Bropho v Western Australia [1990] HCA 24

Bropho v Western Australia [1990] HCA 24

The Court held that although statutes are generally presumed not to bind the Crown, this is a rebuttable presumption. In this case, the context, purpose and subject matter of the Aboriginal Heritage Act 1972 (WA)—especially given that most land in WA is Crown land—demonstrate a clear legislative intent that s. 17 applies to employees and agents of governmental instrumentalities acting in the course of their duties. Excluding them would frustrate the Act's operation. Therefore, the statement of claim should not have been struck out and Bropho's action should proceed.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From Full Court of the Supreme Court of Western Australia
Outcome
Appeal allowed
Legal Topics
['crown Immunity From Statute' 'interpretation of Statutes Binding the Crown' 'aboriginal Heritage Protection' 'application of Aboriginal Heritage Act 1972 (wa) to Crown Land']
['administrative Law' 'statutory Interpretation' 'aboriginal and Torres Strait Islander Law'] ['crown Immunity From Statute' 'interpretation of Statutes Binding the Crown' 'aboriginal Heritage Protection' 'application of Aboriginal Heritage Act 1972 (wa) to Crown Land']

Case Brief

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Procedural Posture

Appeal / High Court Appeal From Full Court of the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether s. 17 of the Aboriginal Heritage Act 1972 (WA) binds the Crown or its instrumentalities and agents' 'Whether employees/agents of the Crown are liable under s. 17 when acting in the course of their duties' 'Proper construction of statutes in determining application to the Crown']

Ratio Decidendi

The Court held that although statutes are generally presumed not to bind the Crown, this is a rebuttable presumption. In this case, the context, purpose and subject matter of the Aboriginal Heritage Act 1972 (WA)—especially given that most land in WA is Crown land—demonstrate a clear legislative intent that s. 17 applies to employees and agents of governmental instrumentalities acting in the course of their duties. Excluding them would frustrate the Act's operation. Therefore, the statement of claim should not have been struck out and Bropho's action should proceed.

Court Disposition

Appeal allowed

Orders

  • ['Set aside the orders of the Full Court of the Supreme Court of Western Australia.' 'In lieu, order that the appeal to that Court be allowed with costs.' "Set aside the orders of Master White striking out the appellant's statement of claim and dismissing his action." 'Order that the summons brought by the...