Mcnamara (Mcgrath) v Consumer Trader and Tenancy Tribunal

[2005] HCA 55
(2005) 221 CLR 646
(2005) 221 ALR 285

Mcnamara (Mcgrath)
v Consumer Trader and Tenancy Tribunal

Court:
High Court of Australia

Judges: Gleeson CJ
McHugh J
Gummow J
Hayne J
Callinan J
Heydon J

Judgment date: 29 September 2005

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 February 2004 and, in place thereof, order that:

(a)
Leave to appeal to that Court be granted;
(b)
The appeal is allowed with costs; and
(c)
The orders of Dunford J are set aside and in their place order:

(i)
Appeal allowed with costs;
(ii)
Set aside the decision of the Consumer Trader and Tenancy Tribunal dated 8 April 2002;
(iii)
Remit the matter to the Tribunal to be determined according to law.

3. The above costs orders are made against the second respondent only.

[1]
(1955) 93 CLR 376.

[2]
Williams, Webb and Taylor JJ; Fullagar and Kitto JJ dissenting.

[3]
(1955) 93 CLR 376 at 400-401.

[4]
cf Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576 at 584.

[5]
(1951) 84 CLR 140.

[6]
(1955) 93 CLR 376 at 394-395.

[7]
(1982) 149 CLR 282 at 291.

[8]
Sch 7, Item 24.

[9]
The text of the relevant definition reads:
'prescribed premises' means --

(a)
where a dwelling-house does not form part of other premises -- that dwelling-house;
(b)
where premises consist only of a number of dwelling-houses -- those premises and each of those dwelling-houses; and
(c)
where premises consist partly of dwelling-houses and partly of other premises -- such part of the premises as consists of dwelling-houses and each dwelling-house of which that part consists, and includes any land or appurtenances leased with any prescribed premises as defined in para (a), (b) or (c) of this definition.

[10]
(1955) 93 CLR 376.

[11]
(1980) 144 CLR 13 at 35-36.

[12]
Skinner v Commissioner for Railways (1937) 37 SR (NSW) 261 at 269.

[13]
(1990) 171 CLR 1.

[14]
(1999) 198 CLR 334 at 347 [17]. See also Commonwealth v Western Australia (1999) 196 CLR 392 at 409-411 [31]-[39], 429-432 [105]-[110].

[15]
(1999) 199 CLR 462 at 497-503 [83]-[94].

[16]
(1999) 199 CLR 462 at 499 [87]. See to similar effect the statement by Gleeson CJ and Gaudron J in Commonwealth v Western Australia (1999) 196 CLR 392 at 410 [33].

[17]
(1955) 93 CLR 376 at 394.

[18]
(1955) 93 CLR 376 at 394.

[19]
(1955) 93 CLR 376 at 393. See also NT Power Generation Pty Ltd v Power and Water Authority (2004) 79 ALJR 1 at 34-35 [166]-[170] ; 210 ALR 312 at 357-359.

[20]
(2004) 79 ALJR 1 at 34-35 [166]-[170] ; 210 ALR 312 at 357-359.

[21]
(1982) 149 CLR 282.

[22]
(1982) 149 CLR 282 at 291.

[23]
Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 at 616.

[24]
(1948) 48 SR (NSW) 281 at 284.

[25]
The statute stated that the Commission, in the exercise of its powers, authorities, duties and functions, was "subject to the control and direction of the Minister".

[26]
(1954) 55 SR (NSW) 118 at 123. See also the judgment of Brereton J at 128-129.

[27]
(1946) 73 CLR 70.

[28]
As provided for in s 249(1) of the Local Government Act 1928 (Vic).

[29]
(1946) 73 CLR 70 at 84.

[30]
See (1946) 73 CLR 70 at 84:
The parties seemed inclined to argue the case as if the question was whether the [Grain Elevators] 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 [Grain Elevators] Board, would enjoy the exemption conferred upon land the property of His Majesty. I cannot agree in the adoption of any such test.

[31]
Transport Act, s 49.

[32]
Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 396.

[33]
(1955) 93 CLR 376 at 386.

[34]
An example is afforded in s 132, which exempted certain lands vested in the Crown from local government rates.

[35]
Local Government Act 1919 (NSW), s 4.

[36]
See Metropolitan Water, Sewerage, and Drainage Act 1924 (NSW), s 4; Sydney Corporation Act 1932 (NSW), s 2; Hunter District Water, Sewerage and Drainage Act 1938 (NSW), s 3; Broken Hill Water and Sewerage Act 1938 (NSW), s 3. See also Barnett, "Statutory Corporations and 'The Crown'", (2005) 28 University of New South Wales Law Journal 186 at 206-207.

