[1932] HCA 9
Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190
[2016] FCAFC 42
Brown v West (1990) 169 CLR 195
[1990] HCA 7
Cam & Sons Pty Ltd v Chief Secretary of NSW (1951) 84 CLR 442
[1951] HCA 59
Cherry v Steele-Park (2017) 96 NSWLR 548
Source
Original judgment source is linked above.
Catchwords
[1932] HCA 9
Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190[2016] FCAFC 42
Brown v West (1990) 169 CLR 195[1990] HCA 7
Cam & Sons Pty Ltd v Chief Secretary of NSW (1951) 84 CLR 442[1951] HCA 59
Cherry v Steele-Park (2017) 96 NSWLR 548[2017] NSWCA 295
Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462
[2011] NSWCA 325
Clubb v Edwards (2019) 267 CLR 171
[2019] HCA 11
Commonwealth v New South Wales (1923) 33 CLR 1
[1923] HCA 34
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
[2015] HCA 1
Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103
Energy Resources of Australia Ltd v Commissioner of Taxation [2003] FCA 26
(2003) 52 ATR 120
Ex parte Collins (1914) SR (NSW) 31
Fejo v Northern Territory of Australia (1998) 195 CLR 96
[2011] 4 All ER 704
Goodwin v Phillips (1908) 7 CLR 1
[1908] HCA 55
Griffith University v Tang (2005) 221 CLR 99
[2015] NSWCA 349
R v Bevan
Ex parte Elias and Gordon (1942) 66 CLR 452
[1942] HCA 12
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
[1978] FCA 50
Richardson v Landecker (1950) 50 SR (NSW) 250
Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610
[1955] HCA 13
The Minister of State for the Interior v The Brisbane Amateur Turf Club (1949) 80 CLR 123
[1949] HCA 31
Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631
[2003] NSWCA 297
Walsh v Minister for Lands (NSW) (1960) 103 CLR 240
[1960] HCA 52
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528
Judgment (28 paragraphs)
[1]
55 CLR 514; [2015] HCA 1
Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103
Energy Resources of Australia Ltd v Commissioner of Taxation [2003] FCA 26; (2003) 52 ATR 120
Ex parte Collins (1914) SR (NSW) 31
Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58
Fensom and Anor v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072
Fonu v Merrill Lynch Bank and Trust Company (Cayman) Ltd (Cayman Islands) [2011] UKPC 17; [2011] 4 All ER 704
Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Jaques v Stafford (1890) 11 LR (NSW) 127
Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Moore v The Attorney General (Irish Free State) [1935] AC 484
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349
R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12
Randwick Municipal Council v Rutledge (1959) 102 CLR 54; [1959] HCA 63
Randwick Municipal Council v Thompson (1943) 15 LGR (NSW) 85
Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134; [1978] FCA 50
Richardson v Landecker (1950) 50 SR (NSW) 250
Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610; [1955] HCA 13
The Minister of State for the Interior v The Brisbane Amateur Turf Club (1949) 80 CLR 123; [1949] HCA 31
Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; [2003] NSWCA 297
Walsh v Minister for Lands (NSW) (1960) 103 CLR 240; [1960] HCA 52
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Texts Cited: C Jessel, Crown and Government Land: Prerogative, Statute and Common Law (2023, Wildy, Simmonds and Hill Publishing)
Sir George Farwell, A concise treatise on powers (3rd ed, 1916, Stevens and Sons Ltd)
Category: Principal judgment
Parties: Valuer-General (Applicant)
Sydney Fish Market Pty Ltd (Respondent)
Representation: Counsel:
J Waters SC, M Dalla-Pozza (Applicant)
R Lancaster SC (Respondent)
[2]
Solicitors:
Crown Solicitor's Office (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2022/200181
Publication restriction: Nil
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 3
Citation: Sydney Fish Market Pty Ltd v Valuer-General of New South Wales [2022] NSWLEC 71
Date of Decision: 10 June 2022
Before: Pepper J
File Number(s): 2021/98827, 2021/259536
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
In 1994, a 50 year lease was granted over Crown land in Pyrmont in favour of Sydney Fish Market Pty Ltd. The lease required, amongst other things, that Sydney Fish Market pay rates and land tax, and operate a "substantial wholesale fish market" on the land.
Sydney Fish Market received two valuations of the land prepared by the Valuer-General in 2019 and 2020. Both were prepared on the basis that the land was not "Crown lease restricted" for the purposes of s 14I of the Valuation of Land Act 1916 (NSW). That characterisation of the land was contested by the parties.
Whether or not the land was "Crown lease restricted" turned on the operation of the transitional provisions of the Crown Land Management Act 2016 (NSW), notably cl 26(1) of Division 7 of Schedule 7. The application of that clause gave rise to two main issues:
Was the lease in force under the Crown Lands Act 1989 (NSW)? The Valuer-General submitted that the lease should be regarded as having been granted under s 9 of the Fish Marketing Act 1994 (NSW), and not under the Crown Lands Act.
Did the vesting of the land from the Crown to the State Property Authority in 2007 alter the position (as argued by the Valuer-General)?
The Court (per Leeming JA, Mitchelmore and Kirk JJA agreeing) granted leave to appeal but dismissed the appeal, holding that:
As to issue (1):
There was not an exercise of power under s 9(1) of the Fish Marketing Act because that section does not confer power to grant a lease: at [62]-[71], [94(3)]. The Lease was in 2016 in force under the Crown Lands Act for the purposes of cl 26(1), because that statute was the source of the power to grant the lease and continued to govern the parties' rights: at [94(4)].
As to issue (2):
A change in the identity of the lessor does not without more change the nature of the lease. Clause 26 is directed to the character of the lease, not the character of the land. If in 2005 the lease was in force under the Crown Lands Act for the purposes of cl 26(1), that remained the case in 2007: at [98].
[5]
Judgment
LEEMING JA: The issue in this appeal is whether land known as 56-60 Pyrmont Bridge Road, Pyrmont which is the subject of a 50 year registered lease granted some 28 years ago in favour of the respondent, Sydney Fish Market Pty Ltd, is "Crown lease restricted" for the purposes of s 14I of the Valuation of Land Act 1916 (NSW). I shall refer to the land, the lease and the lessee as the Land, the Lease and SFM. Whether or not the Land is "Crown lease restricted" turns on the operation of the transitional provisions of the Crown Land Management Act 2016 (NSW), notably cl 26(1) of Division 7 of Schedule 7. The application of that clause gives rise to two main issues: (i) was the Lease in force under the Crown Lands Act 1989 (NSW) (as SFM contends and the Valuer-General denies) and (ii) did the vesting of the Land from the Crown to the State Property Authority in 2007 alter the position (as the Valuer-General contends and as SFM denies).
[6]
Factual background
SFM is liable under the Lease to pay rates and land tax (cl 4.3). The Lease also requires there to be a "substantial wholesale fish market", and permits related uses (cl 7.3). SFM has since the commencement of the Lease operated the Sydney Fish Market on the Land.
SFM received two valuations of the Land prepared by the Valuer-General, for 1 July 2019 and 1 July 2020. Both were prepared on the basis that the Land was not "Crown lease restricted" for the purposes of s 14I. SFM maintains that the Land is "Crown lease restricted" land, and thus, in accordance with s 14I(1) of the Valuation of Land Act, is "to have its land value determined taking into account the restrictions on the disposition or manner of use that apply to the land by reason of its being the subject of the lease concerned". It is not disputed that otherwise the land value determined in accordance with s 6A of the Valuation of Land Act (in general terms, the unimproved land value, upon which assessments of rates and land tax will be based) without regard to the obligation to operate a substantial wholesale fish market will result in a much higher land value than a valuation which has regard to that obligation.
SFM objected to the valuations, had its objection rejected, and appealed to the Land and Environment Court, pursuant to ss 29, 35B and 37 of the Valuation of Land Act. It had standing to do so because of its liability under the Lease. The Land and Environment Court determined a separate question in pending proceedings in Class 3 of that Court's jurisdiction favourably to SFM: Sydney Fish Market Pty Ltd v Valuer-General of New South Wales [2022] NSWLEC 71, from which decision the Valuer-General brings this appeal.
The litigation proceeded on the basis of a statement of agreed facts and a selection of documents.
