(iv) The applicants' submissions
304 Counsel for Telstra drew attention to the structure of the New South Wales Local Government Act. The Act is divided into 18 Chapters, some of which contain material of general application throughout the statute and some of which are concerned with particular council functions.
305 Counsel referred to the purposes of the Act, as set out in s7. That section reads:
"The purposes of this Act are as follows:
(a) to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales,
(b) to regulate the relationships between the people and bodies comprising the system of local government in New South Wales,
(c) to encourage and assist the effective participation of local communities in the affairs of local government,
(d) to give councils:
· the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public
· the responsibility for administering some regulatory systems under this Act
· a role in the management, improvement and development of the resources of their areas,
(e) to require councils, councillors and council employees to have regard to the principles of ecologically sustainable development in carrying out their responsibilities."
306 Counsel also mentioneds8, which sets out the charter of each council. It is sufficient to note the charter includes:
". to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively
…
. to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development
. to have regard to the long term and cumulative effects of its decisions
. to bear in mind that it is the custodian and trustee of public assets and to effectively account for and manage the assets for which it is responsible
…
. to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants
…"
307 Subsection (2) of s8 requires a council "in the exercise of its functions" to "pursue its charter".
308 Chapter 5 of the Act refers to functions of councils. However, it does not list them. Rather, it provides that a council has the functions conferred or imposed on it by or under the Local Government Act itself (see s21) or any other Act or law (see s22). Section 23 provides that a "council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions".
309 Chapter 6 concerns the service functions of councils; that is, the provision of goods, services or facilities, and the carrying out of activities, "appropriate to the current and future needs within its local community and of the wider public", subject to relevant laws.
310 Chapter 7 deals with councils' regulatory functions. Chapter 8 concerns ancillary functions.
311 It is unnecessary to refer to Chapters 9 to 14, which concern the constitution of councils, their governance, staffing, organisation and accountability. However, Chapter 15 is important. It deals with finance and authorises the imposition of rates, fees and charges, including charges under s611. Chapter 16 creates certain offences. Chapter 17 deals with enforcement and Chapter 18 contains miscellaneous provisions.
312 Counsel for Telstra submitted that the evidence as to the activities of LGA, and of the respondent New South Wales councils, in relation to s611 charges on telecommunications carriers, demonstrates that "each of the NSW councils, in resolving to make and levy the charge, acted in accordance with the advice, recommendations and urgings of the LGA", and that "in so doing the NSW councils … adopted the purposes of the LGA in ensuring that the councils made and levied the charge". Counsel say this was done expressly in the case of every council except Leichhardt Council, and implicitly by Leichhardt. They claim "the NSW councils were acting in concert with each other and the LGA. On this basis, their common knowledge and common purposes must inform any consideration of the evidence for the purposes of the claim that they each acted for an extraneous purpose".
313 Counsel for Telstra argue the evidence demonstrates that:
"(a) The NSW councils did not make and levy the charges for the purpose of raising revenue. Indeed, that purpose was:
(i) never expressly referred to in the resolutions of the various meetings of Mayors … or … Councils identified in [the evidence] as an object of the charging strategy; and
(ii) was expressly disavowed on more than on occasion:
(b) The NSW councils did make and levy the charge for the following purposes:
(i) to act as a disincentive to any further rollout of aerial broadband cables and to act as an incentive for the undergrounding of existing aerial broadband cables, by imposing a financial burden on such cables …
(ii) by reason of (i), to respond to perceived 'community outrage' in respect of the appearance of aerial broadband cables and their impact on visual amenity …
(iii) to punish the carriers for their previous treatment of Local Government, which was perceived to be 'high handed' … and
(iv) to give recognition to the fact that the carriers are using public spaces to generate profit …"
314 The submission identified only one occasion of disavowal of the purpose of raising revenue: see para (a)(ii). This was the statement in the letter of Councillor Woods of 13 December 1996 to the mayors of all metropolitan councils:
"It has previously been stated that the primary purpose of this charge is not to increase general revenue but to provide an incentive for the carriers to go underground with cabling and to recognise that the carriers are using publicly owned space to generate private profit."
315 When they turned to the question whether the purposes of the NSW councils were authorised, counsel for Telstra said that, as s611 does not expressly identify the purposes for which a charge may be made, consideration must be given to the scope and purpose of the Act. They note the manner in which the Act is structured and go on:
"Many judicial review cases of administrative actions by Councils involve the compulsory acquisition of land - e.g. Sydney Municipal Council v Campbell [1925] AC 338; Thompson v Randwick Municipal Council (1980) 81 CLR 87. Councils retain that power in s 186 of the NSW LG Act. In Campbell's case, an acquisition of land for the stated purpose of lengthening a street was set aside, the true purpose having been discerned to be enabling a profit to be obtained on re-sale. In Thompson's case, the acquisition of land additional to land required for a new street was set aside in circumstances where the sale of the additional land was intended for profit to fund the new street. In both cases, the purpose of profit-making was held not to be authorised by the then provisions of the Act.
No doubt the same result would follow today in respect of the same circumstances. Although the form and content of the NSW LG Act is different from its predecessors, it would be unexceptionable to suggest that he compulsory acquisition power now contained therein does not extend to the acquisition for the purpose of making profit, even if the profit made is earmarked for use for an authorised purpose.
That unexceptionable result follows despite the provisions of ss 7, 8 and 24 setting out in relatively sweeping terms the purpose of the NSW LG Act, the Council's charter and the service functions of Councils. In other words, not all of those purposes can be authorised for each and every one of a Council's functions. To a claim of a compulsory acquisition for the purpose of making profit to fund, for example, a youth program, it would be no answer to state that the Council has a power to compulsorily acquire land (s 186), one of the purposes of the NSW LG Act is for the council to provide services appropriate to the needs of its community (ss 7 and 24) and that the needs of children are specifically identified as part of the council's charter (s 8(1)). The compulsory acquisition, the applicants submit, would be for an extraneous purpose in law, just as the acquisitions were struck down for that same reason in Campbell's and Thompson's cases.
By analogy, it cannot be the case that because Councils have a role in the 'management, improvement and development of the resources of [their] areas' and a requirement to have regard to 'ecologically sustainable development' in carrying out their responsibilities (s 7(d) and (e)), those matters become relevant (that is, authorised purposes and considerations permitted to be taken into account) to the exercise of each and every council function. To the contrary, they are relevant to only certain functions of Councils - particularly, their service functions under Chapter 6 (relating to lands managed by councils or 'public land', which excludes public roads) and their regulatory functions (under Chapter 7 and other statutes such as the Environmental Planning and Assessment Act 1979)."
316 After dealing at some length with a hypothetical case, counsel proceeded:
"Contrast the revenue raising functions of Councils with their functions in Chapter 6 of the L G Act 1993 relating, in particular, to 'public land' (that is, community or operational land vested in or under the care of Council), which excludes public roads. Councils are given power to lease or licence community land (s 45(c)) and can deal with operational land as a private owner. In respect of community land (which may only be leased or licensed, not sold or exchanged), these powers are constrained by (amongst other things) plans of management required to be prepared for such land (s 46) and the prescribed 'core objectives' of the land (s 36 E-N). In determining whether to lease or licence community land, it follows from the prescribed core objectives that it must be a lawful purpose for the Council to seek to achieve a particular environmental outcome. The same proposition, however, does not follow in respect of the revenue raising powers of Councils.
On this basis, the applicants submit that all of the purposes for which the NSW councils made and levied the charges are extraneous to the purpose of the revenue raising powers in the NSW councils. The only purpose which is authorised for the making of a rate or a charge is to raise revenue in accordance with the L G Act 1993. The raising of revenue, however was the one purpose for which the NSW councils clearly did not act. Indeed, the NSW councils were at pains to ensure that it was understood that they were not acting for the (base) purpose of raising revenue, but for a higher purpose - namely, those purposes identified in [the passage quoted in para 313 above]"
317 Counsel for Optus adopted the submissions of counsel for Telstra. They contended the "evidence supports the inference that the purpose of the making and levying the charges by each of Warringah, Randwick and Blacktown was to subject overhead cables to a punitive levy so as to provide an incentive to carriers to place their cables underground".
(v) The NSW respondents' submissions
318 Counsel for the New South Wales respondents challenge the proposition that the provisions contained in ss 7 and 8 of the New South Wales Act (purposes and charter) are irrelevant to the making of a charge under s611. They refer particularly to paras (a), (d) and (e) of s7 and note the definition of the term, "principles of ecologically sustainable development", used in para (e). The Act's Dictionary contains a lengthy statement of the principles and programs that make ecologically sustainable development achievable. They include:
"(d) improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as:
(i) polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,
(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,
(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems."
319 As I understand counsel's argument, ss 7 and 8 are intended to have general application to council decisions, to the extent they are capable of being applied; so that, in making a decision about the imposition of charges, councils are entitled (perhaps bound) to consider, first, the need for an "environmentally responsible" system of local government in New South Wales (s7(a)); second, the role of councils in "the management, improvement and development of the resources of their areas" (s7(d)); and, third, the adoption of "improved valuation, pricing and incentive mechanisms" under which the "polluter pays", users of goods and services pay prices based on the full costs of providing goods and services "including the use of natural resources and assets" and environmental goals are "pursued in the most cost effective way, by establishing incentive structures, including market mechanisms" (s7(e) and para (d) of the definition of "principles of ecologically sustainable development".)
320 Counsel for the NSW councils do not dispute their clients were aware of the activities of LGA in respect of overhead cabling. But they do dispute that this awareness supports the contention of counsel for Telstra about adopting the purposes of LGA: see para 313 above.
321 Counsel for the New South Wales respondents also challenge the claim that the councils acted in concert with each other. They say:
"This submission would effectively enable Telstra to attribute to each of the Councillors of each of the Councils here in consideration, the knowledge of the LGA and of its officers and of the officers of each of the Councils who had any involvement in this matter notwithstanding … in almost all cases, none of the material emanating from the LGA was before the members of Council, at the time when they resolved to make their decision to make the charges."
322 Counsel for the NSW respondents point out there is a distinction between the making of a charge, by council in general meeting, and the subsequent levying of the charge, by council officers. They contend:
"Matters which were within the knowledge of individual officers of the management of the various Councils in the time between the making and levying of the relevant charges cannot be called in aid of a submission as to the purpose of individual councillors at the time when resolutions were passed making the charges."
323 Counsel for the NSW respondents referred to various passages in Dunlop and Parramatta City Council v Hale. They submit:
"What those passages emphasize is that it is the state of mind of the particular body in question in passing the particular resolution which is in question, and that in circumstances such as this, where a conclusion is sought to be ascertained by way of inference, the court should only come to a conclusion after anxious consideration, but when the inference is available and ought to be drawn, the Court should not hesitate to give effect to the inference it has drawn."
324 Counsel accept it is well settled that a court may look at reports put before a collegiate body in order to determine what matters it took into account in reaching its decision. But they say this is not well settled in relation to the establishment of the body's purpose; indeed it is contrary to recognised authorities in the field. They note a passage from the decision of Cussen J in Re The Mayor &c. of the City of Hawthorn; Ex parte Co-operative Brick Co Ltd (1909) VLR 27 at 51-52:
"So far as the question of bad faith is concerned, if it is meant by this that individual councillors were actuated by improper motives in giving their votes, I find no evidence of the fact, and even if there was, I find great difficulty in seeing how such a contention could be given effect to. Each councillor may be actuated by many reasons, each having some different reasons from the others, and it seems to me almost, if not quite, impossible to penetrate into their minds. It must at least be necessary to show that the improper motive was the sole or dominant one, and that but for it a majority would have voted against adopting the by-law. The ratepayers and councillors honestly voting for the by-law would be placed in a false position if the by-law could, perhaps after a long time, be upset on such a ground. These considerations make one think that the furthest the Court can go is to look at the object and effect of the by-law, to be gathered from its language, and possibly by applying it in a general way to the existing state of legislation, and to the conditions of things existing in the locality."
325 That passage was cited with approval in Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 by Latham CJ at 69 and Dixon J at 82-83.
326 Counsel for the NSW respondents question whether s611 is a purposive power at all. They refer to a comment of Latham CJ in Vegetable Seeds at 68:
"… the purpose of legislation is to be ascertained by considering the true nature and operation of the law and the facts with which it deals, and … not by examining the motives of the legislative authority … No such limitation applies in the case of administrative acts. It is true that if a power to perform an administrative act is conferred with no reference to purpose, no inquiry into purpose (in the sense of result or consequence desired and intended to be achieved) is relevant. But if such a power is given only for a particular purpose, the power can be validly exercised only for that purpose."