[37]
(1908) 5 CLR 879 at 885.

[38]
(1937) 37 SR (NSW) 261.

[39]
(1937) 37 SR (NSW) 261 at 269-270.

[40]
Common Law Procedure Act 1899 (NSW), s 102.

[41]
(1955) 93 CLR 376 at 394-395.

[42]
(1996) 189 CLR 253 at 280.

[43]
(1955) 93 CLR 376 at 394-395.

[44]
(1955) 93 CLR 376 at 382.

[45]
International Railway Co v Niagara Parks Commission [1941] AC 328 at 343.

[46]
(1955) 93 CLR 376 at 388.

[47]
(1955) 93 CLR 376 at 401.

[48]
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65.

[49]
See Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.

[50]
(1989) 166 CLR 417.

[51]
(1989) 166 CLR 417 at 435.

[52]
(1974) 131 CLR 409.

[53]
(1989) 166 CLR 417 at 438-439.

[54]
Queensland v The Commonwealth (1977) 139 CLR 585 at 599.

[55]
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 439-440; Brennan v Comcare (1994) 50 FCR 555 at 572-575.

[56]
The term "Crown" is defined in s 3 of the Crown Proceedings Act 1988 (NSW) as including "a statutory corporation, or other body, representing the Crown in right of New South Wales", but s 5(1) provides:
Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court.

[57]
Interpretation Act 1987 (NSW), s 65.

[58]
A convenient list is to be found in Selway, The Constitution of South Australia, (1997), §7.2.11.

[59]
(1955) 93 CLR 376 at 387.

[60]
(1955) 93 CLR 376 at 386.

[61]
(1982) 149 CLR 282 at 291.

[62]
(1982) 149 CLR 282 at 288.

[63]
(1982) 149 CLR 282 at 288.

[64]
A definition in identical terms appeared in s 57 of the District Court Act 1973 (NSW) and a similar, though more expansive and detailed, one appears in s 4 of the Environmental Planning and Assessment Act 1979 (NSW).

[65]
The phrase appears in some 138 statutes currently in force in New South Wales. The cognate expression "statutory corporation, or other body, representing the Crown" appears in the Co-operative Schemes (Administrative Actions) Act 2001 (NSW), s 13; the Corporations (Administrative Actions) Act 2001 (NSW), s 10; the Crown Proceedings Act 1988 (NSW), s 3; the Luna Park Site Act 1990 (NSW), s 9.

[66]
The 1993 Act, s 555(1)(a).

[67]
See also the Land Tax Management Act 1956 (NSW), s 3(1); the Building and Construction Industry Long Service Payments Act 1986 (NSW), s 38(1); the Luna Park Site Act 1990 (NSW), s 9(3); the Dividing Fences Act 1991 (NSW), s 25(3); the Duties Act, ss 259(1), 308(6); the Co-Operative Schemes (Administrative Actions) Act 2001 (NSW), s 13(3); the Corporations (Administrative Actions) Act 2001 (NSW), s 10(3).

[68]
See the Moratorium Act 1932 (NSW), s 4(1); the Printing and Newspapers Act 1973 (NSW), s 3(4); the Strata Schemes (Freehold Development) Act 1973 (NSW), ss 8(2), 8A(3); the Strata Schemes (Leasehold Development) Act 1986 (NSW), ss 7(2A), 10(3); the Tow Truck Industry Act 1998 (NSW), s 6(1); the Rail Safety Act 2002 (NSW), s 104(3).

[69]
See the Conveyancing Act 1919 (NSW), ss 129(6), 157(2), 178; the Limitation Act 1969 (NSW), s 10; the Dangerous Goods Act 1975 (NSW), s 41(3); the Environmental Planning and Assessment Act 1979 (NSW), ss 109M, 109N; the Land and Environment Court Act 1979 (NSW), s 64(1); the Perpetuities Act 1984 (NSW), s 5(2); the Biological Control Act 1985 (NSW), s 6(2); the Insurance (Application of Laws) Act 1986 (NSW), s 4(2); the Confiscation of Proceeds of Crime Act 1989 (NSW), s 11(2); the Crown Lands Act 1989 (NSW), s 170; the Trade Measurement Act 1989 (NSW), s 5(2); the Grain Marketing Act 1991 (NSW), s 98; the Roads Act 1993 (NSW), s 8; the Sydney Water Act 1994 (NSW), Sch 2; the Agricultural Livestock (Disease Control Funding) Act 1998 (NSW), s 31(2); the Road Transport (Driver Licensing) Act 1998 (NSW), s 6(2); the Financial Sector Reform (New South Wales) Act 1999 (NSW), s 4(2); the Price Exploitation Code (New South Wales) Act 1999 (NSW), s 16(1), (2); the Fitness Services (Pre-paid Fees) Act 2000 (NSW), s 7(2); the Water Management Act 2000 (NSW), s 312; the Coal Industry Act 2001 (NSW), s 52; the Game and Feral Animal Control Act 2002 (NSW), s 53; the Institute of Teachers Act 2004 (NSW), s 46(2).

