State Bank of New South Wales v Commissioner of Taxation S194/1995 [1996] HCATrans 176 (16 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S193 of 1995

B e t w e e n -

BANK OF WESTERN AUSTRALIA

Applicant

and

COMMISSIONER OF TAXATION

Respondent

Office of the Registry

Sydney No S194 of 1995

B e t w e e n -

STATE BANK OF NEW SOUTH WALES LIMITED

Applicant

and

COMMISSIONER OF TAXATION

Respondent

Applications for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 APRIL 1996, AT 9.50 AM

Copyright in the High Court of Australia

__________________________

MR R.J. ELLICOTT, QC: If the Court pleases, I appear in each of these matters with MR B.J. SULLIVAN for the applicant. (instructed by Clayton Utz)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with my learned friends, MR S.J. GAGELER and MR S.C.G. BURLEY, for the respondent. (instructed by the Australian Government Solicitor)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear for the Attorney-General for New South Wales, seeking leave to intervene in support of the applicant. (instructed by the Crown Solicitor for New South Wales)

May I deal with that application after the applicant's counsel has put his submissions to the Court?

BRENNAN CJ: Yes, Mr Solicitor.

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I seek leave to intervene on behalf of the Attorney-General for the State of Western Australia in the second matter and I wish to take the same position as my learned friend, the Solicitor-General for New South Wales. (instructed by the Crown Solicitor for Western Australia)

BRENNAN CJ: Yes, Mr Solicitor. Mr Ellicott.

MR ELLICOTT: If the Court pleases. Would your Honours go to page 21 of the application book? That, and the following page, set out the two items that your Honours will know are the subject of consideration and the question again, as I remind your Honours, is whether either Bank was an authority for the purposes of these provisions. So far as item 74 is concerned, the words are:

by a department of the Government of the Commonwealth, a State...or an authority which is completely controlled by, and the expenditure of which is exclusively borne by...a State -

and your Honours will recall that reading that, it goes on to talk about a trading enterprise being an authority and authorities being accepted by a provision, section 20A of the Sales Tax Assessment Act, under which bodies like the Commonwealth Bank and Qantas were in fact exempted. Now, your Honours will also recall that in the judgment below, the Full Court, in effect, said that these bodies did not exercise control, power or command. Now, this, of course, is an issue that has come before - when I say an issue, a question of what is an authority and what is a public authority from time to time under various statutes has come before this Court over many years. The cases that are relevant to it have been discussed in the judgments, particularly the judgment of Mr Justice Lindgren.

The point that we make is that, in effect, we say that the Full Court has clearly gone wrong because there can be no doubt, first of all, that each of these Banks is the State. For instance, if the property of the Banks were taxed - this is assuming they are still within the State area - then section 114 of the Constitution would apply. If the Banks were sued, they would be treated as the State, and your Honours will recall the cases before this Court dealing with my client, the State Bank of New South Wales, in which those propositions were held.

Now, the strange conclusion we say that the Full Court has arrived at is that although each of these bodies at the relevant time was a State or was doing something which the State would do and was doing something which the State could properly do as a governmental function but, nevertheless, it was not an authority of a State.

DAWSON J: What is strange about that, Mr Ellicott? I mean, the State can engage in business and, in doing so, can use an agency to do it, and the agency is not an authority. It is just an agency which is engaged in business, not government.

MR ELLICOTT: It is performing the act of government.

DAWSON J: How?

MR ELLICOTT: It is involved in the government's business.

DAWSON J: Well, it may be. The government may be engaging in business, but the agency cannot be - - -

MR ELLICOTT: No, I am sorry, I used the word "business" incorrectly. It is engaging in an act of government. It is doing what the government can do and chooses to do at particular times.

DAWSON J: The government may choose to do that, but in doing so, it is not governing.

MR ELLICOTT: A government, with respect, I would submit, in carrying on the Bank, is doing what - whether it is the Commonwealth or the State, it is doing what the State does or what the Commonwealth does. It is, for all intents and purposes, the State or it is the Commonwealth. If your Honours go to page 22 which is 126 on page 22. I am referring to the item 126 which is set out on page 22:

Goods for use by:

(a) an Australian government -

Now, in this item, "Australian government" means a State. Under the decision of this Court in the Bank of New South Wales v The Commissioner of Taxation 174 CLR at 219 - I hand up a copy of the relevant passages - at the foot of page 230

Once it is accepted that the Constitution refers to the Commonwealth and the States as organizations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government. Such activities have since the nineteenth century, included the supply on commercial terms of certain types of goods and services by government owned and controlled instrumentalities with independent corporate personalities.