There were two critical time periods: October 1994 when the Land was transferred from the former Fish Marketing Authority to the Crown, followed shortly thereafter by the grant of the Lease, and June 2007 when ownership of the Land changed from the Crown to the State Property Authority.
[7]
October 1994
Prior to 1994, the Sydney Fish Market was owned and operated by the Fish Marketing Authority. That body was renamed in 1970 by s 41A of the Fisheries and Oyster Farms Act 1935 (NSW) and dated back to the NSW Fish Authority established by the Fisheries and Oyster Farms (Amendment) Act 1963 (NSW) and (so far as I can see) the Fisheries and Oyster Farms (Amendment) Act 1942 (NSW). Prior to 1994, State law regulated the sale of most fish caught in New South Wales, subject to the operation of s 92 of the Commonwealth Constitution (see Cam & Sons Pty Ltd v Chief Secretary of NSW (1951) 84 CLR 442; [1951] HCA 59).
The Fish Marketing Act 1994 (NSW) was said to deregulate the industry. It authorised the sale of the business undertaking of the statutory authority which by then was named the Fish Marketing Authority. Section 6 required the sale date to be appointed by proclamation, which (in accordance with the definition in s 21 of the Interpretation Act 1987 (NSW)), was effected by publication in the Government Gazette as 31 October 1994.
The Hon Ian Causley was the Minister for Agriculture and Fisheries and Minister for Mines from 26 May 1993 to 4 April 1995. He had responsibility for the administration of the Fish Marketing Act. Responsibility for administering the Crown Lands Act rested with the Minister for Land and Water Conservation, the Hon George Souris.
Sections 5(3) and 8(2) of the Fish Marketing Act empowered "[t]he Minister", by order in writing, to transfer parts of the business undertaking of the Fish Marketing Authority to the approved purchaser (in the case of assets included in the sale) or to the Crown, the Fisheries Administration Ministerial Corporation or another public authority (in the case of assets excluded from the sale). The reference to "[t]he Minister" is to be understood as a reference to the Minister administering the Fish Marketing Act in accordance with s 15(2)(a) of the Interpretation Act. The approved purchaser was defined in s 4 to be SFM.
On 27 October 1994, Minister Causley made two orders. One provided that the Land "be transferred as from the sale date to the Crown". The other transferred the assets, rights and liabilities referred to in the sale agreement, which did not include the Land, to SFM as from the sale date.
On or before 31 October 1994, Minister Causley executed the Lease in favour of SFM. The instrument stated that he did so "for and on behalf of Her Most Gracious Majesty Queen Elizabeth II in the right of the State of New South Wales and the Government of New South Wales". The instrument did not identify the source of the power being exercised. If there were a briefing note accompanying the Lease, it was not in evidence. (It may be doubted whether anything beyond the registered lease was relevant to many of the issues arising in this litigation, in accordance with or by analogy to Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at [39]-[45] and the principles associated with Moore v The Attorney General (Irish Free State) [1935] AC 484 to which I shall return.) The Lease was in registrable form, and was in fact eventually registered (and was stamped with duty of $262,500).
[8]
June 2007
On 29 June 2007, the Land the subject of the Lease was vested in the State Property Authority by an order made under s 19 of what is now the Property NSW Act 2006 (NSW). The vesting took effect on 1 July 2007, although the State Property Authority only became the registered proprietor in April 2008. The vesting was effected by statute, and expressed to be "without the need for any further conveyance, transfer, assignment of assurance" (thus it would seem that, unlike provisions such as s 78(3) of the Trustee Act 1925 (NSW), the order was effective prior to the lodgement of any dealing under the Real Property Act 1900 (NSW), although it was not said that anything turns on this point) but nonetheless "subject to any trusts, estates, … to which the land was subject immediately before the transfer date".
The name of the State Property Authority changed to Government Property NSW on 23 January 2013 and then to Property NSW on 6 January 2017. Government Property NSW was recorded as the registered proprietor of the Land on 12 February 2013, while the further name change to Property NSW has not been registered.
[9]
Section 14I in its current and earlier forms
At the time of the valuations (and today) s 14I(2) of the Valuation of Land Act defined when land was Crown lease restricted:
(2) Land is Crown lease restricted if it is subject to any of the following -
(a) a holding or enclosure permit within the meaning of the Crown Land Management Act 2016,
(b) a continued permissive occupancy within the meaning of Schedule 1 to the Crown Land Management Act 2016,
(c) a lease under the Forestry Act 2012,
(d) in the case of lands of the Crown, a lease of a class or description prescribed by the regulations.
Only paragraph (a) is relevant to this appeal and, indeed, all that matters is whether the Land was subject to a "holding" within the meaning of the Crown Land Management Act 2016. That may seem more obscure than it is, by reason of the change in nomenclature which accompanied the enactment of the Crown Land Management Act. Before then, the corresponding paragraph of the definition required the land to be subject to "a lease or licence, or a permit to enclose a road or watercourse, granted under Part 4 of the Crown Lands Act". When first enacted in 2000 (by the Valuation of Land Amendment Act 2000 (NSW)), s 14I provided that land was "Crown lease restricted if it is subject to a lease referred to in section 58F", and s 58F, which was titled "Land rating factors - certain classes of lease from the Crown", listed a series of holdings including "a lease or licence, or permit to enclose a road or watercourse, granted under Part 4 of the Crown Lands Act".
The point of mentioning the earlier forms of s 14I is that the defined term "Crown lease restricted" was evidently not chosen at random. It was an apt choice of language to reflect a class of land the use of which was restricted by the terms of Crown leases and other similar tenures. There is nothing to indicate that there was any change of substance when the Crown Land Management Act introduced different terminology.
[10]
The transitional provisions of the Crown Land Management Act
A "holding" is defined in s 1.5 of the Crown Land Management Act to include "any lease or licence under this Act". The transitional provisions in clause 26 of Division 7 of Schedule 7 provide in their entirety as follows, although greatest attention was given to cl 26(1):
26 Continuation of certain leases, licences and enclosure permits
(1) Any lease over land in force under a repealed Act continues in force on and from the repeal day as a lease under this Act over the same land.
(2) Any licence over land in force under a repealed Act continues in force on and from the repeal day as a licence under this Act over the same land.
(3) An enclosure permit for a road or watercourse in force under the Crown Lands Act 1989 continues in force on and from the repeal day as an enclosure permit under this Act in relation to the same road or watercourse.
(4) A lease, licence or enclosure permit for a defined term does not (except as provided by this Act) continue beyond the end of that term.
(5) The lease, licence or enclosure permit continues to be subject to the terms and conditions specified in lease, licence or permit unless the terms or conditions are inconsistent with another provision of this Act.
(6) To avoid doubt, any sublease or sublicence of a lease or licence that this clause continues in force also continues in force under this Act.
(6A) Section 143C of the Crown Lands Act 1989 continues to apply to a licence or permit to which it applied immediately before the repeal day for a period of 5 years commencing on that day, subject to the following modifications -
(a) a reference to that Act is to be read as a reference to this Act,
(b) a reference to the minimum rent is to be read as a reference to the minimum rent for the licence or permit as provided by Part 6 of this Act.
Note -
Section 143C of the Crown Lands Act 1989 provided for the adjustment of annual rent in line with the Consumer Price Index for certain licences and permits to which that Act applied.
(7) This clause does not apply in relation to a continued holding.
Note -
Schedules 1-3 make special provision in relation to continued holdings.
Schedule 7 commenced on the date of assent of the Crown Land Management Act (see s 1.2(c)), which was 14 November 2016. The Crown Lands Act 1989 is a "repealed Act": see cl 2 and the definitions of "repealed Act" and "repeal day". It was not suggested, nor could it be suggested, that the Fish Marketing Act was a "repealed Act". Clause 26 and Division 7 are within Part 2 of the savings and transitional provisions in Schedule 7 of the Crown Land Management Act. Part 2 is titled "Provisions consequent on enactment of this Act and Crown Land Legislation Amendment Act 2017". The repeal of the Crown Lands Act and the enactment of the Crown Land Management Act were accompanied by a large number of transitional provisions, corresponding with the variety of rights, powers and entitlements available under the former legislation which continued under the successor statute. Speaking generally, the effect of cl 26 was to treat leases, licences and enclosure permits which had been in force under the Crown Lands Act as continuing in force under the Crown Land Management Act but subject to the same conditions (cl 26(5)) and for the same term (cl 26(4)).
