Appellant v Respondent

Appellant v Respondent - [2015] VSC 295 - VSC 2015 case summary — Zoe

[21]

Ground 1: All of the land owned by EHL Burgess was exempt under s 65(1) of the ... [Act] - as all of the land was located outside of "greater Melbourne", as defined at the relevant time (31 December 2012). None of the land owned by EHL Burgess was located in any of the municipal districts of any of the Cities or Shires named in the Third Schedule to the Melbourne and Metropolitan Board of Works Act 1958 (as in force immediately before its repeal) ("the MMBW Act").
All of the Cities and Shires referred to in the Third Schedule of the MMBW Act ("the Third Schedule") (except the City of Melbourne) were abolished by Orders in Council made in 1994,[5] as part of the overhaul of local government councils in this State.
There is no principle of statutory construction, such as the principle that legislation is "deemed to be always speaking", that can be invoked, or applied, to the abolished Cities and Shires in the Third Schedule to give the references to the abolished Cities and Shires any relevant meaning after December 1994.
Nor was there any amendment made to the MMBW Act in December 1994, or at any other time, to provide that references to the abolished Cities and Shires in the Third Schedule were to be read as references to the new City Councils and Shire Councils, as constituted on and from December 1994.
Nor was there any amendment to the Land Tax Act 1958 ("the LTA 1958") in 1994, or at any other time, to alter the definition of "greater Melbourne" in paragraphs (ga) and (h) of s 9(1) of that Act to account for the abolition of the Cities and Shires listed in the Third Schedule. Nor was the required change made to the definition of "greater Melbourne" in s 64(1) of the LTA 1958 when Parliament introduced, and passed, the ... [2005 Act] (in 2005). Instead, the definition in s 64(1) of the ... [Act] adopted the same definition of "greater Melbourne", being the definition of "greater Melbourne" in s 201 of the MMBW Act.
There was a transitional clause included in the Order in Council of 15 December 1994[6] but, as an Order in Council under the Local Government Act 1989, it had no application, and did not purport to have any application, to the Third Schedule of the MMBW Act and was, in any case, limited to matters within its sphere of operation, being matters "necessary or convenient to give effect to this Part [of the Local Government Act 1989] and to enable the effective implementation of any restructuring."[7] Furthermore, it was limited to "instruments and documents" and therefore did not apply, and did not purport to apply, to Acts of Parliament (assuming, as an Order in Council, it could have so applied).
There is therefore no rule of statutory construction, much less any statutory provision, which permits the abolished Cities and Shires in the Third Schedule to have any continued application after 15 December 1994. As French CJ and Hayne J have stated:[8]

[35]

THIRD SCHEDULE

The Metropolitan Area consists of the following areas:

(a) The municipal districts of the Cities of Altona, Berwick, Box Hill, Brighton, Broadmeadows, Brunswick, Camberwell, Caulfield, Chelsea, Coburg, Collingwood, Croydon, Dandenong, Doncaster and Templestowe, Essendon, Fitzroy, Footscray, Frankston, Hawthorn, Heidelberg, Keilor, Kew, Knox, Malvern, Melbourne, Moorabbin, Mordialloc, Northcote, Nunawading, Oakleigh, Port Melbourne, Prahran, Preston, Richmond, Ringwood, Sandringham, South Melbourne, Springvale, St Kilda, Sunshine, Waverley, and Williamstown, and of the Shires of Bulla, Diamond Valley, Eltham, Melton, Werribee and Whittlesea.

(b) The following portion of the Shire of Cranbourne:

That portion commencing at a point on the municipal boundary at the north-eastern angle of Allotment 71C, Parish of Cranbourne; thence southerly by a road on the eastern boundary of that allotment to Bullarto-road; thence westerly by that road to the north-eastern angle of the Parish of Langwarrin; thence southerly by a road on the eastern boundary of that parish to the south-eastern angle of allotment 11; thence westerly by a road to the north-western angle of allotment 58; thence southerly by a road to the south-eastern angle of allotment 62; thence westerly to a road to the north-western angle of allotment 81; thence southerly by a road to the southern boundary of the said parish being a point on the municipal boundary; and thence generally westerly, generally northerly and generally south-easterly by that boundary to the point of commencement.

