Wentworth Park Sporting Complext Trust v Leichhardt Council - [2003] NSWCA 162 - NSWCA 2003 case summary — Zoe

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Wentworth Park Sporting Complext Trust v Leichhardt Council

[2003] NSWCA 162

Court of Appeal (NSW)|2003-06-10|Before: Meagher JA, Ipp JA, Tobias JA, Bignold J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2003-06-10

Before

Meagher JA, Ipp JA, Tobias JA, Bignold J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

CITATION : Wentworth Park Sporting Complext Trust v Leichhardt Council [2003] NSWCA 162 HEARING DATE(S) : 10 June 2003 JUDGMENT DATE : 25 June 2003

[2]

JUDGMENT OF : Meagher JA at 1; Ipp JA at 2; Tobias JA at 3 DECISION : Appeal dismissed with costs

[3]

CATCHWORDS : Reserve trust - Whether land rateable - Whether land Crown Land - ND Local Government Act 1993 Crown Lands Act 1989 Blackwattle Bay Land Reclamation Act 1873 Blackwattle Bay Land Reclamation Act Amendment Act 1878 Public Parks Act 1854 LEGISLATION CITED : Public Parks Act 1884 Public Parks Act 1902 Public Parks Act 1912 Crown Lands and Other Acts (Reserves) Amendment Act 1974 Crown Lands Consolidation Act 1913 Crown Lands Act 1989 Electricity Act Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 Australian Securities & Investments Commission & Ors; ex parte Edensor Nominees Pty Limited (2001) 204 CLR 599 CASES CITED : Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282 Prospect County Council v Blue Mountains City Council (1992) 28 NSWLR 301 North Sydney Municipal Council v Housing Commission of New South Wales Mounsey v Findley (1993) 32 NSWLR 1 PARTIES : Wentworth Park Sporting Complex Trust Leichhardt Council FILE NUMBER(S) : CA 40855/02 COUNSEL : A: D F Jackson QC with S A Kerr and H W M Stitt R: T Robertson SC SOLICITORS : A: Manion McCosker R: Pike Pike & Fenwick

[7]

25 June 2003 WENTWORTH PARK SPORTING COMPLEX TRUST v LEICHHARDT COUNCIL Judgment 1 MEAGHER JA: I agree with Tobias JA. 2 IPP JA: I agree with Tobias JA. 3 TOBIAS JA: On or about 31 July 2001 the respondent served upon the appellant two rate notices with respect to two parcels of land which together comprised Lot 678 DP 729635 (Lot 678) and which related to the year 1 July 2001 to 30 June 2002. The rates the subject of the notices were levied pursuant to s 546(1) of the Local Government Act 1993 (the LG Act). The first notice related to what is referred to therein as 'substation premises No. 560' (the substation land) and was in an amount of $402. The second notice related to what was described therein as the 'Wentworth Park Greyhound Track' (the racing track land) and was in an amount of $64,020. The total area of the two parcels of land is 3.986 hectares. 4 Pursuant to s 574(1)(a) of the LG Act the appellant appealed to the Land & Environment Court against the levying of the rates by both notices on the ground that neither the substation land nor the racing track land were rateable. It claimed that by virtue of s 555(1)(a) of the LG Act both parcels were exempt from all rates because they comprised: "(a) land owned by the Crown, not being land held under a lease for private purposes." 5 The appeals were heard by Bignold J who, on 2 September 2002, dismissed both appeals. His Honour held that neither parcel was owned by the Crown but that if they were, each was held under a lease for private purposes. He thus concluded that neither was exempt from rates under s 555(1)(a) of the LG Act. It is against that decision that the appellant appeals to this Court. Such an appeal only lies for error of law: Land & Environment Court Act 1979, s 57(1). 6 At the outset of its submissions the respondent submitted that the appeals must fail as there was no relevant error of law given the primary judge's finding that the appellant had leased each of the parcels for private purposes, a decision which, so it was submitted, involved only a question of fact and was therefore beyond challenge. This submission was subsequently modified by a concession (also made to the primary judge but apparently overlooked by him) that the substation land, if it was land owned by the Crown, was not held under lease for private purposes. Accordingly, it was accepted that it was open to the appellant to argue that the primary judge's decision that that land was not owned by the Crown could be properly contested before this Court. 7 Although in its written submissions the appellant contested the finding of the primary judge that, as an undivided unit, Lot 678 was held under a lease for private purposes, in its written submissions in reply that submission was confined to so much of the grandstand erected upon the racing track land as was leased to the Crown as a 'Sports House'. However, the appellant did not seek to challenge the primary judge's finding that so much of the racing track land as was the subject of licences in favour of the NSW National Coursing Association Limited and NSW Greyhound Breeders, Owners & Trainers Association Limited was held under a lease for private purposes. In respect of the latter the appellant sought to maintain its challenge to the primary judge's finding that the land the subject of those licences was not owned by the Crown upon the basis that if it was, then it would be the licensees rather than the appellant who, pursuant to s 560(2) of the LG Act, would be liable to pay the rates levied thereon. 8 The respondent challenged this approach upon the basis that an appeal to the Land & Environment Court pursuant to s 574(1)(a) of the LG Act with respect to the racing track land was confined to whether or not that land was rateable, it being accepted by the appellant that the land was rateable if, notwithstanding that it was land owned by the Crown, it was held under a lease for private purposes. Accordingly, it was submitted that any error on the part of the primary judge in holding that the racing track land was not owned by the Crown could not affect the ultimate finding that the racing track land was not exempt and was therefore rateable with the consequence that his Honour was correct in dismissing the appeal with respect to the rateability of that land. 9 In my opinion, there is substance in the respondent's argument. Nevertheless, it is conceded that, in respect of the substation land, the appeal is competent as no issue arises as to whether that land is held under a lease for private purposes. However, as I am of the opinion that neither the substation land nor the racing track land is owned by the Crown, the question of competency of the appeal in respect of the racing track land need not be resolved finally.

