Cairns City Council v Fairview Farming Co. Pty. Ltd.
[1998] QCA 6
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- Unreported Judgment
- Appeal Determined (QCA)
- Cairns City Council v Fairview Farming Co. Pty. Ltd.[1998] QCA 6
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Cairns City Council v Fairview Farming Co. Pty. Ltd.[1998] QCA 6
Reported at [1999] 1 Qd R 262
Cairns City Council v Fairview Farming Co. Pty. Ltd.[1998] QCA 6
Reported at [1999] 1 Qd R 262
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Appeal No. 3244 of 1997
[Cairns City Council v. Fairview Farming Co. P/L]
BETWEEN:
CAIRNS CITY COUNCIL
(Defendant) Appellant
AND:
FAIRVIEW FARMING CO. PTY. LTD. ACN 009 656 660
(Plaintiff) Respondent
Appeal No. 3245 of 1997
[Cairns City Council v. Kamerunga Villa P/L]
BETWEEN:
CAIRNS CITY COUNCIL
(Defendant) Appellant
AND:
KAMERUNGA VILLA PTY. LTD. ACN 010 777 483
(Plaintiff) Respondent
Davies J.A.
Moynihan J.
Ambrose J.
Judgment delivered 10 February 1998
Judgment of the Court
APPEAL DISMISSED WITH COSTS
CATCHWORDS: | LOCAL GOVERNMENT - Jurisdiction of Supreme Court to determine claim for moneys had and received against a Council for unlawful imposition of a condition requiring payment of money - whether subject matter of proceedings was a "matter" giving the Local Government Court exclusive jurisdiction under s. 28 City of Brisbane Town Planning Act 1964. |
Counsel: | Mr. P. A. Keane Q.C., with him Mr. A. R. Philp, for the appellant Mr. D. B. Fraser Q.C. for the respondents |
Solicitors: | Clayton Utz town agents for MacDonnells for the appellant W. H. Tutt & Quinlan town agents for Dale Treanor for the respondents |
Hearing Date: | 2 October 1997 |
Appeal No. 3244 of 1997
[Cairns City Council v. Fairview Farming Co. P/L]
BETWEEN:
CAIRNS CITY COUNCIL
(Defendant) Appellant
AND:
FAIRVIEW FARMING CO. PTY. LTD. ACN 009 656 660
(Plaintiff) Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 10 February 1998
The central question in this appeal, as it was below, is whether the Supreme Court has jurisdiction in respect of an action by the respondent against the appellant Council for moneys had and received, based upon an allegation that a condition imposed by the appellant upon an approval granted to the respondent to subdivide land, which required payment of a sum of money, was not lawfully imposed. The appellant's contention was and is that the legality of that condition could have been challenged only in an appeal to the Local Government Court which was never pursued.
The question arose in the following way. The respondent in 1985 applied to the appellant to subdivide land which it owned within the Cairns area. In April 1986 the appellant granted approval to the application subject to conditions, one of which was that the respondent contribute approximately $400,000 towards the cost of water supply and sewerage headworks. The respondent did not appeal against the imposition of this condition; in 1989 it paid that sum and the development proceeded. There is an allegation in the present action that this amount exceeded the amount which could have been lawfully required and the claim for moneys had and received is based on this allegation.[1]
The appellant relies on s. 28 of the City of Brisbane Town Planning Act 1964.[2] That section relevantly provided:
"28(1)The Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court including every appeal which under this Act may be made to the Court.
- Save as prescribed in subsection (3) of this section the jurisdiction of the Court under this Act shall be exclusive, and every decision of the Court shall be final and conclusive and shall not be impeached for any informality or want of form, or be appealed against, reviewed, quashed or in any way called in question in any Court.
... "
Section 34(15) of the Local Government Act 1936 provided that an applicant for subdivisional approval who was "dissatisfied with the decision" of a local authority might appeal to the Local Government Court within 30 days of the notification of the decision. There could be no doubt that the combined effect of these provisions was that the only appeal against the imposition of the above condition as a condition of subdivisional approval was to the Local Government Court pursuant to s. 28. But the question is not whether an appeal could have been determined elsewhere than in that Court but whether the validity and legality of the condition can be determined as an issue in any other proceeding between the same parties. Mr. Keane Q.C., who appeared with Mr. Philp for the appellant, submitted that it could not. This argument, as we understood it, involved the following steps.
