Hunter Development Corporation v Save Our Rail NSW Incorporated

Structure of these reasons

1. For the purpose of determining the issues on the appeal, I have found it convenient to set out the relevant legislation and then the Ministerial directions, the Asset Sale Agreement and the Acquisition Agreement, before considering the submissions of the parties.

Legislation

1. The legislation under which the parties purported to act was the Transport Administration Act, the Growth Centres Act and the Just Terms Act. The Interpretation Act 1987 (NSW) was also referred to by HDC in argument.

The Transport Administration Act

1. Section 3 provided definitions of the terms "NSW rail network" "rail infrastructure facilities" and "rail infrastructure owner", as follows: "NSW rail network means the railway lines vested in or owned by or managed or controlled by a rail infrastructure owner (including passing loops and turnouts from those lines and loops and associated rail infrastructure facilities that are so vested or owned or managed or controlled). … rail infrastructure facilities: (a) includes railway track, associated track structures, over track structures, cuttings, drainage works, track support earthworks and fences, tunnels, bridges, level crossings, service roads, signalling systems, train control systems, communication systems, overhead power supply systems, power and communication cables, and associated works, buildings, plant, machinery and equipment, but (b) does not include any stations, platforms, rolling stock, rolling stock maintenance facilities, office buildings or housing, freight centres or depots, private sidings or spur lines connected to premises not vested in or owned by or managed or controlled by a rail infrastructure owner. rail infrastructure owner means: (a) in the case of any rail infrastructure facilities that are managed or controlled by TfNSW for the purposes of exercising its functions under this Act, TfNSW, or (b) in the case of any rail infrastructure facilities that are subject to an ARTC lease or licence or are installed, established or replaced by ARTC in or on land subject to an ARTC lease or licence, ARTC, or … (c) in any other case, the person in whom ownership of rail infrastructure facilities is vested by or under this Act." (emphasis added)
2. There was no dispute that the 780 m of overhead wiring the subject of the Asset Sale Agreement falls within the definition of rail infrastructure facilities.
3. The acronyms used in these definitions are also defined in s 3 as follows: "ARTC means the Australian Rail Track Corporation Ltd … Transport for NSW (or TfNSW) means Transport for NSW constituted under this Act."
4. Pursuant to s 3B(1)(a), the chief executive of RailCorp was subject to the control and direction of the Minister for Transport.
5. Part 2 of the Transport Administration Act provided for the constitution of RailCorp: see s 4. A principal function of RailCorp was to deliver safe and reliable railway passenger services in an effective, efficient and financially responsible manner: s 5(1)(a).
6. Section 6 provided: "6 Railway passenger services (1) RailCorp is to operate railway passenger services. (2) RailCorp is to continue to operate the railway passenger services which were provided by the State Rail Authority immediately before the commencement of this section. (3) Subsection (2) does not limit the power of RailCorp: (a) to establish any new railway passenger service, or (b) to alter or discontinue any of its railway passenger services. (4) The operation of a railway passenger service by RailCorp is subject to the requirements of the Rail Safety National Law (NSW)."
7. Section 94 gave the Minister for Transport the power to give a direction that a rail authority may transfer its assets. Section 94(4) provided that Schedule 4 applied to the transfer of assets under this section.
8. Schedule 4 provided for a number of matters relating to the transfer and vesting of assets and liabilities. Clause 3 provided that when assets were transferred, relevantly for present purposes, the assets "vest in the transferee by virtue of this Schedule and without the need for any conveyance, transfer, assignment or assurance".
9. Section 99A, being the central provision in issue, provided: "99A Closure and disposal of railway lines (1) A rail infrastructure owner must not, unless authorised by an Act of Parliament, close a railway line. (2) For the purposes of this section, a railway line is closed if the land concerned is sold or otherwise disposed of or the railway tracks and other works concerned are removed. (3) For the purposes of this section, a railway line is not closed merely because a rail infrastructure owner has entered into an ARTC arrangement or a lease or other arrangement in respect of it pursuant to an agreement entered into by the Commonwealth and the State."
10. Section 99B(1) provided that a rail infrastructure owner may, with the approval of the Minister close any level crossing, bridge or other structure for crossing over or passing under a railway track. Before doing so, the rail infrastructure owner must cause a notice of the proposed closure to be published in the Gazette.
11. Schedule 6A provided for the powers of rail authorities relating to rail infrastructure facilities and land: s 98. "Owner" was defined in cl 1 of Schedule 6A as follows: "owner of railway land, rail infrastructure facilities or a railway building means: (a) (Repealed) (a1) in the case of any land, rail infrastructure facilities or any railway building that is managed or controlled by TfNSW for the purposes of exercising its functions under this Act, TfNSW, or (b) in the case of any rail infrastructure facilities that are, or railway building that is, installed, established or replaced by ARTC, ARTC, or (c) in the case of any land, rail infrastructure facilities or any railway building that is subject to an ARTC lease or licence, ARTC, or (d) in any other case, the rail authority that owns the land, rail infrastructure facilities or railway building or in whom it is vested." (emphasis added)
12. Clause 2B was entitled "Provisions relating to vesting of rail infrastructure facilities in RailCorp". In particular, cl 2B(1) was the provision whereby rail infrastructure facilities became vested in RailCorp. By virtue of the definition of "owner" in cl 1(d), RailCorp was thereby the owner of all rail infrastructure facilities in the metropolitan area. "Metropolitan area" was defined in s 3A to mean the land shown as being within the metropolitan area on the metropolitan rail area map. There was no dispute that the Sydney to Newcastle line was in the metropolitan area.
13. Schedule 6A, cl 2D provided, relevantly: "2D General powers (1) An owner may, subject to this Act and the current NSW rail access undertaking, sell or otherwise deal with rail infrastructure facilities that it owns."

The Growth Centres Act

1. The Growth Centres Act was, relevantly, an Act relating to the growth and development of certain growth centres. A "growth centre" was defined in s 3 to mean "land for the time being described in a Part of Schedule 1". A "development corporation" was defined to mean "a corporation constituted under Part 2". Section 4, contained in Pt 2 of the Act, provided that there were constituted by the Act such development corporations as were specified from time to time in Schedule 1. Section 4(3) provided that: "The growth centre in respect of which a development corporation is constituted is the area of land described … in column 2 of Schedule 1 in relation to the development corporation."
2. HDC was named in Column 1 of Schedule 1 and was thus a "development corporation" for the purposes of the Act. Column 2 of Schedule 1 specified the land of the HDC growth centre as being, relevantly, "[a]ll those pieces or parcels of land within the local government [area] of … Newcastle".
3. Part 2, Div 2 was entitled "Constitution and procedure of development corporations". Section 6(2) provided: "6 Governance of development corporation … (2) In the exercise of its functions, a development corporation is, except where it makes a recommendation to the Minister, subject to the control and direction of the Minister." The direction by the Minister for Planning to HDC to acquire the subject land was given under this section.
4. Part 3 of the Growth Centres Act was entitled "Responsibilities, powers, authorities, duties and functions of development corporations". Section 7 provided, relevantly: "7 Responsibility etc of development corporation (1) Subject to this Act, a development corporation is charged with the responsibility of promoting, co-ordinating, managing and securing the orderly and economic development of the growth centre in respect of which it is constituted. (2) Without affecting the generality of subsection (1), a development corporation shall have and may exercise and discharge the following powers, authorities, duties and functions: (a) to submit to the Minister such proposals with respect to the development and use of land within the growth centre in respect of which it is constituted, or the planning of the development and use of that land, as it considers necessary or appropriate, including proposals for the development and use of land in conjunction with the provision of utility services and public transport facilities for or in connection with the growth centre, … (e) to exercise and discharge such other powers, authorities, duties and functions as are conferred or imposed on it by or under this or any other Act, and (f) to do such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise or discharge of its responsibilities, powers, authorities, duties and functions." (emphasis added)
5. The general powers of a development corporation were specified in s 8. They included, inter alia, causing any work to be done on land vested in the corporation.
6. Section 9 provided for a development corporation's power to acquire land: "9 Power to acquire land etc (1) A development corporation may, for the purposes of this Act, acquire land by agreement or by compulsory process in accordance with the [Just Terms Act]. …"
7. A development corporation was required by s 14, as soon as practicable after incorporation, to submit to the Minister the proposals referred to in s 7(2)(a). Sections 15, 16 and 17 then provided for the approval, variation and implementation of such schemes.
8. "Public authority" was defined in s 3 to mean "any public … authority constituted by or under an Act other than this Act". Section 30 provided: "30 Powers of public authorities Notwithstanding anything in any other Act, any public authority is hereby authorised and empowered to enter into agreements for the purposes of this Act with a corporation and may do or suffer anything necessary or expedient for carrying any such agreement into effect." This was said by the appellant to provide the power by which RailCorp agreed to the acquisition by HDC of the land and assets.

The Interpretation Act

1. Pursuant to the Interpretation Act, s 50: "50 Statutory corporations (1) A statutory corporation: (a) has perpetual succession, (b) shall have a seal, (c) may take proceedings and be proceeded against in its corporate name, (d) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and (e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions. … (4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted."

The Just Terms Act

1. The Just Terms Act provided the mechanism whereby a public authority may compulsorily acquire land: see s 3(1)(c). However, its provisions did not themselves confer power to do so; rather, it required that that power be sourced elsewhere: see s 5(1) and s 7(1).
2. Section 19(1) provided that an authority of the State authorised to acquire land by compulsory process may, with the approval of the Governor, declare by notice published in the Government Gazette that the land described in the notice is acquired by compulsory process.
3. Section 20 provided for the effect of an acquisition notice: "20 Effect of acquisition notice (1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act: (a) vested in the authority of the State acquiring the land, and (b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land. (1A) Subsection (1) is subject to any express provision of an Act that authorises the acquisition of land by compulsory process but preserves the operation of any trusts, restrictions, dedications, reservations, declarations, setting apart of or other matters relating to the land concerned."
4. Section 30, by which HDC acquired the relevant land, provided: "30 Compulsory acquisition with consent of owners (1) An authority of the State and the owners of land may agree in writing that the land be compulsorily acquired by that authority. (2) The provisions of Division 1 (Pre-acquisition procedures) and Part 3 (Compensation for acquisition of land) do not apply to any such compulsory acquisition if the owners have agreed in writing on all relevant matters concerning the compulsory acquisition and the compensation to be paid for the acquisition."

The Ministerial directions

1. The direction to HDC given on 17 December 2014 by the Minister for Planning was, relevantly, as follows: "This direction is made by the … Minister for Planning, pursuant to section 6(2) of [the Growth Centres Act], for the purpose of promoting, co-ordinating, managing and securing the orderly and economic development of land in the local government area of Newcastle. I direct [HDC] to exercise the following functions: (a) pursuant to section 9 of [the Growth Centres Act], promptly acquire the land specified in the Schedule (Land) … from [RailCorp] by compulsory process in accordance with the [Just Terms Act]; (b) pursuant to section 7 of [the Growth Centres Act], acquire any fixtures, fittings, improvements or rail infrastructure (Assets) located on the Land and not forming part of the Land as may be necessary or expedient for co-ordinating, managing and securing the orderly and economic development of the Land ..." (Blue 443)
2. The Land identified in the Schedule to the direction comprised a number of lots in various Deposited Plans which, essentially, constituted the rail corridor between Wickham and Newcastle stations.
3. The direction to RailCorp, made on 18 December 2014 by the Minister for Transport, directed, relevantly, as follows: "I … Minister for Transport, pursuant to section 3B(1)(a) of the Transport Administration Act 1988, DIRECT the Chief Executive of [RailCorp] to exercise the following functions: (a) Pursuant to clause 2D of schedule 6A of the Transport Administration Act 1988, sell to [HDC] all rail infrastructure facilities located on land specified in the Schedule owned by [RailCorp] (Land); and (b) Pursuant to section 30(1) of the [Just Terms Act], enter into an agreement with [HDC] in relation to the compulsory acquisition of the Land by [HDC]."

The Asset Sale Agreement

1. The Asset Sale Agreement, dated 19 December 2014, recited that RailCorp agreed to sell and HDC agreed to purchase the assets located on the land, for the purposes set out in s 7 of the Growth Centres Act and on the terms set out in the agreement.
2. "Assets" was defined in cl 1.1 to mean "the assets specified in Schedule 1 and located on the Land" and "any asset ancillary to, or associated with, an asset identified in Schedule 1 and located on the Land". "Land" was the land identified in Schedule 2. Schedule 1 was amended by the deed entered into on 25 December 2014 (see above at [8]), with the effect that the only asset transferred was the overhead wiring and cabling associated with providing power to trains. The distance on the Land over which the overhead wiring ran was 780 m.
3. Schedule 2 specified the Land by reference to lots in specified Deposited Plans, as described above at [47].
4. The sale was to have effect from the "Effective Date", defined as 26 December 2014.
5. Clause 2.1 of the Asset Sale Agreement provided for the sale of the assets in the following terms: "On and from the Effective Date: (a) RailCorp agrees to sell and HDC agrees to buy the Assets free from all Encumbrances but subject to the terms and conditions of this agreement. (b) RailCorp will deliver to HDC any certificates of registration or title documents to the Assets in the possession of RailCorp. (c) RailCorp will deliver to HDC any document which is necessary to transfer the Assets to HDC."
6. Pursuant to cl 3.4(a), HDC warranted that it "[took] the Assets subject to their condition as at the Effective Date". Under cl 3.4(b), HDC warranted that as and from the Effective Date, it had responsibility for any ongoing maintenance and upkeep of the Assets and was entitled to remove any Assets from the Land and deal with them as it saw fit. This clause, in effect, constituted a notional delivery of the Assets to HDC.

The Acquisition Agreement

1. The Acquisition Agreement was also entered into by RailCorp and HDC on 19 December 2014. The section of the Acquisition Agreement entitled "Background" stated that Cabinet had approved the compulsory acquisition of the Land by HDC and the sale of the Remaining Assets by RailCorp to HDC. It stated that the responsible Minister for each party had directed each to cooperate to facilitate the implementation of the Program. The Program was defined in cl 1.1 to mean the Newcastle Urban Renewal and Transport Program.
2. The Background section also made reference to HDC's responsibility under s 7 of the Growth Centres Act and stated that HDC had the power to acquire land, including by compulsory process, in accordance with the Just Terms Act. It also stated that, under s 30 of the Just Terms Act, the parties had agreed that HDC would acquire the Land in accordance with the terms of the agreement.
3. "Land" was defined to mean the land identified in Schedule 1, being the same land specified in Schedule 1 to the Asset Sale Agreement.
4. "RailCorp Assets" and "Remaining Assets" were defined as follows: "RailCorp Assets means all the assets on the Land as at the Acquisition Date which have not been transferred to HDC prior to the Acquisition Date. Remaining Assets means all the remaining assets and chattels (including but not limited to any rail infrastructure facilities) which are, at the Acquisition Date, both owned by RailCorp and located on the Land, and which do not vest in HDC by reason of the acquisition of the Land under clause 2 of this agreement."
5. Clause 2 governed the acquisition of the Land. Clause 2.1 provided that pursuant to s 30 of the Just Terms Act, the agreement recorded the parties' agreement on all relevant matters concerning the compulsory acquisition of the Land. The parties also acknowledged that the approval of the Governor was required before an acquisition notice could be published under s 19 of the Just Terms Act.
6. Clause 2.2 provided as follows: "Acquisition (a) RailCorp consents to HDC acquiring the Land by publication of an acquisition notice in accordance with section 19 of the [Just Terms Act] on the terms set out in the Acquisition Notice, subject to any modification required by the Governor, provided that any such modification does not vary the land to be acquired and the interests which are excluded from the acquisition. (b) HDC agrees that it will use reasonable endeavours to obtain the Governor's approval and publish the Acquisition Notice, as modified under clause 2.2(a), as soon as possible. (c) For the avoidance of doubt, RailCorp and HDC further agree that the acquisition of the Land will: (i) vest title in the RailCorp Assets to HDC to the extent permitted at law; and (ii) exclude the Excluded Interests."
7. Clause 3 dealt with the acquisition of the Remaining Assets. In brief, it provided that on and from the Acquisition Date, defined to mean the date on which an acquisition notice was published in the Gazette in accordance within cl 2 of the Acquisition Agreement, RailCorp agreed to sell and HDC agreed to buy the Remaining Assets free from all encumbrances. RailCorp also agreed to deliver any certificates of registration or title documents to the Remaining Assets and to deliver any document necessary to transfer the Remaining Assets to HDC.
8. Clause 9 entitled HDC to sell or transfer the Land or part of it or to grant a lease, licence or other occupation right subject to the terms specified in the clause.