[11]
The qualified power to grant a lease over Crown land in the Crown Lands Act
Sections 6 and 7 of the Crown Lands Act regulated the powers to deal with Crown land. Those sections provided at all relevant times prior to their repeal:
6 Crown land to be dealt with subject to this Act etc.
Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989.
7 Relationship with other Acts
This Act shall not be construed so as to affect the operation of a provision of any other Act which:
(a) makes special provision for any particular kind of Crown land; or
(b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.
Section 34 of that Act conferred upon the relevant Minister the power to lease Crown land. In the form it took in October 1994, the section provided:
34 Powers of Minister
(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:
(a) sell, lease, exchange or otherwise dispose of or deal with Crown land; or
(b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land,
on behalf of the Crown.
...
(3) The Minister may not, under subsection (1):
(a) sell or exchange Crown land;
(b) lease Crown land for a term exceeding 5 years; or
(c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years,
unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
Section 35 provided, in October 1994, that:
35 Assessment of land
(1) The powers of the Minister under this Part may not be exercised in respect of Crown land unless the Minister is satisfied that the land has been assessed under Part 3.
(2) Subsection (1) does not apply if:
(a) the Minister is satisfied that it is in the public interest to exercise the powers without assessing the land under Part 3 and the Minister, in exercising the powers, has had due regard to the principles of Crown land management; or
(b) the powers are to be exercised in respect of the grant of:
(i) an enclosure permit; or
(ii) a licence which does not authorise the erection of a structure other than fencing or the removal of material.
[12]
The power relied on by the Valuer-General in the Fish Marketing Act
At the forefront of the Valuer-General's submissions in support of grounds 1 and 2 was s 9 of the Fish Marketing Act, which (as at October 1994) provided as follows:
9 Lease of Sydney fish market site to approved purchaser
(1) A lease of all or any part of the Sydney fish market site may be granted to the approved purchaser on or after the sale date.
(2) Any such lease may be granted as a concurrent lease in respect of the land the subject of any or all of the existing leases.
(3) The inclusion in an existing lease, or in any sublease from the approved purchaser, of a condition that prohibits fish being sold by wholesale or retail on the Sydney fish market site unless they are purchased at the public auction facility of the approved purchaser is specifically authorised and approved, until the deregulation date, for the purposes of section 51 of the Trade Practices Act 1974 of the Commonwealth.
(4) In this section, "existing lease" means a lease of any part of the Sydney fish market site that is in force immediately before the sale date.
Subsection 9(3) was repealed in 1997, and the balance of the section was repealed in 2012. I shall return to the other provisions of that Act in due course.
[13]
The two essential issues
The issues are essentially twofold. SFM has only ever held an interest in the Land under one lease, namely, the Lease granted 28 years ago in the name of the Crown. Whether the Land was "Crown lease restricted" on the dates of the valuations depends on whether the Lease was at those dates a "holding" for the purposes of the Crown Land Management Act, and the only way in which that was said to occur is if the transitional provision in cl 26 of Div 7 of Sch 7 of that Act applied.
The first issue is directly presented by cl 26: did the Lease fall, in 2016 when Schedule 7 of the Crown Land Management Act commenced, within the description "Any lease over land in force under [the Crown Lands Act]". If so, the Lease is taken, by virtue of that clause, to continue in force as a lease under the Crown Land Management Act over the same Land for the same term and subject to the same terms and conditions, and therefore will be a "holding".
The second issue turns on the fact that title to the Land became vested in the State Property Authority on 1 July 2007. The Valuer-General says that that had the consequence that the Land ceased to be Crown land, and that this amounted to a separate reason why cl 26 in the transitional provisions did not apply, and the Lease no longer answered the description of a "lease over land in force under [the Crown Lands Act]" within the meaning of cl 26(1).
[14]
The reasons of the primary judge
The primary judge answered the separate question in favour of SFM, holding that the Land was "Crown lease restricted" at the valuing dates of 1 July 2019 and 1 July 2020. Her Honour's reasons reflected the more elaborate ways in which submissions were advanced to her. They divided into four issues: (1) whether the Lease signed in 1994 was a lease granted under the Crown Lands Act; (2) whether, notwithstanding the transfer of the Land to the State Property Authority, the Land remained at all relevant times subject to the Lease; (3) whether, from the date of the transfer of the Land to the State Property Authority up to the date of the repeal of the Crown Lands Act in 2016, the Lease remained a lease under the Crown Lands Act; and (4) whether the Lease continued as a lease under the Crown Land Management Act by reason of the savings and transitional provisions of that Act.
It would needlessly increase the length of these reasons if I summarised the reasons of the primary judge in great detail. I have profited from her Honour's analysis, which is consistent with much of these reasons, and which incorporates the detailed submissions made to her. However, her Honour placed no weight upon s 9(3) of the Fish Marketing Act or s 5A of the Fisheries Act (on which, so far as I can see, neither side relied) and expressed a view as to the status of the Land after 2007 to which I shall return when dealing with ground 3.
After setting out the statutory framework at [28]-[48] and the parties' submissions at [49]-[69], the primary judge concluded that the Lease could only have been granted under the Crown Lands Act: at [87]. In the course of reaching that conclusion, her Honour observed at [71] and [74] that:
it is conceivable that the power exercised under s 9(1) of the [Fish Marketing Act] was confirmatory of a power to grant a lease and that this is what occurred on 31 October 1994. There is nothing in the language of s 9 of the [Fish Marketing Act] that excludes this possibility. Importantly, the proposition that the lease was granted exclusively under s 9 of the [Fish Marketing Act] is directly contrary to the statutory prohibition on dealing with Crown land otherwise than under the [Crown Lands Act] contained in s 6 of that Act.
…
In short, s 9 of the [Fish Marketing Act] was not a provision, the operation of which displaced the primacy of the [Crown Lands Act] enshrined in s 6 of that Act.
[15]
The appeal to this Court
The Valuer-General's appeal to this Court, pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW), is confined to a question of law, and lies only with leave because the decision is interlocutory. There was a concurrent hearing of the application for leave and the appeal, and it was not disputed that the issues amounted to one or more questions of law. The parties proceeded on the sensible basis that the considerations bearing upon the grant or refusal of leave did not need to be addressed separately from the questions of law bearing upon the answer to the separate question.
There are three grounds of appeal. They are that the primary judge erred (1) by concluding that the Lease was a holding within the meaning of s 1.5 of the Crown Land Management Act, (2) by equating the question of whether the Lease was "under" the Crown Land Management Act to the question of whether the Land was Crown land, and (3) by concluding that the Land remained under the Crown Lands Act and the Crown Land Management Act notwithstanding the vesting of the Land in 2007 in the State Property Authority.
The Valuer-General's written submissions articulated propositions corresponding to each ground:
1. Proposition 1: the Lease was "under" the Fish Marketing Act and, therefore, was not "under" the Crown Land Management Act, and for that reason, it was not a "holding" for the purposes of s 14I of the Valuation of Land Act;
2. Proposition 2: even if the Land was, at the time the Lease was made, "Crown land" within the meaning of the Crown Lands Act, this did not cause the Lease to be "under" the Crown Land Management Act or to become a "holding" for the purposes of s 14I;
3. Proposition 3: the effect of the Land being transferred to the State Property Authority in 2007 meant that the Land was no longer a "holding", assuming, contrary to the Valuer-General's submissions on the first two propositions, that it ever was.
The Valuer-General's written submissions developed each ground. However, his oral submissions conflated grounds 1 and 2. He was correct to take that course. That is because, as had been emphasised in SFM's written submissions, it is not sufficient to conclude that the Lease was "under" the Fish Marketing Act. That is not the question posed by cl 26. The question posed by cl 26 is whether the Lease was in force under the Crown Lands Act. If it be established that the Lease is in force under one statute, it does not without more follow that the Lease is not in force under another statute. The same exercise of executive power may, and often is, supported by more than one source of power. As was mentioned during the hearing, it is well-settled that an exercise of power supported by two sources of power may be valid even if the donee of the power misapprehends the terms upon which one source is exercised, if there is another available source of power - even if the donee is unaware of that other source. Thus the unanimous judgment of the High Court in Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7 said that "the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them", citing Moore v The Attorney General (Irish Free State) [1935] AC 484 at 498 and R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; [1942] HCA 12. Further, "under" is an elastic, context-dependent word, which admits of "degrees of precision and exactness on the one hand, and of looseness and inexactness on the other" making it "necessary to have regard to the context in order to identify the meaning of the word intended in a particular case": Energy Resources of Australia Ltd v Commissioner of Taxation [2003] FCA 26; (2003) 52 ATR 120 at [37]; see also Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [102]. If as the Valuer-General submits there were two potential sources of power, s 9 of the Fish Marketing Act and s 34 of the Crown Lands Act, it may be possible for the Lease to be regarded, for the purposes of cl 26, as being "under" the latter.