(c) The following portion of the Shire of Pakenham:

That portion west of a line commencing at a point on the municipal boundary being the north-eastern corner of Crown Allotment 21, Section F, Parish of Gembrook, County of Evelyn; thence southerly by the eastern boundary of that allotment and the western boundary of Crown Allotment 73 to the northern boundary of the County of Mornington; thence generally southerly by that boundary and the eastern boundary of Crown Allotment 97 to the north-eastern angle of Crown Allotment 97A; thence westerly by the southern boundary of that allotment to Bourkes Creek; thence southerly by that creek to the northern boundary of Crown Allotment 67, Section C; thence southerly and westerly by that allotment and the southern boundary of Crown Allotment 68, Section C, to the north-west corner of Crown Allotment 65, Section C; thence generally southerly and easterly by that allotment to Toomuc Creek; thence generally southerly by that creek to the southern boundary of the municipality.

(d) All the lands which are vested in, or purchased or acquired by, or under the management of, the Melbourne Port Corporation under the Port Services Act 1995;

(e) the docklands area within the meaning of the Docklands Act 1991.

[58]

By a Proclamation dated 1 December 1862, made by the Captain-General and Governor-in-Chief of the Colony of Victoria, pursuant to An Act for Making and Improving Roads in the Colony of Victoria 1853, being a proclamation published in the Government Gazette on 12 December 1862, the area of land therein specified was proclaimed and declared to be "The Whittlesea Road District".
By An Act to Establish Road Districts and Shires and Generally to Provide for the Administration of Local Affairs without the Limits of Boroughs 1863, ... it was provided in s II that "[e]very road district existing at the commencement of this Act shall be and be deemed to be a district within the meaning of this Act".
Section CCLXXIX of that Act provided that "it shall be lawful for the Governor in Council to proclaim if it shall seem fit such district by such name as in and by such Order in Council may be assigned thereto to be a shire within the meaning of this Act and such district shall thereupon be and be called such shire accordingly".
Section CCLXXXI of that Act provided that "[e]very shire shall after proclamation thereof as such be and be deemed to be and have been such and the same district as such shire was at the time of the proclamation and ... all the provisions of this Act relating to districts shall continue and be of full force and effect with regard to such shire and be read accordingly."
Section CCLXXXII of that Act provided that "[i]n addition to the rights and privileges conferred by the last mentioned provisions the body corporate and council of every such shire shall have an enjoy the further rights and privileges".
On 24 December 1874 an Act entitled An Act to Consolidate and Amend the Laws Relating to Local Government was passed, and took effect from 1 January 1875 (cited as the Local Government Act 1874).
Section 3 of that Act provided that "[e]very city and town shall be deemed to be a borough; the corporation of every borough shire and road district shall be deemed to be a municipality; the district under the local government of a municipality shall be called its municipal district".
Section 10 of that Act provided that:

[74]

Section 7(5) of the 1983 amending Act then repealed s 34 of the ... [Local Government Act 1958]. Section 34(3) had provided that "[e]very such corporation shall notwithstanding be deemed the same before and after such change of name, and no action or other matter or thing shall be affected of abated thereby." However, the 1983 amending Act repealed this provision.
Section 24F, introduced by the ... [Local Government (Board of Review) Act 1982], provided that where the Minister was "to make a recommendation to the Governor in Council with respect to any proposal which may be given effect to under paragraphs (f) to (l) of section 24B without referring the proposal [which is the subject of that recommendation] to a Division the Minister shall cause to be given notice of the impending order in the Government Gazette and in a newspaper generally circulating in the municipalities which in his opinion are likely to be affected by the proposal."
By Notice, published in the Government Gazette on 9 March 1988, the Minister stated that "[n]otice is given of my intention to make a recommendation to the Governor in Council to proclaim the Shire of Whittlesea to be the City of Whittlesea, without referring the proposal to a Division of the Local Government Commission."[24]
By Proclamation, published in the Government Gazette No S 23 on 30 March 1988, the Governor, acting on the advice of the Executive Council, "proclaim[ed] the Shire of Whittlesea to be a City under the name of the City of Whittlesea with effect on and from 15 April 1988."
As stated above, s 8A(1) of the ... [Local Government Act 1958, as introduced by s 6 of the Local Government (General Amendment) Act 1983,] permitted such an Order to "provide that the inhabitants of the shire ... or city in respect of which that Order is made shall be a body corporate under the name given to that shire ... or city (as the case may be) in that Order and shall under that name - (a) have perpetual succession; (b) have a common seal ... ; and (c) be capable in law of - (i) suing and being sued". However, as can be seen from the terms of the Proclamation, of 30 March 1988, no provision to this effect was made by this Proclamation. Further, s 34 of the ... [Local Government Act 1958] had been repealed by that time.
The Local Government Act 1989, which together with Local Government (Consequential Provisions) Act 1989 repealed and replaced the Local Government Act 1958, received Royal Assent on 9 May 1989. ...
Section 5 of the Local Government (Consequential Provisions) Act 1989 provided as follows:

[83]

(e) The following portion of the shire of Melton: -

Commencing on the southern boundary of the parish of Derrimut at the south-western angle of Crown section 5; thence northerly by Robinson-road to the Kororoit Creek at the north-western corner of section 21; thence northerly and westerly by that creek to the western boundary of the parish of Derrimut; thence southerly by that boundary and easterly by the southern boundary of the parish to the south-western angle of section 5, being the point of commencement.

(f) The following portion of the shire of Fern Tree Gully: -

All that piece of land in the parish of Scoresby, county of Mornington, commencing at the south-western corner of Crown allotment 14B; thence easterly along the southern boundary of that allotment for a distance of 895 links; thence south-westerly by a line across High Street road to the north-western corner of Crown allotment 13A; thence southerly along the western boundary and westerly along the northern boundary of the last-mentioned allotment for a distance of 303 links; thence southerly by lines bearing 180 degrees 929 links and 135 degrees 735 links to the northern boundary of lot 10, lodged plan No. 3723; thence easterly the last-mentioned boundary for a distance of 750 links; thence southerly by a line west of and parallel to the eastern boundaries of lots 10,11 and 12 to the northern boundary of lot 13; thence easterly along the northern boundary and southerly along the eastern boundary of the last-mentioned lot to the northern boundary of Crown allotment 9; thence easterly along the last-mentioned boundary to the western boundary of creation of easement No. 1098188 in favour of the State Electricity Commission; thence southerly along the last-mentioned boundary to the centre of Dandenong Creek; thence generally northerly along the centre of the Dandenong Creek to a point on the continuation of the southern boundary of Crown allotment 14B; thence easterly by a line to the commencing point.

[87]

After the Second Schedule to the Principal Act there shall be inserted the following Schedule:

"THIRD SCHEDULE

The Metropolitan Area consists of the following areas:

(a) The municipal districts of the Cities of Altona, Berwick, Box Hill, Brighton, Broadmeadows, Brunswick, Camberwell, Caulfield, Chelsea, Coburg, Collingwood, Croydon, Dandenong, Doncaster and Templestowe, Essendon, Fitzroy, Footscray, Frankston, Hawthorn, Heidelberg, Keilor, Kew, Knox, Malvern, Melbourne, Moorabbin, Mordialloc, Northcote, Nunawading, Oakleigh, Port Melbourne, Prahran, Preston, Richmond, Ringwood, Sandringham, South Melbourne, Springvale, St. Kilda, Sunshine, Waverley, and Williamstown, and of the Shires of Bulla, Diamond Valley, Eltham, Melton, Werribee and Whittlesea.

(b) The following portion of the Shire of Cranbourne:

That portion commencing at a point on the municipal boundary at the north-eastern angle of Allotment 71C, Parish of Cranbourne; thence southerly by a road on the eastern boundary of that allotment to Bullartoroad; thence westerly by that road to the north-eastern angle of the Parish of Langwarrin; ·thence southerly by a road on the eastern boundary of that parish to the southeastern angle of allotment 11; thence westerly by a road to the north-western angle of allotment 58; thence southerly by a road to the south-eastern angle of allotment 62; thence westerly to a road to the north-western angle of allotment 81; thence southerly by a road to the southern boundary of the said parish being a point on the municipal boundary; and thence generally westerly, generally northerly and generally south-easterly by that boundary to the point of commencement.