Reasons of the primary judge

1. In the hearing at first instance, Save Our Rail contended that the transfer to HDC of land owned by RailCorp was invalid because of the provisions of s 99A of the Transport Administration Act. Its first contention was that, by the transfer, the land was "sold or otherwise disposed of" for the purposes of s 99A(2).
2. The primary judge held that the phrase "or otherwise disposed of" in s 99A(2) did not extend to the divestment of property by compulsory acquisition. At [14], his Honour held that he was: "… not satisfied that context [of the Transport Administration Act] requires the phrase 'or otherwise disposed of' to be given a meaning so markedly differing from ordinary usage as to cover divestment by compulsory acquisition."
3. His Honour further held, at [17], that what had occurred in the present case was not done by "agreement" within the meaning of s 9 of the Growth Centres Act, as the relevant agreement was made pursuant to s 30 of the Just Terms Act as part of a compulsory process. His Honour concluded, therefore, at [18], that HDC's acquisition of the subject land did not occur as a result of a sale or disposal of the land within the meaning of s 99A(2) of the Transport Administration Act.
4. His Honour next considered whether HDC was a "rail infrastructure owner" for the purposes of s 99A(1) and if so, whether, as a result of its acquisition of the assets subject of the Asset Sale Agreement, there had been a closure of a railway line within the meaning of that section. If both those matters were determined against HDC, it would have acted in contravention of s 99A(1), as there was no Act of Parliament authorising the closure.
5. His Honour, at [24], concluded that HDC was a "rail infrastructure owner" because, although the facilities that it had acquired under the Asset Sale Agreement had not been vested in it "by" the Transport Administration Act, ownership of the facilities had been vested "under" that Act: see definition in s 3. In his Honour's view, the agreement for the sale of the Assets was entered into by RailCorp pursuant to its authority as "owner" to do so: see Sch 6A, cl 2D (set out above at [32]). In reaching this conclusion, his Honour, at [25]-[26], rejected HDC's submission that the Asset Sale Agreement was made under ss 9 and 30 of the Growth Centres Act, rather than under the Transport Administration Act. His Honour reasoned that the more particular operation of the Transport Administration Act prevailed over the general expressions of the Growth Centres Act.

First issue on the appeal: was HDC a "rail infrastructure owner" by reason of its acquisition of the assets under the Asset Sale Agreement?