(emphasis added)
327 Counsel go on:
"The existence of any particular purpose as being relevant to the exercise of power under section 611 is not readily discerned. …It is certainly not a power which has a specific purpose such as the provision considered in Campbell's case where there was a power to resume land for the purpose of remodelling and improving the city' In Thompson v RandwickCorporation the powers conferred upon the Randwick Corporation in issue were held to be powers which had to be authorized for purposes authorized elsewhere in the relevant legislation. Where there are no specific conditions imposed upon the exercise of the statutory power, as to the purposes which can properly form the basis of exercise of the power, the discretion is unconfined except in so far as the subject matter and the scope and purpose of the statutory enactmenet may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 489, 505 per Dixon J; R v Australian Broadcasting Tribunal; ex parte 2 HD Pty Ltd (1979) 144 CLR 45, 49; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, at 40 per Mason J). If there is any validity in the suggestion that Council must form a purpose for the purpose of exercising its powers under section 611, that purpose could only be challenged if it fell outside the scope and purpose of the Local Government Act particularly as defined in sections 7 and 8." 328 Counsel distinguish Campbell and Thompson on the basis that, in each of those cases, the legislation authorised compulsory acquisition of land only for a designated purpose. They then say: "Amongst the matters which the relevant Councils will be entitled to take into consideration in determining whether or not to make a change [sic] are the matters set out in s.7 and s.8 of the NSW Local Government Act, including the concept of ecologically sustainable development and Council's function in this area including as part of this "incentive mechanisms" as referred to in the definition of that conception. It is also appropriate to consider the fact that the Council's charter includes the principle that it must bear in mind that it is a custodian and trustee of public assets and has to effectively account for and manage the assets for which it is responsible. It may also raise funds for local purposes by the fair imposition of rates, charges and fees." 329 Counsel say the objective of s611 is "well capable of being understood": "It is to enable Councils to obtain a fair and reasonable return for land in their municipality which is utilized for purposes such as those here under consideration. If as a result of exercising their powers under s 611 it has the added consequence that an ecologically satisfactory result can be achieved then this does not invalidate the exercise of the power. Having regard to the terms of the section, and the rights of appeal which exist under s 611(4) any charge which could in fact be made could not do otherwise than reflect the nature and extent of the benefit enjoyed by the person concerned." 330 Counsel for the New South Wales respondents specifically addressed the reliance by their opponents upon the paragraph in the memorandum from LGA of 6 December 1996 mentioned at para 255 above. They point out, correctly I think, that there is no evidence that this document "ever came to the attention of councillors who voted in favour of resolutions to make the relevant charges some six or more months later." Anyway, they say the terms of the paragraph merit consideration: "(a) The only reference to revenue is 'general revenue' which may fairly be seen to be a reference to the rates and charges normally collected by Council to fund their operations. (b) There is a recognition that carriers ought to be made to pay for using publicly owned space to generate private profit which is an objective at the core of s 611. (c) There is also a reference to the provision of an incentive for the carriers to go underground. This is entirely consistent with the Council's powers to provide incentives in relation to ecologically sustainable development', and even without recourse to that specific objective is entirely defensible as a consequence of the making of appropriate charges under s 611."
…"
331 Counsel say that councils should "seek to achieve consistency in charges of this nature which if properly applied would not vary significantly from place to place."
(vi) Applicants' submissions in reply
332 It is desirable to mention two points made by counsel for Telstra in written submissions in reply. First, they say:
"the states of mind of individual councillors are irrelevant. What is relevant is the purpose of the collegiate body, which is best evidenced by the documents brought into existence by its officers and others, placed before the collegiate body in one form or another, and adopted (either wholly or in part) by the collegiate body."
333 Second, in the submissions in reply counsel analyse the correlation between the LGA recommendations and the NSW respondents' decisions:
"First, the LGA recommended that the charges be made on a length of cable basis, and not any other basis (such as revenue derived from the cables). All councils made a charge on the length of cable basis.
Secondly, the LGA recommended that the charge be made in respect of two components described as all cables' and overhead cables'. All councils, other than Hornsby and Hurstville, adopted the 'all cables' and 'overhead cables' distinction. Hurstville did not distinguish between the two, but the only documents which Hurstville has produced … refer to the advice from the LGA and the charge being set in that context. For its part, Hornsby clearly determined that it would only deviate from the LGA advice to the extent necessary to provide what that Council perceived to be a greater incentive for the underground of cables. …"
334 Notwithstanding the above, counsel say that "Telstra does not allege that any of the NSW respondents was effectively acting under dictation"; however, they were acting in concert and in accordance with the program recommended by LGA.
(vii) Conclusions
335 A notable feature of the case is the paucity of evidence concerning the decisions of the various councils to make the s611 charges. The operative decision, in each case, was a resolution to adopt a management plan in which such charges were included. In some cases, there is evidence of one or prior resolutions of the relevant council by which the council foreshadowed the making of the charge. In each case, that resolution adopted the report of a council officer containing information relevant to the imposition of the charge, including information about the activities of LGA. Where that happened, the Court must conclude the council took that information into account in making its decision: see Parramatta City Council v Hale at 346. However, it does not follow that the council adopted all the purposes expressed, at any time, by LGA or its officers or executives. Individual councillors may have read or heard media reports attributing views to LGA officers or executives. Individual councillors may have engaged in discussions with such persons. But none of those circumstances means any councillor, still less any council, must be taken to have adopted those views, or any purposes they might have included. A councillor might take into account a multitude of matters, some perhaps bearing one way and some the other, before making a decision actuated by only one of them; or none of them. As Cussen J said in the Hawthorn case:
"Each councillor may be actuated by many reasons, each having some different reasons from the others."
336 I see nothing wrong with a council officer, or a councillor, taking into account the views of LGA, or its President, or any other officer or executive in respect of a matter such as this. The broadband rollout affected most (if not all) councils in the Sydney metropolitan area and, apparently, also some in the Hunter and Illawarra regions. It raised issues of common concern, an adequate response to which required an understanding of the relevant technology, and of complex legislation. It was appropriate that LGA, the representative body of municipal councils, should examine these matters and make recommendations to its member councils as to their desirable response, provided LGA did not seek to dictate how member councils should exercise their statutory powers. When LGA concluded one option was the imposition of a charge under s611, it was appropriate it should obtain legal and accounting advice as to that course and convey the advice to its members. The role played by LGA in relation to this issue was presumably part of what member councils had in mind when they created, or later joined, the association.