[16]
Consideration - grounds 1 and 2
It was common ground that the Land was "Crown land" at the time the Lease was granted. There is nothing to displace the effect of s 13(b) of the Interpretation Act that the "Crown" in s 8(2) of the Fish Marketing Act was a reference to the Crown in right of New South Wales.
[17]
The approach to be taken to cl 26(1)
The starting point is the construction of cl 26(1), and that gives rise to two issues. First, during the hearing, there was debate concerning the significance of the words "in force" in cl 26(1), focusing on the fact that the entirety of the Fish Marketing Act was repealed in 2012, years before the Crown Land Management Act commenced. The words "in force" in cl 26(1) do not ask whether any legislation is or is not in force. They are directed to the status of leases. The key to the provision is to identify that the transitive verb is "continues" and its subject is "Any lease". Once that is seen, it is readily apparent that leases which were in force at the repeal day continue in force under the Crown Lands Act thereafter, but with a different character: whereas formerly they were leases under the Crown Lands Act, thereafter they are taken to be a lease under the Crown Land Management Act. That conclusion is confirmed by cl 26(6) which makes it plain that the clause has the effect of continuing a lease in force.
Secondly, the Fish Marketing Act was repealed in 2012, years before the commencement of the Crown Land Management Act. Accordingly, the Valuer-General's submissions emphasised the significance of the source of the power to grant the Lease, maintaining that this was sourced in s 9(1) of the Fish Marketing Act, and not s 34 of the Crown Lands Act, and that it did not matter that the Land was Crown land (until at least 2006) and was regulated under the Crown Lands Act.
On the view I take, it is not necessary to reach a concluded view as to the construction of cl 26(1) for the purposes of resolving grounds 1 and 2. The words "[a] lease over land in force under [the Crown Lands Act]" may, arguably, be satisfied by identifying the source of power to grant the lease. They may also, arguably, be satisfied by identifying the source of powers which may be exercised by the parties during the term of the lease insofar as those powers come from statute. For example, in the event that there were a breach of a leasehold covenant in, say, 1998, the Crown would enjoy powers of forfeiture governed by the Lease and the general law, but also as conferred by Part 6 of the Crown Lands Act. Even if the Lease were granted under a power conferred by the Fish Marketing Act the availability of powers under the Crown Lands Act throughout the term of the lease might, at least arguably, suffice to satisfy cl 26(1).
[18]
The parties' submissions
SFM said that its 50 year registered lease had been, when assent was given to the Crown Land Management Act, a lease in force under the Crown Lands Act, and accordingly, by dint of cl 26(1), continued in force as a lease under the Crown Land Management Act, and thereby was a "holding" as defined by s 1.5 of the latter Act, which in turn satisfied the definition in s 14I(2)(a) of the Valuation of Land Act of "Crown lease restricted". The Land having been Crown land when the Lease was granted, it was readily to be inferred that s 34 had been employed. Indeed, it was said that "the Minister should be regarded and must be regarded as exercising the power under s 34 of the Crown Lands Act because otherwise the transaction would be a prohibited one".
Against this, the Valuer-General submitted that the Lease should be regarded as having been granted under the Fish Marketing Act, and not under the Crown Lands Act. It was put that "the Lease was not, from the outset, a lease under the Crown Lands Act 1989, and thus, it didn't become a lease under the Crown Lands Management Act. The alternative position we put is that the Lease was made under the Fisheries Marketing Act, and in particular, s 9". The submission had a number of strands.
Section 9 should not be rendered otiose. It was said that the primary judge's construction of s 9 of the Fish Marketing Act as being "confirmatory of a power to grant a lease" rendered s 9 otiose. The Valuer-General said that s 9 should instead be construed such that it had some operative effect, namely, that it was the "dominant" provision for leasing the Land, providing a "substantive source of power" to enter into the Lease which overrode or impliedly repealed any inconsistent provisions in the Crown Lands Act.
Section 9 is dominant and impliedly repeals the Crown Lands Act. The Valuer-General said that inconsistencies between s 9 of the Fish Marketing Act and the Crown Lands Act provisions indicated that the Lease was not made under the latter. In particular it was said that the notice requirements of s 34(3)(b) had not been satisfied. However, s 9 contained no such requirements, which suggested that the latter was the source of power.
The Valuer-General also said that s 9 was later in time and the more specific provision, such that it would displace or impliedly repeal the requirements in the Crown Lands Act to the extent of any inconsistency: Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55; Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9.
[19]
Consideration
I do not accept most of the Valuer-General's submissions. The first and principal obstacle to their acceptance is that they elide the differences between two quite separate things. As was pointed out during the hearing, the submissions conflate the matters which bear upon the understanding of the Minister and those advising him at the time, and the matters which are relevant to the question of statutory construction.
There are two threshold questions of statutory construction. The first is whether s 9 of the Fish Marketing Act confers a power at all. If it does, then the second question is how that power interacts with the power conferred by s 34 of the Crown Lands Act. The Valuer-General's submissions assume that s 9 confers a power, but without any analysis, and proceed directly to the second question. The answer to the first question is unaffected by anything done or not done by the Minister administering the Fish Marketing Act or the Minister administering the Crown Lands Act months or years after the legislation was enacted.
[20]
Considerations telling against s 9(1) of the Fish Marketing Act conferring power to grant a lease
Section 9(1) is on its face an unlikely source of power to grant a lease. Perhaps most obvious is the fact that the provision does not identify the donee of any power. It is expressed in the passive voice: "A lease of all or any part of the Sydney fish market site may be granted to the approved purchaser on or after the sale date". It is unusual to find a statute conferring power to do something without the statute identifying who can exercise the power.
The unlikelihood of the construction on which the Valuer-General's submissions rest is confirmed when the provision is read in context. The failure to identify the donee of the power in s 9(1) is in contrast with the form of other provisions within the same statute, including the powers to transfer part of the business undertaking (s 5(3)), the power to direct that excluded assets be transferred to the Crown, the Fisheries Administration Ministerial Corporation or any other public authority (s 8(2)), and the authorisation conferred upon the Minister to enter into negotiations for the sale (s 5(2)). Each of those provisions identified the Minister as the person empowered, or authorised, to do the specified thing. Section 9(1) fails to do that.
Section 9(1) is to be construed in context, including by reference to the provisions which surround it and to which it relates. These include s 8, which provided as follows:
8 Parts of business undertaking of FMA excluded from sale
(1) The following assets, rights and liabilities that are part of the business undertaking of FMA are excluded from sale under this Part:
(a) the Sydney fish market site;
(b) any other assets, rights or liabilities that the Minister decides to exclude from sale.
(2) The Minister may, by order in writing, direct that any assets, rights or liabilities excluded from sale under this Part be transferred to the Crown, the Fisheries Administration Ministerial Corporation or any other public authority.
(3) The Minister may, in accordance with this section, further transfer any assets, rights or liabilities previously transferred under this section.
Thus s 9(1) had to accommodate the possibility that the Land might be transferred, pursuant to s 8(2), to the Crown or to the Fisheries Administration Ministerial Corporation, or to another public authority.
[21]
An alternative construction of s 9(1) of the Fish Marketing Act
An alternative construction of s 9 of the Fish Marketing Act is available. The alternative construction is that s 9(1) does not confer power to grant a lease over the Sydney fish market site at all. Instead, s 9 is concerned to ensure that there is statutory authority for certain restrictive trade practices in place at the time and which were intended subsequently to continue. On this approach, the main purpose of the section is in s 9(3), to which the other subsections are ancillary.