[9]

The land referred to in the proclamation was the land referred to in the schedule to the Blackwattle Bay Land Reclamation Act 1873 , together with a number of pieces of nearby land. Section 6 of the 1884 Act provided as follows: "Trustees shall for all purposes of this Act and of any by-law thereunder be deemed to hold an estate in fee simple in the land for which they are appointed but shall not be capable of alienating, charging or in any way disposing of such land or any part thereof provided always…" 13 The 1884 Act was repealed by the Public Parks Act 1902. By s2, all trustees appointed under the earlier Act were deemed to have been appointed under the 1902 Act. By s4 it provided that the Governor might appoint trustees and by s7 it provided that trustees: "…shall, for all purposes of this Act and of any by-law thereunder, be deemed to hold an estate in fee-simple in the land for which they are appointed, but shall not be capable of alienating, changing, or in any way disposing of such land or any part thereof: Provided that trustees may, with the consent of the Minister, lease or grant grazing or other temporary licences to occupy or use any portion of such land for such purposes on such terms and subject to such conditions as the Minister approves." 14 The Public Parks Act 1912, by s2(1), repealed the 1902 Act. By s4(1), the Governor was empowered to appoint trustees of any land which, inter alia, had been dedicated by proclamation or notification in the Gazette. By s4(2) such trustees and their successors were deemed to be a body corporate. The position of existing trustees was confirmed and continued: ss 2(2) and 2(3). Section 8 of the 1912 Act was in identical terms to s 7 of the 1902 Act. 15 The 1912 Act was repealed by s5 of the Crown Lands and Other Acts (Reserves) Amendment Act 1974. Trustees appointed under the previous Act were deemed to have been appointed under s370 of the Crown Lands Consolidation Act 1913, as added by the 1974 Act. Sections 6 and 7 contained the principal amendments to Part IIIA of the Crown Lands Consolidation Act 1913. By s37Q(1) the Minister could declare that trustees appointed under s37O should be a corporation. Consistent with s6 of the 1884 Act, s7 of the 1902 Act and s8 of 1912 Act, s37X provided as follows: "(1) Except to the extent that the trustees of a reserve have an estate in fee simple in the reserve apart from this section, the trustees shall, for the purposes only of this Part and of any by-law, be deemed to have that estate in the reserve." 16 It is clear that from time to time the Governor, and later the relevant Minister, had appointed trustees of the relevant land including what is now Lot 678. For example, on 24 December 1986, the Minister for Lands included Wentworth Park Trust in a notification pursuant to s37Q of the Crown Lands Consolidation Act 1913 in which the trustees of the reserve were declared to be a corporation under the name Wentworth Park. Later, on 16 February 1990, the Minister, pursuant to s37Q(6), dissolved that corporation and, pursuant to s37P, established new trustees for: (a) Lot 677, 679 and 680, with that area to be known as Wentworth Park (Open Space Area); and (b) Lot 678, with that area to be known as Wentworth Park (Greyhound Racing Complex).