337 It would have been wrong for any council to have regarded itself as bound by views expressed by LGA; so that the council's decision was not a free and genuine expression of council's best judgment but a mere rubber stamping of a decision taken by somebody else. However, there is no evidence that this occurred. Counsel for Telstra expressly disclaimed the suggestion that any council acted under dictation.
338 I note that many, although not all, the respondent councils, chose to adopt the rates per kilometre recommended by LGA. However, these rates were within the range recommended by Bentleys, as reasonably reflecting the nature and extent of the benefits enjoyed by telecommunications carriers.
339 Although it is impossible to determine to what extent individual councillors were aware of the views expressed on behalf of LGA, it is reasonable to infer they were aware of public concern about the unsightliness of overhead broadband cables. It is also reasonable to infer that many, if not most, councillors were actuated (at least in part) by a desire to encourage telecommunication carriers to place their cables underground. However, contrary to the submission of counsel for the applicants, this does not invalidate the decisions to make the charges. Section 611 is not to be considered in isolation from the remainder of the Act. It is located in a Chapter of the Act that is concerned with finance; however, the whole of the Act is informed with the purposes stated in s7 and the charter set out in s8.
340 One of the purposes of the Act is to provide a legal framework "for an effective, efficient, environmentally responsible and open system of local government in New South Wales": sees7(a). Another is to require councils "to have regard to the principles of ecologically sustainable development in carrying out their responsibilities" (sees7(e)), including the making of decisions under Chapter 15. The principles of ecologically sustainable development include the "polluter pays" principle. The word "polluter" includes the visual polluter. The principles include the notion that users of services (including users of telecommunications services) should pay prices based on the full cost of providing those services, including the use of natural resources and assets (such as public land). Further, incentive structures should be established to encourage "those best placed to maximise benefits and minimise costs to develop their own solutions and responses to environmental problems". It might cogently be argued that the imposition of a charge for use of public land by a commercial organisation, being a charge that fairly reflects the nature and extent of the benefit enjoyed by that organisation, fell squarely within the charter rules that the councils were obligated bys8(2) of the Act to observe. At the least, as it seems to me, it was open to the respondent councils to take into account the purposes of the Act, as specified ins7, and the terms of the charter, set out ins8.
341 In my opinion, there is no substance in the applicants' claim that the decisions of the NSW respondents, or any of them, to make the subject s611 charges were invalidated by pursuit of extraneous purposes.
M. Extraneous purposes: Victoria
(i) The applicants' material
342 There is an organisation called the Municipal Association of Victoria ("MAV"). However, the applicants do not suggest MAV played a leading role in the decisions of any of the four Victorian respondents to make and levy rates affecting the applicants' cables. Accordingly, their counsel have not made any submissions concerning that organisation.
343 Counsel do, however, direct attention to evidence concerning the decisions of each the respondent councils. I will summarise that evidence.
(ii) Bayside City Council
344 The earliest document in evidence is a letter dated 18 March 1996 from Maddock Lonie and Chisholm, solicitors, advising the council that items of plant and equipment owned or used by Optus were rateable. The solicitors suggested an expert valuation be obtained.
345 Before any rate was made, Bayside Council was invited to be represented at a meeting, convened for 21 October 1996 by the Executive Officer of the City of Darebin on behalf of an organisation called "Cables Downunder Campaign". Apparently, Bayside Council was represented at that meeting, and also at follow-up meetings, at which legal issues were canvassed and there was some discussion about lobbying the federal government in relation to the form of the new telecommunications legislation.
346 The evidence includes an "Urgent Media Alert" relating to a proposed ceremony on 23 June 1997 at which the four councils (Bayside, Moreland, Frankston and Yarra), that are respondents to the Telstra proceeding, would announce "a major new rating initiative". The media alert indicated that the mayors of the four councils, dressed in full regalia, would be raised in a cherry picker to inspect overhead cables at the intersection of two streets in the City of Yarra. According to an internal memorandum, the event was timed to maximise the chance of getting news of the ceremony onto the evening's electronic news broadcasts.
347 A media release issued at the time of the ceremony said:
"Four Victorian Councils today announced they will start charging rates on cables laid by telecommunications carriers.
From July 1 companies with overhead or underground cables in the cities of Yarra, Moreland, Frankston or Bayside will pay a rate per kilometre. The rate will apply to all future cables and reflect the number of services the cable delivers as well as the number of service suppliers using it.
With local cable networks covering more than 300 kms in each municipality, the new levy is expected to reap tens of thousands of dollars for local government.
Speaking on behalf of the five councils, the Mayor of Yarra, Cr Linda Hoskins, said the cable rate was struck in response to community concern over the continuing rollout of overhead cabling.
'It's also consistent with user pay principles and is responsible government', Cr Hoskins said. 'We have Queen's Counsel advice that there are legal precendents [sic] for setting such a rate.'
The Councils' new rate applies from 1 July when Australia's telecommunications market becomes fully deregulated. 'We are serving notice on all future service providers that Victorian councils are serious about protecting our visual amenity and charging rates to which we are entitled."
348 The ceremony went ahead as planned. It received extensive publicity.
349 On 5 August 1997 Bayside Council adopted a resolution declaring the rates for 1997-98. The resolution apparently had the effect of rating the telecommunications cables in the city.
350 The four Victorian respondents formed a group called "CORE Campaign Working Group". "CORE" was an acronym for "commercial operators' rate equity". Bayside was represented on CORE by a staff member.
351 The evidence includes a CORE draft document headed "Telecommunications and Private Utility Infrastructure Rating Strategies" that identified "three important issues"; viz:
"• all private utility services occupying public land or space for commercial gain or reward should pay a fair business related return for that occupation, as is the requirement for all other business operations;
• the implementation of a differential rate would provide a direct incentive for the underground installation of cables rather than their installation overhead;
• Councils have an obligation to their communities to charge rates that are justifiable."
352 The document went on:
"It is now necessary to progress the development of the rating methodology and to subsequently implement a rate levy on both telecommunications and private utility infrastructure."