Textually, that approach is confirmed by the fact that subsections (1) and (2) are both expressed in the passive and appear on their face to be merely facultative. In contrast, s 9(3) has a clear legal effect - it amounts to specific authorisation and approval for the purposes of s 51 of the Trade Practices Act 1974 (Cth). Subsection 9(3) was not mentioned by the primary judge, and indeed was repealed three years later (by item 5 of Schedule 1 of the Fish Marketing Amendment (Deregulation) Act 1997 (NSW)). The Valuer-General sought to put s 9(3) entirely to one side: "[Section] 9(3) deals simply with the program for deregulation and it might be inferred that there were Trade Practices Act concerns operating that required a response in the short term rather than the long term, but that impacts in no way on the matters that were now under consideration". I disagree.
Subsection 9(1) merely identifies the lease which is contemplated as an essential aspect of the sale and the timing of that lease, and s 9(2) confirms that "[a]ny such lease may be granted as a concurrent lease", so as to engage s 9(3).
Subsection (2) authorises a concurrent lease - with the result that the new lessee (the approved purchaser) became the landlord of existing tenants of the land. The grant of a concurrent lease brings about an assignment of the reversion to the extent of the concurrent lessee's interest: Richardson v Landecker (1950) 50 SR (NSW) 250 at 258; The Minister of State for the Interior v The Brisbane Amateur Turf Club (1949) 80 CLR 123 at 148 and 162; [1949] HCA 31. Sackville AJA writing for this Court said in Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462; [2011] NSWCA 325 at [73]:
An immediate relationship of privity of estate exists between the concurrent lessee and the original lessee: Birch v Wright (1786) 1 TR 378 at 384; (1786) 99 ER 1148 at 1152 per Buller J. The concurrent lessee, as landlord of the original lessee, can enforce all covenants in the original lease capable of running with the tenancy: Horn v Beard (at 188).
See also Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56 at [52] where it was said that "[t]he effect of the grant of the concurrent lease is to create a relationship of landlord and tenant between [the lessee under the concurrent lease] as landlord and [the existing tenant of the lessor of the concurrent lease] as tenant for the period in which the two leases overlap".
[22]
Conclusion on whether s 9(1) confers a power to grant a lease
All of these considerations compel the conclusion that s 9(1) is not the source of the power of the body to which the Sydney fish market site is transferred to grant a lease to the approved purchaser. The power is found elsewhere. The source of the power depends upon the identity of the transferee. In the case of the land being transferred to the Crown, the power to grant a lease derives from s 34 of the Crown Lands Act which is by way of exception to s 6. In the case of the land being transferred to the Fisheries Administration Ministerial Corporation, the power derives from ownership and is confirmed by new s 5A(5)(b) of the Fisheries Act. In the case of the land being transferred to another public authority, the power likewise derives from ownership and will be found in the statute constituting that authority.
Thus the source of the power to grant the Lease was s 34 of the Crown Lands Act. Thereafter, until 2016, the rights of lessor and lessee were governed by the Crown Lands Act. When the Crown Land Management Act commenced, the Lease was in force under the Crown Lands Act within the meaning of cl 26(1).
That construction does not leave s 9 otiose. Section 9(1) identifies the intention that a lease be granted to the approved purchaser of the rest of the business undertaking, and then s 9(2) and (3) make provision so as to ensure that the existing leases continue and are the subject of specific authorisation and approval by statute in order to prevent their being considered to be restrictive trade practices contrary to federal law.
[23]
The Valuer-General's submissions on implied repeal and s 7
Many of the submissions advanced by the Valuer-General which depended upon s 9(1) of the Fish Marketing Act conferring a power to grant a lease and displacing the power conferred by s 34 of the Crown Lands Act do not arise. However, I should address them in any event.
One of the Valuer-General's submissions was that s 9(1) of the Fish Marketing Act impliedly repealed s 34 of the Crown Lands Act. It is true as the Valuer-General submits that the Fish Marketing Act is later in time than the Crown Lands Act, and specific in relation to the identity of the Land and the lessee. But in order to reach a conclusion of implied repeal, it is necessary to demonstrate "actual contrariety" which is "clearly apparent": Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [48]. No such contrariety with the Crown Lands Act is made out, even if s 9(1) is regarded as conferring a power. The Valuer-General's submission faces difficulties because s 9(1) does not identify the donee of the power to grant a lease, and applies to land which is not Crown land (because it needs to extend to cases where the Land is vested in the Fisheries Administration Ministerial Corporation). But the most powerful consideration telling against this approach turns on s 5A(5)(b). If s 9(1) confers a power to grant a lease in the event that the Sydney fish market site is transferred to the Crown, then it must likewise confer a power to grant a lease in the event that the same site is transferred to the newly created Fisheries Administration Ministerial Corporation (for there is no basis to give a differential operation to the same words in s 9(1) in their application to land transferred to the Crown as opposed to land transferred to the Fisheries Administration Ministerial Corporation). But s 5A(5)(b), which is inserted by Schedule 1 of the same Act, explicitly confers power upon the latter body to acquire and lease land. I fail to see how s 9(1) could impliedly repeal s 5A(5)(b). I also fail to see how, if s 9(1) is treated as conferring a power, then on the one hand it does not override s 5A(5)(b) in the event that the Land is transferred to the Fisheries Administration Ministerial Corporation, but on the other hand it does override s 34 in the event that the Land is transferred to the Crown.
[24]
The identity of the Minister and the preconditions to s 34
The Valuer-General also relied upon the identity of the Minister executing the Lease, and the apparent failure to comply with the provisions in the Crown Lands Act concerning land assessment and notification:
"[T]here's no evidence of the Crown Lands Minister or anyone else on his behalf having made an assessment or having determined or being satisfied that it was in the public interest not to assess the land before proceeding with the lease transaction. We say that those provisions point against any hypothesis that the lease to the respondent was a lease under the Crown Lands Act. We have affirmative evidence supporting the contention that the lease was under Fish Marketing Act, and an absence of evidence supporting what might be an alternative hypothesis."
Those submissions are not relevant to the question of statutory construction. There is also a deal of artificiality accompanying these submissions. I did not understand it to be put by any party that the Lease was not valid. Although all of the communications between the parties are not before this Court, it was put very squarely by SFM during oral address that "The Valuer-General has never said the lease is not a valid lease" to which no response was made in the Valuer-General's reply. It is after all a registered lease, and SFM is entitled to the benefit of the Real Property Act protecting its leasehold estate. And, perhaps more fundamentally, the Lease is the source of the liability of SFM alleged by the Valuer-General to pay land tax and rates based on the valuations.
If there were two available powers, one conditioned upon notification and assessment, and the other not, then the Valuer-General's submissions would have force: see the discussion by Spigelman CJ in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; [2003] NSWCA 297 esp at [34]-[57]. However, on the conclusion of statutory construction I have reached that there was only one source of power to grant the Lease over Crown land, namely, s 34 of the Crown Lands Act, nothing turns on them. What the Minister did, or did not do, in October 1994 does not affect the construction of s 9(1) of the Fish Marketing Act nor s 34 of the Crown Lands Act. Accordingly, I prefer not to determine whether SFM was entitled to rely on s 37A(3) of the Constitution Act 1902 (NSW) and the presumption of regularity, which was its response to the Valuer-General's submissions.
[25]
Conclusions on grounds 1 and 2
The position therefore is as follows.
1. The Land became Crown land on 27 October 1994 when it vested in "the Crown" by dint of Minister Causley's exercise of power under s 8(2) of the Fish Marketing Act read with s 16(a) of that Act (as is common ground).
2. When a few days later it was leased by Minister Causley on behalf of "Her Most Gracious Majesty Queen Elizabeth II in the Right of the State of New South Wales and the Government of New South Wales", there was an exercise of the power under s 34 of the Crown Lands Act to lease Crown land.
3. There was not an exercise of power under s 9(1) of the Fish Marketing Act because that section does not confer power to grant a lease.
4. The Lease was in 2016 in force under the Crown Lands Act for the purposes of cl 26(1), because the statute was the source of the power to grant the lease and continued to govern the parties' rights.
Accordingly, it follows that (save for the Valuer-General's submissions based on ground 3) the 50 year lease was a "lease over land in force under [the Crown Lands Act]" and therefore taken to be a lease under the Crown Land Management Act by dint of cl 26 of Division 7 of Schedule 7, and consequently a "holding" within the meaning of the Crown Land Management Act for the purposes of s 14I.
