Kube v Sunshine Coast Regional Council
[2017] QLC 48
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- Unreported Judgment
- Kube v Sunshine Coast Regional Council[2017] QLC 48
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Kube v Sunshine Coast Regional Council[2017] QLC 48
Kube v Sunshine Coast Regional Council[2017] QLC 48
LAND COURT OF QUEENSLAND
CITATION: | Kube & Anor v Sunshine Coast Regional Council [2017] QLC 48 |
PARTIES: | John Victor Kube and Gillian Beryl Kube (applicants) |
| v |
| Sunshine Coast Regional Council (respondent) |
FILE NO/s: | AQL1091-16 |
DIVISION: | General division |
PROCEEDING: | General application |
DELIVERED ON: | 31 August 2017 |
DELIVERED AT: | Brisbane |
HEARD ON: | 21 July 2017 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER/S: |
|
CATCHWORDS: | REAL PROPERTY – Compulsory acquisition of land – Compensation – Proceedings for compensation – general application to strike out parts of claim. Acquisition of Land Act 1967 s 20(1)(b), s 20(5)(g) Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234, referred to Carpentaria Gold Pty Ltd v Hood [2015] QLC 36, applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, referred to George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212, referred to Kev Leamon Earthmovers Pty Ltd v Hammond Villages Pty Ltd (1998) 19 Qld Lawyers Reps 10, applied Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council (2007) 28 QLCR 6, applied Ostroco Pty Ltd v Chief Executive, Department of Transport and Main Roads (2013) 34 QLCR 314, referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied Rosemount Estates Pty Ltd & Ors v Minister for Urban Affairs and Planning & Anor (1996) 90 LGERA 1, applied Stubberfield v Lippiatt [2006] QSC 281, applied |
APPEARANCES: | DC Fahl of Counsel (instructed by Andrew Fogg Lawyer) for the applicants ANS Skoien of Counsel (instructed by Sunshine Coast Regional Council Legal Services) for the respondent |
Background
- [1]On 11 October 2016, the applicants filed an originating application in this Court for a determination of compensation under the Acquisition of Land Act 1967 (“the Act”), the respondent having compulsorily acquired an easement over their land at 76 Wharf Road, Bli Bli.
- [2]On 9 June 2017, the respondent filed a general application seeking a number of orders. When the application came on for hearing, the parties had reached agreement in respect of some matters and a consent order was made in relation to those matters. The remaining areas of disagreement relate to claims made in respect of what was described by the parties as the “first works” and the “second works”. These are earthworks performed on the land by the applicants. The respondent submits that the claims for compensation made in respect of them should be struck out.
- [3]The lawyers for the parties helpfully provided an agreed statement of facts and assumptions, filed 13 July 2017, to assist the Court. Additionally, an agreed statement of issues to be determined, filed 13 July 2017, was provided. It will not be necessary to set these out in full, but they will be referred to in order to add clarity.
The subject land
- [4]The land is used for rural residential purposes. It is traversed by a drain which runs, generally, in a north-south direction.
- [5]On 2 November 2007, the respondent wrote to Mr Kube, one of the applicants, and advised him that it was intending to perform stormwater drainage maintenance on the land. Mr Kube orally informed the respondent that he would attend to any maintenance required.
The first works
- [6]Between 18 March 2011 and 18 October 2013, the applicants carried out works on the land over which the respondent subsequently took an easement. The taking of the easement occurred on 18 October 2013.
- [7]The first works included:
- Clearing out the 455 metre-long drainage channel;
- Constructing four vehicular crossover culverts in the channel;
- Reconstructing the tidal gates near the southern end of the channel to control tidal flow from Petrie Creek; and
- Extensive revegetation along the channel.
- [8]The respondent did not request those works.
Planning and Environment Court proceedings
- [9]On 14 August 2012, the respondent started proceedings in the Planning and Environment (“P & E”) Court. There was a hearing of the merits and, on 8 April 2013, the P & E Court found that the applicants had carried out earthworks without a development permit. The Court found that it should make enforcement orders and allowed time for suitable orders to be formulated.
- [10]On 5 July 2013, the P & E Court heard evidence and submissions with respect to the enforcement orders and costs, and made orders requiring the applicants to perform certain works and actions.
The second works
- [11]The applicants had works required by the P & E Court carried out prior to the taking of the easement. These included further earthworks, the installation of pipes, and the construction of channels and drains.
- [12]On 14 June 2014, after carrying out the second works, the applicants sold the land.
The general application
- [13]The respondent’s general application concerns the applicants’ claims for compensation in respect of the first and second works. The applicants claim to be entitled to compensation for the reasonable costs of those works on the basis that they are costs attributable to disturbance.
- [14]The respondent alleges in the general application that the claims for the first and second works do not disclose any reasonable basis for a claim for compensation under the Act for disturbance, and that both ought to be struck out.
- [15]Additionally, it is submitted that the claim in respect of the second works impermissibly seeks to revisit the findings and orders of the P & E Court. It is contended that the claim is an abuse of process and ought to be struck out on this basis as well.