And there is a reference to Heiner v Scott, and at the foot of page 231:

That distinction has since been discarded. And it can have no place in the interpretation of s. 114, which must take account of the historical circumstance that colonial governments in Australia carried on a wide range of governmental functions which were not traditional and inalienable. As has been said, those functions included government banking.

And that is exactly what this is, government banking

Indeed, at the time of federation, it had long been recognized that a bank was a "a convenient, and useful, and essential instrument in the prosecution of [a government's] fiscal operations".

BRENNAN CJ: Mr Ellicott, look at section 126, and if one looks at section 126, it seems to draw a very clear distinction between that which is an Australian government and of all its agencies or instrumentalities picks out only those which are authorities for the purposes of paragraph (b). Is that not the problem you have to address?

MR ELLICOTT: With respect, one of the problems but, your Honour, what is sought to be done here is to give the word "authority" some special meaning.

BRENNAN CJ: Not a special meaning, a meaning which is sufficient to distinguish it from the other paragraphs of the subsection.

MR ELLICOTT: Well, your Honour, if it is the State, then it will come under (a) and if the Bank - - -

BRENNAN CJ: Yes.

TOOHEY J: And your argument to date seems to be to bring it within (a).

MR ELLICOTT: Well, I am saying that it does fall within (a), but the argument below seems to have been based on the view that it is only related to (b), but it does come within (a) because - - -

TOOHEY J: But the draft grounds of appeal really contemplate an argument that it comes within (b), do they not?

MR ELLICOTT: They do, your Honour, but I am pointing out the incongruity of a finding that this body, which is the State, is nevertheless not an authority that is completely controlled by an Australian government and whose expenditure is exclusively borne by it, even though both those conditions of fact are fulfilled. Now, that is one way of putting it. The other way, your Honours, is this, that the word "authority" is there only referring to a body. It is not intended to pick up some other words such as "exercising power" or "control" or "command" in the sense of being able to direct people under penalty of fine, because that is the notion that is sought to be introduced by the Full Court's judgment, that they can direct people under penalty of fine to do certain things.

Those words, "power", "control" and "command" - and I do not have time to take your Honours through the judgment - they have been, in our submission, taken out of their context, and may I just take your Honours to the Fruit Marking Case to indicate what we say the word "authority" means? Now, here, the judgment of the Court - the majority of the Court was the Chief Justice and Justices Mason and Wilson. I do not mean by that that the other Justices did not agree. I simply say that the judgment I am about to read from is that which, in our submission, is the majority view of the Court, because the Chief Justice agreed with Justices Mason and Wilson. At the foot of page 593

In our opinion, the focus is upon government -

the very question here, was it an authority -

and the function of government. If the appellant is to succeed, it must be because the proper conclusion, based on the legislation, is that the C.O.D. is not engaged in the work of government, notwithstanding that it is created a statutory authority with a wide range of powers. It would have to be shown that the authority represented by those powers in reality is derived from the growers, not from the State.

So that we would submit that in this area, the meaning of the word "authority" is not to be tied back to some earlier notion about being able to penalise when you are, say, a public utility and you have the power to pass by-laws which enable you to penalise people, or the power to resume property or the like. The question is, is the body engaged in the work of government.

BRENNAN CJ: No, are its powers derived from government?

MR ELLICOTT: It is - clearly:

it must be because the proper conclusion, based on the legislation, is that the C.O.D. is not engaged in the work of government, notwithstanding that it is created a statutory authority with a wide range of powers.

Now, in this case, one can say that each of the Banks was created by statute. It is engaged in the work of government. It has wide powers and - - -

DAWSON J: But is not engaged in the work of government. Government may engage in the work of others. In doing so, it is not engaged in the work of government in the sense that it is not governing. What is happening here is that the bodies are engaging in business upon the same terms as others engaged in the same business and are not seeking to regulate those terms.

