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Van der Est v Queensland Rail Limited[2017] QLC 55

Van der Est v Queensland Rail Limited[2017] QLC 55

LAND COURT OF QUEENSLAND

CITATION:

Van der Est & Anor v Queensland Rail Limited [2017] QLC 55

PARTIES:

Gordon William Van der Est

and

Donella Maree Van der Est

(applicants)

 

v

 

Queensland Rail Limited ACN 132 181 090

(respondent)

FILE NO:

TIA1162-16

DIVISION:

General division

PROCEEDING:

Application to strike out proceeding; Application to re-open hearing of application to strike out proceeding.

DELIVERED ON:

20 November 2017

DELIVERED AT:

Brisbane

HEARD ON:

20 July, 30 August and 15 November 2017

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

The matter is listed for review on a date to be fixed by the Registrar after consultation with the parties.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS – JURISDICTION – where the landowners brought proceedings against Queensland Rail under the Transport Infrastructure Act 1994 – whether the Land Court has jurisdiction under s 260 of the Transport Infrastructure Act 1994 to decide the landowners claim for damages – whether the Court has the powers conferred on it by s 7A of the Land Court Act 2000

PROCEDURE – STATE AND TERRITORY COURTS – PROCEEDINGS – STATUTORY INTERPRETATION – whether the landowners’ land is caught by the term neighbouring land under the Transport Infrastructure Act 1994 – whether the literal interpretation of “next to” could be displaced – where the history of the provision assisted in ascertaining its meaning – where the beneficial purpose of the provision and the mischief it was intended to address was considered – where the literal interpretation was displaced

PROCEDURE – STATE AND TERRITORY COURTS – HEARING – Application to re-open – where after hearing and before judgment delivered the applicants applied to re-open the hearing – where it was found not to be in the interests of justice to grant the application.

Acts Interpretation Act 1954 s 14A(1), s 14C

Evidence Act 1977 s 44

Land Act 1994 sch 6

Land Court Act 2000 s 5(1), s 5(2), s 7A

Local Government Act 2009 s 251

Railway Act 1863 27 Vic c 8 s 94

Railways Act 1914 s 73

Transport Infrastructure Act (Railways) Act 1991 s 46

Transport Infrastructure Act 1994 s 2(2)(d)(ii), s 106(b)(iii), s 260, s 260(1)(b), s 260(2)(c), s 260(5), sch 6 def of rail transport infrastructure (a) & (b)

Transport Infrastructure Amendment (Rail) Act 1995 s 11

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied

EB v CT (no 2) [2008] QSC 306, applied

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, applied

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied

Reid v Brett [2005] VSC 18, aplied

Zappala Family Company Pty Ltd v Brisbane City Council [2014] A 147, applied

APPEARANCES:

GJ Gibson QC and P Hackett of Counsel, instructed by H. Drakos & Co Lawyers, for the applicant

DR Gore QC and J Brien of Counsel, instructed by Clayton Utz, for the respondent

Background

  1. [1]
    Gordon and Donella Van der Est graze cattle on their 160 acre property which lies to the east of the Toowoomba to Brisbane Rail Line, at 11 Hall Rd, Forest Hill.[1] They say their property was damaged in 2011 and 2013 when the rail line embankment failed and flood waters which had accumulated upstream of the embankment drained across their property.[2] As a result they say the value of the property has been reduced by $600,000 and they have incurred remediation costs of $468,374.[3]
  1. [2]
    Mr & Mrs Van der Est brought proceedings against Queensland Rail seeking an injunction requiring the respondent to construct and maintain drainage works.[4] They also seek damages of $1,068,374 plus interest for breach of statutory duty or nuisance.
  1. [3]
    They rely on s 260 of the Transport Infrastructure Act 1994 which imposes a statutory obligation on a railway manager to construct and maintain works which protect the interests of owners of neighbouring land. It also confers jurisdiction on the Land Court to decide any dispute about the adequacy of those works or maintenance.
  1. [4]
    Although Queensland Rail applied to strike out the proceedings as a whole, at the hearing Mr Gore QC advised that Queensland Rail only sought a ruling about two arguments as they relate to Mr & Mrs Van der Est’s claims for damages.[5]
  1. [5]
    Firstly, Queensland Rail contends this Court does not have jurisdiction to award damages for breach of statutory duty or nuisance and an order of that nature would be beyond the Court’s jurisdiction or power.[6]
  1. [6]
    Secondly, it argued Mr & Mrs Van der Est are not eligible to seek relief under s 260 of the TIA because their land is not next to the railway and is not neighbouring land for the purposes of that section.
  1. [7]
    On 30 August 2017, the day the matter was listed for decision, Mr & Mrs Van der Est requested an opportunity to apply to reopen the hearing to lead affidavit evidence from a surveyor, Mr R Somerville. Their counsel argued this evidence was relevant to the second aspect of Queensland Rail’s application: whether their land is next to the railway and, therefore, neighbouring land. For reasons given later, I refuse the application to reopen the hearing. Queensland Rail’s application to strike out is, therefore, determined on the evidence led at the hearing on 29 July 2017. I now turn to the two questions raised by that application:
  1. Does the Land Court’s jurisdiction under s 260(5) include jurisdiction to hear and decide the claim for damages?
  1. Is Mr & Mrs Van der Est’s land neighbouring land?