Submissions

1. HDC submitted that the primary judge erred in finding both that the Asset Sale Agreement effected a vesting of the Assets in HDC and that the Asset Sale Agreement was entered into by RailCorp "by or under" the Transport Administration Act. If either of those arguments was correct, it followed that HDC would not be a "rail infrastructure owner" and s 99A would have no application.
2. HDC submitted that, although the word "vest" had a protean or elastic meaning, statutes providing for the vesting of land in a public authority usually employed the word "vest" to mean the statutory conferral of power or control over property by the public authority, without the need for formal conveyance: see Attorney-General (Québec) v Attorney-General (Canada) [1921] 1 AC 404 at 409; Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [225]. HDC accepted that whether the word "vest" in a statute did more than confer power or control in the sense just described depended upon the statutory provision in question.
3. HDC submitted that it was apparent from various provisions in the Transport Administration Act that "vest" was used in the sense described in the preceding paragraph. HDC pointed to s 94 as one such provision whereby assets were transferred and vested in, for example, a rail authority, by operation of law unconnected with any direct act of the party to or from whom the property was transferred: see s 94 and Schedule 4, cl 3 set out above at [26]-[27].
4. HDC further pointed out that the Transport Administration Act drew a distinction between vesting and transfer, and between vesting and ownership. Not every asset held under the Act was vested in a rail infrastructure owner. For example, pursuant to s 97, the Minister was empowered to direct that specified facilities "that are vested in or owned by a rail infrastructure owner are to be treated as rail infrastructure facilities". HDC also pointed to a distinction drawn in various provisions of Schedule 6A to assets that were "owned" rather than "vested". For example, the distinction was drawn in the definition of "owner": see cl 1(d), above, at [30]. Clause 2A provided that RailCorp was the "owner" of "all rail infrastructure facilities … vested in or transferred to RailCorp".
5. HDC's principal submission, however, was that "by or under" in the context of a statute usually means a transaction or result that is effected by a statutory provision or as a consequence of delegated legislation or ministerial order: see Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 413, 442; Tauszik v Gosford City Council [2006] NSWCCA 193; 146 LGERA 428 at [58].
6. HDC contended that although Sch 6A, cl 2D empowered RailCorp to sell rail infrastructure facilities that it owned, there was nothing in the Act that provided directly for the vesting of those facilities in HDC. Rather, the means by which ownership was to be transferred to HDC was contractual. HDC referred to the analogous approach taken to the phrase "made under" an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Griffith University v Tang [2005] HCA 7; 221 CLR 99, at [81], where Gummow, Callinan and Heydon JJ stated: "If the decision derives its capacity to bind from contract or some other private law source, then the decision is not 'made under' the enactment in question."
7. HDC submitted that its acquisition of the Assets was pursuant to the Growth Centres Act, s 7(2)(f), as confirmed by the terms of the Ministerial direction. It followed, on this submission, that ownership of the Assets was not transferred or vested under the Transport Administration Act because the acquisition of the assets was solely authorised by s 7(2)(f).
8. HDC argued, alternatively, that the result was the same even if s 99A directed attention to the position of RailCorp as vendor, rather than the position of HDC as purchaser, as s 30 of the Growth Centres Act authorised and empowered RailCorp to enter into the Asset Sale Agreement. On this argument, s 30 was itself a sufficient source of power for RailCorp to enter into the Asset Sale Agreement and its opening words, "[n]otwithstanding anything in any other Act", were sufficient to displace the operation of s 99A.
9. In support of this argument, HDC referred to the judgment of Fullagar J in dissent in Butler v Attorney-General (Vic) [1961] HCA 32; 106 CLR 268 in which his Honour considered the effect of subs 3(1) of the Discharged Servicemen's Preference Act 1943 (Vic), which provided that: "The provisions of this Act shall take effect notwithstanding anything to the contrary in any Act or enactment or in any regulation by-law or determination thereunder or in any contract or agreement."
10. Fullagar J accepted that a later Act might theoretically be inconsistent with the Preference Act, with the effect that notwithstanding s 3 the Preference Act was impliedly overridden. However, his Honour held, at 277, that he: "… would not think that such inconsistency could be found unless the later Act itself contained a provision in similar words or otherwise clearly indicated a specific intention to deny the effect of s. 3(1). … To any argument that the process of construction should lead to the conclusion that the later Act abrogated the earlier, it must surely be a decisive answer that the earlier Act contains, and the later Act does not contain, an express provision that it is to have effect notwithstanding anything in any other Act." See also Kelly v Commissioner of the Department of Corrective Services [2001] NSWCA 148; 52 NSWLR 533 at [45].
11. The second respondent (the Minister administering the Transport Administration Act), the third respondent (RailCorp) and the fourth respondent (Transport for NSW) (together, the Rail Parties) supported HDC's submission that RailCorp was empowered to enter into the agreement pursuant to s 30 of the Growth Centres Act. They contended that this was so notwithstanding that the Ministerial direction was expressed in terms of the Transport Administration Act: see Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31 at 85 per Cole JA, Lockwood v Commonwealth [1954] HCA 31; 90 CLR 177 at 184; Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408 at 469.
12. In essence, the Rail Parties submitted that: (i) HDC was directed by the Minister to acquire the infrastructure under s 7 of the Growth Centres Act; (ii) the Asset Sale Agreement stated that the acquisition was under s 7; (iii) s 7 was a sufficient source of power for HDC's acquisition; and (iv) the transfer of title to the assets occurred not by an order to which Schedule 4 of the Transport Administration Act applied, but by virtue of the Asset Sale Agreement. The arrangement so effected was not subject to any deemed vesting by virtue of the Transport Administration Act. The Rail Parties also contended that HDC's entry into the Asset Sale Agreement was authorised by s 30 of the Growth Centres Act, quite independently of the operation of s 7.
13. The Rail Parties also supported HDC's submission that there was no vesting of the rail infrastructure "by or under" the Transport Administration Act. They submitted that not every transfer of property by RailCorp involved vesting and not every owner of property is "vested" with that property under the Transport Administration Act. They referred, by way of example, to the most unlikely scenario that, on the primary judge's interpretation, the sale of obsolete infrastructure as scrap metal would vest that asset in the purchaser such as to make the purchaser "a rail infrastructure owner" under the Act.
14. The Rail Parties advanced a further argument to the effect that the assets could only be vested "by or under" the Transport Administration Act if RailCorp on the one hand was empowered by the Act to sell the assets and HDC, on the other, was empowered by the Act to acquire them. Even if RailCorp had sold the assets "under" the Act, HDC was not empowered to acquire the assets by or under the Transport Administration Act, as its power to acquire the assets derived only from the Growth Centres Act. The Rail Parties submitted, therefore, that even if a broad construction was given to the phrase "under", as the primary judge appeared to have done, to mean "authorised or carried out pursuant to", HDC would still not have become a "rail infrastructure owner" by reason of the transfer of the assets.
15. Save Our Rail's submissions focussed on the comprehensive and heavily regulated scheme under the Transport Administration Act for dealing with the rights and obligations of an owner of "railway infrastructure". It contended that HDC's focus on its power to acquire the assets under the Growth Centres Act was artificial and misplaced, and that no part of the definition of "rail infrastructure owner" could be construed as imposing the requirement that the person in whom the assets were vested had taken a step to acquire them under the Transport Administration Act.
16. Save Our Rail further submitted that RailCorp had conceded in its submission outlined above, at [72], that "by or under", in the definition of "rail infrastructure owner", could include a "transaction or result ... as a consequence of … Ministerial Order" and that was what had occurred here, namely, that the Asset Sale Agreement was entered into as a result of a Ministerial order under s 3B of the Transport Administration Act.
17. Save Our Rail contended that the finding in Griffith University v Tang, that a decision would not be "made under" an enactment if it derived its capacity to bind from the private law, was not apposite to the present case. It submitted that the phrase "decision under an enactment" was a term of art, the interpretation of which was of little assistance outside the context of administrative law. Furthermore, it contended that Griffith University v Tang related to the situation in which a statute granted a body authority to do something that, under the general law, a person generally had power to do, namely, to enter into contracts. By contrast, the Transport Administration Act, Schedule 6A, cl 2D, gave RailCorp permission to do a thing which could not otherwise be done, being to dispose of a form of public property which was integral to the objects of the Act.
18. In support of its submission that RailCorp should not be considered to have relevantly derived its power to enter into the Asset Sale Agreement from the general law, Save Our Rail relied on the authority of Chief Commissioner of State Revenue v Pacific National (ACT) Limited [2007] NSWCA 325. In that case, at [68], Basten JA held that in analysing the source of a power conferred on a statutory authority: "The correct approach is to identify the nature of any power or interest conferred on a statutory authority pursuant to its constituting regime, or any other Act relevant to it, and to identify such consequences as may flow from that scheme without assuming that the legal consequences will be those which would flow from an analogous general law categorisation of the power or interest." (emphasis added) An appeal from that case was dismissed by the High Court in Asciano Services Pty Limited v Chief Commissioner of State Revenue (NSW) [2008] HCA 46; 235 CLR 602, citing Basten JA's formulation of principle at [21].