353 The working group prepared a valuation brief in which it was said "the actual principle at issue is the entitlement to a fair business return for the commercial use or occupation by corporations which were previously exempt because of their public nature".
354 The evidence includes a file note concerning a meeting of 3 March 1998 of representatives of the CORE group and MAV. The file note includes these statements:
"In principle agreement was expressed to the concept that there should be taxing of all commercial use of community assets including VPC, boating harbours and use of all space and underground assets of councils.
The approach was one of councils reclaiming their own tax base."
355 There is a deal of material in the tendered folders about the making of valuations on cables. It is unnecessary to go to that material. However, I note that, on 7 May 1998, a Yarra City Council officer reported to other members of the group that a valuation study for five council areas, including those of the four respondents to the Telstra proceeding,
"is now complete and indicates that the Rate return to the Councils would be significantt".
356 On 18 May 1998, a Bayside Council committee noted a report from council's financial services manager dealing with CORE's activity and the making of valuations. The report quoted the "three important issues" set out in para 351 above. It was resolved to recommend the declaration of rates of $13,565.51 against Optus Vision and $23,536.00 against Foxtel Cable Pty Ltd.
357 The committee's report and recommendations were adopted by the full council on 25 May 1998. Shortly thereafter, rate notices were issued.
358 On 23 June 1998 Bayside Council joined in a media release that stated as follows:
"Bayside Council has joined four other Victorian Councils in serving rate notices on Optus Vision and Foxtel for every kilometre of cable installed in streets by the two Pay TV operators.
Bayside received legal advice from a Queen's Counsel in 1997, along with the cities of Melbourne, Yarra, Frankston and Moreland, which cleared the way for them to rate the land which is occupied by Pay TV operators within the meaning of the Local Government Act (1989).
The exact rate, applied to the pay TV operators, has been determined by experienced valuers and is calculated on a per kilometre basis. This includes cables underground or attached poles.
Mayor Alex del Porto said the cable rate has been issued in response to community concerns about visual amenity and equity.
'The setting of a cable rate is consistent with the principle of user pays. We need to ensure that Pay TV operators address some of the costs associated with their activities.
'Shop owners in most Victorian councils must pay rates and charges for the right to place tables and chairs or A-frames on the footpath, yet large multinational operators have claimed exemption from council rates. This is just not right,' said Mayor del Porto.
'We are acting as a responsible Council by acting on legal advice from a Queen's Counsel that advised us that relevant Government Acts and legal precedents substantiate the right of councils to set this rate.
While we hope that Optus Vision and Foxtel will pay the rates as specified, it is most likely they will challenge us in court.'
The rate covers the period 1 July 1997 to 30 June 1998 and applies to the cable assets of Foxtel and Optus Vision."
359 On 13 July 1998 Bayside Council resolved to declare a differential rate in respect of rateable and "overhead cable land", as defined in the resolution. Rate notices were subsequently served on several telecommunications carriers pursuant to that resolution.
(iii) Moreland City Council
360 Moreland City Council was one of the councils involved in "Cables Downunder" and, subsequently, CORE.
361 The council held a public meeting on 8 October 1996, in order to allow members of the community to express their opinions about overhead cabling. Following that meeting, it seems the council allocated funds to a campaign against an aerial rollout by Telstra.
362 In March 1997, Moreland Council prepared a "strategy" in which it argued the desirability of infrastructure sharing. The strategy document referred to the possibility of imposing "rate penalties on carriers who duplicate an existing network". The evidence does not establish whether or not this document was adopted by Council.
363 On 26 May 1997 Moreland Council resolved to contribute up to $4200 "to Yarra and other Councils to develop a rating strategy". Council also resolved to contribute $5200 to an MAV campaign "for advocacy and research into retrospective undergrounding of power lines in Victoria."
364 On 23 June 1997 the mayor of Moreland Council participated in the announcement of the "new rating initiative" mentioned in paras 346-348 above. Later that day council considered a report by the Director City Strategy called "Cable Update - Rating" that included the following:
"2. Policy Implications
Moreland City Council has adopted a policy of trying to get all aerial infrastructure underground by the year 2010. The rating strategy is one component to achieve that outcome.
3. Background
Council resolved to contribute $4200 with Yarra City Council and other Councils to develop a rating strategy for the telecommunication carriers and other aerial infrastructure. Legal advice has now been received that states that telecommunication companies and their facilities which includes cabling are rateable. It is intended that telecommunications carriers are assessed and rated effective from July 1 1997.
The actual details of the valuation of these facilities will not be finalised prior to 1 July 1997, but will be backdated. Further work will be required on the rating of Telstra.
It is important that 1 July 1997 is the commencement date of this rating strategy as this is the date of the new regulations of the telecommunications industry with the prospect of other companies constructing aerial cabling.
4. Issues
Moreland Council has been working towards the urban improvement of Moreland with one of the main components being the undergrounding of all cables: powerlines and telecommunication cables. The web of cables above the city streets adds significantly to the urban blight and Councils are working together to try to achieve the undergrounding of all cables by the year 2010.
Rating carriers is consistent with the rating responsibilities and powers of Councils. In this case, Council would want to offer an incentive to companies to underground their infrastructure. It is anticipated that this will be achieved by Council offering a rate concession to those carriers with underground facilities.
In order to ensure the undergrounding of all infrastructure it is proposed that revenue raised from the rating of infrastructure should be placed in a special fund that could be used as Council's contribution to achieving eventual undergrounding."
365 The report included four recommendations:
"1. Council agree in principle to rate from 1 July 1997, telecommunication carriers and their facilities.
2. Council consider setting aside any revenue obtained from rating telecommunication carriers to a special fund for the undergrounding of all cables.
3. A further report be prepared for Council on the valuation and the rating proposal.
4. Council adopt the principal of offering a rate concession to those carriers with facilities underground."
366 These recommendations were unanimously adopted.
367 It seems that preliminary valuation advice was received by Moreland Council at about this time. There was discussion about the appropriate method of determining rateable value. However, the Director City Strategy formed the opinion that the rating issue extended beyond telecommunications cables. In a report to the council meeting held of 22 September 1997, the Director said:
"The rating issue is larger than just the telecommunication cables. With the privatisation of a number of public authorities, the exemption from rating that they had because of their status as a public body needs to be reviewed. It could be argued that they should be treated in the same way as other private corporations for rating purposes. In order to share the rate burden, local governments are obliged to ensure that all rateable properties and facilities pay their fair share of rates.
It could be argued that in the case of rating where there are commonalities across a number of local governments, the issue should be taken up by the relevant peak body as the results will benefit all local governments in Victoria and not just a few. It is extremely difficult for a few local governments to resource fairly extensive and detailed projects such as the rating issue. However, should the local peak body be unable, for some reason, to project manage this issue it may be preferable for some local governments to continue with the project.
The annual amount estimated as income from rating the two carriers for Moreland is approximately $140,000 per annum. To implement the rating valuation may possibly incur considerable legal costs. However, these need to be weighed up against the long term benefits to the wider community of sharing the rate burden across all rateable properties and facilities."
368 The council resolved to ask "VLGA" (presumably the Victorian Local Government Association), with MUA, "to develop a valuation methodology for the rating of telecommunications cables".
369 A progress report on the development of a rating strategy was provided to council on 6 February 1998. The report made the point that differential rating would yield a greater revenue benefit than use of the general rate.
370 On 9 June 1998 Moreland Council noted the return of the supplementary valuation in respect of telecommunications cables, effective from 1 July 1997. Council authorised the use of this valuation to levy such rates as are payable by reason of the return of the valuation. Council added:
"2. a) Council record that it will grant a concession of 100% in relation to any general rates payable by reason of the ownership or occupation of any underground cable used by a telecommunications carrier.
b) Council record that in its opinion, the grant of such a concession would assist the proper development of the municipal district or preserve places in the municipal district which are of environmental interest."
371 Rate notices for the year 1997-98 were issued on 12 June 1998.
372 On 29 July 1998 Moreland Council resolved to adopt a differential rate for 1998-99, using a formula similar to that adopted by Bayside Council. Instead of allowing a 100% rebate for underground cables, Moreland Council used different rates of capital improved value, the overhead rate being about four times the underground rate.
(iv) Frankston City Council
373 Frankston City Council was also involved in the campaign against aerial cables. Staff attended meetings of Cables Downunder Campaign. On 17 September 1996 Council's General Manager, Planning and Economic Development wrote to MAV proposing MAV coordinate development of a "rating system for the use of public land by private utility companies".
374 A paper prepared, at about that time, by another Frankston Council officer claimed this council "first thought of using a rating system to provide a deterrent for carriers in the deployment of aerial infrastructure."
375 Frankston Council was one of the councils involved in the rate initiative launch on 23 June 1997. Councillors were informed of the launch and the "three basic principles for pursuing the rating of carriers" set out in para 351 above. Shortly before 23 June, the councils had received legal and valuation advice about the new system. That advice was included in a report to a Frankston Council meeting of 30 June 1997 at which it was resolved:
"A. That Council support the notion of striking a supplementary rate for Telecommunications for the 1997/98 financial year
…
C. That Frankston City, in consultation with other Councils, develop a consistent valuation methodology for the Telecommunications rate and report back to Council with these findings prior to striking the rate."
376 The report discussed by Frankston Council on 30 June 1997 included these statements:
"The Carriers will probably challenge the striking of the rate and imply that a new rate will push up the price of their services. However, there is already a cost to the community generated by the carriers activities, such as the loss of amenity to our streets caused by additional aerial cabling, the additional cost of street tree maintenance, the devaluation of road reserves created by damage caused by the activities of carriers.
In addition, like all private enterprises, the cost of using land and infrastructure owned by other entities is something that needs to be accounted for in the costing of their service delivery. On the other hand Council is responsible for ensuring the community as a whole benefits from the rates collected from carriers for their use of public land."
377 The remainder of 1997, and the first few months of 1998, were spent in developing a valuation methodology. This was done in conjunction with other councils, and with expert valuation advice. A report was received in April 1998 and a supplementary valuation return, effective at 1 July 1997, was supplied in May. It was formally received by council at a meeting held on 26 May 1998.
378 A covering report to council referred to the CORE group of councils having the prime aim "to ensure that whenever possible all private enterprises pay their 'fair share' of rates and charges to local Councils." The report also noted the possibility, in future years, of rating the overhead component as a higher differential rate "to compensate for the detriment to the visual amenity of the municipality".
379 Pursuant to the council resolutions of 26 May 1998, rate notices for the 1997-98 financial year were issued on 27 May.
380 On 30 June 1998 Frankston Council resolved to adopt a differential rate for 1998-99, the overhead rate being about three times that of the underground rate.
(v) Yarra City Council
381 As will be apparent from earlier references, Yarra City Council was actively involved in the campaign against the rollout of aerial cable.
382 On 2 May 1997, Prue Digby, Chief Executive Officer of Yarra Council, wrote to other councils suggesting it was "an opportune time to address rating of communications carriers". Ms Digby said:
"The concept of a Council charging a rate for their overhead cables is an effective and legitimate strategy for raising funds to achieve the long term vision of may Councils. In the short term pursuit of this strategy will help ensure that carriers such as Optus and Telstra will act in a more responsible manner."
Ms Digby convened a breakfast meeting for 8 May 1997.
383 This initiative resulted in the obtaining of legal and valuation advice which was considered at a meeting of representatives of six councils held on 17 June 1997. It seems that meeting gave rise to the "new rating initiative" that was launched, with the participation of the mayor of Yarra, on 23 June 1997.
384 Yarra City Council was one of the councils that developed the valuation methodology used in the supplementary valuation returns, effective from 1 July 1997, supplied to participating councils in May 1998. It seems Yarra Council adopted its supplementary valuation return shortly before 27 May 1998, the day on which it forwarded 1997-98 rate notices to telecommunications carriers.
385 On 1 July 1998 the mayor of the City of Yarra issued a media release announcing service of the rate notices. He said:
"If a community asset (public land) is being used for private profit, the community has a right to a reasonable payment for the use and maintenance of its asset (public land or space) ... Optus Vision and Telstra/Foxtel have been getting a free ride at the expense of other business and household ratepayers".
386 On 27 August 1998 Yarra Council issued a Valuation and Rate Notice to Telstra for 1998-99. Yarra did not apply differential rating.
