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93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads[2023] QLC 10

93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads[2023] QLC 10

LAND COURT OF QUEENSLAND

CITATION:

93 Fairfield Pty Ltd ACN 621 146 058 as Trustee for 93 Fairfield Unit Trust v Chief Executive, Department of Transport and Main Roads [2023] QLC 10

PARTIES:

93 Fairfield Pty Ltd ACN 621 146 058 as Trustee for 93

Fairfield Unit Trust

(applicant)

v

Chief Executive, Department of Transport and Main Roads

(respondent)

FILE NO:

AQL069-21

DIVISION:

General

PROCEEDING:

Application for compensation under the Acquisition of Land Act 1967 (Qld)

DELIVERED ON:

27 July 2023

DELIVERED AT:

Brisbane

HEARD ON:

8, 9 and 12 May 2023

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDERS:

  1. The originating application is dismissed.
  1. Any submissions in relation to costs must be made within 14 days of the giving of these reasons and any reply must be made within 14 days of those submissions. In absence of any request to make oral submissions being contained in the written submissions, a decision in relation to costs will be given on the papers.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – CLAIMS – where the respondent resumed land for future railway land – where the applicant applied to the Court to determine the compensation based on the date of constructive resumption – where the applicant asserted that the date of constructive resumption was the date of the declaration published in the Queensland Government Gazette – where the respondent asserted that the declaration does not amount to “taking of the land” – where the question before the Court is the construction of section 20(5)(g) of the Acquisition of Land Act 1967 (Qld)

Acquisition of Land Act 1967 (Qld), s 20

Transport Infrastructure Act 1994 (Qld), s 242

Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358

Director of Buildings and Land v Shun Fung Ironworks Ltd [1995] 2 AC 111

Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351

Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547

Marshall v Director-General, Department of Transport [2001] 205 CLR 603

Robinson & Co Ltd v Collector of Land Revenue, Singapore [1980] WLR 1614

Tame v New South Wales [2002] 211 CLR 317

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5

APPEARANCES:

DR Gore KC and DA Quayle (instructed by Anderssen Lawyers) for the applicant

DG Clothier KC and JS Brien (instructed by Clayton Utz) for the respondent

Background

  1. [1]
    The applicant, unable to reach agreement with the respondent, has come to this Court. As the dispute relates to compensation for the acquisition of land, the resolution of the dispute is to be found, the parties agree, within the Acquisition of Land Act 1967 (“the Act”). Typically, the focus of a dispute in a matter falling under this Act is the value of the land taken; other more or less incidental matters are typically dealt with consequent to the decision on the principal issue and are mostly comparatively small and their disposition self-evident once the main point of difference is resolved.
  2. [2]
    This case is atypical, and the well-provisioned legal teams assembled to address the matter were unable to locate any direct precedent. Their respective cases, characterised on behalf of the applicant as “ships that pass in the night”, present the Court with a binary problem; neither can be partly correct, leaving room for a compromise decision of some sort. Here there will be room only for one of the opposing cases to be accepted.
  3. [3]
    No doubt because of the lengthy period during which this case has been in preparation, much has been agreed; however, some fundamental underpinning is in dispute.
  4. [4]
    The applicant claims that the Act extends to allow it to be compensated for a number of things in respect of which the respondent submits the Act simply does not apply. These things are:

 (a)  interest:

  1. (i)
    Citimark Finance Unit Trust (CFUT)  $1,818,045
  2. (ii)
    Suncorp         $135,588
  1. (b)
    insurance premiums        $4,160
  2. (c)
    local authority rates        $55,198
  3. (d)
    Queensland Urban Utilities      $3,706
  4. (e)
    electricity charges        $5,820
  5. (f)
    land tax           $43,481
  6. (g)
    land tax reimbursement      $31,161
  1. [5]
    How these amounts came to be in dispute is explained by the differing approaches to interpreting the Act. Before addressing this matter, however, it will assist to consider a brief chronology of events, as submitted on behalf of the Applicant:

8 September 2017

Applicant contracts to buy the land for $2,500,000.