MR ELLICOTT: With respect, your Honour would never have been and sat with an officer of the Rural Bank with a farmer who was in trouble in drought and had that farmer assisted by the bank under government policy. The Rural Bank in New South Wales, which was the name of the Bank earlier, was engaged in implementing the policy of government, and that is why it was set up. It was part of the fiscal policy of the government, and it is an agency of government in that sense. It is doing what would be done in a department if a department decided that there should be certain funds that might be used to assist a farmer. Now, that is the history of this Bank in New South Wales.

DAWSON J: But is not governing anyone. It is lending money.

MR ELLICOTT: But governing is not - that is, with great respect, a 19th century concept that governing is not lending money. The government is lending money, or giving assistance to people all the time, and that is part of government. The Social Welfare Department is sometimes making advances. Sometimes a body such as the Film Corporation may be making grants or making loans, but that is part of what the government conceives to be its function. It may be done by a separate corporation or it may be done within a department but, with great respect, we would submit that in doing it, the body is engaged in the work of government.

The work of government is what the government chooses to do within its power and it would be too literal a construction to regard the word "authority" as somehow picking up an old notion, and in this particular case, what they were doing was organising a fruit marketing scheme. Well, one might equally argue that that was not the role of government. In fact, some people these days say it is not. It is a matter of great debate whether governments should get involved in fruit marking, but that was said to be the work of government.

TOOHEY J: But in a sense, Mr Ellicott, you are bringing this on yourself, are you not a bit, by emphasising section 126(a), the reference to "Australian government" and arguing that this institution is an aspect of government. If one went straight to paragraph (b) - - -

MR ELLICOTT: I do not have that in 74, your Honour will appreciate and that is equally relevant.

TOOHEY J: Well, you do without the paragraphing, do you not?

MR ELLICOTT: I do not have "Australian government" in 74. You have a department - - -

TOOHEY J: But the distinction is drawn in 74 between "government" or "an authority which is completely controlled by" and so on. For all practical effects, the language is the same, but if you take item 126(b), if you have an institution - and I am rewording the word "authority" - "that is completely controlled by" government, then what meaning does one give to the term "authority"?

MR ELLICOTT: One gives to that word the meaning, is it a - in this particular provision - body which has the characteristics which are set out there, that is to say, which is completely controlled by and the expenditure of which is exclusively borne by.

TOOHEY J: But then that gives no meaning to "authority".

MR ELLICOTT: It is a question of what it means in the context.

TOOHEY J: Surely, but it, presumably, means something, that it is not defined by reference perhaps only to it being completely controlled by the Australian government or perhaps you argue that it is.

MR ELLICOTT: What I am saying is, why would the legislature want to go beyond those two conditions to describe what is referred to as an authority? Is it not, in effect, a body which has those two characteristics? Why does one want to go back - if I can take your Honours to page 139 at the foot, where his Honour says:

None of the banks can readily be said to be an instrument of government existing to achieve some government purpose -

Now, that, we would submit, is completely wrong. It is set up to achieve a government purpose, but if you go higher, his Honour says, against the first star:

Each bank is the means adopted by the respective government for the carrying on by it of a banking business. In this sense each can be seen as the agent or instrument of the respective governments which control them.

We would say those two ideas are in conflict and that the proposition at the bottom is not correct because the Banks can be readily said to be an instrument of government and an authority is an instrument of government. It is set up by the government, and the word "authority" picks up that notion, but - - -

TOOHEY J: On your argument, you would simply substitute "body", would you, for "authority"?

MR ELLICOTT: No. It has to be a body which obviously is set up or established to fulfil the government's purpose to do the government's business or to do the government's work, however you choose to put it. Over the page, he says:

To the extent to which the need for exceptional power or authority is a requirement separate from the ability to exercise power or command, the bank appears to have no power or authority additional to that which a private bank would have -

but each of these Banks has the power or authority to do what no other person can do, that is, to carry on State banking on behalf of the State. Surely, that is exercising control or power or command in relation to government banking or State banking. No citizen can do that and that is as far as those words were ever intended to go, in our submission. Now, I do not have time to go through those cases. In fact, the red light has gone.

BRENNAN CJ: That is right. Thank you very much, Mr Ellicott. Mr Solicitor for New South Wales. You now wish to make your application for leave to intervene?