Does the Land Court’s jurisdiction under s 260(5) include jurisdiction to hear and decide the claim for damages?

  1. [8]
    The Land Court is a court of statutory jurisdiction. Its jurisdiction is defined by s 5(1) of the Land Court Act 2000 which provides that the Court has the jurisdiction conferred on it by the LCA or another Act. If jurisdiction for a proceeding is expressly conferred on the Court, it is exclusive.[7]
  1. [9]
    Mr Gore referred to Queensland Rail’s first argument about the Court’s jurisdiction to hear these proceedings as the s 7A point. That is a reference to s 7A of the LCA. Queensland Rail understood Mr & Mrs Van der Est to rely on that provision, as well as s 260(5) of the TIA, as the source of the Court’s jurisdiction in these proceedings.
  1. [10]
    That misunderstood their position. Mr Gibson, for Mr & Mrs Van der Est, agreed s 7A confers powers, not jurisdiction.[8] He did not contest the proposition that s 7A only applies where the Court is exercising jurisdiction conferred on it by some other provision of the LCA or another Act.
  1. [11]
    The real dispute was not about the scope or function of s 7A but about the scope of the jurisdiction conferred by s 260(5) of the TIA.
  1. [12]
    Section s 260(5) provides that “the Land Court must decide any dispute about the adequacy of works or maintenance under this section”.[9] Mr Gore argued the jurisdiction is narrowly expressed. The claims for damages for breach of statutory duty or nuisance are causes of action[10] which raise issues which are beyond the scope of a dispute about the adequacy of works.[11] He likened the Court’s jurisdiction to an arbitration in a construction law dispute with the Court confined to determining whether or not the works were adequate. He submitted s 260(5) was not a gateway for awarding compensation or damages.[12]
  1. [13]
    Mr Gibson QC submitted s 260(5) should be interpreted widely. It confers jurisdiction for “any dispute about the adequacy of works”. He argued there is no reason to read down the phrase so as to exclude common law causes of action. He accepts they involve a factual enquiry which goes beyond the facts stated in s 260. Nevertheless, the source of the complaint, whether formulated as breach of statutory duty or nuisance, is the alleged failure by Queensland Rail to have done what s 260(2)(c) obliged it to do.
  1. [14]
    The language used in s 260(5) does not suggest the restrictive interpretation proposed by Queensland Rail. The court’s jurisdiction to hear “any dispute” is qualified only by the phrase “about the adequacy of works or maintenance under that section”. The damages claim is brought to this Court because Mr & Mrs Van der Est allege Queensland Rail has not undertaken adequate works or maintenance as required by s 260(2)(c).
  1. [15]
    The Court has express jurisdiction for disputes about such matters. Furthermore, the Court’s function is not discretionary. The provision states that the Court must decide any such disputes.
  1. [16]
    It was open to Parliament to define the scope of the Court’s jurisdiction, or authority, to hear such disputes more restrictively if that had been its intention. It might have limited the Court’s jurisdiction by excluding certain causes of actions, such as any claim for damages arising out of such a dispute. Or it could have limited the remedies the Court could order.
  1. [17]
    Queensland Rail says s 260(5) should be read as if it limits the Court’s function to deciding whether or not the works were complete. But that implies a limitation that does not appear on the face of the provision. It also reads down s 7A which provides the power to grant any relief or remedy as the Supreme Court could in a similar proceeding.
  1. [18]
    It is not evident what purpose would be served in restricting the Court to making a decision about the adequacy of the works or maintenance. On the other hand, there are sound reasons for not restricting the Court in that way.
  1. [19]
    Section 260 does not confer any particular power on the Court to grant relief to the owner if it decides the works are inadequate. If s 260(5) is read to limit the Court to making a decision about inadequacy, as Mr Gore contends, the decision has limited value and the Court’s role in deciding the dispute is declaratory only.
  1. [20]
    If it can do no more than decide whether or not the works were adequate, an owner of neighbouring land who secured a favourable decision would have to bring separate proceedings in another court to get any relief from the consequences of that inadequacy.
  1. [21]
    Returning to Mr Gore’s arbitration analogy, the arbitration is of value because the determination has consequence, usually because of the contract between the parties to the arbitration. Here, the dispute resolution mechanism is statutory, not contractual. It would be surprising if the legislature established a dispute resolution mechanism with no apparent consequence.
  1. [22]
    That can also be contrasted with the way in which s 260 deals with an agreement about the inadequacy of works. Where the parties agree the works are insufficient, s 260 prescribes how the further work can be undertaken and paid for. Yet, if the parties do not agree and the Court must make a decision, s 260 makes no provision for giving effect to it. The failure to so provide suggests it was unnecessary to do so because the Court has sufficient power conferred by other provisions, such as s 7A of the LCA.
  1. [23]
    Queensland Rail’s submissions about the scope of the Court’s jurisdiction appear to conflate three legal concepts: jurisdiction, cause of action, and remedy. The concept of jurisdiction is the authority of a court to hear and decide a case. A cause of action is the definition of the facts or combination of facts that entitle a person to sue. A remedy is the method for enforcing, protecting or recovering rights.
  1. [24]
    A court’s jurisdiction can be limited in a number of ways, including by limiting the causes of action that may be prosecuted before it or by limiting the relief the court can order. Neither limitation is explicitly imposed by s 260(5).
  1. [25]
    I accept Mr Gibson’s submission that s 260(5) should not be read restrictively. The words “any dispute about the adequacy of works” are of wide import. In the absence of an indication the ordinary meaning of the words does not apply, I am not persuaded those words ought be read down to exclude any particular cause of action (such as claims for damages) or any particular remedy (such as the payment of money).
  1. [26]
    Provided the facts or combination of facts establish there is a dispute between a railway manager and an owner of neighbouring land, concerning or in regard to[13] the adequacy of the works or maintenance under s 260, the Court has jurisdiction to decide the dispute. In deciding the dispute, it has the powers conferred on the Court by s 7A.
  1. [27]
    Putting aside procedural arguments about the adequacy of the pleadings (and assuming that Mr & Mrs Van der Est’s land is neighbouring land) I am satisfied the application brings forward a dispute about the adequacy of works which the owners say Queensland Rail is obliged to undertake pursuant to s 260(2)(c).