(vi) The applicants' submissions
387 Counsel for Telstra direct attention to s6 of the Victorian Act detailing the purposes of a council. That section reads:
"Purposes of a Council
6. (1) The purposes of a Council are--
(a) to provide for the peace, order and good government of
its municipal district ; and
(b) to facilitate and encourage appropriate development of
its municipal district in the best interests of the
community; and
(c) to provide equitable and appropriate services and
facilities for the community and to ensure that those
services and facilities are managed efficiently and
effectively; and
(d) to manage, improve and develop the resources of its
district efficiently and effectively.
(2) It is the intention of Parliament that the provisions of this
Act be interpreted and every function, power, authority,
discretion and duty conferred or imposed by or under this or
any other Act on a Council be performed or exercised so as to
give effect to the purposes and objectives of Councils."
388 Section 7 sets out objectives of a council, to achieve its purposes.
389 Counsel for Telstra argue:
"s6(2) does not mean that every power given to a council can be used for every purpose or objective listed in ss6 or 7. It means only that, where there is a link between the relevant power and a purpose or objective, the power is to be construed and exercised so as to advance that purpose or objective."
390 As previously noted, Part 8 of the Act confers on councils the power to make and levy rates and charges on land. Counsel for Telstra say this is connected with the objective stated in s7(h) of the Act:
"To raise funds for local purposes by the equitable imposition of rates and charges and by obtaining borrowings and grants;"
391 Counsel for Telstra note that each of the four Victorian respondents was a member of CORE. On the basis of that fact, they submit the four councils "acted in concert with each other"; "their common knowledge and common purpose must inform any consideration of the evidence in the context of this claim for review that each of the Victorian councils acted for an extraneous purpose". Counsel contend the documents tendered in evidence demonstrate that the Victorian respondents "made and levied the rates and charges for a number of purposes" namely:
"(a) to provide a deterrent to the carriers in deploying aerial infrastructure;
(b) to respond to community concern in respect of the rollout of overhead telecommunications cable and its effect on visual amenity;
(c) to encourage telecommunications carriers to place their cables underground;
(d) to make a public statement that commercial enterprises which profit from the use of public land ought to pay for that privilege on a 'user pays' principle; and
(e) to raise funds for local purposes including, in particular, money to carry out a program of undergrounding the overhead cables."
392 Counsel contend those purposes were not authorised by the legislation. They argue that, as in the New South Wales Act, each part of the Victorian Act deals with a discrete matter; the power of Victorian councils to make and levy a general rate may be exercised only for the purpose of raising funds to be used for "local purposes". Counsel suggest the finance purpose of Part 8 is demonstrated by the detailed provisions in that Part regarding the preparation and publication of budgets and recovery of unpaid rates and charges.
393 Counsel say that, even if the councils were anxious to raise funds from the rating of cables, their purposes were mixed. They refer to ten documents in which references are made to deterring telecommunications carriers from erecting aerial cables, responding to community concern over the visual damage occasioned by aerial cables, and the like. None of the ten documents emanated directly from a council meeting, or is proved to have been placed before a council meeting.
394 Counsel for Telstra also contend it was an improper purpose for the Victorian councils to seek to raise revenue that might be used to assist the undergrounding of cables..
395 Optus does not put any separate submission in relation to the extraneous purposes of Moreland City Council, the only Victorian council against whom it proceeds. Optus adopts Telstra's submissions.
(vii) The Victorian respondents' submissions
396 Counsel for the Victorian respondents made some comments about CORE. They noted that, in 1996, "there was great concern in relation to the Telstra and Optus cable rollout". They mentioned four primary concerns:
"(a) duplication of cables given the limited sharing of facilities;
(b) the impact of substantial and extensive aerial infrastructure on matters such as visual amenity, aesthetics and vegetation;
(c) widespread community concern and dissatisfaction associated with the labyrinth of aerial infrastructure;
(d) the failure to lay cables underground."
397 Counsel mentioned the litigation that occurred in Victoria, as in New South Wales, when councils attempted to prevent or control the cable rollout. Counsel went on:
"The cable roll out was, of course, a new issue facing local governments and a matter which councils were required to consider and respond to in the context of their overall local government purposes, objectives, functions and responsibilities. Because the concern was shared by most (if not all) municipalities, a cooperative approach was taken by a number of councils. One of the primary issues councils were obligated to explore was the rating issue."
398 Counsel then referred to a number of documents prepared in connection with the CORE campaign, or by council officers. Counsel claim these documents demonstrate the interest of councils in developing a rating regime for telecommunications carriers that would be "equitable and appropriate". Counsel observe there was a strong feeling that it was inappropriate for privately owned bodies to have free use of public land for commercial purposes. This feeling extended, in Victoria, to the free use of street cabling by the recently-privatised electricity companies.
399 In dealing with the allegation of improper purposes, counsel for the Victorian respondents acknowledge "that one of the matters taken into account and considered when exploring the rating issue was the community desire to minimise aerial infrastructure and encourage the undergrounding of cables". But they contend that was "a perfectly proper and appropriate matter for a local government to consider when faced with this new issue".
400 Counsel say the purposes for which the rating power may be used include:
"(a) the purpose of raising revenue for one or more of the purposes or objectives referred to in sections 6 and 7 of the Victorian Act;
(b) the purpose of raising revenue in order to carry out one or more of its functions;
(c) to ensure that the rating provisions are applied to those subject to their terms";
401 Counsel submit that, even if it was demonstrated that the substantial purpose of levying the rates was to encourage underground cabling, and to obtain revenue that might be used to assist future underground cabling, these would not be extraneous purposes. Counsel point to the purposes of a council, set out in s6(1) of the Act. Counsel also mention council's objectives and functions. They say there is no basis for Telstra's submission that the power to make and levy a general rate may be used only for "the narrow purpose of raising funds." This is particularly true of a differential rate, in relation to which s161(2)(a) of the Act requires council to "specify the objectives of the differential rate which must be consistent with the equitable and efficient carrying out of the Council's functions."
402 Counsel for the Victorian respondents reply to their opponents' suggestion of improper behaviour, in "acting in concert", by saying their clients' behaviour is merely an example of councils fulfilling the objective ins(b) of the Act: "To co-ordinate with other public bodies to ensure that services and facilities are provided and resources are used effectively and efficiently".
