Kelsall v Brisbane City Council
[2010] QLAC 3
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- Unreported Judgment
- Appeal Determined (QCA)
- Kelsall v Brisbane City Council[2010] QLAC 3
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Kelsall v Brisbane City Council[2010] QLAC 3
Kelsall v Brisbane City Council[2010] QLAC 3
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Kelsall v Brisbane City Council [2010] QLAC 3 |
PARTIES: | Paul Anthony Kelsall – and – Eunice Ying Teng Kelsall – and – Fay Marie Kelsall (appellants) v. Brisbane City Council (respondent) |
FILE NO: | LAC006-09 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | An appeal from a decision of the Land Court |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 28 June 2010 |
DELIVERED AT: | Brisbane |
HEARD AT: | Brisbane |
THE COURT: | Peter Lyons J Mrs CAC MacDonald, President of the Land Court Mr PA Smith, Member of the Land Court |
ORDER: | Appeal dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – GENERALLY – where appellants lodged claim for compensation in the Land Court – where appellants applied for a stay of their claim – where application refused – whether refusal of the application a “decision” capable of giving rise to a right of appeal to the Land Appeal Court REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – QUEENSLAND – GENERALLY – where appellants lodged claim for compensation in the Land Court – where appellants applied for a stay of their claim – where appellants propose to bring proceedings in the Supreme Court on the grounds that the resumption was invalid and if successful seeking compensation arising from the re-vesting of the land pursuant to s 17 of the Acquisition of Land Act 1967 (Qld) – where appellant’s purpose in seeking a stay of their compensation proceedings is to preserve any rights they may have under s 17 – whether a determination of the claim for compensation would have any adverse effect on the appellant’s claim that the resumption is invalid – whether Land Court erred in refusing to grant a stay of the appellant’s compensation proceedings Land Court Act2000 (Qld), s 5, s 7, s 8, s 12, s 22, s 26, s 31, s 34, s 32J, s 64, Acquisition of Land Act1967 (Qld), s 17, s 29, Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] HCA 47, considered Director-General of Social Services v Chaney (1980) 31 ALR 571, considered Jackson v Sterling Industries Limited (1987) 162 CLR 612; [1987] HCA 23, cited Legal Services Commissioner v Baker (No 1) [2005] QCA 482, cited Maroochydore Central Holdings Pty Ltd (No 2) v Maroochy Shire Council (2007) 28 QCLR 6; [2007] QLAC 3, considered Maroochydore Central Holding Pty Ltd v Maroochy Shire Council [2007] QCA 326, applied |
APPEARANCES: | R Harding (solicitor) for the applicants D Quayle for the respondent |
SOLICITORS: | Harding Lawyers for the applicants Brisbane City Council Legal Practice for the respondent |
- [1]In 2006, the respondent resumed land from the appellants. The appellants lodged a claim for compensation. More recently they applied to the Land Court for a stay of the proceedings in that court for the determination of their claim. Their application was refused. They subsequently filed a notice of appeal to this Court against that decision. Before dealing with their appeal, it is necessary to consider whether they have a right to appeal to this Court against that decision.
Right of appeal
- [2]The powers of the Land Court, and related rights, are generally established by the Land Court Act2000 (Qld) (LC Act). In particular s 5 of the LC Act provides that the Land Court has the jurisdiction given to it under any Act, including the LC Act. Section 26 of the Acquisition of Land Act 1967 (Qld) (AL Act) confers on the Land Court jurisdiction to hear and determine all matters relating to compensation under the AL Act. The same section makes the decision of the Land Court final as regards the amount of compensation awarded, and gives it the effect of a judgment of the Supreme Court.
- [3]Section 64 of the LC Act provides for a right of appeal in relation to a proceeding in the Land Court, in the following terms:
“64. Right of appeal to Land Appeal Court
A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.”
- [4]It is common ground that the order against which the present appellants seek to appeal is an interlocutory order. There is a question whether such an order is a “decision” for the purposes of s 64.
- [5]In Director-General of Social Services v Chaney[1] the Full Court of the Federal Court had to consider s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which provided a right of appeal “from any decision of the Tribunal” in a proceeding to which the appellant was a party. Deane J[2] referred to a passage from the opinion of the Privy Council in Commonwealth v Bank of New South Wales[3] where their Lordships cited a statement from an earlier decision[4] to the effect that the “natural, obvious and prima-facie meaning of the word ‘decision’ is decision of the suit by the Court”.
- [6]However, his Honour also made the following observation:[5]
“The word ‘decision’ is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one’s mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word ‘decision’ may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word ‘decision’ has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate … or be limited to referring only to a determination which effectively disposes of the matter in hand … .” (references omitted.)