Is Mr & Mrs Van der Est’s land neighbouring land?

  1. [28]
    Section 260 applies, subject to other requirements not in issue, to the owners and occupiers of land next to the existing railway (the neighbouring land).[14] At the hearing of the strike out application, it was common ground that Hall Rd, a dedicated road, lay between the Van der Est’s land and the railway. The Chief Executive of the Lockyer Valley Regional Council, Mr Church, certified that it has been and remains a dedicated road.[15]  That was not in contest, nor was the effect of applying a literal interpretation of s 260. Counsel agreed that, interpreted literally, Mr & Mrs Van der Est’s land does not qualify as neighbouring land. It is not next to the existing railway because it is not nearest in place or position.[16]
  1. [29]
    On the day I was to hand down my decision on Queensland Rail’s application, counsel for Mr & Mrs Van der Est asked for the opportunity to apply to reopen the hearing to lead further evidence relevant to that question. The decision was deferred and both parties filed a number of affidavits, including affidavits by surveyors engaged by each of them.

Should the hearing of the strike out application be re-opened?

  1. [30]
    I refuse the application to re-open for the reasons that follow.
  1. [31]
    The principles that govern the Court’s discretionary power to reopen a hearing are uncontroversial. The guiding principle is whether the interests of justice are better served by allowing or rejecting the application.[17] The following criteria must be considered:[18]
  1. (a)
    The further evidence is so material that the interests of justice require its admission;
  1. (b)
    The further evidence, if accepted, would most probably affect the result of the case;
  1. (c)
    The further evidence could not by reasonable diligence have been discovered earlier; and
  1. (d)
    No prejudice would ensue to the other party by reason of the late admission of the further evidence.
  1. [32]
    The evidence of Mr Sommerville, the surveyor engaged by Mr & Mrs Van der Est, was contested in some important respects. Nevertheless, counsel agreed I could determine both the application to re-open the evidence and, if I granted it, proceed to determine Queensland Rail’s strike out application, without further oral hearing. They submitted I did not have to resolve any conflicts in the surveyors’ evidence because of the narrow basis upon which Mr Hackett, counsel for Mr & Mrs Van der Est, argued the application to re-open.[19] 
  1. [33]
    That narrowed the scope of the argument from what appeared from his written submissions, in which relied on evidence which Queensland Rail contested.
  1. [34]
    As well as the surveyors’ evidence, the affidavits dealt with Mr Church’s shifting opinions about the accuracy of his certificate about the status of Hall Rd. In his capacity as Chief Executive of the Lockyer Valley Regional Council he certified it is and has been a dedicated road. The certificate may be accepted as evidence of the matters stated in it, although it is not conclusive evidence and may be rebutted.[20]
  1. [35]
    After meeting with Mr Sommerville, Mr Church wrote him a letter in which he said he believed Hall Rd “would be correctly described as unallocated State Land”.[21] Later, he swore an affidavit in which he recanted that statement and confirmed the accuracy of his certificate.[22] The surveyors’ affidavits traced the history of the road and the surveyors drew different conclusions about whether Hall Rd was a declared road as Mr Church had certified.
  1. [36]
    Mr Gore, for Queensland Rail, relied on records deposed to by Mr A Byrom, the surveyor engaged by his client, which show the road was depicted on survey plans from as early as 20 April 1867. Ultimately, Mr Hackett did not rely on Mr Sommerville’s evidence about the status of the road. Further, Mr Hackett conceded Hall Rd is “arguably” a road as defined in Schedule 6 of the TIA. That definition includes a road which has been notified or declared to be a road for public use.
  1. [37]