(v) Conclusions
403 Many of my observations in relation to the New South Wales respondents apply equally to the argument that the decisions of the Victorian councils are invalidated by reason of their pursuit of extraneous purposes. As in the case of the New South Wales councils, there is no evidence of anything that occurred during the course of debate at any of the council meetings at which consideration was given to the imposition of the subject rates. Some officers' reports are in evidence. Where it is established that a particular report was before a particular council during the meeting at which a particular resolution was passed, it may be inferred that the contents of the report were taken into account by those members of council who assented to the resolution. However, as I pointed out in para 335 above, it does not follow that all (or any) of the matters mentioned in the report actuated any particular councillor, still less council as a whole, to make any particular decision.
404 All four councils were involved in CORE. However, the evidence does not establish that any CORE campaign material was endorsed by any council. I accept that individual councillors are likely to have come across some of the CORE campaign material; or, at least, to have been familiar with the sentiments expressed by CORE. The evidence shows that statements made on behalf of CORE were widely publicised. However, that does not mean it is proper to attribute to any particular councillor, or body of councillors, all (or any) of the views expressed by CORE.
405 As in the case of the New South Wales respondents, I prefer to decide this issue on a more fundamental basis than the applicants' difficulty in proving the purposes underlying the relevant resolutions. I do not accept the applicants' submission that the power of a Victorian council to declare rates on rateable land is a discrete power divorced from its other functions.
406 There are at least two problems about the applicants' arguments. First,s6(2) of the Victorian Act proclaims the intention of the Victorian Parliament that "every function, power, authority, discretion and duty conferred or imposed by or under this or any other Act on a Council be performed or exercised so as to give effect to the purposes and objectives of Councils." The functions, powers, authorities and duties conferred by the Act include the function of levying rates under Part 8 of the Act. The purposes of the Act include the "good government" of the municipal district (s6(1)(a), the encouragement of "appropriate development" of the district (s6(1)(b)) and the efficient and effective management, improvement and development of the district's resources (s6(1)(d)). All these statements of purpose are relevant to the proper management of public land, such as streets, the control of infrastructure development on that land and its maintenance for public use and enjoyment. Furthers7(a) makes it an objective of council to "facilitate the involvement of members of the community … in the development, improvement and co-ordination of local government" ands7(d) sets an objective to "represent and promote the interests of the community and to be responsive to the needs of the community". The effect of these provisions, read withs6(2), is that, in exercising their powers, the respondent councils were obliged to listen to members of the community, promote the interests of the community and be responsive to community needs. If there was concern within the community about the proliferation of overhead cables resulting from the broadband rollout, this was a matter that the councils were obliged to take into account in determining whether or not, and if so how, to exercise powers given to them by the Act.
407 The second difficulty about the applicants' argument is that it assumes the councils had a discretion whether or not they would rate the cables. It seems to me that assumption is incorrect. Section 154(1) of the Act provides that "all land is rateable", other than land caught by the exceptions referred to ins154(2). It is now conceded by Telstra and Optus that the cables are "land", within the meaning ofs154(1), and that none of the exceptions ins154(2) applies. It follows that the cables are rateable. Section 155 gives a council a discretion as to the type of rates and charges it will declare in respect of any particular year; ands157 allows the council to choose its system of valuation. However, as I understand the scheme of the Act, if a council decides to declare a general rate for a particular year, using a particular system of valuation, that decision applies to all rateable land within the municipal district. The members of council need have no intention concerning, or even knowledge of, land burdened by the rate. The resolution applies, by force of the Act itself, to each parcel of rateable land (s154) and the owner of each parcel of rateable land (s156).
408 In a Further Memorandum of Advice, furnished to the Victorian respondents on 13 August 1997, Mr Stuart Morris QC said:
"If a telecommunications carrier occupies rateable land, the carrier should be rated; as should all other carriers or relevant occupiers of rateable land".
I understand this to have been intended as a statement of law, not advice about policy. On that understanding, I agree.
409 The comments made in the last two paragraphs do not apply to a council's decision to impose a differential rate. Section 161 of the Act applies to rateable land in respect of which the council has declared a general rate, unders155 of the Act, and elected, unders157, to use the capital improved value system. In such a case, the council may declare a differential rate for particular land, but only if the rate complies with the requirements ofs161(2). Necessarily, the council will need to consider the "types or classes of land" to which the differential rate will apply, although not necessarily the particular parcels of land..
410 As I previously indicated, I do not propose to deal with the applicants' challenge to the decisions of three councils (Bayside, Moreland and Frankston) to declare differential rates, for the year 1998-99, over the "land" constituted by the cables. So I make no comment about the application ofs161 in these cases. I mention the section only to recognise that it operates as an exception to the general principle, earlier mentioned, that a resolution to declare a rate affects all rateable land within the municipal district regardless of councillors' knowledge about, or attitudes to, particular parcels of land or their owners. A complaint of extraneous purpose really needs to be directed to the resolution declaring the rate for the year, not to a resolution to receive a supplementary valuation in order that council officers may go through the mechanical processes of levying (s158(3)) and collecting (ss 167-181) the rate.
411 The challenge to the decision of the Victorian councils, in relation to improper purpose, must fail.
N. Disposition
(i) Liability
412 In para 231 above, I indicated that the only substantial issues I would determine would be issues (i), (ii), (iii)(a) and (iv), as identified in para 7. I have decided each of those issues adversely to the applicants. It follows that each proceeding ought to be dismissed. As I have elected, in the exercise of my discretion, not to determine issues (iii)(b), (iii)(c) and (v), my order of dismissal will not preclude those issues being considered by a court or tribunal of competent jurisdiction.
(ii) Costs
413 During the course of their submissions, counsel for the Victorian respondents drew attention to the abandonment of many of the grounds of challenge pleaded against their clients by the applicants. Counsel suggested that, even if they failed in relation to a surviving ground, their clients should have the benefit of a costs order in respect of the abandoned grounds. Furthermore, counsel for both sets of respondents take the position that, if the applicants are successful on one ground, but not all grounds, the Court should take into account the applicants' limited success in determining what proportion of their costs should be allowed against the respondents.
414 Having regard to my conclusion that both proceedings should be dismissed, these complications do not arise. It is appropriate for me to make a general order for costs in favour of the respondents in each matter. I mention the matters raised by counsel only against the possibility of a different view being taken on appeal about one or more of my conclusions.
I certify that the preceding four hundred and fourteen (414) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.