The Act
- [16]The relevant part of the Act is section 20(1)(b), which allows for regard to be had, when determining compensation, to the claimants’ “costs attributable to disturbance”. The expression is defined in section 20(5)(g) to include:
other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.
- [17]The provision makes clear that the losses and costs must be “reasonably incurred” and “a direct and natural consequence of the taking of the land”.
The respondent’s submissions
The first works
- [18]The statement of agreed facts and assumptions provides that the respondent wrote to Mr Kube on 2 November 2007 about its intention to perform stormwater maintenance works on the land. He then orally informed the respondent that he would attend to any required maintenance. The respondent did not request that the applicants do the first works, nor any part of them. The first works were done between 18 March 2011 and 18 October 2013. The respondent was not given any notice of the intention to perform the works.
- [19]There is nothing before the Court which would show it is open to claim that the first works represented a loss or cost reasonably incurred and a direct and natural consequence of the taking of the land.
The second works
- [20]The second works were ordered by the P & E Court. They were enforcement orders made to remedy impermissible development. These orders were made in proceedings brought in the P & E Court by the respondent, and were the direct and natural consequence of a development offence dealt with by that Court. The order of that Court on 5 July 2013, Exhibit 1 in the present matter, makes this clear. It is not reasonably open to assert that the second works were a direct and natural consequence of the taking of the land when their cause has been established beyond doubt by Exhibit 1.
Estoppel
- [21]The respondent submits that as the parties in this case are the same as those in the P & E Court proceeding, they will not be permitted to litigate what has already been determined, or to create an inconsistency between the earlier decision and the later one.[1] These principles apply in this Court.[2]
Abuse of process
- [22]The respondent submits that pursuing the second works claim would be, in effect, an attempt to again litigate what has already been decided by the P & E Court. This, it is submitted, would be an abuse of process and should not been permitted on that basis alone.
The applicants’ submissions
- [23]The applicant submits that the Court should decide this application on the basis that all of the facts in the amended claim are capable of proof. It is accepted that the Court may exercise jurisdiction to control the conduct of proceedings before it. For present purposes it makes no difference whether the Court acts pursuant to an inherent jurisdiction, or pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”). Rule 171 of the UCPR allows a pleading, or part of a pleading, to be struck out if it has a tendency to prejudice or delay the fair trial of the matter or is unnecessary, scandalous, frivolous or vexatious, or otherwise an abuse of process.
- [24]The applicants direct the Court to the decision of Barwick CJ in the High Court of Australia in the case of General Steel Industries Inc v Commissioner for Railways (NSW).[3]
- [25]This case is referred to in support of the proposition that the jurisdiction to strike out these items of claim should be used sparingly, and only in a clear case which is so untenable that it could not possibly succeed.[4] If there is a real question to be determined, whether of fact or law, and the rights of the parties depend upon it, the power should not be exercised.[5]
- [26]Matters going to the merits of a claim should not be decided before a trial.[6]
- [27]This Court is not a strict pleadings jurisdiction, but applies a system of case management.[7]
- [28]For the respondent to succeed, it must establish that the claims in question are obviously untenable within the meaning of section 20 of the Act.
- [29]As well as section 20(5)(g), which has already been referred to, the applicants’ point to section 20(5)(e) which provides that costs attributable to disturbance also means:
other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land
- [30]The applicants submit that the claims in question are unusual, but not unarguable.
The first works
- [31]The first works were done, it is submitted, in the “shadow” of the resumption, in the knowledge that it was pending.[8] The applicants claim to be able to prove this. In order to strike out the claim in respect of the first works, the Court would need to be satisfied that this would not be possible.
- [32]
- [33]
- [34]It is pointed out in the applicants’ submissions that in Ostroco Pty Ltd v Chief Executive, Department of Transport and Main Roads,[13] there is support for the argument that section 20(5) of the Act, at least paragraphs (f) and (g) thereof, allows the award of compensation for a loss suffered prior to resumption.[14]
Decision in relation to the first works
- [35]The agreed statement of issues provided by the parties puts the question to be decided as whether, as a matter of law and on the basis of the facts and assumptions agreed, the losses and/or costs attributable to the first works are attributable to disturbance within the meaning of that expression in the Act.
- [36]In view of the way the matter was conducted at the hearing of the general application, the question which must be decided at this point is, instead of the one posed, whether there is a clear case that the claim is futile and, as stated in the general application, should be struck out.
- [37]In view of the submission that the first works were done under the “shadow” of the resumption, and considering the authorities which have been referred to, the Court is not satisfied that this claim regarding the first works is so untenable that it could not possibly succeed. The Court could not strike out this claim at present. This does not suggest that the claim has good prospects, only that it does not definitely have none at all.
- [38]There is no proper basis on the material provided upon which it could be concluded that continuing with this claim regarding the first works would be vexatious or have a tendency to delay or prejudice the fair hearing of the proceeding. The answer to the question of whether the first works claim should be struck out is “no”.