MR MASON: Yes, your Honour. I seek leave to intervene in support of the applicant. I submit that the State has an interest greater than the mere desire to have the law declared in particular terms, referring to the language used by the Court recently in the Kruger Case. That greater desire, or the greater concern is the direct and substantial fiscal impact of the judgment below both generally and in relation to the State Bank, having regard to the claw-back arrangements that exist on privatisation. Secondly, concern about the test that will impact upon any other statutes. The word "public authority" or "authority of the State" is used for a range of purposes in State and Federal legislation.

The present decision involves a sharp change of tack by the Commissioner of Taxation and, in my submission, by the Federal Court in the analysis - - -

DAWSON J: All this is directed to showing that it is a matter of public importance.

MR MASON: Yes, it is.

DAWSON J: We could accept that, for my part anyway, but are you going to add anything to the arguments that have been put by Mr Ellicott otherwise?

MR MASON: I want to say, and I intend to be about 2 minutes in saying it, something about the mootness argument that has been raised by the respondent. As your Honours know, the legislation was changed in late 1995. However, the old tax regime, if I may call it that way, applies in relation to the whole period going back before 1995. The present case is an indication that the Commissioner of Taxation intends to rely upon, what I submit, is the new rules and to rely upon them with retrospective effect. How far back that goes will be in the Commissioner's hands, but if the judgment stands - - -

BRENNAN CJ: Mr Solicitor, perhaps we should ask Mr Bennett what his attitude is to your - - -

MR MASON: He has indicated he opposes it.

BRENNAN CJ: Opposes it, I see.

MR MASON: Your Honours, the particular bite in the judgment and the change by way of error, we submit, is that the idea of exercising authority must, according to the Full Court, involve authority or command over others, in other words, a regulatory notion, and that only authorities, agencies of the State which exercise a regulatory function, are, according to the Full Court's decision, authorities.

BRENNAN CJ: What about possession of a special power?

MR MASON: But it is a power to exercise authority or command.

BRENNAN CJ: No, not necessarily. The earlier cases indicate that within the term "authority" you can bring those that have a special statutory power in default of which the actions of the entity might be liable to actions in tort or the like.

MR MASON: That is, in essence, the point we embrace, and we submit the Full Court has moved from that position by saying that the special power must no longer be just an exceptional statutory power but it must be a power of a regulatory nature and a power to direct or control the affairs of others, and the State Banking Cases to which my friend referred are an indication that governmental activity can be exercised in ways other than regulatory ways and yet, nevertheless, be regarded, and have traditionally been regarded, as the exercise of governmental power by an authority.

The one thing about the mootness argument, your Honours, is to remind the Court of its approach adopted in Taikato's Case, which is coming on in a month time or so. That was the case about the spray cans and whether or not carrying a spray can could give rise to a defence of self-defence.

The legislation had changed in New South Wales and that was relied upon as an argument that the special leave would be moot but it was the presence of similar legislation in other States, accompanied by doubt on the Court's part, that led to the grant of special leave. That is the situation here, in my submission. If the Court pleases.

BRENNAN CJ: Mr Solicitor for Western Australia.

MR MEADOWS: May it please your Honours, we would adopt what my learned friend has just put to your Honours and add that this matter is of considerable importance to the State of Western Australia, not so much for the future liability of State entities but in relation to other bodies which have always been thought to be exempt under the statutory test but which might now be liable for back taxes. Under the test postulated by the Full Court which requires a balancing exercising to be undertaken, there remains a number of troublesome issues as to whether any particular entity falls within the test and, in our submission, it would be important for this Court to grant special leave to remove that uncertainty. If it please the Court.

BRENNAN CJ: Mr Bennett, we will hear you first on the question of leave to intervene.

MR BENNETT: Your Honour, there is no real advantage in my making submissions on that. Both my learned friends have put what they want to put as their argument. My opposition was aimed at saving time and preventing that occurring. It having occurred, there is no - - -

BRENNAN CJ: I see. I am not sure that that is so. Mr Solicitor for New South Wales, have you put everything you wished to put in relation to the issues in the matter?

MR MASON: No, your Honour. I have endeavoured to develop the reasons for seeking intervention and obviously it would be intervention in support of this application and intervention at the appeal if the appeal were granted. But there is nothing further I wish to say.