- [7]His Honour concluded[6] that, subject to specific qualifications, an appeal lay only from a decision of the Tribunal which constituted “the effective decision or determination of the application for review”. However, he reached that conclusion by reference to the context in which the section conferring a right of appeal occurred.
- [8]In Bank of New South Wales, there does not seem to have been any debate that the decision in question was a final decision. In that case, the Privy Council identified the question in Chand’scase as being whether a “decision” was the formal expression of an adjudication in a suit, or the statement given by the judge of the grounds of a decree or order. Chand’scase is not, therefore, concerned with the question raised in the present proceedings. While the statement in Bank of New South Wales is of considerable significance, nevertheless, as Deane J indicated, the question is to be determined by reference to the statutory context of the provision which is to be construed.
- [9]It is therefore necessary to consider other provisions of the LC Act. Fundamentally, that Act establishes the Land Court, confirming the jurisdiction which that court has under any other Act;[7] and thereafter generally regulating its powers and procedures, as well as providing for an appeal from its decisions. The primary source of the Land Court’s power to deal with a claim for compensation is found in s 26 of the AL Act, which makes specific provision for its “decision”, including giving it effect as a judgment of the Supreme Court for the purposes of enforcement. However, the use of the term “decision” in the AL Act is not of great assistance, since the LC Act envisages conferral of jurisdiction on the Land Court by a range of statutes.
- [10]The LC Act uses the term “decision”, or one of its cognates, in a variety of contexts, some of which are plainly interlocutory. Thus, the term is used in respect of the exercise of a range of powers in the performance of a range of functions by judicial registrars, many, if not all, of which are likely to be interlocutory in nature.[8] It is also used to describe the act of an officer of the Supreme Court in determining the quantum of costs payable pursuant to an order.[9]
- [11]Moreover, the Land Court has power to make some orders, which are not final, but which in some circumstances may be of considerable significance to persons. Thus it has a right to require a person to attend and give evidence or produce documents.[10] It has the power to rehear a proceeding; and in that context to grant a stay.[11] In some circumstances, it has a power to grant interim and interlocutory injunctions and to appoint a receiver, including an interim receiver.[12] It has a broad power to make directions.[13]
- [12]It is not without significance that s 7 of the LC Actprovides that the Land Court is not bound by the rules of evidence, and must act according to equity, good conscience and the substantial merits of the case, without regard to legal technicalities and the forms or the practices of other courts. The fact that the legislature intended the Land Court to proceed in this way rather indicates that it would be unlikely that the legislature intended to confer a restricted right of appeal from its decisions.
- [13]On the other hand, a right of appeal is conferred in respect of “the decision” of the Land Court. That expression might suggest an intention to confer the right only in respect of the decision which finally disposes of a matter before that court.
- [14]In the end, a weighing of the competing considerations favours the view that the right extends to all decisions of the Land Court, including interlocutory decisions. Accordingly, the LC Actconferred on the appellants the right to bring the present appeal.
Background
- [15]Prior to 2006, the appellants Paul Anthony Kelsall and Eunice Ying Teng Kelsall owned land located at Lutwyche Road, Windsor. Mr Kelsall’s mother, Fay Marie Kelsall, owned an adjoining parcel of land. A notice of intention to resume the land owned by Mr Kelsall and his wife identified the purpose of resumption as the north-south bypass tunnel, being a Brisbane City Council project. It seems that a notice of intention to resume the land of Mr Kelsall’s mother was the result of representations based on her relationship with Mr Kelsall, who was, apparently, her carer. The land owned by Mr Kelsall and his wife was resumed on 30 June 2006, for purposes described by the Council as being incidental to an approved tollway project, and it seems the land owned by Mr Kelsall’s mother was resumed on 8 December 2006. A claim for compensation on behalf of all three appellants was made on about 26 September 2006, the amount claimed being $15 million. It was accompanied by a demand for an advance of $6 million.
- [16]In November 2006, with a view to paying an advance to Mr Kelsall and his wife, attempts were made to deliver a cheque in an amount of $2,671,000. It was not accepted. In August 2007, the Brisbane City Council wrote to Mr Kelsall offering to pay $2,671,000 for the properties which had been owned by him and his wife; and $529,000 for the property owned by his mother. That was refused. In 2009 the Council decided to pay the amount of $3,200,000 into the Supreme Court, under s 29 of the AL Act.