    Mr Hackett submitted the hearing should be re-opened to admit just one piece of evidence which he said was not in contest. It relates to land adjacent to Lot 4 on RP 25631, one of the parcels owned by Mr & Mrs Van der Est. Lot 4 is physically bounded by Hall Rd to the south and Geisman Rd to the east. Those roads intersect at the south east corner of Lot 4.
  1. [38]
    The railway runs parallel to Hall Rd. Until the railway reaches the intersection of Hall Rd and Geisman Rd, it passes over land contained within Lot 341 on SP 122025. That lot ends at a point which appears to coincide with the intersection of the two roads. On the other side of that intersection, the railway passes over land contained within a different lot. Mr Hackett relies on the evidence of both surveyors that there is a gap between the two railway titles.
  1. [39]
    That much is agreed, but the consequence of that gap for this proceeding is in dispute.
  1. [40]
    Returning to the principles that apply to an application to reopen, Mr Hackett relied on the guiding principle that it was in the interests of justice to admit the new evidence. He did not suggest the evidence could not have been discovered earlier, with reasonable diligence. The evidence that Mr Van der Est did not appreciate the significance of Mr Church’s certificate until the July hearing is not to the point, given the evidence sought to be led. In any case, he was represented by both senior and junior counsel who could be expected to have understood the relevance of the certificate given the nature of the argument.
  1. [41]
    The interests of justice are served by finality in litigation. Although no particular prejudice was argued by Queensland Rail, the timing of the application, on the morning the decision was to be delivered, heightens concerns about prejudice to the administration of justice.[23]
  1. [42]
    Mr Hackett submitted the interests of justice favoured admitting the evidence because of its relevance. He submitted the new evidence demonstrates the Van der Est’s land is next to the railway, even if the Court accepts Queensland Rail’s literal interpretation of that phrase.
  1. [43]
    I am not persuaded that follows from the limited uncontested evidence that Mr Hackett relies on. He submitted that in the gap described above the railway is on a single parcel of State land which contains both road and railway and, for that reason, Lot 4, which adjoins that parcel of land, is next to the railway.
  1. [44]
    There are two difficulties with that argument.
  1. [45]
    The first is that it glosses over a dispute between the surveyors about the tenure of the land in that gap. Although Mr Hackett argued the records show that is a single parcel of State land, his submission rests on Mr Sommerville’s evidence that it is unallocated State land.[24] Queensland Rail contests that conclusion. Mr Gore noted that a road is not unallocated State land.[25] Further, although the boundaries are not precisely defined the railway corridor is recorded on Lot 1 on CP 825707, a Perpetual Lease.
  1. [46]
    The second difficulty is that his argument is that it misconstrues s 260 of the TIA. In that section, land next to the existing railway is neighbouring land. Railway is defined in Schedule 6 of the TIA by reference to the physical works and associated infrastructure. I accept Mr Gore’s submission that s 260 does not direct attention to the underlying ownership of the land on which the railway operates.  I accept that questions of control of land could well be relevant to whether land is next to a railway. However, there is no evidence that Queensland Rail has control over any land immediately adjoining lot 4. The evidence is to the contrary. Hall Rd lies between the railway and lot 4. Whether it is dedicated or notified it appears to fulfil the statutory definition of a road. Mr Church has certified that it is constructed and maintained by the Lockyer Valley Regional Council for the relevant section.
  1. [47]
    I am not satisfied the evidence about the gap would most probably affect the result of the case. The interests of justice do not favour reopening the hearing to admit that limited evidence.
  1. [48]
    I will now turn to the arguments made at the July hearing about the interpretation of s 260.

For the purposes of s 260(c) should “next to” be read as “lying near or affected by”?