BRENNAN CJ: On this application for special leave?

MR MASON: Correct.

BRENNAN CJ: I see. Have you, Mr Solicitor?

MR MEADOWS: No, your Honour.

BRENNAN CJ: In the particular circumstances of this case, the Solicitors for New South Wales and Western Australia will be given leave to intervene, having put their arguments already. Mr Bennett.

MR BENNETT: I take it, your Honour, that that is limited to the application for special leave because I would wish to be heard in relation to the application for leave to intervene on the appeal?

BRENNAN CJ: Yes.

MR BENNETT: Your Honours, it is our respectful submission that no case of public importance is made. May I first remind your Honours of what was said by this Court in the special leave application in Westfield (1991) 22 ATR 400. I have copies for your Honours. It was said by this Court, at page 402, that in tax cases "a question of fundamental principle must arise for decision" in a taxation matter before this Court will grant special leave. It is the first paragraph of the Chief Justice's very short judgment.

This is, of course, a tax case and no question of fundamental principle is addressed. What is said is that the construction of the word "authority" in a particular item of the sales tax legislation is of importance and justifies a grant of special leave. There is a long line of authority in this Court which has been referred to in the judgments as to the meaning of the word "authority" and as your Honour the Chief Justice pointed out in argument this morning, one meaning of that phrase is that there be a special power to commit what would otherwise be a tort or perhaps a crime. There is nothing like that here. The Banks have no power of that sort. The other is some power of control over the activities of the citizen with a fine as the sanction. There is no power of that sort.

My learned friend submits that because of the reference to trading enterprises in the item, it must have been intended that "authority" just mean "body" because a trading enterprise cannot have those characteristics. But, of course, it can. Bodies such as electricity commissions and gas companies have the special power in the first sense, to lay pipes or wires across private property and that, of course, is something which would otherwise be a tort but for the statute and bodies such as the State rail authorities and transport commissions may have regulatory powers. They may have the power to fine people who cross the rails or do not pay their fares and in that sense they exercise authority or control.

In my respectful submission, there is nothing in the reference to trading enterprises which can possibly affect that result. So, what one has is a decision based on the meaning of an ordinary English word, based on a long line of authority in this Court and which is clearly correct in its application to the Banks. One adds to that, of course, it is a decision in a taxation case. In our respectful submission, there is simply nothing about the case except the reference in the affidavits to the amounts involved. Now, amounts involved, first of all, depend on a lot of contingencies. My friends did not refer to the affidavits which I would have objected to had they referred to them, but let it be granted that it is possible that there may be substantial amounts of money involved for the moment, although we would not accept the evidence in relation to the amounts alleged. That alone cannot justify a grant of special leave in a case where the court below is clearly correct, where it is a taxation matter and where the only issue is an English word which can always be amended in legislation.

TOOHEY J: You say it is a question of the meaning of an ordinary English word and, undoubtedly, it is such a word, but it has acquired a very special meaning, has it not, in the context of these cases?

MR BENNETT: Yes, your Honour. It has acquired a special meaning and that special meaning was given to it. If someone were to say that it had some new meaning, which is not, of course, what we say happened below, no doubt legislatures could amend it if they chose or use a different word. But the very fact that the word has been in these items for so long, although no longer there, demonstrates that legislature intended for some time for the word to have the meaning the courts gave it.

TOOHEY J: Yes, I understand that but I thought you were suggesting that it is a word, the meaning of which could be discerned readily from the dictionary and no doubt it can be given a meaning from the dictionary but it is not necessarily the meaning which the courts have attached to it over a long period of time.

MR BENNETT: It may go beyond that. It may go partially beyond that because the dictionary would be unlikely to refer to the ability to commit a tort, for example. The other aspect is the mootness and we have dealt with that. Neither of these bodies are the same any more. They are in a very different category as to the future. The legislation is totally different. One cannot assume that there is something in this decision which will necessarily apply to the income tax legislation.

The phrase there is "public authority" and, no doubt, if something ever was asked under that legislation, the Court would answer it. But one would not grant special leave in this case because the word "authority" in the context of "public authority" appears in another Act which might one day be raised by the Commissioner in relation to past liabilities. In my respectful submission, bearing all those matters in mind, no case has been made for the grant of special leave. If your Honours please.