The second works
The res judicata and issue estoppel submissions
- [39]The applicants submit that while the respondent formulated orders which it proposed that the P & E Court make, it was intending to take an easement for stormwater drainage. They assert that they are now entitled to compensation for the works which the P & E Court ordered to be done “but which exceeded the extent of the work which was needed”.[15]
- [40]The applicants accept that a party will be estopped from bringing an action which will conflict with an earlier judgment.[16]
- [41]It is submitted that different rights are in dispute in this case rather than in the case before the P & E Court so that res judicata does not apply, it being applicable when the very right or cause of action has been decided.[17] This, it is submitted, has not occurred.
- [42]An issue estoppel would arise where, in the P & E Court order, a state of fact or law is necessarily decided.[18]
Decision in relation to the second works
The res judicata and issue estoppel submissions
- [43]The order of the P & E Court made on 5 July 2013[19] states that the respondents are ordered to return the land, as far as practicable, to its state prior to the development offence “by performing the following actions” which were set out in the order. The present applicants were the respondents in that case.
- [44]This Court is satisfied that the state of facts, namely that the specified orders were what was required to fulfil the stated purpose, was necessarily decided by the P & E Court, as appears from its orders.
- [45]Accordingly, the applicants will not be permitted to argue in the proceeding before this Court that the works required by the P & E Court exceeded the extent of the work which was needed.[20]
- [46]It was submitted that it would be acceptable to argue that the same outcome would have been able to be achieved by other means. It was submitted that this would avoid a conflict with the orders of the P & E Court.
- [47]The Court does not accept this submission. A reading of the orders of the P & E Court leads inescapably to the conclusion that what was ordered was to achieve the stated purpose. Submissions that the purpose there could have been achieved by lesser works belong to that case and could have been made there. Once the P & E Court order came into existence, its clear wording precludes a submission in this case that it was, essentially, ordering too much to be done in the case then before it to achieve the stated purpose.
- [48]This Court finds that an estoppel arises against the applicants’ claim for the second works. They cannot now claim that the works ordered exceeded the works necessary for the purpose for which they were ordered.
The abuse of process submissions concerning the second works
- [49]Because of what has already been decided, it is unnecessary to decide this aspect. Should it become necessary, it is appropriate to refer briefly to it.
Decision on the abuse of process submission concerning the second works
- [50]To permit the proposed submissions from the applicants would necessarily involve, effectively, revisiting what has already been litigated and making a challenge to the findings of the P & E Court that were made clear in its order and which have already been discussed.[21]
- [51]Such conduct would amount to an abuse of the process of this Court and will not be permitted.
- [52]It is noted that not all of the works found to be unlawful by the P & E Court were ordered to be removed.[22] The orders were for the purpose expressed by the P & E Court and it is not a necessary component of that purpose that all of the works found to be unlawful would necessarily be required to be removed. This aspect does not detract from the clearly expressed purpose of the P & E Court.
- [53]The agreed question which the parties put to the Court is whether, on the basis of the facts and assumptions agreed, the losses and/or costs relating to the second works claim are attributable to disturbance within the meaning of section 20 of the Act.
- [54]Again, in view of the way in which the hearing of the general application was actually conducted before the Court, the question to be answered is different. The question is as posed in the general application, whether the second works claim should be struck out.
- [55]For the reasons given, the answer to this question is “yes”.
Decision on the remaining question
- [56]The remaining question is whether the respondent is entitled to relief sought in the general application. The answer is “yes, to the extent that it is sought in relation to the second works.”
Costs
- [57]The applicant seeks an order for costs and the respondent seeks that costs be reserved. Both parties have been partly successful. The utility of this general application, in view of its outcome, will be best able to be appreciated at the conclusion of the compensation proceedings. Costs are therefore reserved.
Orders
- The claim in relation to the first works is not struck out.
- The claim in relation to the second works is struck out.
- The costs of the general application filed on 9 June 2017 are reserved.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Rosemount Estates Pty Ltd & Ors v Minister for Urban Affairs and Planning & Anor (1996) 90 LGERA 1.
[2] Maroochydore Central Holdings P/L v Maroochy Shire Council [2007] QCA 326.
[3] (1964) 112 CLR 125.
[4] Ibid at [129] to [130].
[5] Ibid at [130].
[6] Kev Leamon Earthmovers Pty Ltd v Hammond Villages Pty Ltd (1998) 19 Qld Lawyers Reps 10 at [11].
[7] Carpentaria Gold Pty Ltd v Hood [2015] QLC 36 at [143] to [148].
[8] Submissions on behalf of the applicants, para 43.
[9] [2011] QCA 234.
[10] Ibid at [30].
[11] [2013] NSWLEC 212.
[12] Ibid at [107] to [109].
[13] (2013) 34 QLCR 314.
[14] Ibid at [68].
[15] Submission on behalf of the applicants, para 70.
[16] Submission on behalf of the applicants, para 73.
[17] Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council (2007) 28 QLCR 6 at [33] to [36].
[18] Ibid [33].
[19] Ex 1.
[20] Submission on behalf of the applicants, para 70.
[21] Stubberfield v Lippiatt [2006] QSC 281 at [21].
[22] Submissions on behalf of the applicants, para 88.