First Mr. Keane submitted that the "matter" within the meaning of s. 28(1) was whether the application should be approved and, if so, on what conditions. In putting his submission in this way he was relying on the view, accepted in disputes involving ss. 75 and 76 of the Commonwealth Constitution, that "matter" does not mean a legal proceeding but the subject matter for determination in a proceeding.[3]
Having defined "matter" in the above way Mr. Keane could not submit that the question of whether the condition was legal and valid was itself the matter. But what he submitted was that it was a "determinative issue" or an "encompassing issue" in any appeal to the Local Government Court and that, presumably consequently, it was, in substance, the matter in respect of which that court had exclusive jurisdiction under s. 28.
There is some basis for thinking that, notwithstanding the view as to what is a "matter" under ss. 75 and 76 of the Constitution, the term in s. 28 was intended to describe a proceeding. The phrase "all matters .. including every appeal" in subs. (1) leads one to think that the legislature intended an appeal to be a matter.[4] If all that was intended by s. 28 was that the Local Government Court should have exclusive jurisdiction to hear and determine appeals and other proceedings which might be instituted in that Court then there was plainly no inhibition upon the jurisdiction of the Supreme Court to hear and determine the present proceeding. However we do not find it necessary to consider that question.[5] We are prepared to assume, as Mr. Keane contended, that the matter in respect of which the Local Government Court had exclusive jurisdiction in this case was whether the application should be approved and, if so, on what conditions.
The difficulty with Mr. Keane's argument, on this basis, is that the validity and legality of the condition was only one of a number of issues which might arise for determination in the matter. To describe it as an important issue or a determinative issue or an encompassing issue cannot conceal that fact. The matter, as identified by Mr. Keane, does not arise in this action. Indeed it cannot any longer arise.
As the learned primary Judge said, on this basis, the matter in the present action is whether the appellant has been unduly enriched by payment of the $400,000. That matter involves as an issue, which may possibly even be described as a determinative or encompassing issue, the legality of the condition. But that does not make that issue the matter.
Mr. Keane sought to overcome this difficulty by submitting, in the alternative, as we understood his argument, that what was in common between an appeal to the Local Government Court, had such an appeal proceeded, and this action, was not merely the legality of the condition but also whether, if it were illegal, approval would have been granted or refused or granted subject to some other condition. Implicit in that submission, we assume, is a submission that that wider issue was the matter which was within the exclusive jurisdiction of the Local Government Court.
However, as we have already said, the question can no longer be whether approval should be granted and, if so, on what conditions. At best for the appellant, in order to determine whether the appellant was unduly enriched, the Court in this action may have to consider the hypothetical question of what might have happened had the Local Government Court held the condition to be invalid. This hypothetical question is of a quite different character from that which would have arisen had the matter in fact gone on appeal. This alternative argument does not therefore assist the appellant.
For these reasons, in our view, the learned primary Judge was correct in concluding that the subject matter in these proceedings was not a matter in respect of which the Local Government Court had exclusive jurisdiction under s. 28 of the City of Brisbane Town Planning Act. We would therefore dismiss the appeal with costs.
Footnotes
[1]See David Securities Pty. Ltd. v. Commonwealth Bank of Australia (1992) 175 C.L.R. 353.
[2]See now s. 7.4 of the Local Government (Planning and Environment) Act 1990.
[3]See, e.g. In Re Judiciary and Navigation Acts (1921) 29 C.L.R. 257 at 265-6; Fencott v. Muller (1983) 152 C.L.R. 570 at 591, 602-6; Stack v. Coast Securities (No.9) Pty. Ltd. (1983) 154 C.L.R. 261 at 290; Crouch v. Commissioner for Railways (Qld) (1985) 159 C.L.R. 22 at 37.
[4]Section 7.4(1) of the Local Government (Planning and Environment) Act 1990, which is otherwise in materially identical terms to s. 28(1) of the City of Brisbane Town Planning Act 1964, adds, after the word "appeal" in s. 28(1) "and application for review" because of the power to review, on application, certain decisions of a local government conferred by s. 7.2. This lends some support, albeit slight, to this construction: cf. Grain Elevators Board (Vic) v. Dunmunkle Corp (1946) 73 C.L.R. 70.
[5]McPherson J. in Veivers v. Cordingley [1989] 2 Qd.R. 278 at 294 lent some support to the above construction when he said:"The matter which, by the combined effect of s. 28(2) of the Town Planning Act and s. 34(15)(a) of the Local Government Act, the Local Government Court is given authority to hear and determine is the appeal against the decision of the local authority refusing or approving the application."
See however his Honour's remarks in R. v. Brisbane City Council, ex parte: Read [1986] 2 Qd.R. 22 at 26.