These grounds are not made out.
[26]
Ground 3
Separately from the above, the Valuer-General submitted that when the Land was transferred from the Crown to the State Property Authority, the Lease ceased to be a lease under the Crown Lands Act or the Crown Land Management Act. As it was introduced in the Valuer-General's oral address:
Proposition 3 … is simply about the proprietorship of the land as at the valuation dates and the attributes of the proprietor and it quite in one sense, perhaps conveniently, leaves a lot of the intervening events as irrelevant, including the very creation of the lease under the Fish Marketing Act or whatever the case may be. We know we have a lease as at 2018, at 2019 and 2020 and we know that the lessor is the renamed State Property Authority and that, as the lessor and the proprietor takes it outside the category of Crown land as at those dates. That's the argument we put, your Honour.
That submission has the merit of concision, but I cannot accept it. A change in the identity of the lessor does not without more change the nature of the lease. The position of a long-term tenant whose landlord sells, or dies, is far from uncommon. In the present case, the Land vested in the State Property Authority by dint of an order made pursuant to the State Property Authority Act, but the vesting was "subject to any … estates … to which the land was subject immediately before the transfer date". The vesting order thus explicitly preserved the extant Lease. Clause 26 is directed to the character of the Lease, not the character of the Land. If in 2005 the Lease was in force under the Crown Lands Act for the purposes of cl 26(1), that remained the case in 2007 (for completeness, this is the case irrespective of the meaning given to "under" in cl 26(1)). That is the short answer to this ground.
However, I should in deference to the variety of submissions advanced in support of this ground address them. It was said in writing that the combined effect of s 1.8 of the Crown Land Management Act and ss 5 and 11(1)(a)-(b) of the State Property Authority Act 2006 (NSW) have the effect that the Land was no longer Crown Land after it was vested in the State Property Authority, and that "s 1.8 merely reflects the position at Common Law". On that basis it was put that even apart from s 1.8, land vested in a Minister or a public authority (even one representing the Crown) is not Crown Land. The Valuer-General acknowledged that his submissions were contrary to Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64 at [56], but submitted that that case was wrongly decided and the court was not taken to the authorities bearing on the point.
[27]
Orders
The separate question determined by the primary judge was as follows:
Is the Land the subject of these proceedings, being legally identified as Lot 1 DP 74155, Lot 1 and 2 DP 125720, Lot 1 DP 734622, Lot 1 DP 836351 and Lot 2 DP 827434, also known as 56-60 Pyrmont Bridge Road, Pyrmont, "Crown lease restricted" within the meaning of section 14I(2) of the Valuation of Land Act 1916 (NSW) as at the valuing dates of 1 July 2019 and 1 July 2020?
Yes.
For the reasons given above, her Honour's answer was correct. While there should be a grant of leave, the appeal should be dismissed. It was not disputed that costs should follow the event. I propose these orders:
Grant leave to appeal.
Appeal dismissed, with costs.
MITCHELMORE JA: I agree with Leeming JA.
KIRK JA: I agree with Leeming JA.
[28]
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: 28 March 2023
Parties
Applicant/Plaintiff:
Valuer-General
Respondent/Defendant:
Sydney Fish Market Pty Ltd
Legislation Cited (20)
Crown Lands Act 1989(NSW)
Fish Marketing Act 1994(NSW)
Vict No 1) Crown Lands Consolidation Act 1913(NSW)
Fish Marketing Amendment (Deregulation) Act 1997(NSW)
Fisheries and Oyster Farms Act 1935(NSW)
Fisheries and Oyster Farms (Amendment) Act 1942(NSW)
Fisheries and Oyster Farms (Amendment) Act 1963(NSW)
The commencing date of the Lease was stated to be 29 October 1994 and the terminating date 28 October 2044. The Lease was expressed to be "concurrent with the Existing Leases and the Existing Licences", the significance of which will in due course become clear.
The references to "the Minister" in those provisions is to be understood as a reference to the Minister administering the Crown Lands Act.
Her Honour upheld SFM's reliance on the presumption of regularity and the presumption created by s 37A(3) of the Constitution Act 1902 (NSW), noting that the Valuer-General had not adduced evidence to the contrary: at [81]-[86].
In respect of the vesting in 2007, her Honour said at [95] that "[t]he fact that the owner of the land was identified as the [State Property] Authority under the [State Property Authority Act] did not change the character of the lease as land vested in the Crown", and at [96] that the vesting did not change "the fundamental character of the lease as one granted under the [Crown Lands Act]".
Her Honour concluded that upon the repeal of the Crown Lands Act, the Lease became a holding under the Crown Land Management Act and so the Land was "Crown lease restricted" within the meaning of s 14I(2)(a) of the Valuation of Land Act (at [109]-[110]).
Proposition 1 accordingly turns, as SFM submitted, on a false dichotomy. The question is not whether the Lease was granted under the Fish Marketing Act. The only question which matters is whether the Lease was in force under the Crown Lands Act for the purposes of cl 26.
Another reason for mentioning these points is to identify more precisely the significance of the state of mind to be imputed to the Minister. Even if every person involved believed that a power under the Fish Marketing Act was being exercised, that would not of itself prevent the Lease from being in force under the Crown Lands Act if indeed there were no power in law to grant a lease under the Fish Marketing Act. That said, the power under s 34 of the Crown Lands Act is conditional. It is expressed to be available only if the notification in s 34(3) has been published 14 days beforehand, and only if the Minister is satisfied the land has been assessed under Part 3, unless the Minister is satisfied in accordance with s 35(2) that it is in the public interest and the Minister has had due regard to the principles of Crown land management. There is no suggestion in the limited materials presented in connection with the determination of the separate question that either of those conditions was satisfied, something which was at the forefront of the Valuer-General's submissions. Even so, that is of no significance to the threshold issue of statutory construction, which is whether s 9 of the Fish Marketing Act conferred a power to lease the Land.
Some of the Valuer-General's submissions on the second main issue (ground 3) involved arguments that the current owner of the Land (the statutory authority originally known as the "State Property Authority", subsequently "Government Property NSW" and now "Property NSW") lacked various rights and powers under the Crown Lands Act and its successor the Crown Land Management Act. It is possible, but it is far from clear, that the interests of the owner are for practical purposes aligned with the interests of the Valuer-General. Ordinarily, the land owner's interests are opposed to those of the Valuer-General, because the land owner is liable in the first instance for rates and land tax which are calculated based on the valuations made by the Valuer-General. The divergence of interest was not so marked as might be thought, because it is common ground that the Land is no longer Crown land, and was not Crown land at the time of either valuation. That is the result of s 1.8 of the Crown Land Management Act, which provides:
1.8 When land is vested in Crown
(1) Land is not Crown land if it is vested in a Minister, or a statutory body representing the Crown, with express power under an Act (except the Interpretation Act 1987) to hold land in the exercise of the Minister's or body's functions.
(2) Land may be Crown land even though it is dedicated for a public purpose under this Act or another Act or law.
It will be necessary to return to s 1.8 when dealing with the Valuer-General's submissions in support of ground 3. For present purposes, it suffices to note that the answer to the separate question in the proceedings as presently constituted does not bind the owner. However, this is an interlocutory appeal, and, as SFM observed when this issue was raised during the appeal, it is open for additional parties to be joined before the proceedings are concluded. I mention this because it has some impact upon the approach to be taken to resolving this appeal.
I shall follow the same course as the Valuer-General's oral submissions, and address grounds 1 and 2 jointly. Departing from his approach, I shall commence with those submissions, rather than ground 3, because they are logically as well as temporally anterior.
As I understood SFM's submissions, SFM did not strenuously oppose the tenor of the Valuer-General's submission that it was sufficient, in order to displace the operation of cl 26(1), for the Fish Marketing Act to be the source of the power to grant the Lease. That may reflect the fact that the principal source of the rights governing the relationship between lessor, lessee and the Land is the registered lease, not the statutory regime under which it is administered, and thus the source of the power to grant that Lease is significant. That approach may be unduly favourable to the Valuer-General. A broader way of construing cl 26(1) is that its focus is upon the future, and that in respect of the future exercise of rights, obligations and powers over land, where formerly those rights, obligations and powers had been found in the Crown Lands Act, after that statute's repeal, they were to be found in the Crown Land Management Act. From the perspective of a tenant in, say, 1998, who faces forfeiture under Part 6 of the Crown Lands Act for breach of a covenant, what matters far more than the source of the power to grant the Lease in 1994 is the nature of the rights being exercised in 1998. However, grounds 1 and 2 of this appeal can be resolved on the approach, favourable to the Valuer-General, of focussing upon the source of the power to grant the Lease.