(c) The following portion of the Shire of Pakenham:

That portion west of a line commencing at a point on the municipal boundary being the north-eastern corner of Crown Allotment 21, Section F, Parish of Gembrook, County of Evelyn; thence southerly by the eastern boundary of that allotment and the western boundary of Crown Allotment 73 to the northern boundary of the County of Mornington; thence generally southerly by that boundary and the eastern boundary of Crown Allotment 97 to the north-eastern angle of Crown Allotment 97A; thence westerly by the southern boundary of that allotment to Bourkes Creek; thence southerly by that creek to the northern boundary of Crown Allotment 67, Section C; thence southerly and westerly by that allotment and the southern boundary of Crown Allotment 68, Section C, to the north-west corner of Crown Allotment 65, Section C; thence generally southerly and easterly by that allotment to Toomuc Creek; thence generally southerly by that creek to the southern boundary of the municipality.

(d) All areas deemed by section 55 of the Port of Melbourne Authority Act 1958 to be severed from the municipal districts of the Cities of Footscray, Melbourne, Port Melbourne, and Williamstown."

[139]

An alternative view is that the Third Schedule is referring to the identified physical areas of land. On that view, the "municipal district of the Shire of Whittlesea" was, at all times (ie, from 1949 when the Shire of Whittlesea was first referred to in the Schedule to the Town and Country Planning (Metropolitan Area) Act 1949, defining the "metropolitan area") referring to a particular physical area of land.
There is no doubt that the Third Schedule was referring to a collective physical area of land - made up of many different physical areas of land - but in each case each physical area of land (municipal district) is identified by reference to a local government entity (City or Shire).
Once any given physical area of land (such as existed before 15 December 1994) ceases to be able to be identified by reference to the named local government entity, there is no identifiable physical area of land to speak of.
The physical area of land, in order to exist, must attach to a named municipality - in this case, it was originally the Shire (City) of Whittlesea. That is how the Third Schedule is drafted; it speaks of "the municipal district of the Shire of Whittlesea" - and s 64(1) of the ... [2005 Act] requires that land to be identified as at 30 June 2007. While that area of land was capable of being identified as at 14 April 1988 and as at 14 December 1994, it was not capable of being identified as at 16 December 1994 and it follows that it was not capable of being identified as at 30 June 2007.
Given the circumstances of this appeal, which is limited to the seven titles owned by the Appellant, it was obviously not feasible (or necessary) to attempt to survey all of the other municipal districts mentioned in the Third Schedule and compare the land areas referred to in the Third Schedule with the municipal boundaries of the reduced number of City Councils and Shire Councils that were created by the principal "restructuring Orders": being the Order in Council dated 15 December 1994;[60] the Order in Council dated 18 November 1994;[61] and the Order in Council dated 2[2] June 1994.[62]
Under the 15 December 1994 Order in Council, all but one of the Cities named in paragraphs (a)-(c) in the Third Schedule was abolished (the exception being the City of Melbourne), and all eight Shires were abolished. There were therefore 41 Cities and eight Shires abolished - being all but one of the municipalities listed in paras (a)-(c) of the Third Schedule.
In light of the abolition of those Cities and Shires, and the absence of any transitional provision in the MMBW Act (or the ... [2005 Act]), the "metropolitan area" consisted of, after December 1994, the municipal district of the City of Melbourne and the areas of land described in paragraphs (d) and (e) of the Third Schedule. On any view, it did not include the municipal districts of the Whittlesea City Council, or the Hume City Council.