Consideration

1. It is convenient to deal first with Save Our Rail's submission that the Asset Sale Agreement was entered into pursuant to a Ministerial order. That was not the case. Rather, RailCorp entered into the Asset Sale Agreement pursuant to the direction of the Minister to which it was subject under s 3B of the Transport Administration Act. Such a direction operates differently from a Ministerial order. This is apparent from s 94 and Schedule 4. Under s 94, a Minister may "by order" direct that assets be transferred. Schedule 4, cl 2 provided that Schedule 4 applies to an order under s 94 "transferring assets". Schedule 4, cl 3 provided that when assets are transferred by an order, the assets "vest" in the transferee without the need for further conveyance, assurance, or the like. In the present case, by contrast, the direction to RailCorp to exercise its powers under Schedule 6A, cl 2D to sell rail infrastructure assets did not, of itself, effect a transfer to, or a vesting of assets in, HDC. It required that ownership be transferred by a process of sale.
2. The phrase "by or under", like the phrase "vest", has a protean quality and its meaning "must be ascertained not by reference to authority but by reference to the text and context" of the provision in question: Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; 169 CLR 332 at 342; see also Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37 at [96].
3. HDC was correct in its submission that vesting "under" the Transport Administration Act requires that the vesting occurs by the operation of the Act itself. HDC was also correct to distinguish between vesting, transfer, and ownership under the Act. I have explained the different operation of a direction under s 3B and a Ministerial order under s 94. Under the former, there was nothing in the Act whereby an asset was vested in an entity. By contrast, the effect of a Ministerial order under s 94, by operation of Schedule 4, was both to transfer the asset and vest it in the transferee. There were other provisions in the Transport Administration Act which similarly provided for vesting as well as transfer. Provision was made for a Ministerial order to direct that assets be transferred from one entity to another: see Schedule 7, Pt 5, cls 70, 71. Schedule 4 applied to each provision such that the order resulted in vesting. Schedule 7, Pt 9, cl 108 contained a similar provision in relation to the transfer of assets of specified entities. Schedule 7, Pt 7 operated differently. Clause 89 provided that Rail Infrastructure Corporation was to be a continuation of and the same legal entity as Rail Access Corporation and Rail Services Australia and that their assets were its assets. It follows from this analysis that the transfer of assets which are subject to the Act, even if the power to transfer is, in part, to be found in the provisions of the Act, does not necessarily result in the "vesting" of those assets under the Act.
4. In my opinion, the effect of the Ministerial direction to RailCorp given on 18 December 2014 was to require it to exercise its power to sell the assets to HDC. I agree with the trial judge that RailCorp's power to sell the assets was derived from Sch 6A, cl 2D of the Transport Administration Act, rather than s 30 of the Growth Centres Act. This is not to deny that s 30 may be a source of such power. It was simply not the source of the power that was exercised on this occasion. That being so, the argument advanced based on the reasons of Fullagar J in Butler v Attorney General is not to the point.
5. Even if I am wrong in that conclusion, I do not consider that s 30 of the Growth Centres Act would have the effect for which HDC and the Rail parties contend. Section 30 empowers a public authority to enter into agreements for the purposes of that Act. Section 99A prohibits the closure of a railway line without parliamentary authority. It is apparent, therefore, that the two sections operate differentially and do not conflict. Section 99A does not prohibit the entry into an agreement by a public authority for the purposes of the Growth Centres Act. But in any event, to the extent that the provisions are inconsistent, the more particular provision in s 99A would prevail: see Butler v Attorney General, per Kitto J at 280-181; Taylor J at 283; and Menzies J at 286.
6. The effect of the Ministerial direction given to HDC on 17 December 2014 was more straightforward. It required HDC to exercise its power under s 7 of the Growth Centres Act to acquire the assets. No element of that aspect of the transaction involved the Transport Administration Act.
7. The transfer was effected pursuant to and in accordance with the Asset Sale Agreement. That agreement was given legal effect by the combination of the statutory powers under which HDC and RailCorp entered into the agreement and the general law.
8. It follows from the above that the assets did not "vest" pursuant to the Transport Administration Act and that HDC did not acquire rail infrastructure facilities "by or under" the Act. I have accepted Save Our Rail's submission that the power of RailCorp to enter into the Asset Sale Agreement arose "under" the Act. However, that was one side only of the arrangement. HDC, for its part, was required to acquire the assets in order to take ownership of them. Whilst it is correct to state that with ownership came vesting, the assets did not vest in HDC under the Act. Rather, the vesting was pursuant to the Asset Sale Agreement, which HDC entered into pursuant to s 7 of the Growth Centres Act. Notwithstanding its different context, Griffith University v Tang provides some support for this construction: see above at [84].
9. I am therefore of the opinion that HDC's acquisition of rail infrastructure facilities did not make it a "rail infrastructure owner" within the meaning of the Transport Administration Act. The primary judge erred in concluding otherwise.

Second issue on the appeal: would the proposed removal of the assets constitute a closure of a "railway line"?

1. Stated in simple terms, HDC's position was that as the railway line between Sydney and Newcastle will remain in operation, albeit truncated by two stations, the proposed removal of assets could not effect a closure of a railway line and hence could not result in infringement of s 99A. Whether that is so depends upon the proper construction of s 99A and, particularly, of the phrase "railway line" in that section. This requires consideration of the text of the legislation, having regard to its context and statutory purpose: see Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[25].
2. "Railway line" was not defined in the Transport Administration Act. "NSW Rail Network" was defined in the terms set out above at [20], but does not shed any useful light on the question.
3. As a matter of ordinary language, "railway line" has various meanings, including a "strip of railway track, a railway or a railway system": see the definition of "line" in the Macquarie Dictionary. The Oxford English Dictionary contains a similar definition. On the first of these meanings, the closure of that section of the railway line between Wickham and Newcastle, being the closure of a "strip of railway track", might fall within s 99A.
4. HDC submitted, however, that there were other indications that "railway line" in s 99A meant the whole of the line, from the city or area where it begins to the city or area where it ends. It referred to the plan of the rail network from which it can be discerned that the Newcastle Rail Line is a branch line off the main North Rail Line from Sydney to Wallangara on the Queensland border. There are other main lines, namely, the North Coast Line, the Broken Hill Line, the Main Western Line, the Main South Line and the Illawarra Line.
5. In my opinion, the closure of a railway line within the meaning of s 99A does not include the closure of a small section of track if the line still operates between the same cities or areas, albeit to or from different places within the relevant city or area. In each case whether this remains so will be a question of degree to be addressed as a matter of substance. The status and functions of RailCorp are outlined above at [24]-[25]. Implicit in subs 6(3) of the Transport Administration Act was the proposition that RailCorp had a power to "alter or discontinue" railway passenger services. Importantly, however, by s 99A, the additional step of requiring an Act of Parliament applied only to the closure of a railway line. The reason for this is obvious. The delivery of major passenger rail services to the State involves important public policy considerations. To close a railway line so that rail transport between major cities or regions became unavailable would be likely to have a significant effect on the economy and on the social welfare of the citizens of the State. This, in effect, is recognised in s 99A by requiring that such action must be subject to Parliamentary approval. To foreshorten a railway passenger service within a metropolitan region by a few kilometres, whilst potentially giving rise to inconvenience to passengers, does not have the same public policy implications calling for parliamentary oversight.
6. In the present case, the transfer of the overhead wiring to HDC, in my opinion, only effected an alteration of its railway passenger service from Sydney to Newcastle by causing the Newcastle Line to terminate two railway stops before the centre of Newcastle, but nonetheless, still at or within Newcastle. It would be no different if it was decided that the Newcastle Line commenced in Sydney at Wynyard rather than Central. It could not be said, in that circumstance, that the Newcastle Line had been closed because it went from Wynyard to Newcastle, two stations earlier than previously.
7. Save Our Rail contended that, on such a restricted construction of "railway line", the whole purpose of s 99A could be evaded by truncating the Newcastle Line, commencing at Central, for instance, at Redfern Station. This reduces the argument to absurdity. It would, in effect, mean that the constraint in s 99A could be avoided by maintaining the name "Sydney to Newcastle" whilst terminating the line one station from its commencement. The Act is directed to the closure of a railway line. The example used by Save Our Rail would constitute in a real and practical sense closure of the line between Sydney and the city of Newcastle such that s 99A would apply.