[70]
(1955) 93 CLR 376.

[71]
(1955) 93 CLR 376 at 385.

[72]
Bropho v Western Australia (1990) 171 CLR 1 at 19.

[73]
(1982) 149 CLR 282.

[74]
(1982) 149 CLR 282 at 291 per Gibbs CJ.

[75]
(1955) 93 CLR 376 at 394.

[76]
(1982) 149 CLR 282 at 288.

[77]
(1982) 149 CLR 282 at 288.

[78]
(1955) 93 CLR 376 at 383.

[79]
See, for example, Confiscation of Proceeds of Crime Act 1989 (NSW), s 4; Criminal Records Act 1991 (NSW), s 4; Duties Act 1997 (NSW), s 308(6).

[80]
(1955) 93 CLR 376.

[81]
Transport (Division of Functions) Act 1932 (NSW), s 4(2).

[82]
Section 46(2)(b) of the Transport Administration Act 1988 (NSW) states that the Roads and Traffic Authority is "for the purposes of any Act, a statutory body representing the Crown."

[83]
(1937) 37 SR(NSW) 261.

[84]
(1937) 37 SR(NSW) 261 at 272.

[85]
(1954) 55 SR(NSW) 118.

[86]
(1954) 55 SR(NSW) 118 at 123.

[87]
(1954) 55 SR(NSW) 118 at 129.

[88]
(1955) 93 CLR 376 at 388 per Williams, Webb and Taylor JJ.

[89]
(1955) 93 CLR 376 at 396.

[90]
(1955) 93 CLR 376 at 401.

[91]
(1955) 93 CLR 376 at 402.

[92]
(2004) 79 ALJR 1 ; 210 ALR 312.

[93]
(2004) 79 ALJR 1 at 34-35 [168] ; 210 ALR 312 at 358.

[94]
(1955) 93 CLR 376 at 394.

[95]
(1955) 93 CLR 376 at 394.

[96]
(1982) 149 CLR 282.

[97]
Building Act 1975 (Q) s 4(4).

[98]
(1982) 149 CLR 282 at 291.

[99]
(1990) 171 CLR 1.

[100]
(1990) 171 CLR 1 at 18.

[101]
(1908) 7 CLR 277 at 304 per O'Connor J (footnote omitted).

[102]
(1990) 171 CLR 1 at 14.

[103]
(1999) 201 CLR 49 at 101-105 [153]-[154], [158]-[159], [163]-[164].

[104]
(2001) 206 CLR 512 at 647 [374]-[375].

[105]
The principle was that highway authorities should have an immunity for non-feasance. Section 12(1) of the State Roads Act 1986 (NSW) provided:
The Authority has, and may exercise, in relation to a classified road or a toll work, the functions and immunities of a council in relation to a public road.

[106]
s 3.

[107]
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 616 [121].

[108]
The second respondent is constituted by Pt 6, Div 1A of the Transport Administration Act 1988 (NSW). Its functions are conferred by that Act and the following New South Wales Acts: the Roads Act 1993, the Traffic Act 1909, the Motor Vehicles Taxation Act 1988, the Road Transport (Heavy Vehicles Registration Charges) Act 1995 and the Road Transport (Driver Licensing) Act 1998.

[109]
see Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13 per Mason J.

[110]
(1955) 93 CLR 376 at 387.

[111]
For example, see the following New South Wales Acts: Crown Lands Act 1989, s 13(4); Education Act 1990, s 99(2); Government Telecommunications Act 1991, s 29(3); Housing Act 2001, s 6(4); Motor Accidents Compensation Act 1999, s 198(2); Ports Corporatisation and Waterways Management Act 1995, s 35(2).

[112]
Aborigines Welfare Board v Saunders [1961] NSWR 917; Randwick Municipal Council v Commissioner for Government Transport [1967] 1 NSWR 428; Holflex Pty Ltd v Paradox Pty Ltd (1989) 97 FLR 438; Chief Commissioner of State Revenue v Darling Harbour Authority (2001) 114 LGERA 97.

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