BRENNAN CJ: Thank you, Mr Bennett. Mr Ellicott.

MR ELLICOTT: Your Honours, as to the meaning of the word "authority", can I take your Honours quickly to page 64 of the application book. My friend says it is just an ordinary English word. There is quoted there the judgment of Sir Owen Dixon, who says:

"The word `authority' has long been used to describe a body or person exercising power or command. No doubt this has come about by a transfer of meaning from the abstract conception of power or command to the body or person possessing it. But in relation to such a public affair as public transport -

and this was the Silverton Tramway Company -

the use of the word `authority' as a description of a person or body implies he or it is an agency or instrument set up to exercise control or execute a function in the public interest whether as an emanation of the general government or as an adjunct of local government or as a specially constituted officer or body.

Now, that, we would submit, does lend support to the view that we are putting, namely, that there is not attached to the word "authority" this notion that you must be able to direct people to do things. There is nothing in there, and it picks up the notion that, as we would submit with respect, taken up by the former Chief Justice and Mr Justice Wilson in the Fruit Marketing Case. Now, in the same case - - -

BRENNAN CJ: But you have really to read that with the next sentence to follow it, do you not?

MR ELLICOTT: I will. "The word `authority' - - -

BRENNAN CJ: You do not have to. I mean, we can read it for ourselves.

MR ELLICOTT:

would not readily be applied in ordinary speech to a company carrying on an undertaking for private profit -

of course it would not. That is not this case. This is a case of bodies carrying on - - -

DAWSON J: But go on. You have to read the whole of the sentence.

MR ELLICOTT:

even if the undertaking were a public utility and the company had secured a grant of statutory powers to enable it to do so.

That is because these are companies which are set up under some public authority, be it a statute or the like, in order to conduct a transport business for private profit but, at the same time, because they are fulfilling probably some concept of public purpose that a particular government wants to further, they may or may not be given other powers. But you do not get it simply because, like, say, the Australian Gaslight Company or the Silverton Tramway Company, you have a special statute to do it. The natural reading of the expression would be against such an application. That is the purpose of it.

In Mr Justice Webb's judgment, over the page at 65:

"As it cannot properly be claimed that government or command is vested in them -

and his Honour picks up the same notion. So, although one does not have time to go through this, we would submit that there is a much broader concept in these cases and they have never been - - -

BRENNAN CJ: And that broader concept is expressed at pages 570 to 571 in the citation by Mr Justice Taylor of the Renmark Case, a judgment of Mr Justice Rich.

MR ELLICOTT: It rather is a case, your Honour, of which one you choose. All I am saying is that I go to Sir Owen Dixon and then somebody else - and I would say it with respect - may say, "Well, I will go to what Mr Justice Aickin said in another judgment", and I went to what the Chief Justice said. Now, with respect, we would submit that the meaning of this word has not been settled and the Solicitors-General have indicated that there had been a history whereby the Commissioner had suddenly turned around.

BRENNAN CJ: Can you identify any departure from principle from established cases in the judgment below?

MR ELLICOTT: Yes. We would submit that what I referred to at page 140, having said what his Honour said at page 139 and the two stars that I referred to, the one at the top and the one at the bottom, he goes on to say:

To the extent to which the need for exceptional power or authority is a requirement separate from the ability to exercise power or command, the bank appears to have no power or authority additional to that which a private bank would have -

and we would submit that that is, with very great respect, erroneous and not consistent with, for instance, what I have read from Sir Owen Dixon and what I read from the former Chief Justice and Mr Justice Wilson. There is no notion of some extra special power, and the notion of command is sufficiently described by setting up a body to do the very thing which the government could do itself if it wanted to separate it into a department and, say, "We will run a bank and we will do it to implement policy by the State."

BRENNAN CJ: Thank you, Mr Ellicott.

Whether or not the applicants might properly be regarded as an instrumentality of government, the decision of the court below that the applicants are not, or were not, authorities of government is not attended with sufficient doubt to justify a grant of special leave. For that reason, special leave is refused.

MR BENNETT: I ask for costs, if your Honours please.

BRENNAN CJ: You have nothing to say about that, Mr Ellicott?

Special leave is refused with costs.

AT 10.34 AM THE MATTER WAS CONCLUDED