Section 34 is displaced by s 7 of the Crown Lands Act. The Valuer-General also pointed to what he said were inconsistencies between provisions in the Crown Lands Act and the terms of the Lease, including relating to mechanisms for re-entry to the Land and the surrender of the SFM's estate and interest under the Lease (cl 12.2), regimes for the calculation of rent (cl 4.1) and a clause that the terms contained in the Lease comprised the whole agreement between the Crown and SFM (cl 1.8).
The Valuer-General said that by reason of the inconsistencies between s 9 of the Fish Marketing Act and s 34 of the Crown Lands Act, the primary judge erred in concluding that that the Lease could simultaneously have been under both the Crown Lands Act and the Fish Marketing Act, relying on CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [214]. Instead, in those circumstances, the Valuer-General said that both s 7(a) and 7(b) of the Crown Lands Act would be satisfied, such that s 7 would operate to displace the provisions of that statute which would otherwise have regulated the manner in which a lease could be granted.
Objective indicia that the Lease was made under the Fish Marketing Act. The Valuer-General pointed to what he maintained were a number of objective indicia that the Lease was made under the Fish Marketing Act:
1. The absence of any evidence of an attempt being made to comply with the requirements under s 34(3)(b) of the Crown Lands Act and the lack of any equivalent requirements in the Fish Marketing Act.
2. Minister Causley, the Minister administering the Fish Marketing Act, executed the Lease, rather than Minister Souris, the Minister administering the Crown Lands Act.
3. Minister Causley did not purport to be signing the Lease on behalf of Minister Souris nor as his agent so as to engage s 37A of the Constitution Act.
4. The fact that the Lease was concurrent, something addressed specifically by s 9(2) of the Fish Marketing Act.
The Valuer-General submitted that the fact that the Minister signed the Lease on behalf of the "Government of New South Wales", in addition to signing on behalf of the Crown in the right of NSW, did not indicate that he had been authorised to sign on behalf of Minister Souris but rather merely referred to the constitutional role that Minister Causley was performing in signing on behalf of the Queen as one of her Majesty's elected representatives in NSW holding the Ministerial office described in the NSW Government.
Other uses of "under the Act" and "granted under the Act". The Valuer-General submitted that if s 9 of the Fish Marketing Act were the substantive source of power to enter into the Lease, it would follow that the Lease was "under" that Act. This was said to accord with the ordinary meaning of the preposition. The Valuer-General made an analogy to cases where the word "under" had been held not to extend to actions taken under a private agreement which agreement was made pursuant to a statutory provision: Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [23], [81]; Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103 at [37]-[39]. Here, so it was said, the Lease was not "under" the Crown Lands Act as the agreement, rather than the Crown Lands Act, regulated the source of rights between the parties.
As Mitchelmore JA pointed out during argument, the Fish Marketing Act 1994 at the same time as enacting ss 8(2) and 9(1) also inserted new s 5A into the Fisheries Act. That section constituted the Fisheries Administration Ministerial Corporation, and conferred upon it the power to, inter alia, "acquire, exchange, lease, dispose of or otherwise deal with property" (s 5A(5)(b)).
That is to say, the same statute expressly conferred power to transfer the same land to the Fisheries Administration Ministerial Corporation (s 8(2)), and expressly conferred power upon the Fisheries Administration Ministerial Corporation to lease land (the new s 5A(5)(b)). If the Valuer-General's construction of s 9(1) is correct, then the statute also confers the power to grant a lease to the approved purchaser in relation to the Land in s 9(1). That is a decidedly unlikely construction.
It is also to be borne in mind that the Land was to be vested in fee simple. The owner of land in fee simple may, ordinarily, grant a lease without separate conferral of power. The fee simple is the highest estate unencumbered and is subject to no conditions: Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 at 623; [1955] HCA 13. Such an estate confers "the lawful right to exercise over, upon and in respect to, the land, every act of ownership which can enter into the imagination": Commonwealth v New South Wales (1923) 33 CLR 1 at 42; [1923] HCA 34; Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58 at [43]. One of the incidents of ownership of land in fee simple is the power to lease. Separate statutory authority is unnecessary, unless there be some other prohibition upon doing so. Of course, where the owner is a creature of statute, which may not have all the powers of a natural person, legislation will commonly make the existence of such a power clear.
It is also decidedly unlikely that legislation will confer a power to lease upon a person who is not the registered proprietor of land. That is to say, it is unlikely that statute will confer a power in the technical sense, as described by Lord Collins writing for the Privy Council in Fonu v Merrill Lynch Bank and Trust Company (Cayman) Ltd (Cayman Islands) [2011] UKPC 17; [2011] 4 All ER 704 at [34]:
Thus Farwell, Powers (3rd ed 1916) said (at 1):
"A power is an authority reserved by, or limited to, a person to dispose, either wholly or partially, of real or personal property, either for his own benefit or for that of others. … The word is used as a technical term, and is distinct from the dominion which a man has over his own estate by virtue of ownership."
However, the position is different in the case of Crown land. Upon the Land becoming Crown land, the prohibition in s 6 of the Crown Lands Act applied. The exception to the prohibition in s 6 upon, relevantly, leasing the Land was to exercise the power in s 34. As it was put in argument by SFM concerning the vesting orders made on 27 October 1994: "the order could have said the [Land] is going to this new public authority that didn't represent the Crown at all. All it had to be was a public authority, for example, and the fact that as events happened, it was transferred to the Crown, brought into play the Crown Lands Act provisions, and there's, in my submission, no sufficient reason, to think they were displaced".
To recapitulate, s 9(1) falls to be construed in light of the possible transferees identified in s 8(2). If the Land is transferred to the Fisheries Administration Ministerial Corporation, then there is no need to construe s 9(1) so as to constitute a grant of power, because the same statute explicitly confers power on that body. If the Land is transferred to the Crown, then there is a prohibition upon granting a lease otherwise than in accordance with the Crown Lands Act and that tells against s 9(1) being construed so as to confer a power.
Thus, if the new owner of the Land granted a long-term concurrent lease (such as the Lease), then the existing leases in force immediately before the sale date would continue, with the approved purchaser obtaining privity of estate with the existing tenants and being able to enforce the covenants in the existing leases, and with that result being specifically authorised by a New South Wales statute, namely, s 9(3). It will be recalled that that subsection provided:
The inclusion in an existing lease, or in any sublease from the approved purchaser, of a condition that prohibits fish being sold by wholesale or retail on the Sydney fish market site unless they are purchased at the public auction facility of the approved purchaser is specifically authorised and approved, until the deregulation date, for the purposes of section 51 of the Trade Practices Act 1974 of the Commonwealth.
Section 51 of the Trade Practices Act, which was the last provision in Part IV of that Act, was a limited exception to the prohibitions against restrictive trade practices contained in that Part. Relevantly, the section provided:
(1) In determining whether a contravention of a provision of this Part has been committed, regard shall not be had:
…
(b) in the case of acts or things done in a State - except as provided by the regulations, to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act passed by the Parliament of that State …
The requirement for the thing to be "specifically authorized or approved" was considered by Full Courts of the Federal Court in Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134; [1978] FCA 50 and Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190; [2016] FCAFC 42. In the former, Deane J with whom Brennan J agreed emphasised the need for the authorisation or approval to be specific, and found that regulations which required notifying that a building society would require a borrower to obtain insurance with a nominated insurer fell short of being sufficiently specific. Although it cannot be relied upon as part of the context against which s 9(3) is to be construed, the majority in the latter decision said at [227] that "Nonspecific authorisation or approval … is insufficient". It seems clear that s 9(3) was sufficiently specific - it expressly invoked the language of s 51 as well as referring to that section in terms.
