Port of Portland Pty Ltd v Victoria [2010] HCA 44

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

PORT OF PORTLAND PTY LTD APPELLANT

AND

STATE OF VICTORIA RESPONDENT

Port of Portland Pty Ltd v Victoria [2010] HCA 44

8 December 2010

M62/2010

ORDER

1. Appeal allowed with costs.

2. Set aside paragraphs 1 and 3 of the order of the Court of Appeal of the Supreme Court of Victoria made on 10 December 2009 and, in lieu thereof, order that:

(a) the appeal to that Court be allowed with costs;

(b) the judgment of Mandie J made on 6 December 2007 be set aside; and

(c) the proceeding be remitted to the Trial Division of the Supreme Court of Victoria for an assessment of damages and consequential orders, including as to costs of the whole of the proceedings in the Trial Division.

On appeal from the Supreme Court of Victoria

Representation

J D Merralls QC with S T Pitt for the appellant (instructed by Mills Oakley Lawyers)

P J Hanks QC with C M Kenny SC and C O H Parkinson for the respondent (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with A J Sefton intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Port of Portland Pty Ltd v Victoria

Constitutional law – States – Reception of English law – Status in Victoria of constitutional principle recognised in s 12 of Bill of Rights 1688.

Contract – Construction – Enforceability of contractual obligation – Treasurer of State of Victoria directed Port of Portland Authority to sell its assets and business to appellant under contract ("Contract") – Section 4A(1) of Port of Portland Authority Act 1958 (Vic) gave Treasurer power to make direction – Treasurer party to Contract on behalf of State – State agreed, in cl 11.4(a) of Contract, to amend statutes to ensure port improvements excluded from land value used to calculate appellant's land tax – State agreed, in cl 11.4(b), to refund or allow to appellant excess tax if amendments did not become law – Whether cl 11.4(b) void as dispensation by executive from land tax legislation contrary to s 12 of Bill of Rights – Whether cl 11.4(b) effected dispensation – Whether cl 11.4(b) authorised by legislature enacting s 4A(1).