  1. [49]
    Mr Gibson argued that applying established statutory and common law principles of statutory interpretation, the literal interpretation would be displaced. For s 260(2)(c) the words “land next to the existing railway” should be construed as land lying near or affected by the existing railway.[26]
  1. [50]
    An interpretation that best achieves the purpose of the Act should be preferred over any other interpretation.[27] A literal interpretation can be departed from “in any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy, which may be discerned from those provisions”.[28]
  1. [51]
    Although the task of statutory construction must begin with consideration of the text itself,[29] the text must be examined in its context from the outset.[30] The modern approach to statutory interpretation uses context in its widest sense to include the existing state of the law and the mischief the statute was intended to remedy.[31] An alternative construction which is reasonably open and more closely conforms to the legislative intent may be preferred if the literal meaning provides an inconvenient or improbable result.[32]
  1. [52]
    Mr Gibson drew the Court’s attention to the following features regarding the context of the provision. The overall objective of the TIA is to provide a regime that allows for and encourages effective integrated planning and efficient management of a system of transport infrastructure. In particular, the objectives are, for rail, to establish a regime that provides for the safety of railways and persons at, or near railways.[33] 
  1. [53]
    The TIA provides the objectives for rail are intended to be achieved by providing a framework to:[34]
  1. “(iii)
    allow rail transport infrastructure to be constructed and maintained in an effective and efficient way; ...”
  1. [54]
    Rail transport infrastructure includes drainage works and under-track structures.[35]
  1. [55]
    As well as that context, Mr Gibson submitted the court should construe s 260 in the context of earlier versions of that provision. The history of a provision can assist in ascertaining its meaning.[36] He provided the Court with a schedule charting the history of the provision which, for ease of reference, is Appendix A to these reasons.
  1. [56]
    The relevant provisions of each of the 1864, 1914 and 1991 Acts stated they applied to land adjoining a railway.[37] Unlike s 260, that phrase was not used as a definition in other parts of the provision. Historically, the subsection of the provision which imposed the obligation to undertake and maintain works (the equivalent to s 260(2)) included differing descriptions of the relevant land for different types of works.
  1. [57]
    The first type of works dealt with interruptions caused by the railway to the use of the lands “through which the railway is constructed”. The second type were works necessary to protect the “adjoining lands not taken” from trespass and to prevent the owner’s or occupier’s stock straying therefrom. The third type of works dealt with the drainage of the “lands lying near or affected by the railway”. The common feature of those descriptions is that they defined the land by reference to the impacts caused by the railway that the works were intended to address. Mr Gibson argued this qualified the meaning of the word “adjoining” used at the beginning of the provision.
  1. [58]
    In July 1995 the predecessor to s 260 was changed to its current format. In relation to the obligation to construct and maintain drainage works, the change apparently restricted the scope of the obligation to relate to land next to the railway, not lands lying near or affected by the railway. Mr Gibson submitted this is a material change to the operation of longstanding provisions.[38]
  1. [59]
    The point is not without difficulty. Mr Gore disagreed with the submission that the meaning of adjoining was interpreted by reference to the description of the scope of the obligation. He saw the descriptions as serving different purposes. The descriptors adjoining and next to determined who could seek relief and there was no difference between those concepts.[39] The description of the works, including the way the land is described, defined the scope of the obligation.
  1. [60]
    However, accepting that argument, the effect of the change in wording must have meaning for the scope of the obligation itself. Instead of the works being sufficient by reference to “affected lands” the relevant land for drainage purposes is the land next to the railway. Mr Gore submitted the notion of lands “affected by the railway” (the historic formulation for the drainage obligation) is very different to the notion of land next to the railway.[40] At the least, then, the literal meaning of s 260 has resulted in a change to the scope of the railway manager’s obligation, although there has been no expression of a legislative intention to do so.
  1. [61]
    The Explanatory Memorandum and the 2nd Reading Speech do not express an intention to alter existing rights or obligations.[41] The 1995 amendment was the first time a common definition was used to both identify the application of the provision and to describe the scope of each of the three types of works.[42] That change may be explained by a decision by the person who drafted the amendments to implement a clearer or simpler style of drafting by using defined terms within a provision. If so, that is a different legislative drafting practice which must not be taken to affect the meaning.[43]
  1. [62]
    Taking into account the beneficial purpose of the provision and the mischief it was intended to address, I accept Mr Gibson’s submissions about the way the provision, historically, applied and how s 260 should be interpreted.
  1. [63]
    On that basis, the provision as formulated from 1864 until 1995 would have been interpreted, for the drainage obligation, to apply to a person who owned “land adjoining” the railway line, in the sense that the land was lying near or affected by the railway line. In the absence of a clear expression of intention to change the rights conferred and the obligations imposed by the provision, I consider s 260(2)(c) should be interpreted as if the reference to neighbouring land included land lying near to or affected by the railway. It seems Queensland Rail accepts Mr & Mrs Van der Est are the owners of land that meets that description.
  1. [64]
    There are other differences in wording which may affect the proper interpretation of s 260(2)(c) as it applies to Mr & Mrs Van der Est’s claim. As Mr Gore observed, the railway manager’s obligation is to ensure the neighbouring land’s drainage is as good, or nearly as good, as it was before the railway was constructed. Historically, the obligation was described as what was sufficient to convey the water as clearly from the lands lying near or affected by the railway. He argued this means drainage from the land not drainage from the railway as appears to be Mr & Mrs Van der Est’s complaint. It is not appropriate to resolve that issue at an interlocutory stage. The matter was not fully argued and the answer could well depend on expert evidence and factual findings about the cause of any damage asserted by Mr & Mrs Van der Est.

