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Hainsworth v Department of Natural Resources, Mines and Energy


[2007] QCA 297






DC No 130 of 2006

Court of Appeal


Application for Leave s 118 DCA (Civil)



14 September 2007




31 August 2007


McMurdo P, Jerrard JA and Wilson J

Separate reasons for judgment of each member of the Court, McMurdo P and Wilson J concurring as to the orders made, Jerrard JA dissenting in part


1. Application refused

2. Applicants pay the respondent’s costs


ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the relevant land was the subject of a grant of a special purpose lease for a term of 30 years from 1 July 1964 to Rabstake Pty Ltd – where the applicants were shareholders in Rabstake Pty Ltd – where the lease expired in 1994 – where the applicants were served with a notice under s 406 of the Land Act 1994 (Qld) – where the applicants claimed that certain communications from the State Government revealed a legitimate expectation that the applicants were entitled to remain on the property – whether there was a legitimate expectation created by the State Government

Land Act 1994 (Qld), s 404, s 406

State of Queensland v Litz [1993] 1 Qd R 343, distinguished


The applicants appeared on their own behalf

D P Morzone for the respondent


The applicants appeared on their own behalf

Crown Law for the respondent

[1]  McMURDO PThe applicants have not demonstrated any reason justifying the grant of leave to appeal for the reasons given by Jerrard JA. The application for leave to appeal must be refused. The respondent in its outline of submissions asks for its costs. As the application is entirely unmeritorious I can see no sound reason why the respondent should be denied its costs. The applicants should pay the respondent's costs of the application.

[2]  JERRARD JA:  This is an application for leave to appeal from a judgment of the District Court given on 16 April 2007, dismissing an appeal from a decision given in the Cairns Magistrates Court on 1 March 2006.  The proceedings involve the applicants’ occupation of land in the Lockhart River area in North Queensland.

[3] The land is described as Lot 4 on WMT 25, in the Parish of Weymouth County of Weymouth.  It was the subject of a grant of a special purpose lease number 43/28790, for a term of 30 years from 1 July 1964.  That lease was granted to a John King, and after some earlier transfers of it with the consent of the relevant Minister, it was transferred to a company Rabstake Pty Ltd on 22 March 1983.  The two applicants described themselves as two of some 49 original shareholders in that company, who (apparently all) became shareholders in that company for the purpose of residing lawfully in what is apparently a particularly lovely part of this State.  The applicants’ evidence and submissions in the proceedings below included that many of the original shareholders in that company have since left the area, or are dead, and it may be they are the only remaining shareholders still actively interested in living on that particular land.

[4] Despite the perfectly proper and sensible motives of the applicants in becoming shareholders, events have since moved on.  Rabstake Pty Ltd actually transferred its lease on 19 February 1990, jointly to Peter Kedwell Enterprises Pty Ltd and a John Matthews.  Peter Kedwell Enterprises Pty Ltd and John Matthews in turn transferred the special lease jointly to a Jane Glenister Bunning and to Peter Kedwell Enterprises Pty Ltd on 18 February 1993.  The special lease expired on    30 June 1994, and there has not since been any subsequent assignment, sublease, or grant of a right of occupation or tenancy on the land, made with the relevant (and necessary) consent of the relevant Minister.  Accordingly, the respondent Chief Executive contended in the court below, and in this Court, that the land is unallocated State land.

[5] The two applicants do not actually challenge that description of the land, but do challenge the finding made in the Magistrates Court, and upheld in the District Court, that their occupation of that land was unlawful, and had been since at least  30 June 1994, when the special lease expired.

[6] The proceedings below were initiated by the service on or about 8 April 2005 on the applicants of a notice under s 406 of the Land Act 1994 (Qld).  That notice alleged the satisfaction of a duly authorised delegate of the Chief Executive, that each applicant had unlawfully done a “trespass related act” on the land.  That was alleged to be because of occupation by them of the land, enclosure of the land and buildings, and the placement and maintenance of a structural improvement, work, or thing on that land.  The notice required the applicants to leave the land, removing the improvements and enclosures, within 28 days.

[7] Section 404 of the Act defined a “trespass related act”, which included occupying or living on the land.  The applicants did not challenge that they were living on it, and much of their case centred on responses made to them over the years in their endeavours to make lawful their continued residence.  They have constructed a home and installed a dam and lived there since – at least – the company in which they were part shareholders became a lessee.  They continued to live there after it stopped being the lessee, and after the lease expired, negotiating with officials in a constant endeavour to obtain for themselves a grant of a lease, or some form of title.  They were entirely unsuccessful over the years, although their material refers to representations to them that left them, at different times, very optimistic.

[8] In accordance with the provisions in s 409 of the Act, the applicants responded to the s 406 notice by lodging a notice (described as a Notice of Appeal) in the Magistrates Court, referring inter alia to their having been shareholders in Rabstake Pty Ltd and to it having been the holder of a special lease.  By that Notice of Appeal they also applied for a substituted decision under Part 3 Division 3 of the Act, and asked that that substituted decision give them tenure to the land.  They asked for a priority tenure under Chapter 4 Division 2 of the Act.

[9] Unfortunately for the applicants, the power to order a substituted decision of the sort requested is a power given to the Land Court, not the Magistrates Court.  The Magistrate so held, by reason of s 427 of the Act and the dictionary in Schedule 6, and the applicants have not challenged that conclusion.  Furthermore, as the Magistrate also held – and the applicants have not challenged that conclusion either – the power given (to the Land Court, not the Magistrates Court) in s 429 of the Act, to set aside “the review decision” and to “substitute another” decision, given by s 423, s 427, and Schedule 2 of the Act, is given in respect of specified decisions which do not include decisions under s 406 to issue a Trespass Notice.  The Magistrate had no jurisdiction to entertain that application, or make the orders requested, and rightly held so.

[10]  The applicants appear to have represented themselves at all stages below, and not to have had the benefit of legal advice.  The Magistrate was bound to come to the conclusion described in the proceedings in that Court.  In those proceedings the applicants essentially conceded the validity of the respondent’s claims in the s 406 Notice, and in the documents described as a defence, filed by the respondent under  s 411 of the Act, dated 20 July 2005.  That document set out the history of the special purpose lease and of the lessees, the fact of expiration of the lease some 11 years earlier, and asserted as a fact – not challenged as a fact – that the land was now unallocated State land.  Those unchallenged matters ultimately resulted in the Magistrate necessarily coming to the conclusion that, there having been no extension of the lease, the land was unallocated State land and was properly made the subject of a Trespass Notice, occupation being unchallenged, and there being no evidence of lawful occupation. 

[11]  The applicants appealed to the District Court, where they received a sympathetic hearing, and a judgment delivered on 16 April 2007.  That Court held, correctly, that the land had been unallocated State land (as defined in the Act) since the expiry of the special lease on 30 June 1994, and that s 420 of the Act allowed an appeal to that Court by a party dissatisfied by an order made on a Trespass Notice, but only on a question of law.

[12]  The learned judge of the District Court hearing that appeal referred, as had the Magistrate, to the provisions in the special lease forbidding any assignment or grant of a right of occupation without the consent in writing of the Minister, and also to the provision in the lease forbidding the payment of any compensation for improvements.  The judge went on to remark that the applicants themselves were never lessees, and that no lawful sublease or grant of any right of occupation or tenancy had been made with the consent of the Minister.  Any rights of occupation of the land by any person came to an end when the lease expired in 1994, and the Magistrate had made no error in law.  Reluctantly, because of sympathy to the applicants who had effectively lost their home, the learned judge dismissed the appeal.

[13]  An appeal to this Court from the District Court lies under s 118 of the District Court of Queensland Act 1967 (Qld), but (s 118(3)) only with this Court’s leave.  If there is no possibility of success, there is no point in granting leave.

[14]  The applicants’ Notice of Appeal to this Court was limited to the contention that the circumstances of the case were unusual, and added that the female applicant’s eldest son was of Aboriginal decent and a member of the Kuuku Y’au people who are the traditional owners of the land, and who are involved in a native title claim, apparently for an area including the land.  The applicants really did not say anything further in oral argument in support of that ground of appeal, which asserts a fact that had no obvious capacity to make their own residence on that land either any more or any less lawful.  Instead, the applicants in their oral argument on this application for leave to appeal readily conceded that they were not attempting to allege that they had any recognisable title or interest in the land, such as to make their occupation of it lawful; but they contended they had a legitimate expectation at all relevant times that their occupation would be rendered lawful, in accordance with recommendations made (about them) over the years.  By implication, they had a legitimate expectation that no steps would be taken adverse to their occupation before it was rendered lawful.  It appeared they had either had some legal advice, or had undertaken extensive research.

[15]  Their submissions referred to two decisions, State of Queensland v Litz [1993] 1 Qd R 343 and State of Queensland v Nixon [2002] QSC 108.  The first, Litz, was a decision of this Court on an appeal by a defendant who had been a lessee of land under a special lease granted under the Act.  That defendant had remained in possession after the lease expired, and a request for a renewal of the lease was refused.  The State of Queensland obtained summary judgment for possession of the land, but on appeal this Court held summary judgment should not have been ordered.  That was because it was possible that the lessee had (as the lessee contended) a legitimate expectation that a new lease of the land would be granted to him.  It followed it was not appropriate to conclude (without a trial) that the rules of natural justice did not apply to the decision of the Minster not to grant a new lease.  Hence, although the lease had expired, that defendant had raised an arguable case which ought to be determined on a full hearing, and his rights would be effectively destroyed if he was compelled to vacate the land pending the hearing.  Accordingly, a license to remain would be implied, until that hearing and determination took place.  This Court was satisfied that a legitimate expectation to procedural fairness did not unjustifiably impose a gloss upon the Minister’s powers, but merely applied well established rules as to natural justice regulating the exercise of a statutory power, (unless clearly excluded).

[16]  The difference between that case and this one – assuming grounds for a legitimate expectation exist in this one – is that in Litz an order for summary judgment was overturned so that that lessee could lead evidence on a hearing in support of the argument that natural justice might result in a new lease.  Here, this point is raised for the first time after a full hearing before the Magistrate, and an appeal, and on an application for leave to appeal, from that appeal decision.  Nixon is an example of the same sort of case as Litz, Nixon being a decision of this Court at first instance.  In that matter Muir J (as His Honour then was) dismissed an application by the State of Queensland for summary judgment against a lessee, who had remained in occupation after the expiry of a lease.  That was because he considered it arguable that the lessee had not been afforded natural justice, and until the lessee’s right to a proper hearing of that claim was vindicated, Muir J was unable to be satisfied that it was an appropriate case for judgment without a trial.

[17]  These applicants did not bring any proceedings in which they litigated a claim of a legitimate expectation to a grant of a right of occupation, sufficient to defeat or delay the notice served on them, but that deficiency can be explained by their being self represented.  Likewise, so can the fact that they appear to raise this argument for the first time in this Court.  But, putting aside all arguments about procedure and looking only at the merits, the problem remains for the applicants that they could point to nothing in the appeal record to support that claim of a legitimate expectation, and nothing in any other document or circumstance.  The appeal record includes a voluminous history of correspondence between the applicants and various local and State Government bodies and persons, and it shows a consistent position taken by the respondent State Government.  This has been that the applicants’ occupation since mid-July 1994 had been unlawful.  The applicants were clearly supported by the local authority with whom they dealt, in their attempts to obtain a further lease, or right, or entitlement to remain, and the applicants relied on correspondence demonstrating that support by that level of Government.  But their own oral argument recognised that they could not point to any representations by the respondent State, which at all times was the entity capable of granting or not granting a right of residence.  They apparently understood in their own correspondence (and oral argument) the difference between the two levels of Government, and that it was a Minister of the State who had the power to legitimise their occupation. 

[18]  The correspondence between the State Government departments and the applicants shows that the State had been careful at all times to maintain a consistent position.  For example, in September 1989 the secretary of the relevant department wrote advising that while the department had no objection to the erection of improvements as proposed by the applicants (providing that all local authority requirements were satisfied), the department stressed that:


“No guarantee has or can be given, at this stage, that freehold title over the lease area will be given or a further lease of the area upon expiry on 30 June 1994.”

That letter also drew attention to the lease conditions providing that there would be no compensation for improvements. That letter, written five years before the lease expired, and before Rabstake Pty Ltd ceased to be a lessee, revealed a position consistently maintained by the State before and after that date.  Much as the applicants undoubtedly felt justified in their continuing dealings with the State, when seeking a further lease or authority to remain, and much as the support of the local authority would have encouraged them in doing that, none of the documents in the appeal record suggest that the State ever wrote anything capable of raising an expectation as claimed, and no words are quoted by any official which are capable of doing that.

[19]  Other documents in the appeal record include a letter dated 13 July 1995, recording the fact of a public meeting in August 1994 in the area (apparently attended by the applicants), and the appeal record makes it plain that at that meeting departmental officers made clear that people such as the applicants had no lawful remaining right of residence, now that the lease had expired.  That letter of 13 July 1995 declared that the relevant authority did not then intend to make a final decision on the future use of the subject land, and that appears to have been the position maintained by the respondent State ever since.  For various reasons – apparently one was the fact of lodgement of the native title claim, and another was to do with conservation concerns – no relevant decision was taken for many years.  In April 1997 the department repeated in correspondence with the female applicant that the lease had expired, the land was unallocated State land, and that residence on it was unauthorised and constituted illegal occupation.  There was no threat to remove the applicants (or anyone else) in that correspondence, but there was an unmistakable assertion of what was in truth the legal position, and no representation of anything else.  That position – on the material in the appeal record – has remained unchanged.

[20]  The extensive correspondence in the record shows that the local authority has been an advocate for the applicants being given residential rights, for a decade or more.  It is equally clear that the State has made no promises, and has consistently contended no more than that the matter is under further consideration.  The applicants did not make any argument based on the length per se of the delay by the State, or that tardiness implied permission would be granted.  The applicants’ written and oral argument suggests that they appreciate the difference in the stands taken by the two levels of Government.  Absent any representation by the respondent capable of creating an expectation, legitimate or otherwise, that the State either did or ultimately would regard the applicants’ occupancy as lawful, the grounds of appeal argued cannot succeed.  Accordingly, I would refuse the application for leave to appeal.  I would not make any order as to costs.

[21]  WILSON J:  The application for leave to appeal should be dismissed for the reasons given by Jerrard JA.

[22]  I agree with the costs order proposed by the President.


Editorial Notes

  • Published Case Name:

    Hainsworth & Trevor v Department of Natural Resources, Mines and Energy

  • Shortened Case Name:

    Hainsworth v Department of Natural Resources, Mines and Energy

  • MNC:

    [2007] QCA 297

  • Court:


  • Judge(s):

    McMurdo P, Jerrard JA, Wilson J

  • Date:

    14 Sep 2007

Litigation History

No Litigation History

Appeal Status

No Status