[22]

The statutory provisions relevant to the issue 25 It was submitted that one determined whether the appellant was a statutory body representing the Crown by a consideration of the extent to which the Crown, through the executive government, controlled or, more accurately, had the power to control the appellant in the exercise of its statutory functions. I shall return to the authorities relied upon to support this proposition but, before doing so, it is appropriate to refer to the provisions of the CL Act upon which the appellant relied as illustrating that the Executive Government through the relevant Minister was empowered to exercise a high degree of control over the appellant in the exercise of its powers, duties and functions. 26 The provisions relied upon are to be found in Divisions 4, 5 and 6 of Part 5 of the CL Act. Division 4 is headed "Formation of reserve trusts". Reliance was placed on s 92(3) which empowers the Minister to dissolve a reserve trust or alter the corporate name of a reserve trust. Furthermore, by s 92(6) the affairs of a reserve trust are to be managed by a trust board with members appointed by the Minister under s 93 or by a corporation appointed by him under s 95. By s 96(1) the Minister was also empowered to remove from office any corporation previously appointed by him to manage a reserve trust. 27 Division 5 of Part 5 of the CL Act is headed "Trust property". Particular reliance was placed by the appellant upon the provisions of s 101 pursuant to which a reserve trust could only purchase, take a lease of, acquire an easement in respect of, any land required by the trust for use in connection with the reserve with the approval of the Minister. Furthermore, it could not expend trust money in connection with the improvement of land (other than the reserve) or make donations out of trust money for any purpose without the approval of the Minister. However, once land is purchased or taken on lease by the trust, it may expend trust money thereon without further approval: see s 101(2). 28 Pursuant to s 102(1) the reserve trust is prohibited from selling, leasing or mortgaging land or granting an easement or a licence (other than a temporary licence) in respect of land comprising the whole or any part of the reserve unless, inter alia, the Minister has consented in writing to the proposal. By s 103 a reserve trust is empowered to sell, lease, grant an easement or licence in respect of or mortgage the reserve only in accordance with the terms of the Minister's consent. Furthermore, where the Minister's consent to such sale, lease, easement or licence is general, then the transaction must not proceed unless the price agreed on, the rent reserved or the terms of any easements or the charge for any licence has been submitted to and approved by the Minister. In the event that the whole or part of any reserve is compulsorily acquired, s 106 provides that any compensation payable with respect thereto or the net amount received as the proceeds of any sale, lease, easement or licence made or granted under Division 5 by a reserve trust is to be applied in accordance with the directions (if any) given by the Minister. Such a direction may include one whereby the compensation or the proceeds are to be paid to the Consolidated Fund. 29 By s 107 the Minister is empowered to direct a reserve trust to set aside a specified portion of its income and revenue for the payment of interest on, or the gradual extinction of, any debt. 30 The Minister is also empowered, by notification in the Gazette, to revoke a dedication subject, however, to a copy of the notice being laid before each House of Parliament and the power of either House to pass a resolution disallowing the proposed revocation: s 84. On publication of the notification in the Gazette the previously dedicated land vests in the Crown and becomes Crown land within the meaning of the CL Act. This power of the Minister is to be contrasted with his power to dissolve a reserve trust pursuant to s 92(3) to which I have already referred. Such a dissolution leaves the dedication in place so that the land so dedicated remains a reserve. However, where a reserve trust is dissolved any real or personal property vested in the trust (except the reserve land) may be disposed of by the Minister in such a manner as he considers appropriate and the proceeds of any disposal of such property is to be dealt with in accordance with the Minister's directions: s 111(4). Of course, by s 111A the Minister is empowered to appoint a new reserve trust in lieu of the one that he has dissolved. 31 Division 6 of Part 5 of the CL Act is headed "Plans of management". Pursuant to s 112(1) the Minister may cause a draft plan of management to be prepared for a reserve. A reserve trust may, with the Minister's consent, and if the Minister so directs shall, prepare such a draft plan. The reserve trust is obliged to comply with such a direction. The plan so prepared may be adopted by the Minister with or without alteration (s 114) and the Minister is empowered from time to time to alter or cancel the plan: s 115. 32 Pursuant to Division 7 of Part 5 the Minister is empowered to appoint an administrator of a trust where a trust board has no members or a corporation vacates office as manager of a reserve trust. 33 Reference was also made to s 121 which deals with the liability of a reserve trust, a corporation managing a reserve trust and the members of a trust board as well as to the obligations of the reserve trust to furnish reports and other information to the Minister at such times as may be prescribed, to keep such records as may be prescribed and to the power of the Minister pursuant to s 123 to appoint a person to enquire into, or carry out an audit of, any of the affairs of a reserve trust. Finally, reference was made to s 128(1) pursuant to which the Governor is empowered to make by-laws for or with respect to a series of nominated subject matters including the care, control and management of a reserve.