Submissions

1. Before the primary judge, Save Our Rail contended that the subject land had been disposed of in the course of the transfer from RailCorp to HDC, with the effect that the railway line had been closed at that time without statutory authorisation. On the cross-appeal, Save Our Rail contended that his Honour erred in construing the words "otherwise disposed of" in s 99A(2) of the Transport Administration Act as not encompassing an alienation of the relevant land by compulsory acquisition in the manner which occurred in the present case.
2. In coming to his conclusion, the primary judge expressed his agreement with the remarks of Fullagar J in Henty House Pty Ltd (In Voluntary Liquidation) v Federal Commissioner of Taxation [1953] HCA 54; 88 CLR 141 who stated, at 157, that the phrase "disposed of" did not "cover a case in which a person is deprived of his property against his will or without his consent", that is, by compulsory acquisition.
3. In that case, land owned by the appellant was compulsorily acquired by the Commonwealth pursuant to the provisions of the Lands Acquisition Act 1906 (Cth). Section 59 of the Income Tax Assessment Act 1936 (Cth) provided for an adjustment in respect of property of a taxpayer which was "disposed of, lost or destroyed". As in the present case, the issue was whether the acquisition amounted to a disposal of property for the purposes of the statute.
4. The majority (Williams ACJ, Webb, Kitto and Taylor JJ), given the purposes of s 59, held at 151 that: "Nothing but quite intractable language could justify us in placing upon provisions of the character which s. 59 exhibits a construction producing so capricious a result as its inapplicability to cases of involuntary alienation."
5. Their Honours went on, at 151-2, to analyse the language of the section in the following terms: "But the language used is by no means intractable. No doubt the notion primarily conveyed by the words 'disposed of' is the notion of a disposition by the taxpayer; but it is not necessarily so confined, and the use of the passive voice, without specific words of restriction referring to the person by whose act the disposal takes place, leaves ample room for a construction in keeping with the general tenor of the section, and with its place in the scheme which ss. 54 to 62 provide. The entire expression 'disposed of, lost or destroyed' is apt to embrace every event by which property ceases to be available to the taxpayer for use for the purpose of producing assessable income, either because it ceases to be his, or because it ceases to be physically accessible to him, or because it ceases to exist. In the context of s. 59 there is ample reason for rejecting a narrower construction. In particular, the words 'is disposed of' are wide enough to cover all forms of alienation, as Dixon and Fullagar JJ. remarked in Federal Commissioner of Taxation v. Wade [1951] HCA 66; (1951) 84 CLR 105, at p 110 and they should be understood as meaning no less than 'becomes alienated from the taxpayer', whether it is by him or by another that the act of alienation is done. Neither the words themselves nor the setting in which they appear afford any support for the view that cases of involuntary alienation fall outside their meaning."
6. Fullagar J, who agreed in the result with the majority, commented, at 156, that: "The term 'disposed of' is not a technical term, and its 'ordinary' or 'popular' meaning does not, to my mind, cover a case in which a person is deprived of his property against his will or without his consent. If A's house were compulsorily acquired by the Crown or by a public authority, he would not say 'I have disposed of my house' or 'My house has been disposed of'. The idea of ordering, managing, controlling, arranging, the idea of the exercise of an existing power over a thing, is generally inherent in the word 'dispose' itself, and this essential idea is not lost when the word is used with a preposition to denote an act of alienation or creation of a new interest in property."
7. The trial judge in the present case, at [11], expressly agreed with Fullagar J's findings on the ordinary meaning of "disposed of". However, as Save Our Rail noted, Fullagar J's comments at 156 were strictly obiter. The ratio of his Honour's judgment was expressed at 157, as follows: "… I would not deny that the words 'disposed of' may, in an appropriate context, properly be given a wider meaning than what I regard as their normal meaning. In the present case we have a provision for adjustment which may operate either in favour of the taxpayer or in favour of the revenue. One would certainly expect to find all cases of alienation covered. No reason suggests itself for distinguishing between a voluntary alienation and a compulsory acquisition. And I think that the case of Smith v. Federal Commissioner of Taxation [1932] HCA 44; (1932) 48 CLR 178 justifies, if it does not compel, reading the words in s.59 of the Income Tax Assessment Act 1936-1948 as including a case of compulsory acquisition on payment of compensation."
8. Save Our Rail contended that there was no reason to depart from the wide meaning given to the expression "disposed of" by the High Court, particularly given that the expression "otherwise disposed of", in s 99A, was arguably a notion of still broader import. It contended that the phrase in s 99A should be read to mean "becomes alienated from the rail infrastructure owner", and that that construction was consistent with the scheme of the Act, which provided that only infrastructure owners should own rail infrastructure.
9. HDC submitted that Henty House was distinguishable, as it related to the different context of a revenue statute, and that it was therefore open to the trial judge to apply Fullagar J's obiter reasoning rather than the ratio of the case.
10. Further, HDC contended that even if the phrase "otherwise disposed of" was interpreted to extend to the compulsory acquisition of the subject land, s 99A was not engaged. In a submission supported by the Rail Parties, it contended that the prohibition in s 99A was directed only to a "rail infrastructure owner", and that the owner does not "close a railway line", for the purposes of subs (1) unless the "land concerned is sold or otherwise disposed of", pursuant to subs (2), by the rail infrastructure owner (being, relevantly, RailCorp). On this submission, any disposal that occurred was by way of statutory process under the Just Terms Act. RailCorp's entry into the Acquisition Agreement did nothing more than provide consent to that process, and did not itself effect any disposal.
11. This submission relied on a contention that s 99A(2) was definitional only, and was subservient to subs (1). So much was said to follow from the opening clause of subs (2), "[f]or the purposes of this section". Save Our Rail, in response, contended that subs (2) was exemplary, rather than definitional. On this contention, as I understand it, RailCorp would be seen to have closed a railway line even if the disposal that effected that closure was attributable to HDC or to a statutory process.