- [17]The evidence indicates that, in the meantime, on 31 January 2008, the Land Court ordered the appellants to file a claim for compensation in accordance with s 19 of the AL Act. That occurred on 7 March 2008, when a claim for compensation in an amount of $32 million was made. Notice of the claim was given to the respondent by letter dated 10 March 2008. Steps have been taken to progress the determination of that claim. In an affidavit filed on 31 October 2008, Mr Kelsall stated that he wished to proceed with the claim, but asked for an extension of time in which to provide an Amended Statement of Facts, Issues and Contentions.
- [18]The appellants, or at least Mr Kelsall, appeared to have formed the view that the resumed land has not been used for the purposes of the north-south bypass tunnel, but rather for the purpose of the Airport Link, a State Government project. That view seems to have had a number of consequences.
- [19]It seems that Mr Kelsall caused a summons to be issued out of the Magistrates Court, alleging fraud against the Governor, the Lord Mayor and a number of other persons. This was struck out on 11 June 2009. The material before this Court indicates that some form of proceedings was instituted in the District Court, perhaps by way of an appeal against the order of the Magistrate.
- [20]In the meantime, in August 2009, the respondent instituted proceedings in the Supreme Court, with a view to paying into that court an advance of compensation under s 29 of the AL Act. In that proceeding, the appellants filed an application which, to the extent it is able to be understood, sought a stay of certain proceedings in the District Court, and a stay of the compensation proceeding in the Land Court, until a determination of proceedings in the Supreme Court. The Land Court member understood that, in the Supreme Court proceedings, the appellants intended to challenge the validity of the resumption on a number of grounds, including fraud.
- [21]On about 23 September 2009, the appellants then filed an application in the Land Court, seeking a stay of the compensation proceedings in that court.
- [22]The application filed in the Land Court for a stay of the compensation proceedings rather suggested that the Supreme Court proceedings were intended to challenge the validity of the original resumptions. That is reflected in the reasons of the Land Court for the decision which is the subject of the present appeal. However, those reasons record some reference to s 17(4) of the AL Act, as providing the basis for a claim for damages, should it be determined that the resumption was unlawful. The effect of s 17 and its relationship to the present proceedings will be discussed later in these reasons.
- [23]The appellants’ application for a stay of the compensation proceedings came on for hearing on 1 October 2009.
Reasons for judgment of Land Court
- [24]The Land Court member refused the appellants’ application for a stay. Essentially he did so, because he considered that the material did not show that the Supreme Court proceedings would be prejudiced if he refused a stay; and because he was not satisfied that even if the appellants were successful, they would suffer any loss which they would not otherwise recover. He also concluded the appellants’ prospects of establishing in the Supreme Court that the resumption of their land was invalid to be extremely poor. He also took into account the fact that the appellants had not shown sufficient purpose in pursuing the Supreme Court proceedings; and the right of the respondent to have the Land Court proceedings determined. At a later stage, Mr Kelsall raised difficulties by reason of his involvement in other litigation, but the Land Court member regarded these as not providing a basis for a stay. He indicated, however, that that would be taken into account in the formulation of subsequent directions. Accordingly, he dismissed the appellants’ application.
Grounds of appeal
- [25]The grounds of appeal controvert the findings of the Land Court member about the appellants’ prospects of success in the Supreme Court. They also assert that there would be a “grave injustice” if a decision on compensation were made before determination of the issue of the revesting of the resumed land, in the appellants. They assert that the Land Court erred in assuming that the land had been resumed for road works “associated with the airport link project”; that the Land Court failed to take into account relevant evidence; and that the Land Court failed to give any or any sufficient weight to the requirements of natural justice.
- [26]These grounds seem intended to be raised in support of the proposition that the Land Court member should have granted the order for a stay sought by the appellants.
- [27]However, by an application dated 4 December 2009, the appellants sought leave to amend their notice of appeal to add a ground “that the Land Court had no jurisdiction to make the decision”.
- [28]This ground can be read in two ways. It can be read as an assertion that the Land Court member had no jurisdiction to refuse the application for a stay of the compensation proceedings. Alternatively, it could be read as an assertion that the Land Court member had no jurisdiction to grant a stay of proceedings. Somewhat bizarrely, the argument of the solicitor for the appellants made it clear that the latter was intended. Nevertheless, because of the nature of the issue raised, and their being no opposition to the amendment, leave was granted to the appellants to add this ground to their appeal.
- [29]In oral argument, the solicitor for the appellants made clear that the allegations of fraud which have been previously mentioned were not being relied upon. The argument which was advanced on the merits of the appeal was that insufficient weight was given to the appellants’ prospects of success in the Supreme Court, in view of s 17 of the AL Act.