The explanatory memorandum for s 9 sheds some light on this. It provided:
Clause 9 provides for a grant of a lease of the Sydney fish market site to the approved purchaser (subject to existing leases). The clause also sanctions conditions in the leases of wholesale and retail shops on the site that require the lessees to purchase their fish from the approved purchaser's public auction facility.
It is plain that s 9(3) was regarded by the Parliament as significant. It made lawful in the deregulated markets conduct which might otherwise prima facie have been a contravention of federal law.
Further, not lightly would the Court find that there has been either an implied repeal of the Crown Lands Act or a displacement of the power in s 34, which is an exception to the general prohibition in s 6 that Crown lands not be disposed of or dealt with other than in accordance with the Act. That provision has a very long history, and was regarded by Bryson J as "a constitutional principle for New South Wales": Fensom and Anor v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 at [5]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 at [24].
That leaves the Valuer-General's submissions based on s 7 of the Crown Lands Act. To be fair, these were at the forefront of his oral submissions, and counsel placed less emphasis on the submissions based on implied repeal. Nonetheless, the Fish Marketing Act is not a statute which "makes special provision for any particular kind of Crown land" within the meaning of s 7(a). That is because the Fish Marketing Act permits the transfer of particular land, on which the Sydney Fish Market had long operated, rather than "any particular kind of Crown land". Section 7(a) may be contrasted with its counterpart, s 1.15(2)(a), in the Crown Land Management Act which provides that the latter Act does not affect the operation of statutes to the extent that it "makes special provision for particular Crown land or any particular kind of Crown land" (emphasis added). Section 7(a) no differently from s 6 has a long history. Its antecedent is the antepenultimate paragraph of s 4 of the Crown Lands Consolidation Act 1913 (NSW), which provided that the statute:
shall not be construed so as to affect (except where the contrary is expressly provided) the operation of any provision contained in [a suite of statutes] or any Act not hereinbefore mentioned or referred to, whereby special provision is made in respect of any particular kinds of Crown lands or authorizing Crown lands to be disposed of or dealt with in any manner inconsistent with the Crown Lands Acts.
The history of the colony and State of New South Wales is replete with measures creating and authorising dealings with different "kinds of Crown lands". There is no sound basis to construe s 7(a) to refer to the particular lots comprising the Land. Those lots are not a "particular kind of Crown land". They are no different from any other freehold vested in the Crown, save for the happenstance that they are the location of the Sydney Fish Market.
Section 7(b) provides that the operation of certain provisions of some other Act, such as the Fish Marketing Act, are unaffected by the Crown Lands Act in certain circumstances. But that does not convert s 9(1) of the Fish Marketing Act into a power to grant a lease over the Land if that is not its proper construction. That is to say, there may be a question as to whether s 7 applies at all in relation to the operation of provisions in the Fish Marketing Act, but it is difficult to see how the question of whether or not s 9(1) of the Fish Marketing Act confers a power to grant a lease over the Land is affected by s 7, because s 7 is directed to how the Crown Lands Act is to be construed, as opposed to how the Fish Marketing Act is to be construed. (In the course of argument SFM embraced a suggestion that the effect of s 7(b) was to disapply ss 34(3) and 35 because they would affect the operation of ss 8 and 9 of the Fish Marketing Act which evidently had the intention of a seamless continuation of activities on the Land. That would give to s 7(b), in the case of conflict between two statutes enacted by the same legislature, an operation resembling the "partial disapplication" identified by Edelman J in Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11. It is not necessary to take this any further, and in the absence of any party representing the Crown, it is undesirable to do so.)
Finally, the explicit reference to concurrent leases in s 9(2) does not convert s 9(1) into a power to lease, nor does the fact that, some months after s 9 was enacted, the Minister chose to grant a concurrent lease somehow entail that s 9 was the source of his power to do so. There is no reason why a generally worded power to grant a lease elsewhere conferred does not include a power to grant a concurrent lease. Section 9(2) is ancillary to the real purpose of s 9, which is to provide specific authorisation and approval to the restrictive trade practices occurring on the Land.
The parties were diametrically opposed on this issue. Counsel for the Valuer-General maintained that vesting Crown land in a body such as the State Property Authority caused it to cease to be Crown land. Counsel for SFM submitted that vesting the Land in a body which enjoyed the status and privileges of the Crown meant that the land was to be regarded in law as if it were vested in His or Her Majesty. The primary judge said at [95] that:
The [State Property] Authority was a statutory body with the status, privileges and immunities of the Crown (s 4 of the [State Property Authority Act]), including with the power to deal with land (s 13(1) of the [State Property Authority Act]). The land therefore remained vested in the Crown (s 3(1) of the [Crown Lands Act]).
Both parties' submissions are large propositions. So too is the proposition to which the primary judge acceded. Both depend on there being a single concept of "Crown land", and I do not accept that that is the position. Even in the context of the Crown lands legislation, the term "Crown land" bore a different meaning in different sections, as is clear from Jaques v Stafford (1890) 11 LR (NSW) 127, where all members of the Court acknowledged that "Crown land" meant, or probably meant, different things in different provisions in the same Act. By amendments made by the State Property Authority Act, land vested in the State Property Authority was nonetheless taken to continue to be "claimable Crown land" for the purposes of the Aboriginal Land Rights Act 1983 (NSW) if it had been claimable Crown land immediately before the vesting (see Schedule 3, item 3.1). And of course, "Crown land" bears a very different meaning in the United Kingdom: see C Jessel, Crown and Government Land: Prerogative, Statute and Common Law (Wildy, Simmonds and Hill Publishing, 2023), ch 1.
I am reluctant to determine that point in proceedings presently constituted, where neither the Crown nor the State Property Authority is represented, and where determination of the point will make no difference to the outcome. The ultimate question is not the legal character of the Land, but the legal character of the Lease. The Lease was granted in 1994. The vesting by the Crown to the State Property Authority was subject to SFM's estate, and did not change the nature of the Lease. It is true that some of the rights, obligations, powers, privileges and immunities enjoyed by SFM which were once sourced in the Crown Lands Act are now sourced in that statute's successor the Crown Land Management Act, but that does not alter the nature of the Lease for the purposes of cl 26.
However, I do not accept the submission that s 1.8 reflected the position "at common law". "Common law" is an inapt description for a status that has been defined by statute between at least 1861 and 2016, but that is not the reason for my rejection of the submission.
Traditionally, land would not be Crown land if it were dedicated for a public purpose: see the definitions in s 3 of the Crown Lands Act and s 5 of the Crown Lands Consolidation Act 1913 (NSW), both of which derive from the Crown Lands Alienation Act of 1861 (25 Vict No 1), which defined Crown lands as "all Lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple". Windeyer J reproduced that provision in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 77; [1959] HCA 63 after referring to Sir John Robertson's two famous Acts, and explained in Walsh v Minister for Lands (NSW) (1960) 103 CLR 240 at 253; [1960] HCA 52 that they were the corner stone of the whole Crown lands system in New South Wales.
Section 1.8 alters this, in a fundamental way. It permits land which is dedicated for a public purpose to be Crown land. That has not been the position since 1861, and it was not the position in respect of the so-called "waste lands of the Crown" prior to 1861.
That said, the Valuer-General's submission is supported by the conclusion reached by Cullen CJ and Sly J, with both of whom Pring J agreed, in Ex parte Collins (1914) SR (NSW) 31 that vesting land in a Minister of the Crown on trust for the Crown meant that land ceased to be Crown land: see at 38 and 39, a conclusion which was applied by Herron J in Randwick Municipal Council v Thompson (1943) 15 LGR (NSW) 85. Those authorities are inconsistent with what the primary judge said at [95] (to be fair to her Honour, although they were mentioned in the Valuer-General's written submissions to her Honour, they seem not to have been the subject of oral address; the same was true on appeal). However, those provisions dealt with vestings of land effected for some other purpose (such as building a school), as opposed to the vesting in the State Property Authority which is not for any purpose. Other cases on which the Valuer-General relied were determined in different statutory regimes, and are of less assistance. With respect, I do not think it is helpful to couch a submission in broad terms, as to whether land vested in a Minister or a public authority with separate legal personality is or is not Crown land, because much may turn on the legislative context and the reason for asking the question. It is not necessary to take this submission any further, and given the constitution of this appeal and in particular the absence of a party representing the Crown, it is inappropriate to do so.