Conclusion

  1. [65]
    In summary I have concluded:
  1. The Court has jurisdiction to hear and decide the claim for damages made by Mr & Mrs Van der Est; and
  1. Mr & Mrs Van der Est are entitled to commence these proceedings about the sufficiency of Queensland Rail’s works pursuant to s 260(2)(c), because they are owners of land which is lying near or is alleged to be affected by the existing railway.
  1. [66]
    As noted at the outset, some aspects of Queensland Rail’s application were not dealt with at its request, including its application for an injunction and issues raised about the particulars of Mr & Mrs Van der Est’s claim. The parties requested the opportunity to consult about what orders should be made once the decision is published. The matter will be listed for review on a date to be fixed by the Registrar after consultation with the parties.

FY KINGHAM

PRESIDENT OF THE LAND COURT

APPENDIX A

SCHEDULE

History of railway legislation

(underlining for emphasis)

Period

Legislation

1885 to 30.06.91

The Railways Act 1864 was repealed by the Railways Act 1914. Under s 4(i) of the 1914 Act all railways, structures and works constructed, maintained or used for the purposes of any State railway were deemed to have been lawfully constructed, worked and used and were to be subject to the 1914 Act. Sections 94 and 95 of the 1864 Act had equivalent provisions in subsections (1) to (4) of s 73 of the 1914 Act:

  1. (1)
    Accommodation works. 1863, s. 94. The following provisions shall apply to works for the accommodation of the owners and occupiers of lands adjoining a railway:-
  1. (2)
    The Commissioner shall make and at all times thereafter maintain the following works, that is to say,-
  1. (i)
    Gates, bridges, etc. Such and so many convenient gates, bridges, arches, culverts, and passages over, under, or by the sides of or leading to or from the railway as are necessary for making good any interruptions caused by the railway to the use of the lands through which the railway is constructed;

Such works shall be made forthwith after the part of the railway passing over such lands has been laid out or formed or during the formation thereof;

  1. (ii)
    Fences, etc. Sufficient posts, rails, hedges, ditches, mounds, or other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass or the stock of the owners or occupiers thereof from straying thereout by reason of the railway, together with all necessary gates made to open towards such adjoining lands and not towards the railway, and all necessary stiles;

Such posts, rails, and other fences shall be made forthwith after the taking of any such lands if the owners thereof so require, and the said other works as soon as conveniently may be;

The obligation of the Commissioner under this paragraph with respect to any such fence shall be deemed to be discharged at all times during which such fence is equal in state and kind to the fence bounding the land adjoining the land taken for the use of the railway when such land was so taken;

  1. (iii)
    Drains. Necessary arches, tunnels, culverts, drains, or other passages, either over or under or by the sides of the railway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the construction of the railway, or as nearly so as may be;

Such works shall be made from time to time as the railway works proceed.

  1. (3)
    Proviso. But the Commissioner shall not be required to make such accommodation works in such a manner as would prevent or obstruct the working or using of the railway, nor to make any accommodation works with respect to which the owners and occupiers of the lands have agreed to receive and have paid compensation in lieu of making them.
  1. (4)
    Difference as to accommodation works. 1863, s. 95. If any difference arises respecting any kind or number of any such accommodation works or the dimensions or sufficiency thereof, or respecting the maintaining thereof, the same shall be determined by the Governor in Council, who shall also appoint the time within which such works shall be commenced and executed.

01.07.91 to 30.06.95

Transport Infrastructure (Railways) Act 1991

Accommodation works

46.(1) This section applies to works for the accommodation of the owners and occupiers of lands adjoining a railway.

  1. (2)
    Subject to subsection (3), Queensland Railways is to construct and at all times maintain such works—
  1. (a)
    as are necessary for making good any interruptions caused by the railway to the use of the lands through which the railway is constructed; and
  1. (b)
    as are necessary for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting those lands from trespass or the stock of the owners or occupiers of those lands from straying from those lands because of the railway; and
  1. (c)
    as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the railway as before the construction of the railway, or as nearly so as is possible.
  1. (3)
    Queensland Railways’ obligations under subsection (2)(b) are to be taken to be discharged at all times during which a fence equal in state and kind to any fence bounding the land adjoining the land taken for the use of the railway when that land was taken, exists or is erected.
  1. (4)
    Queensland Railways is not required to construct accommodation works in a manner that would prevent or obstruct the working or using of the railway, nor to construct any accommodation works where the owners and occupiers of the lands have agreed to receive and have been paid compensation instead of having accommodation works constructed.
  1. (5)
    If any difference arises in respect of any kind or number of such accommodation works or the dimensions or sufficiency of them, or in respect of their maintenance, the difference is to be determined by the Land Court, which is also to appoint the time within which those works are to be commenced and completed.
  1. (6)
    …

01.07.95 to 30.06.07

Section 11 of the Transport Infrastructure Amendment (Rail) Act 1995 amended the Transport Infrastructure Act 1994 [from 1 July 1995 – the date Queensland Rail became a Government Owned Corporation – s 2(2) and Government Owned Corporations Regulation 1993 made under the Government Owned Corporations Act 1993] by inserting a new Chapter 5A entitled “Rail Transport Infrastructure” and in particular a new s 71ZZY as follows:

Works for existing railways

71ZZY.(1)  This section applies—

  1. (a)
    while a railway existing at the commencement (the “existing railway”) continues to be operated as a railway; and
  1. (b)
    to the owners and occupiers of land next to the existing railway (the “neighbouring land”).
  1. (2)
    Queensland Rail must, within a reasonable time, construct and maintain—
  1. (a)
    works that are necessary to make good any interruptions caused by the existing railway to the use of the neighbouring land; and
  1. (b)
    works that are necessary to—
  1. (i)
    separate the existing railway from the neighbouring land; and
  1. (ii)
    protect the stock straying from the neighbouring land onto the railway; and
  1. (c)
    sufficient works to ensure the neighbouring land’s drainage is as good, or nearly as good, as it was before the existing railway was constructed.
  1. (3)
    Queensland Rail may satisfy its obligation under subsection (2)(b) by constructing and maintaining a fence of substantially similar quality to any fence around the neighbouring land when the railway was constructed.
  1. (4)
    This section does not require Queensland Rail to—
  1. (a)
    construct or maintain works in a way that would prevent or obstruct the use of the existing railway; or
  1. (b)
    construct or maintain works for owners or occupiers who agreed to receive, and have been paid, compensation in place of the works.
  1. (5)
    The Land Court must decide any dispute about the adequacy of works or maintenance under this section.
  1. (6)
    ….

The Explanatory Note for this Act does not identify any intention to alter existing obligations in relation to Accommodation Works.

s 71ZZY was renumbered as s 150 in reprint 4 from 1 July 1995

Works for existing railways

150. (1) This section applies—

  1. (a)
    while a railway existing at the commencement (the “existing railway”) continues to be operated as a railway; and
  1. (b)
    to the owners and occupiers of land next to the existing railway (the “neighbouring land”).
  1. (2)
    Queensland Rail must, within a reasonable time, construct and maintain—
  1. (a)
    works that are necessary to make good any interruptions caused by the existing railway to the use of the neighbouring land; and
  1. (b)
    works that are necessary to—
  1. (i)
    separate the existing railway from the neighbouring land; and
  1. (ii)
    protect the stock straying from the neighbouring land onto the railway; and
  1. (c)
    sufficient works to ensure the neighbouring land’s drainage is as good, or nearly as good, as it was before the existing railway was constructed.
  1. (3)
    Queensland Rail may satisfy its obligation under subsection (2)(b) by constructing and maintaining a fence of substantially similar quality to any fence around the neighbouring land when the railway was constructed.
  1. (4)
    This section does not require Queensland Rail to—
  1. (a)
    construct or maintain works in a way that would prevent or obstruct the use of the existing railway; or
  1. (b)
    construct or maintain works for owners or occupiers who agreed to receive, and have been paid, compensation in place of the works.
  1. (5)
    The Land Court must decide any dispute about the adequacy of works or maintenance under this section.
  1. (6)
    ….

01.07.07 to present

s 150 of the Transport Infrastructure Act 1994 was renumbered as s 260 reprint 9 and s 260(4)(c) was added in 2011:

260   Works for existing railways

  1. (1)
    This section applies—
  1. (a)
    while a railway existing at the commencement (the existing railway) continues to be operated as a railway; and
  1. (b)
    to the owners and occupiers of land next to the existing railway (the neighbouring land).
  1. (2)
    The relevant railway manager must, within a reasonable time, construct and maintain—
  1. (a)
    works that are necessary to make good any interruptions caused by the existing railway to the use of the neighbouring land; and
  1. (b)
    works that are necessary to—
  1. (i)
    separate the existing railway from the neighbouring land; and
  1. (ii)
    protect the stock straying from the neighbouring land onto the railway; and
  1. (c)
    sufficient works to ensure the neighbouring land’s drainage is as good, or nearly as good, as it was before the existing railway was constructed.
  1. (3)
    The relevant railway manager may satisfy its obligation under subsection (2)(b) by constructing and maintaining a fence of substantially similar quality to any fence around the neighbouring land when the railway was constructed.
  1. (4)
    This section does not require the relevant railway manager to—
  1. (a)
    construct or maintain works in a way that would prevent or obstruct the use of the existing railway; or
  1. (b)
    construct or maintain works for owners or occupiers who agreed to receive, and have been paid, compensation in place of the works; or
  1. (c)
    construct or maintain works for a change of use of the neighbouring land by its owner or occupier.
  1. (5)
    The Land Court must decide any dispute about the adequacy of works or maintenance under this section.
  1. (6)
    ….

Footnotes

[1]  Affidavit of Gordon William Van der Est filed 19 May 2017, paras 2 and 12.

[2]  Statement of Claim filed 13 December 2016, para 5.

[3]  Ibid para 15. 

[4]  Statement of Claim filed 13 December 2016, p 4.

[5]  These reasons, therefore, do not address issues raised in Queensland Rail’s written submissions about the Court’s injunctive power in these proceedings or about the way in which Mr & Mrs Van der Est have pleaded their case.

