Woodlands, Bessie Mavis & Anor v Permanent Trustee Company Ltd & Ors [1996] FCA 1091

Woodlands, Bessie Mavis & Anor v Permanent Trustee Company Ltd & Ors [1996] FCA 1091

The State was not bound by the Trade Practices Act 1974 (Cth) on the pleaded matters, and non-State respondents had immunity for claims arising within the scope of the HomeFund scheme as devised by the State of New South Wales or from conduct at the State's direction or request; the proceedings remained maintainable in the Federal Court, but the applicants were not protected by s 47 of the Legal Aid Commission Act 1979 (NSW) from costs liability because s 47(1)(b) was inconsistent with s 43 of the Federal Court of Australia Act 1976 (Cth) and invalid to that extent under s 109 of the Constitution.

Jurisdiction
Australia
Judgment Date
12 December 1996
Procedural Posture
Representative Proceeding / Preliminary Questions and Orders
Outcome
Preliminary questions answered; Trade Practices Act claims against the State struck out; Trade Practices Act claims against the first, second, fourth, fifth and sixth respondents struck out with leave to amend; declarations and costs orders made.
Legal Topics
['crown Immunity' 'home Fund Scheme' 'maintainability of Statutory Claims Against the State' 'federal Court Jurisdiction' 'legal Aid Costs Protection' 'section 109 Inconsistency']
['trade Practices' 'fair Trading' 'constitutional Law' 'civil Procedure' 'costs'] ['crown Immunity' 'home Fund Scheme' 'maintainability of Statutory Claims Against the State' 'federal Court Jurisdiction' 'legal Aid Costs Protection' 'section 109 Inconsistency']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Representative Proceeding / Preliminary Questions and Orders

Legal Issues

  1. 1 ['Whether, having regard to the amended Statement of Claim and agreed bundle of documents, the State is bound by the Trade Practices Act 1974 (Cth) and whether any claim under that Act against the State is maintainable.' 'Whether the respondents other than the State are immune from the claims in the amended Application and amended Statement of Claim in light of the principles referred to in Bradken.' 'Whether, assuming the Fair Trading Act 1987 (NSW) claim against the State is not maintainable, the respondents other than the State are immune from claims under that Act in light of the principles referred to in Bradken.' 'Whether, on the answers to Questions 1 and 2, the proceedings are maintainable in the Federal Court.' 'Whether the applicants are protected by s 47 of the Legal Aid Commission Act 1979 (NSW) against liability for costs if unsuccessful.' 'Whether s 47(1)(b) of the Legal Aid Commission Act is inconsistent with s 43 of the Federal Court of Australia Act 1976 (Cth) and invalid to the extent of inconsistency by operation of s 109 of the Constitution.']

Ratio Decidendi

The State was not bound by the Trade Practices Act 1974 (Cth) on the pleaded matters, and non-State respondents had immunity for claims arising within the scope of the HomeFund scheme as devised by the State of New South Wales or from conduct at the State's direction or request; the proceedings remained maintainable in the Federal Court, but the applicants were not protected by s 47 of the Legal Aid Commission Act 1979 (NSW) from costs liability because s 47(1)(b) was inconsistent with s 43 of the Federal Court of Australia Act 1976 (Cth) and invalid to that extent under s 109 of the Constitution.

Court Disposition

Preliminary questions answered; Trade Practices Act claims against the State struck out; Trade Practices Act claims against the first, second, fourth, fifth and sixth respondents struck out with leave to amend; declarations and costs orders made.

Orders

  • ['The following answers be given to the preliminary questions: Question 1: No; Question 2: Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant...