INTERPRETATION OF SECTION 604
Submissions
22 Mr. Whittle SC provided a written summary of relevant principles of statutory construction. He submitted that a statute is not to be construed as intended to interfere with vested interests unless such an intention is made very clear: Clissold v. Perry (1904) 1 CLR 363 at 373; Commonwealth v. Hazeldell Limited (1918) 25 CLR 552 at 563; Colonial Sugar Refinery v. Melbourne Harbour Trust Commissioners (1927) AC 343 at 359. Similarly, a statute will not be read as authorising expropriation of property without payment unless such an intention is very clear: C.J. Burland Pty. Limited v. Metropolitan Meat Industries Board (1968) 128 CLR 400 at 406 and 415; London & North Western Railway Co. v. Evans (1893) 1 Ch. 16 at 28; Methuen-Campbell v. Walters (1979) 2 QB 525 at 542; Wade v. NSW Rutile Mining Co. Pty. Limited (1969) 121 CLR 177 at 181. And, where a statute contains a provision derogating seriously from the rights of individuals, such provision should be given a restrictive interpretation: Board of Fire Commissioners (NSW) v. Ardouin (1961) 109 CLR 105 at 116; Suatu v. Australian Postal Commission (1989) 86 ALR 532.
23 Mr. Whittle referred me to Cousins v. Gosford Shire Council (1970) 92 WN (Pt.1) 263 at 271, as demonstrating that failure to comply with the requirements of s.602 invalidated a sale. He referred me also to Morgan v. 15 Bannerman Street Pty. Limited (1971) 1 NSWLR 601 at 608, where Hope, J. said: "It is clearly arguable that if there was no sale authorized by s.602, there can be no conveyance under s.604, and even if the council purports to execute such a conveyance, it would have no operation despite the provisions of s.604(2) and (4), if only for the reason that the conveyee would necessarily have knowledge and be party to the infringement of the Act." Mr. Whittle noted that, in Logue v. Shoalhaven Shire Council (1979) 1 NSWLR 537, the Court of Appeal had held that the effect of s.604(2) was to exclude invalidity for failure to comply with the Act; but submitted that this case was distinguishable from Logue and indeed all previous cases in that, in the present case, the power in s.602(1) had never arisen in the first place. Mr. Whittle also referred me to Blacktown Municipal Council v. Custom Credit Corporation (1968) 71 SR(NSW) 365, in which it was held that s.604(2) had no application until the transfer or conveyance was actually made.
24 Turning to the wording of the sections, Mr. Whittle submitted that the first paragraph of s.602(1) used the expression "any land", and then limited that expression to a more limited category to which all later provisions apply. Accordingly, where later provisions referred to "the land", they must be taken as referring to land within the more limited category fixed by the first paragraph of s.602(1). When one comes to s.604(1), "the land" in that provision must mean land within the category specified by the first paragraph of s.602(1); and the same must apply to "the land" as it appears in s.604(2). Certainly, he submitted, that must be the result, having regard to the principles of statutory interpretation to which he had referred.
25 Mr. Campbell QC for the Council provided a written outline of submissions, which I will leave with the papers.
26 He submitted that the protective provisions in s.604 applied to Old System land: Morgan at 606. He submitted that the conveyance to Mr. Mork purported to be made in exercise of the power contained in s.604 of the Act, as stated in the conveyance itself, and see also Phonogram Limited v. Lane (1982) 1 QB 938 at 942-3, 945. Accordingly, s.604 was effective to protect the purchaser: Logue at 540, 542, 550.
27 Mr. Campbell submitted that "the land" in s.604(2) meant the land the subject of the conveyance or transfer referred to in that provision. There was nothing in the language to limit s.604(2) to minor failures to comply. The purchaser would be in no position to know whether rates were overdue for five years on the land, any more than the compliance with other requirements of s.602. It was not surprising that the conveyance should be conclusive: undoubtedly, if it had been a transfer under the Real Property Act, registration under that Act would have given the purchaser indefeasible title. Similarly, s.604(4) was not limited to minor or procedural defects.
28 As regards the principle of statutory construction relied on by Mr. Whittle, Mr. Campbell submitted that this was not expropriation without compensation: the purchase price could only be used for payment of any rates and charges actually owing to the Council, and the balance would go to the true owner of the land. Mr. Campbell referred me to Pearce, Statutory Interpretation in Australia, 4th Ed., par.5.12, and submitted that the presumption was displaced where the legislation disclosed an object of overriding property rights. Mr. Campbell referred me to Durham Holdings Pty. Limited v. State of New South Wales (1999) NSWCA 324, (2001) HCA 7. Mr. Campbell also referred to the analogous case of exercise of mortgagee's power of sale: Life Interest & Reversionary Securities Corporation v. Hand-In-Hand Fire & Life Insurance Society (1898) 2 Ch. 230; Brigers v. Orr (1932) 32 SR(NSW) 634.
29 Mr. Loofs for Mr. Mork adopted Mr. Campbell's submissions. He also provided a written outline of argument. He submitted that the Council's interpretation of s.604(2) would not have far-reaching consequences, such as effective transfers by a council of land outside its area, because the sale of such land could not be a sale purporting to be under the Act. Mr. Loofs submitted that the plaintiffs' construction would produce curious consequences. Land where rates had been overdue for a period of five years, but which had been paid, would be caught by s.604(2), but land in respect of which a council mistakenly believed rates were five years overdue, but which were in fact four years and eleven months overdue, would not. The broad language of s.604(2) was designed precisely to avoid such arbitrary distinctions.