State Electricity Commission of Victoria v City of South Melbourne [1968] HCA 49; (1968) 118 CLR 504 (12 August 1968)

HIGH COURT OF AUSTRALIA

STATE ELECTRICITY COMMISSION OF VICTORIA v. CITY OF SOUTH MELBOURNE [1968] HCA 49; (1968) 118 CLR 504

Local Government (Vict.)

High Court of Australia
Barwick C.J.(1), McTiernan(1), Taylor(1), Menzies(1) and Owen(2) JJ.

CATCHWORDS

Local Government (Vict.) - Rating - Exemption - "Land the property of Her Majesty &which is . . . used for public purposes" - Land owned and occupied by statutory corporation - Electricity supply authority - State Electricity Commission Act 1958 (Vict.), ss. 12, 21, 23, 24, 108 (3) - Local Government Act 1958 (Vict.), s. 251 (1) (a).

HEARING

Melbourne, 1968, May 2, 3, 6;
Sydney, 1968, August 12. 12:8:1968
APPEAL from the Supreme Court of Victoria.

DECISION

August 12.
The following written judgments were delivered:-
BARWICK C.J., McTIERNAN, TAYLOR AND MENZIES JJ. The respondent sued the provisions of the Local Government Act 1958 (Vict.) in respect of lands within the City of South Melbourne. The plaintiff succeeded and this is an appeal from the judgment of the Supreme Court - Gillard J. (1967) 15 LGRA 283 ; (1968) VR 684 . (at p508)

2. The main defence was that the lands in respect of which rates were assessed were exempt from rates under s. 251 of the Local Government Act because they were, so it was affirmed, "the property of Her Majesty . . . used for public purposes". Before considering this important matter it is convenient to dispose summarily of an argument addressed unsuccessfully to the learned trial judge and maintained before this Court that the Supreme Court has been deprived of jurisdiction to hear and determine the action by virtue of s. 108, sub-s. 3 of the State Electricity Commission Act 1958 (Vict.) which provides that in a dispute arising between the Commission and a municipality with respect to the exercise "of any rights powers or authorities or the discharge of any duties by either or both of them may be finally and conclusively determined by the Governor in Council". It is sufficient to say that we are satisfied that a claim by a municipality against the Commission for rates does not fall within s. 108, sub-s. (3). The whole of s. 108 is plainly enough dealing with what may be described as demarkation disputes, as sub-s. (2) so clearly demonstrates, not with matters such as the legal effect of the exercise of a general power to impose rates. This section does not take from the court the jurisdiction to decide actions where the issue is whether one authority is under a legal obligation to another under the provisions of the general law, e.g., liability arising out of a collision between two motor vehicles, one owned by the Commission and the other by a municipality. (at p508)

3. Turning now to the main question it is possible to limit it to the simple issue whether or not the lands rated were "the property of Her Majesty" for before us it was not in dispute that they were used for public purposes. (at p508)

4. The appellant's case rested mainly upon ss. 12 and 21 of the State Electricity Commission Act, understood in the light of an historical background which, it was claimed, lent force to the contention that the Commission is in truth a Department of State so that its property belongs to Her Majesty. We have, of course, taken into account the history of the legislation setting up and governing of the Commission as it was traced for us by Mr. Aickin, but we do not think that this history either adds to, or detracts from, the language of the Act as it now stands and upon which the determination of the matter depends. (at p509)

5. Section 12 of the Act empowers the Commission to administer the Act and exercise its statutory rights powers and authorities and discharge its statutory duties "Subject to the Minister". Section 21 authorizes the Commission to do what is therein authorized - and the section is the principal authority to the Commission to carry out its undertaking - "on behalf of Her Majesty". Furthermore the financial provisions of the Act - Pts VII and VIII and the Sixth Schedule - show that the Commission has at all times been dependent upon government moneys for its requirements ; that its expenditure is subject to strict control by the Minister and the Governor in Council ; that the provisions of any Act relating to the audit of public accounts apply to the accounts of the Commission. (at p509)

6. The foregoing provisions make it clear that the Commission, although a statutory corporation (see s. 4), does have a special relationship with the Government of the State of Victoria. (at p509)

7. In our opinion, however, it is not necessary to attempt here to exhaust the nature and significance of that relationship for we find in the Act itself provisions which we regard as inconsistent with the submission that the lands of the Commission are "the property of Her Majesty". In particular there are ss. 23 and 24 which relate to land at Morwell. Here the distinction is clearly made between Crown lands which may be granted to the Commission so as to become the lands of the Commission, and lands which, while remaining Crown lands, the Commission is permitted to occupy and use. It is worthwile setting out ss. 23 (1) and 24:

"23. (1) For the purposes of this Act the Commission may
acquire and take for the Crown by agreement or compulsorily
such lands in the township of Morwell or within a radius of
twenty miles therefrom as the Governor in Council from time
to time by Order directs ; and all lands so acquired and taken
shall thereupon become and be deemed to be unalienated
lands of the Crown.
. . .
24. For any of the purposes of this Act the Governor in
Council may (notwithstanding anything in any Act) in the
name and on behalf of Her Majesty grant to the Commission
for an estate in fee simple or any less estate or permit the
Commission to occupy and use but subject in every case to
such terms covenants conditions reservations restrictions and
exceptions (if any) as the Governor in Council thinks fit all
or any of the lands acquired and taken for the Crown pursuant
to the last preceding section of this Act or any corresponding
previous enactment or (subject to sections eighteen and
nineteen of the Land Act 1958) any other unalienated lands
of the Crown." (at p510)

8. These provisions it is to be observed

1. authorize the Commission to "take for the Crown" certain
lands which then become "unalienated lands of the
Crown";
2. authorize the grant by Her Majesty to the Commission of
an estate in fee simple in the Crown lands taken as referred
to in 1. above or "other unalienated lands of the Crown";
3. authorize Her Majesty to permit the Commission to occupy
and use lands which are unalienated lands of the Crown. (at p510)

9. It is clear from all this that lands being "unalienated lands of the Crown" may be granted to the Commission for an estate in fee simple and thereupon cease to be the property of the Crown and become the property of the Commission. (at p510)

10. It is now well established (see Launceston Corporation v. The Hydro-Electic Commission [1959] HCA 12; (1959) 100 CLR 654 ; 4 LGRA 284 ) that the principal consideration in determining a question such as here confronts us in the language of the particular statute which is claimed to constitute the property of a statutory corporation "the property of Her Majesty" rather than a priori reasoning about the relationship of the Crown to corporations set up by statute to perform stated public functions. Accordingly we have gone first to the relevant statutory provisions. Nevertheless, as was pointed out in the case just cited, there is evident in modern authorities 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 the Crown. Furthermore in that case it was decided that the use of the words "for and on behalf of the State" did not make the Hydro-Electic Commission the Crown and, moreover, that a provision doing so would naturally find its place in the provisions of the statute defining the constitution of the statutory body rather than in those dealing with its powers and functions. It is true that the words "on behalf of Her Majesty" in s. 21 of the State Electricity Commission Act are stronger than the words "for and on behalf of the State" in s. 15 (2) of the Hydro-Electric Commission Act 1944 (Tas.) but in our view the words of s. 21 ought not to be given a meaning which would of themselves make all the property of the Commission the property of Her Majesty. The circumstance that the powers of the Commission are to be exercised "on behalf of Her Majesty" does not of itself involve as a necessary consequence that the property of the Commission is "the property of Her Majesty" and in face of the distinction made in ss. 23 and 24 it would, we think, be contrary to the act as a whole to attribute to that circumstance this consequence. (at p511)

11. The conclusion which we have reached that land vested in the Commission is not "the property of Her Majesty" is in accordance with the earlier decisions of this Court in Grain Elevators Board (Vict.) v. Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 and the Launceston Corporation v. The Hydro-Electric Commission [1959] HCA 12; (1959) 100 CLR 654 ; 4 LGRA 284 . (at p511)

12. An argument on behalf of the appellant based upon s. 75 (a) (v) of the State Electricity Act which authorizes the Commission and municipalities to enter into agreements relating to "payments to be made by the Commission in lieu of municipal rates" has, we think, no force ; if this provision has any significance here it would seem to tell in favour of rather than against the ratability of the lands of the Commission. (at p511)

13. For the foregoing reasons we consider that the decision of the Supreme Court was correct and that the appeal must be dismissed. (at p511)

OWEN J. I have had the opportunity of reading the joint judgment of my brothers and I agree with them that the lands in question of which the Commission is the registered proprietor and which are used by it for the purposes of the electricity undertaking which it conducts are not lands "the property of Her Majesty" within the meaning of s. 251 of the Local Government Act notwithstanding the fact that that undertaking is, under s. 21 (1) of the State Electricity Commission Act, conducted by the Commission "on behalf of Her Majesty". To the sections of the last-mentioned Act to which my brothers have referred as indicating that lands vested in the Commission are not "the property of Her Majesty", I would only add a reference to several other provisions which, in my view, also point to that conclusion. The Commission is empowered to purchase, take, hold, sell, lease, take on lease, exchange or dispose of real property and to do or suffer all such other acts and things as bodies corporate may by law do or suffer (s. 4 (4)). All moneys received by it, which would include moneys received on the sale or lease of land vested in it, are to be paid to the credit of its "General Fund" which is to be applied by it in carrying out its functions (s. 83). It is empowered to purchase by agreement or take compulsorily land which is required for the purposes of the Act (s. 103 (1)). It may enter upon, take possession of and appropriate such land as is necessary for the construction or improvement of any of its undertakings ; and if any such land is Crown land it is, as soon as possible after such taking and appropriation, to give notice thereof to the Secretary for Lands (s. 106 (1) (d)). (at p512)

2. I do not wish to add anything to what has been said concerning s. 108 of the Act. (at p512)

ORDER

Appeal dismissed with costs.