[23]

The authorities 34 It was in the context of the foregoing provisions that the appellant submitted that the Executive Government, through the Minister, had the power to exercise a high degree of control over a reserve trust (the appellant) and its affairs. It was contended that the touchstone of whether a statutory body represented the Crown was the extent of the control by the executive government of the body in question, that control being found in the terms of the relevant statute under which the body was constituted. 35 Thus, in the context of whether the State Superannuation Fund Investment Trust was the Crown in right of the Commonwealth or was acting on behalf of the Crown, Stephen J in Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 348-349 said this: "The importance of the presence or absence of control by the executive government in ascertaining whether or a statutory corporation possesses a particular immunity or privilege of the Crown is a consequence of the very nature of that inquiry, concerned as it is with the nexus between the corporation and the executive. If a corporation is no more than the passive instrument of the Crown, subject in a high degree to control by the executive, it is appropriate enough that its acts be viewed as those of its master and that it be itself treated as the alter ego of the Crown, enjoying accordingly those immunities and privileges with which the Crown is clothed. If, on the contrary, a statutory corporation is essentially autonomous, its acts being in no sense the outcome of directions by the executive but truly its own, there will be little reason to clothe it with any of those immunities or privileges. In saying this I do not intend to suggest the need for any examination of the actual extent to which particular actions are or are not the result of the exercise of control by the executive: it is the existence of the statutory ability to control, or its absence, that is to be looked at.

[26]

When, by reference to the extent of control and such other indicia as the constituting statute may provide, a Court embarks upon the task of determining whether, in particular circumstances, a statutory corporation attracts particular Crown immunities or privileges it does no more than seek out the legislative intent. That being the aim, relevant indicia will be as various as the scope of the material in the statute permits. Occasionally, as in the present case, some express reference to immunities may cast light upon that intent: the type of function which the corporation performs, its funding from consolidated revenue, any frustration of its intended purposes which the absence of some immunity or privilege may threaten, all these may aid in divining legislative intent. To dignify anyone or more of them by the title of test or rule may do no harm so long as it neither leads to rigid application of particular tests nor obscures the fact that what is in hand always remains the search for legislative intent." 36 Stephen J ultimately determined that the trust in that case was not entitled to Crown immunity from stamp duty. Mason J, at 354, considered that the trust was the alter ego of the Crown because of the control which the Crown had over its membership and its activities. His Honour seemed to rely, in particular, upon the fact that the members of the trust were appointed and liable to removal by the Executive Government and that it was bound to furnish information to the Treasurer at his request and to submit its annual report and financial statements to the Treasurer after they had been audited by the Auditor-General. On the other hand, Aickin J (at 366) agreed with Stephen J and, in the circumstances, considered that a mere power of appointment of the members of the trust did not appear to him to constitute control of the trust or its functions, there being no power to dismiss except for misconduct or incapacity. 37 The appellants also referred to the decision of the High Court in Australian Securities & Investments Commission & Ors; ex parte Edensor Nominees Pty Limited (2001) 204 CLR 599 at 580-581 [39], 608 [126] and 638 [215]. The various members of the Court in the paragraphs referred to held that ASIC was a Commonwealth authority. This finding was based upon the construction of the ASIC Act, which, inter alia, provided that the Minister was empowered to give written directions to ASIC respecting the exercise of its functions and powers, to require ASIC to pay surplus money to the Commonwealth, to the fact that ASIC staff were appointed as employees under the Public Service Act and that its functions and powers as a regulator pertained to the executive functions of government. In my opinion the decision of the High Court in that case merely confirms the requirement to ascertain the intention of the Parliament by reference to the terms of the particular statute creating the relevant body. Furthermore, I would regard the nature of ASIC and the statutory provisions pursuant to which it exercises its functions and powers to be quite different to those pursuant to which a reserve trust operates under the CL Act. 38 The importance of the intention of the Parliament to be discerned from the terms of the relevant statute was emphasised by Gibbs CJ (with whom Murphy, Wilson and Brennan JJ agreed) in Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282 at 291 where his Honour said: "It has more than once been said in this Court that 'there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless Parliament has by express provision given it the character of a servant of the Crown.' …….All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so, it should not readily be concluded that it had that intention. The Hospitals Act does not expressly provide that a Board shall have the privileges and immunities of the Crown when engaging in building operations, and in my opinion it does not impliedly so provide. The fact that a number of Ministerial approvals must be obtained if the Board needs to borrow or raise money or make financial arrangements for the purposes of a proposed work does not indicate that the Board in carrying out the work is acting for the Crown." 39 This passage was cited with approval by Handley JA (with whom Priestly JA agreed) in Prospect County Council v Blue Mountains City Council (1992) 28 NSWLR 301 at 319. His Honour then observed: "However it has long been established that a statutory corporation which is subject to control by the executive government is a servant or agent of the Crown but as a general rule such a body with independent powers and discretions of its own is not." 40 After referring to the decision of the Full Court in North Sydney Municipal Council v Housing Commission of New South Wales where s 32 of the relevant Act provided that the Commission, in the exercise and discharge of its powers, authorities, duties and functions was subject to the control and direction of the Minister, Handley JA continued: "Later authority has confirmed the relevance of control by the executive government: see Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (at 114-115, 126-127); Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (at 347-348, 354-355, 366); Townsville Hospitals Board v Townsville City Council (at 289); State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 at 307; State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 650-651. "