Consideration

1. The cross-appeal raised two issues: first, whether a compulsory acquisition constituted a disposal of land within the meaning of s 99A; secondly, whether the phrase "the land concerned" in subs (2) referred to a small section of land or whether, alternatively, it was governed by the phrase "the railway line".
2. In my opinion, s 99A(2) is definitional and provides for circumstances in which a rail infrastructure owner may relevantly "close a railway line". There is nothing in the text, context or purpose so as to support Save Our Rail's contention that it is exemplary only, which strains against the ordinary meaning of the opening clause of subs (2). It follows that "disposed of" in s 99A(2) extends only to a disposal by the rail infrastructure owner. Nonetheless, the question remains whether consent to a compulsory acquisition amounts to a disposal by the owner.
3. I would be inclined, with some hesitation, to interpret "otherwise disposed of" in s 99A as extending to compulsory acquisition under the Just Terms Act. The purpose of s 99A, as discussed above at [99], was to limit the power of the executive to take the major step of closing a railway line. Nothing in this purpose militates in favour of rendering it inapplicable in cases of compulsory acquisition. Such an acquisition could have very substantial impact on the management of public transport in the State, and would seem, therefore, to be a matter on which the legislature has, by s 99A, retained control.
4. Henty House relates to a different statutory context and is not, therefore, directly applicable to this case. However, much of the reasoning of the majority and of the ratio of Fullagar J's judgment is apposite. I accept that the ordinary meaning of "disposed of" is not apt to extend to compulsory acquisition. However, as was noted in Henty House, it is a term which may embrace a wider meaning. A purposive reading of the Transport Administration Act and of s 99A in particular would seem to compel that wider interpretation.
5. However, it is not necessary to express a concluded view on the extent of "otherwise disposed of" in light of my conclusions relating to the second issue raised by the cross-appeal.
6. Having regard to what has already been said in relation to the appeal, that issue may be answered shortly. In my opinion, "the land concerned" must refer to the land upon which there is a "railway line". There is nothing else in s 99A from which the phrase could draw meaning. It follows that if I am correct in my understanding of the meaning of "railway line" in s 99A: see above at [100], then the disposal of the small section of land comprising the rail corridor between Wickham and Newcastle Station will not result in the closure of a railway line. As such, while I am inclined to think that the limitation in s 99A applies to a compulsory acquisition, that limitation was not engaged in the present case.
7. It follows that the cross-appeal must be dismissed.

Costs

1. On the material presently before the Court, there is nothing to displace the ordinary principle that costs should follow the event. However, in giving effect to that principle regard must be had to the circumstance that the second, third and fourth respondents, the Rail Parties, were for all practical purposes in the camp of the appellant and have therefore been successful in the litigation.
2. It follows that Save Our Rail should pay each of the other parties' costs in the court below and of the appeal and the cross-appeal. If there is some reason why that should not be so, it may seek a variation of the orders pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.16 in the usual way.

Additional comments

1. These reasons were substantially prepared prior to the enactment of the Transport Administration Amendment (Closure of Railway Line at Newcastle) Act 2015 (NSW). There is nothing in the legislation which would cause me to change my reasons on the appeal and cross-appeal as argued. However, it should be noted that the legislation renders the proceedings moot except as to costs.

Conclusion

1. I propose the following orders: 1. Appeal allowed; 2. Set aside the declaration of Adams J made on 24 December 2014; 3. First respondent's summons dated 19 December 2014 dismissed; 4. Cross-appeal dismissed; 5. First respondent to pay the appellant's costs in the court below and its costs of the appeal and the cross-appeal; 6. First respondent to pay the second, third and fourth respondents' costs in the court below and their costs of the appeal and the cross-appeal.
2. MACFARLAN JA: I agree with the judgment of Beazley ACJ and add the following observations in relation to HDC's appeal.
3. I agree that HDC did not become a "rail infrastructure owner". To have become that, rail infrastructure facilities would have had to have been "vested by or under" the Transport Administration Act in HDC (see (c) of the definition of "rail infrastructure owner" in s 3 of the Act). In the present case, HDC acquired the facilities as a result of the exercise by RailCorp, at the direction of the Minister, of the power of sale conferred on it by clause 2D of Schedule 6A of the Act. As Beazley ACJ demonstrates, the Act provides elsewhere for the transfer of property by vesting, for example, as a result of an order by the Minister under s 94 of the Act (see clause 3 of Schedule 4). Here, HDC acquired the property under a private law contract, not as a result of a vesting brought about by the operation of the Act. A distinction of this character was drawn, in a different context, in Griffith University v Tang [2005] HCA 7; 221 CLR 99 at [81] where the plurality said: "If the decision derives its capacity to bind from contract or some other private law source, then the decision is not 'made under' the enactment in question …"
4. MEAGHER JA: I also agree with the judgment of Beazley ACJ and the orders that her Honour proposes.

Amendments 12 November 2015 - Typographical errors corrected: catchwords, [42], [99], [124], [125], [126] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2015