislation, and the course of the proceedings so far, are fully stated in the joint reasons of McHugh, Gummow and Heydon JJ.
[70] In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [80] this Court (Williams, Webb and Taylor JJ, Fullagar and Kitto JJ dissenting) was required to construe the words "for the purposes of any Act the Commissioner for Railways shall be deemed a statutory body representing the Crown" [81] .
[71] To deem something to be so is to decree, or to declare it to be so. The word "deemed" therefore adds little or nothing. Accordingly, in my opinion there is no material difference between the words construed in Wynyard and the expression that the Court has to construe in this case [82] .
[72] But before dealing with Wynyard I should refer to other, earlier authority in which language of the kind to be construed here was considered and given the operation preferred by the majority in the former. In Skinner v Commissioner for Railways [83] , Jordan CJ (with whom Halse Rogers and Bavin JJ agreed) said this of s 4(1)(2) of the Transport (Division of Functions) Act 1932 (NSW) [84] :
Whatever might be the position of the Commissioner for Railways apart from this special provision of the Act of 1932, it is at least clear that he must now in New South Wales for the purposes of any Act be deemed a statutory body representing the Crown, and entitled to all such immunities as flow from that status.
[73] Street CJ and Brereton J considered s 5(a) and (b) of the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the LTA Act") in Electricity Commission of New South Wales v Australian United Press Ltd [85] . The Commission had been established by the Electricity Commission Act 1950 (NSW). It was subject to ministerial control and direction. The respondent there argued that even if the Commission were an agent of the Crown, the words "Crown in right ... of the State" in s 5(a) ought to be construed narrowly because the statutory language of s 5(b) made an express and separate exemption of the Housing Commission of New South Wales.
[74] It was submitted that if the "Crown in right of New South Wales" meant "a statutory body representing the Crown", then the express clarification in s 5(b) of the LTA Act that it should not bind the Housing Commission would be redundant. That Parliament included a separate reference to the Housing Commission supported the drawing of a distinction between the "Crown in right of New South Wales" and "a statutory body representing the Crown". The argument was rejected by Street CJ on the basis that the express exemption reflected no more than a super-abundance of caution on the part of the legislature [86] . Brereton J thought the exemption amounted to the piling of precaution upon precaution [87] . In the result, their Honours concluded that the Commission was acting as a servant or agent of the Crown and could not be bound by the LTA Act.
[75] In Wynyard the majority said this [88] :
The only way a statutory body could represent the Crown would be to act as the agent or servant of the Crown and this must be the meaning of the word 'represent' in this special provision. The representation is 'for the purpose of any Act', so that for the purpose of any Act the Commissioner for Railways must be deemed to represent the Crown.
[76] The appellant asks this Court to prefer the reasoning and conclusion of Kitto J with whom Fullagar J agreed. His Honour put the matter this way [89] :
The point which I regard the cases as insisting upon is that when one turns, as one must, to examine the special legislation under which a statutory corporation acts (in a case where there is no express extension of the relevant Crown immunity to the corporation), one does so for a precise purpose. It is not to ascertain whether there is in some vague sense an approximation of the corporation to a government department. The object in view is to ascertain whether the Crown has such an interest in that which would be interfered with if the provision in question were held to bind the corporation that the interference would be, for a legal reason, an interference with some right, interest, power, authority, privilege, immunity or purpose belonging or appertaining to the Crown.
His Honour later said this [90] :
Moreover, it is difficult ... to suppose that an extension of the Crown immunity from the operation of statutes could have been intended without an intention to give the commissioner the advantages enjoyed by agents of the Crown not only for the purposes of Acts but for all the purposes of the law. Then, too, s 4(2) does not provide that the commissioner shall be deemed to represent the Crown: he is to be deemed 'a statutory body representing the Crown'. The expression has about it the ring of a stereotyped formula used in statutes as a generic description of public bodies of a more or less fixed class which are repeatedly grouped with the Crown as a subject of legislation, that is to say as the subject of specific exempting provisions.
He concluded his judgment in this way [91] :
A clear intention appears to me to emerge that, except as regards Acts which specially exempt statutory bodies described as representing the Crown, the commissioner shall be subject, to the same extent as other people, to the laws which Parliament sees fit to make from time to time. And when Parliament came to enact the [LTA Act] it did not exempt statutory bodies representing the Crown. It exempted only the Crown itself and one corporation, the Housing Commission of New South Wales.
In the result I am of opinion that the Commissioner for Railways is not entitled to invoke the Crown's immunity in order to escape from the provisions of the [LTA Act].