[28]

Resolution of the issue 41 It is noteworthy that the CL Act contains no provision similar to that referred to above which subjects a reserve trust in the exercise of the functions conferred on it by or under the CL Act to the control and direction of the Minister except to the limited extent to be found in s 106 (which deals with compensation for the compulsory acquisition of a reserve or the net amount received as the proceeds of sale of land), s 107 (whereby a reserve trust may be directed to set aside a specific portion of its income and revenue for the payment of interest on or the reduction of its debt), s 111(4) (which deals with the proceeds of disposal of property where a reserve trust is dissolved) and s 112 (where the Minister may direct a reserve trust to prepare a draft plan of management for the reserve). Subject to these powers a reserve trust is essentially independent of executive direction and control in the exercise of its powers and directions with respect to the care, control and management of the reserve of which it has been appointed trustee. 42 Furthermore, as was pointed out in the respondent's written submissions, there are many examples of legislation in which the legislature has expressly provided that a corporation established under an Act is to be a statutory body representing the Crown although there are also many examples of legislation which expressly provides to the opposite effect as well as legislation which is silent on the issue. In the present case, the CL Act is not entirely silent on the issue for s 13(4) expressly provides that the Lands Administration Ministerial Corporation constituted a corporation under s 13(1) "…is, for the purposes of any Act, a statutory body representing the Crown." 43 It was thus submitted by the respondent that there could be no more persuasive indication of the legislature's intention where s 13(4) expressly provides that the Ministerial Corporation is a statutory body representing the Crown but s 92 pursuant to which a reserve trust is established and constituted as a corporation makes no such provision. 44 In my opinion, there is considerable force in the respondent's submissions and I consider them correct. Furthermore, as the respondent submits, none of the powers of the Minister relied upon by the appellant entitle him to control and direct a reserve trust in the exercise of the functions conferred on it by or under the CL Act except to the very limited extent referred to in [41] above. Although it is true that a reserve trust can only exercise certain powers such as the power to sell, lease or mortgage land with the consent of the Minister, the latter's powers with respect to that subject matter as well as others to which reference has been made are essentially negative in their nature. Given that a reserve trust holds the reserve of which it has been appointed trustee for a public purpose, it is understandable that what I have termed the negative powers of the Minister are protective in their nature rather than pro-active as they would be if the Minister had general power to control and direct a reserve trust in the exercise of its statutory functions. 45 As Stephen J pointed out in Superannuation Fund Investment Trust (at 349), a consideration by a court of the extent of executive control and such other indicia as the constituting statute may provide in the task of determining whether, in particular circumstances, a statutory corporation is the alter ego of the Crown involves 'nice questions of degree, particularly in borderline cases'. However, I do not consider the present case as borderline. It seems to me that a consideration of the essentially negative and limited nature of the Minister's powers with respect to a reserve trust, the absence of any general empowerment of the Minister to control and direct its functions, the express provision that the Ministerial Corporation is a statutory body representing the Crown and the absence of any such provision with respect to a reserve trust, inevitably lead to the conclusion that it was not the intention of the legislature when it enacted the CL Act that a reserve trust, although a statutory body, be one representing the Crown.