[6]  General Application filed 4 May 2017, p 2; Outline of respondent’s submissions filed 5 June 2017, para 13.

[7] Land Court Act 2000 s 5(2).

[8]  T 1-24, line 32 to T 1-25, line 3.

[9]Transport Infrastructure Act 1994 s 260(5).

[10]  T 1-9, lines 15 to 35.

[11]  Outline of respondent’s submissions filed 5 June 2017, para 13. 

[12]  T 1-23, line 45 to T 1-24, line 6.

[13]  Delbridge et al, The Macquarie Dictionary (The Macquarie Dictionary Publishers, 2nd Ed, 1981).

[14] Transport Infrastructure Act 1994 s 260(1)(b).

[15]  Affidavit of Ian Bloemandal filed 4 May 2017, p 30.

[16]  Delbridge et al, The Macquarie Dictionary (The Macquarie Dictionary Publishers, 2nd Ed, 1981).

[17] Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 at 16-17 cited with approval in Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232 at [19].

[18] Reid v Brett [2005] VSC 18 at [41] cited in EB v CT (No 2) [2008] QSC 306 at [4].

[19]  Counsel for Queensland Rail objected to certain passages of the affidavits of the surveyor engaged by the Van der Ests, Mr Sommerville, as swearing the issue. As the application was argued, it was unnecessary to deal with those objections.

[20] Local Government Act 2009 s 251; Evidence Act 1977 s 44.

[21]  Affidavit of Roy Sommerville sworn 30 August 2017, exh R8.

[22] Affidavit of Ian Michael Church sworn 12 October 2017, para 6.

[23] EB v CT (no 2) [2008] QSC 306 at [5] and [9].

[24]  Applicants’ Amended Outline of Submissions, para 4.

[25] Land Act 1994 sch 6.

[26]  Applicants’ outline of submissions filed 20 June 2017, paras 20 and 40.

[27] Acts Interpretation Act 1954 s 14A(1).

[28] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.

[29] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39].

[30] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zappala Family Company Pty Ltd v Brisbane City Council [2014] QCA 147 at [52] to [54].

[31] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Zappala Family Company Pty Ltd v Brisbane City Council [2014] QCA 147 at [55].

[32]  Ibid.

[33] Transport Infrastructure Act 1994 s 2(2)(d)(ii).

[34]  Ibid s 106(b)(iii).

[35]  Ibid sch 6 definition of rail transport infrastructure (a) and (b).

[36] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.

[37] Transport Infrastructure Act 1864 s 94; Railways Act 1914 s 73; Transport Infrastructure Act (Railways) Act 1991 s 46.

[38]  Applicants’ outline of submissions filed 20 June 2017, para 39.

[39]  T 1-46, line 1 to T 1-47, line 45.

[40]  Reply submissions of Queensland Rail Limited filed 18 July 2017, para 11.

[41] Transport Infrastructure Amendment (Rail) Act 1995 s 11.

[42]  Section 11 of the Transport Infrastructure Amendment (Rail) Act 1995 amended the Transport Infrastructure Act 1994 [from 1 July 1995 – the date Queensland Rail became a Government Owned Corporation – s 2(2) and Government Owned Corporations Regulation 1993 made under the Government Owned Corporations Act 1993] by inserting a new Chapter 5A entitled “Rail Transport Infrastructure” and in particular a new s 71ZZY.

[43] Acts Interpretation Act 1954 s 14C. 

Close

Editorial Notes

  • Published Case Name:

    Van der Est & Anor v Queensland Rail Limited

  • Shortened Case Name:

    Van der Est v Queensland Rail Limited

  • MNC:

    [2017] QLC 55

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    20 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
3 citations
Jump To
Cite 1 - (1981) 147 CLR 297
Cite 2 - (1981) 147 CLR 297
Cite 3 - (1981) 147 CLR 297
EB v CT (No 2) [2008] QSC 306
3 citations
Jump To
Cite 1 - [2008] QSC 306
Cite 2 - [2008] QSC 306
Cite 3 - [2008] QSC 306
Emaaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 232
1 citation
Jump To
Cite 1 - [2003] QCA 232
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
2 citations
Jump To
Cite 1 - [2012] HCA 55
Cite 2 - [2012] HCA 55
Finborough Investments Pty Ltd v Airlie Beach Pty Ltd[1995] 1 Qd R 12; [1993] QSC 268
1 citation
Jump To
Cite 1 - [1995] 1 Qd R 12
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Reid v Brett (2005) VSC 18
2 citations
Jump To
Cite 1 - (2005) VSC 18
Cite 2 - (2005) VSC 18
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
2 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Zappala Family Company Pty Ltd v Brisbane City Council [2014] A 147
1 citation
Jump To
Cite 1 - [2014] A 147

Cases Citing

Case NameFull CitationFrequency
Van der Est v Queensland Rail Limited (No. 2) [2018] QLC 44 citations
1

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