Land Court’s power to grant stay
- [30]The appellants submit that no provision expressly confers a power on the Land Court to make an order for a stay of proceedings before it, other than s 26, and s 32J. Section 32J is irrelevant for present purposes. Section 26 is limited to cases where an application has been made for leave to have a matter reheard. They submit that otherwise there is no power given to the Land Court to stay proceedings.
- [31]Although not in its interests to do so, the respondent submits that the Land Court had power to make an order for a stay of the proceedings. In part, it relied on s 7 of the LC Act, to which reference has previously been made. It also submitted that the power was conferred by implication.[14]
- [32]In the course of argument, reference was also made to s 22 of the LC Act. It is in the following terms:
“22 Directions
- (1)To the extent a matter about Land Court procedure is not provided for by the rules, the matter may be dealt with by a direction under subsection (2) or (3).
- (2)The president may issue directions of general application about the procedure of the court.
- (3)A member may issue directions about a particular case before the court when constituted by the member.”
- [33]There can be no real doubt that s 22 authorises the Land Court to adjourn proceedings before it from time to time, or indefinitely. It is but a short step to say that the same section extends to a direction that the further hearing of proceedings before it be stayed.
- [34]If that view were not correct, the power to order a stay is one which is impliedly conferred under the grants of powers found in the LC Act. It is critical that any court have the power to make orders necessary to prevent the abuse of its processes. An important power in this context is the power to order a stay of proceedings.
- [35]It follows that the Land Court has the power to order a stay of proceedings before it.
Section 17 of AL Act
- [36]This section appears to be an important plank in the appellant’s proposed proceedings in the Supreme Court. It should be noted that at this stage, the appellants do not appear to have formally identified a case in that court based on this provision.
- [37]The critical provision is s 17(1) which is in the following terms:
“17 Revocation before determination of compensation
- (1)If, at any time after the publication of the gazette resumption notice and before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made, it is found that the land or any part thereof is not required for the purpose for which it was taken, the Governor in Council, by a gazette notice (the revoking gazette notice) may revoke the gazette resumption notice and, if the gazette resumption notice has been amended, any amending gazette notice, or both the gazette resumption notice and any such amending gazette notice, either wholly or so far as the Governor in Council thinks necessary.”
- [38]Section 17(1A) requires the agreement in writing of the former owner of the land to its revesting. Section 17(4) then confers on that owner the right to “claim from the constructing authority compensation for the loss or damage and (if any) costs or expenses incurred by the person in consequence of the taking of the land and prior to its revesting.” The amount of compensation may be agreed, and if not agreed, is to be determined by the Land Court, under s 17(5).
- [39]The appellants submit that if compensation for the resumption of their land is determined in the Land Court, s 17(1) cannot come into operation. It is more accurate to say that the provision cannot come into operation if the amount of compensation is determined, or payment of compensation is made at an earlier time.
- [40]There are other reasons why s 17(1) may not confer any right on the appellants. Its operation depends on a number of things. One is that “it is found” that the land, or part of it, is not required for the purpose for which it was taken. The evidence on this question is far from clear, though there was some material to suggest that at least part of the land which was resumed was not required for the north-south bypass tunnel. The material included a letter dated 2 March 2007 which identified as one of a number of properties which might, either wholly or in part, be made available by the respondent for Airport Link, 109 Lutwyche Road, Windsor. That address corresponds to the address of part of the property resumed from Mr Kelsall and his wife. However, the existence of that letter falls well short of positively establishing that the land is no longer required for the purpose for which it was resumed, particularly when one bears in mind that the land was resumed for purposes described as being incidental to a tollway project.
- [41]However, the fact that land is no longer required may not be enough to enable the appellants to obtain relief under s 17. Section 17(1) then envisages an action to be taken by the Governor-in-Council. The power to take that action is conferred in discretionary terms, by the words “may revoke the gazette resumption notice … either wholly or so far as the Governor-in-Council thinks necessary”. There are difficulties in seeking to have a provision like this construed as imposing a binding obligation on the Governor-in- Council.[15] In Maroochydore Central Holdings Pty Ltd (No 2) v Maroochy Shire Council[16] this Court held that s 17 conferred a discretion, rather than imposing a mandatory obligation or duty.[17] There was an unsuccessful application for leave to appeal from that decision to the Court of Appeal.[18] There, Cullinane J came to a similar conclusion;[19] and the other members of the Court did not express a contrary view. The current state of the authorities favours the view that s 17 is discretionary, and the Governor-in-Council may not be compelled to act under the section, even if the conditions for its operation are satisfied. Even if the appellants were to succeed on a different construction of s 17, it is questionable whether relief would be granted to compel such action.[20] Until an action is taken by the Governor-in-Council for this purpose, the appellants have no right to compensation. The appellants’ prospects of success in the Supreme Court, on a claim based on s 17 are, at best, doubtful.
- [42]It should also be noted that the appellants have taken no real action to obtain relief under s 17.
- [43]Although considerable reliance was placed on s 17(4) before this Court, it would appear from the reasons of the Land Court that little reliance was placed on this section at the hearing in that Court. The primary argument below was that the determination of the claim might adversely affect a case which challenged the initial lawfulness of the resumption, rather than affect the rights which are said now to have accrued because the land is no longer required for the purpose for which it was taken. Section 17 was identified as a section which might be invoked if that case was successful. It is difficult to see how the determination of the claim for compensation could have any adverse effect on a case claiming that the resumption is invalid, and relying on s 17 as a provision which thereafter becomes available to the appellants, and it would appear that the appellants did not identify any reason for concluding otherwise. The Land Court member was right to consider this a matter relevant to the exercise of his discretion. In the context of the arguments advanced before him, he did not err in his approach.
- [44]The Land Court member also relied upon the failure of the appellants “to pursue their relief in the Supreme Court with an appropriate degree of meaningful purpose.” There was nothing to suggest that he erred in that view; or that it was an irrelevant consideration.
- [45]Finally, the Land Court member gave weight to the desire of the respondent to have the proceedings determined. There is no reason to think that the Land Court member erred in taking this consideration into account. The evidence demonstrated that the respondent had attempted to make an advance of compensation, based on valuation advice, but the appellants had not cooperated.
- [46]In this court, as has been noted, the appellants appear to have placed much greater reliance on s 17 than was the case in the Land Court. In particular, they submit that if compensation is determined, rights they assert in reliance on s 17 would be defeated. In the circumstances of this case, it would appear appropriate to consider the effect of their arguments.
- [47]Some of the difficulties in obtaining the relief apparently sought by the appellants should be evident from what has been said earlier in these reasons.
- [48]It is clear from the material that since at least about March 2007, the appellants have known that there is some evidence to suggest that some of the land resumed from them may not be required for the north-south bypass tunnel project, and may be made available for another project. Their failure, with that knowledge, to take any prompt and effective action to pursue such rights as they might have under s 17 may be decisive if in the future they take steps to pursue such relief.[21] That failure alone is a significant factor in determining whether to grant a stay. The weight likely to be attributed to it is reinforced by the attitude expressed by Mr Kelsall in October 2008.[22] The interests and conduct of the appellants are to be weighed against those of the respondent, which has, from about 2006, attempted to resolve the claim and to pay monies to the appellants; and has ultimately taken the necessary steps to pay, and then paid, money into the Supreme Court, in respect of it; and who now wishes to have the claim finalised.
- [49]The appellants submit that, if the stay were not granted, they would be denied natural justice; but this seems no more than another formulation of their submission that, if a stay is not granted, they would lose such rights as they might have under s 17.
- [50]If the discretion to grant a stay were to be exercised afresh, a stay would not be granted to the appellants.
Conclusion
The appeal is dismissed.
P LYONS J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT
Footnotes
[1] (1980) 31 ALR 571.
[2] At 590.
[3] (1949) 79 CLR 497, 625.
[4] Rajah Tafadduq Raful Khan v Manik Chand (1902) LR 30 Ind App 35.
[5] At 590.
[6] At 593.
[7] See s 5 of the LC Act.
[8] See s 31 of the LC Act.
[9] See s 34 of the LC Act.
[10] See s 8.
[11] See ss 12 and 26 of the LC Act.
[12] See s 32J of the Land Court Act.
[13] See s 22 of the LC Act.
[14] Reference was made to Jackson v Sterling Industries Limited (1987) 162 CLR 612, 623-624 and Legal Services Commissioner v Baker (No 1) [2005] QCA 482.
[15] See Hogg, Liability of the Crown (3rd ed) pp 275-277.
[16] (2007) 28 QLCR 6; [2007] QLAC 3
[17] See [22]-[24].
[18] Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council [2007] QCA 326.
[19] See [62]-[72].
[20] See Hogg, pp 41-42. Section 53 of the Judicial Review Act 1991 may not affect the position.
[21] See s 46 of the Judicial Review Act 1991 (Qld), and the discussion in Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed) [12.180].
[22] It may amount to an election to treat the resumption as valid, precluding a challenge to its validity.