[181]

Accordingly, the adoption of the definition of "metropolitan area" in s 201 of the MMBW Act by s 64 of the ... [2005 Act] is an exercise to be undertaken without resort, or reference, to any perceived purpose of the incorporation of s 201 of the MMBW Act into the ... [2005 Act]. That is, the adoption of a cross-referenced definition is not the occasion for licence. It is, in this respect, a mechanical exercise - a form of statutory "transplant".
The language of the Third Schedule is therefore to be adopted direct into s 64 (and s 65(1) of the ... [2005 Act]), without the making of any "a priori assumptions about its [the Third Schedule's] purpose", and without modification.
The one thing that the s 64(1) definition does do - by way of qualification - is stipulate that the definition to be adopted is the definition under the MMBW Act at the time "immediately before its repeal". Accordingly, the ... [2005 Act] requires that the definition to be adopted be the meaning of the term as at 30 June 2007 - being a time when all the named Cities and Shires in the Third Schedule (except for the City of Melbourne) had long been abolished - being a fact which Parliament knew in 2005 when the ... [2005 Act] was passed.
This, therefore, is not a case of interpreting the ... [Land Tax Act 1958] where, in some circumstances, cross-referenced definitions in other legislation may have accommodated an ambulatory operation. A simple, and clear, example of this relates to paragraph (e) in the Third Schedule, which refers to "the docklands area within the meaning of the Docklands Act 1991." When paragraph (e) was first added to the Third Schedule, in 1998, it read: "the docklands area within the meaning of the Docklands Authority Act 1991". By an amendment made in 2003 (s 91 of the Victorian Urban Development Authority Act 2003), the name of the Act referred to in (e) was changed from the "Docklands Authority Act 1991" to the "Docklands Act 1991". In those circumstances, it is considered that, had there not been the consequential amendment made to paragraph (e) of the Third Schedule (in 2003), the reference to the former "Docklands Authority Act 1991" would have been given an ambulatory operation and would have, as a result, been construed as a reference to the "Docklands Act 1991".[89]. That, it is submitted, is a typical example of the (uncontroversial) ambulatory operation of terms used in legislation. However, as it happened, Parliament made a specific (but not necessary) consequential amendment to paragraph (e) of the Third Schedule.
It is also noted that, while the title to the Docklands Authority Act 1991 was changed, there were no amendments made, by that amending Act, to the definition of the "docklands area" in that Act. Had there been any such change, s 17(1)(a) [of the Interpretation of Legislation Act 1984] would have applied so that the reference to the "docklands area" would have been a reference to that expression in the Docklands Act 1991, as amended from time to time.
Accordingly, while Parliament was alive to this formal name-change in 2003, and made this amendment to paragraph (e) of the Third Schedule, Parliament did not at this time (or at any other time) make any amendments to paragraphs (a), (b) or (c) of the Third Schedule - all of which had become obsolete many years before 2003 (being the year of the Docklands Authority Act 1991 amendment).
In this respect, it is observed also that, in 1997, an amendment was made to the Third Schedule to add the Melbourne Port Corporation land to the "metropolitan area" under the Third Schedule (by ... [s 12(11) of the Water Acts (Further Amendment) Act 1997], by ... [substituting a new] paragraph (d) [in]to the Third Schedule). But, again, while Parliament had taken the trouble to make this amendment to the Third Schedule in 1997, no amendments were made to paragraphs (a), (b) or (c) of the Third Schedule in 1997.
Finally, in relation to the process of statutory construction, reference is made to the following statements by Croft J in Clarke v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq):[90]

Parties

Applicant/Plaintiff:

# EHL Burgess Properties Pty Ltd

Respondent/Defendant:

Commissioner of State Revenue \[2015\] VSC 295

Legislation Cited (104)

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Administration Act 1997

Tax Act 2005

Government Act 1989

Metropolitan Board of Works Act 1958

Tax Act 1958

Country Planning (Transfer of Functions) Act 1985

Country Planning Act 1961

Environment Act 1987

Water (Governance) Act 2006

Better Victoria (State Tax and Other Legislation Amendment) Act 2014

Government Act 1958

Government (General Amendment) Act 1983

Government (General Amendment) Act 1993

Cases Cited (19)

(2012) 248 CLR 378

(1998) 194 CLR 355

(2005) 223 CLR 1

(1988) 165 CLR 543

(2002) 209 CLR 651

(1992) 173 CLR 492

(1944) 69 CLR 523

At a glance

Court

Decision date

Before

Source

Judgment (313 paragraphs)

Parties

Legislation Cited (104)

Cases Cited (19)