Brambles Australia Ltd v Pine Rivers Shire Council [1997] QCA 31

1 COURT OF APPEAL [1997] QCA 031 FITZGERALD P DAVIES JA McPHERSON JA CA No 3880 of 1996 BRAMBLES AUSTRALIA LIMITED Appellant (Plaintiff) and PINE RIVERS SHIRE COUNCIL Respondent (Defendant) BRISBANE ..DATE 18/02/97 JUDGMENT -- 1 of 5 -- 180297 T03/LZG16 M/T COA20/97 2 JUDGMENT THE PRESIDENT: This is an appeal from a judgment in the Trial Division on 26 April 1996 dismissing an application under the Judicial Review Act 1991. The single point involved concerns the construction of a contract entered into between the parties in 1985. More particularly, the question is whether a clause in that contract exempts the appellant from charges which the respondent sought to impose as a condition of a licence issued to the appellant under section 98A of the Health Act 1937. Under the 1985 contract the appellant collects domestic refuse and certain limited commercial refuse on behalf of the respondent and also operates and maintains two refuse tips owned by the respondent. Generally speaking, persons depositing refuse at one of the tips, whether domestic, commercial or industrial refuse, must pay prescribed charges. The appellant collects the charges, pays half to the respondent and retains the other half. However, there are certain exemptions under clause 3.2.10 of the contract and it is that clause upon which the appellant relies for exemption from any liability to pay charges for the commercial and industrial refuse which the appellant collects independently of its contract with the respondent under the licence issued under the Health Act. Clause 3.2.10 of the contract required the appellant to -- 2 of 5 -- 180297 T03/LZG16 M/T COA20/97 3 JUDGMENT collect the prescribed charges from persons disposing of refuse at the tips and continued: "No charges shall be applicable to owners or occupiers of single or multiple dwellings located within the Shire who are delivering refuse produced from those premises to any refuse tip, unless the Council so determines. No charges shall be applicable to refuse delivered by vehicles operated by the Council, or by Contractors employed by the Council on Council projects, or by the Contractor." The Trial Division Judge who dismissed the appellant's application for judicial review of the Council's decision to require the appellant to pay charges in respect of commercial and industrial refuse which it disposed of at the tips other than the refuse collected by the appellant under the parties' contract considered that the context required the general exemption in favour of the appellant in clause 3.2.10 to be read down so as to apply only to refuse disposed of by the appellant under the contract. Support for this view was found by the Judge in the circumstance that the word "refuse" was "used throughout the contract with a shifting connotation" sometimes referring "only to refuse contemplated as being removed under the contract" and sometimes "perfectly general." I am unable to perceive how such a context supports reading down an exemption expressed in "perfectly general" terms. His Honour also said, "Beyond the purview of the cleansing -- 3 of 5 -- 180297 T03/LZG16 M/T COA20/97 4 JUDGMENT contract" - then the name of the appellant was inserted - "was in the same situation as any other citizen or contractor." However that assertion assumes rather than decides the critical issue between the parties. The Judge also stated, "Arguably it was within the Council's power to confer an exemption from fees with respect to all other kinds of refuse no matter how large the applicant's business might become in those respects. But such a virtually open- ended exemption would be somewhat surprising, especially in a 10-year contract, and is not lightly to be imputed." Four points can be made in response. First, the appellant's argument does not depend upon any imputation into the parties' contract but upon its literal terms. Secondly, the Court has no adequate basis for speculating as to what the parties intended in 1985. It might well have been a perfectly reasonable commercial transaction for the appellant to be granted general exemption plus half the prescribed charges as the consideration for its obligations under the contract. Thirdly, the construction favoured below involves the appellant paying itself and then paying half of that receipt to the respondent. Fourthly, it would have been simple to provide unambiguously for what was found to be the meaning of clause 3.2.10 if that was intended. Finally, His Honour expressed the opinion that a construction which would give the effect to clause 3.2.10 of -- 4 of 5 -- 180297 T03/LZG16 M/T COA20/97 5 JUDGMENT the contract for which the appellant contends "is one to be avoided unless the words unambiguously require such a construction". For reasons which I have already given, I see no sufficient justification for such an approach but, in any event, the words relied upon by the appellant seem to be sufficiently unambiguous to support the conclusion for which it contends. Accordingly, I would allow the appeal with costs to be taxed and make the orders sought by the appellant by way of judicial review. The respondent should also pay the taxed costs of and incidental to the proceeding in the Trial Division. McPHERSON JA: I agree. DAVIES JA: I agree. THE PRESIDENT: The orders will be as I have indicated. ----- -- 5 of 5 --