[77] The appellant submits that the decision in Wynyard has been overtaken, perhaps even implicitly overruled, by subsequent authority. An instance of that, the appellant contends, is the approval by the majority (McHugh ACJ, Gummow, Callinan and Heydon JJ) of the approach of Kitto J in Wynyard in NT Power Generation Pty Ltd v Power and Water Authority [92] in which this was said [93] :
In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW), Kitto J also identified another two classes of case. The first involves cases where [94] :a provision, if applied to a particular individual or corporation, would adversely affect the exercise of an authority which he or it possesses as a servant or agent of the Crown to perform some function so that in law it is performed by the Crown itself'.
The second class consists of cases [95] :in which a provision, if applied to a particular individual or corporation, would adversely affect some proprietary right or interest of the Crown, legal, equitable or statutory.
[78] The expression of a preference by a majority of the Court for an approach to the statutory construction of an enactment which had earlier been adopted by dissenting judges in another case concerned with a different enactment of a different legislature, undoubtedly has persuasive value in a third case such as this one in which the statutory language is materially very similar. But the expression of that preference does not necessarily determine the third case even though the third case is in the same jurisdiction as the one in which the dissenting opinion was expressed. Other important considerations have to be taken into account, including the extent to which the decision of the majority in the first case has been followed or acted upon by legislatures and others.
[79] The appellant referred to Townsville Hospitals Board v Townsville City Council [96] . There the relevant statutory language was " ... a person or body who represents the Crown in right of the State" [97] . Gibbs CJ (with whom Murphy, Wilson and Brennan JJ agreed) proffered this caution [98] :
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 caution should of course be respected. It would deserve however even more respect if it had been accompanied by an identification and explanation of the other precise intention to be attributed to the legislature when it used the formula. For myself, I would not attribute to the legislature the sort of mindlessness that Kitto J seemed to think impelled the inclusion of the relevant language in the Act which his Honour was construing in Wynyard.
[80] The appellant also sought to rely on Bropho v Western Australia [99] . There, six Justices (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) [100] cited with approval a passage from Potter v Minahan [101] :
[it is] in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
[81] The right to a protected tenancy could hardly however be described as a right enjoyed as a matter of fundamental principle. It is a right that owes its existence to statute. Its creation, by enactment, represents a marked departure from the general system of law of landlord and tenant. The Court did not in Bropho have to construe an expression of the kind that has been enacted here. It was a case in which reliance was placed by the respondent State upon an "entrenched presumption that a statute does not bind the Crown" [102] only. Bropho therefore offers little assistance in the resolution of this case.
[82] Wynyard has stood for a long time. Only very powerful considerations would justify its overruling. I discussed some of the considerations to be taken into account in reversing earlier cases in Esso Australia Resources Ltd v Federal Commissioner of Taxation [103] , a case relating to legal professional privilege. I will not repeat that discussion here. I adhere to the opinions that I expressed in it.
[83] One particular consideration that I thought relevant and important in Brodie v Singleton Shire Council [104] is present here: that the common law principle or doctrine which a party wished to have overruled, or held to have been propounded in error, had been recognized or enshrined in legislation [105] .
[84] It is true that the appellant was able to identify no fewer than eighteen Acts of the New South Wales Parliament which confer a benefit upon the Crown, and which define the Crown to include "a statutory body representing the Crown". One example is the Crown Proceedings Act 1988 (NSW) which relevantly provides [106] :
In this Act:
...
Crown means the Crown in right of New South Wales, and includes:
...
- (c)
- a statutory corporation, or other body, representing the Crown in right of New South Wales.
Language of that kind does suggest that there may well be a distinction between the Crown in right of New South Wales, and statutory bodies in that State representing the Crown.
[85] But the provision in question here was enacted following Wynyard. In 1973, the Transport (Division of Functions) Act 1932 (NSW) was amended by the Main Roads (Amendment) Act 1973 (NSW). The sections in the Transport (Division of Functions) Act relating to the constitution of the Commissioner for Main Roads were deleted and inserted in the Main Roads Act 1924 (NSW) (ss 4A to 4C). The Commissioner appointed under the 1932 Act was deemed to be a corporation sole, and a continuation of the same legal personality despite the repeal of s 6 of that Act. Under s 4A(2)(f) of the Main Roads Act, the continued corporation was " ... for the purpose of any Act, a statutory body representing the Crown."
[86] The same provision also appears in the State Roads Act 1986 (NSW), which repealed the relevant part of the Main Roads Act, as amended. Section 6 of the State Roads Act constituted the Commissioner for Main Roads as a corporation sole, again a continuation of the same legal personality, and s 6(2)(g) provided that the continued corporation was " ... for the purpose of any Act, a statutory body representing the Crown."
[87] There was, as there almost always is in a case of this kind, the submission that to confer upon the State or any of its emanations, exemptions from any laws of any kind at any time, except in the most special of circumstances, is unfair, and that the Court ought to strive to construe the statutory language in such a way as to avoid that result. This is an attractive submission. But there are important caveats upon its unqualified acceptance. First, the language of the relevant enactment must be reasonably open to such a construction. Secondly, there may be an important public interest to be weighed against the private interest affected, the former of which the Court may be in a position inferior to that of Parliament to assess and bring into account. Thirdly, the Court should be restrained in the implication of words that the enactment does not contain, if an implication in order to achieve a particular result would be necessary. Fourthly, an even more cautious approach by the Court is desirable when the activity being undertaken under the enactment is not of a commercial kind, or the emanation of the State undertaking it, is not of a commercial or competitive character, or is not established deliberately as a separate corporate personality divorced and seen to be divorced from the State [107] for all or most purposes. One relevant consideration in that regard may be that the activities of the corporation are financed or subsidized by the State. As to this last matter, it has to be kept in mind that a great deal has been done in Australia since 1788 by or on behalf of the colonial, State and federal polities, that in other democracies tended to be done by persons engaged in private enterprise. It is not always easy therefore to categorize an activity or an enterprise in this country as either a commercial or State one. It is not surprising therefore that the Crown may sometimes claim an immunity, or an enactment may provide for it, in respect of an activity capable of characterization in more than one way.
[88] There is no evidence that the second respondent here was engaged in a regular business of letting residential properties. That it was seems unlikely in view of its statutory objects and functions [108] .
[89] Having regard to the matters that I have mentioned and the further matters which I will summarize, I have concluded that the appeal should be dismissed.
[90] The decision of the majority in Wynyard cannot be said to be plainly erroneous by any means, or as a failure to give effect to the legislative intention [109] . Their Honours in the majority did not think that the reference in the enactment there, as here, to representation for statutory but not other legal purposes demanded a different result. They explained themselves in this way [110] :
... the duties, powers and functions of the commissioner are derived so largely from statutes. Common law rights and obligations must often arise during their exercise but the Crown in New South Wales can be sued both in contract and in tort, and the commissioner would receive little benefit from any wider protection.
[91] The legislature of New South Wales has frequently enacted the same provision or its like since the decision in Wynyard [111] . The decision has stood now for 50 years. Wynyard has been applied in New South Wales and elsewhere on several occasions [112] .
[92] Furthermore, there are some statements in the reasons for judgment of Kitto J in Wynyard with which I am unable to agree. His Honour said there that there was no express extension of the relevant Crown immunity to the corporation. That was in a sense to beg the question. On the majority view, the words "representing the Crown" did constitute an extension expressed perhaps not in the precise language used by Kitto J, but in language little or no less unambiguous. For a body to represent the Crown must mean that it is to stand in the shoes of the Crown in carrying out its necessary and incidental statutory functions. Otherwise the phrase would be no more than an empty statutory formula. Crown immunity is one of the particular advantages historically available to the state, and it is difficult to believe that one of the purposes of legislating that a corporation represent the Crown was not to confer that, or at least some significant immunity upon it. So too, the reference by Kitto J to "some right, interest, power, authority, privilege, immunity or purpose belonging or appertaining to the Crown" is not particularly helpful. There was a time when all of these were claimed absolutely by the Crown. Nowadays it can be said that all of the activities undertaken by the State are, or should be undertaken, not in any regal, personal or capricious interest, but in the public interest and at public expense. That is a circumstance that can argue at least as much in favour of Crown immunity as against it. I am also inclined to doubt whether his Honour's pejorative description of the statutory formula as a stereotypical generic description of a class of public bodies repeatedly grouped with the Crown, assists in the resolution of the issue of immunity. Consistency of language is designed to produce consistency of result. Grouping with the Crown implies association, and the sharing of characteristics with, the Crown.
[93] I acknowledge the strength of the arguments advanced in favour of the appellant. I am far from convinced however that acceptance of them would allow, as the appellant argues, the first respondent to claim an immunity in any other circumstances. The first task, that Kitto J thought that the Court had to undertake, of identifying a power, or right, or privilege (of the Crown), may cause particular difficulty in this country in which State, and therefore Crown activities are, and historically have been, very diverse.
[94] The most persuasive of the matters that argue in favour of the second respondent is the enactment by the New South Wales legislature of at least 80 Acts, to some only of which I have referred, containing exactly the same, or virtually the same, formula, and which have been identified in detail by the parties.
[95] I would dismiss the appeal.