15 November 2017

Applicant borrows half of the purchase price, $1,250,000 from Suncorp.

15 December 2017

Contract settled with Suncorp and CFUT funds.

9 May 2018

Applicant makes development application to local authority, Brisbane City Council (BCC), for a service station and shop, Freedom Fuels Australia Pty Ltd.

1 June 2018

CFUT agrees to provide $7,500,000 financing to the applicant.

26 October 2018

BCC approves the development.

7 November 2018

Applicant enters lease agreement with Freedom Fuels Pty Ltd for the service station.

19 December 2018

Declaration published in Queensland Government Gazette under s 242 of the Transport Infrastructure Act 1994 which includes the subject land as future railway land.

10 July 2020

The land is resumed under the Act.

23 July 2020

Applicant claims compensation.

4 November 2020

Applicant makes an advance of $3,787,558 towards compensation.

26 May 2021

Applicant refers its claim to this Court.

26 October 2021

At mediation, land value at the date of resumption is agreed to be $5,500,000.

3 December 2021

Respondent makes a second advance of $2,157,925.61.

12 September 2022

Respondent makes a third advance of $162,969.39, taking the claim to where it is now.

  1. [6]
    The applicant called Mr Robert James Pullar, a director of the applicant and one of the principals of the property development business of which the applicant is a part. Mr Pullar also provided detailed affidavits which became evidence.
  2. [7]
    Mr Pullar spent considerable time in the witness box. An experienced Chartered Accountant, he appeared to be responding to examination and cross-examination in a forthright way and was unashamedly doing his best, no doubt his duty as a director of the applicant, to recover as much as possible consequent upon the resumption; conduct for which he could hardly be criticised. The interest rates relied on by the applicant are not in dispute. The interest as calculated is either able to be claimed, or it is not.
  3. [8]
    The second witness for the applicant, Mr James Rohan Whitelaw, also an experienced Chartered Accountant, provided his expert opinion that there was no aspect of the funding arrangements that was unusual.
  4. [9]
    It is instructive that the respondent did not submit or proceed by its conduct to assert that the business structure of and around the applicant in this case was somehow contrived to artificially inflate the applicant’s claim. The claim falls for consideration on the basis of being found to be within, or outside of, the compensation allowed by the Act.
  5. [10]
    This approach by the respondent allows, and requires, the case to be decided upon whatever may be found to be the true construction of a small part of the Act; a matter on which opinions may differ. It is unnecessary to become enmeshed in the fine detail of the financial instruments since the respondent has chosen to simply rely on the interpretation of the statute. This will allow, and mandate, a binary choice of interpretation by the Court. 
  6. [11]
    Everything turns upon the meaning and therefore the scope of section 20(5)(g) of the Act. Before going to it, however, it will be helpful to look at the Act as a whole.
  7. [12]
    Passed in 1967 and amended from time to time, the Act provides a code for taking land from the owner for what can be broadly described as government-related purposes. In the present case, the purpose is for the railways. There is no dispute about the exercise of the power to resume this land or of the applicant’s standing to claim compensation. The dispute relates to the last clause of section 20 of the Act, which sets out how compensation is to be assessed. It is worth setting out section 20 in its entirety so that the scope of the final clause, 20(5)(g), can be appreciated in its context:

20  Assessment of compensation

  1. (1)
    In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also —
    1. to the damage, if any, caused by any of the following —
    1. the severing of the land taken from other land of the claimant; 
    2. the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant’s other land mentioned in subparagraph (i); and
    1. to the claimant’s costs attributable to disturbance.  

(A note, not presently relevant, has been omitted.)

  1. (2)
    Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
  1. (2A)
    However, in assessing the compensation, a contract, licence, agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be taken into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.
  1. (3)
    In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
  2. (4)
    But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.
  3. (5)
    In this section —

costs attributable to disturbance, in relation to the taking of land, means all or any of the following—

  1. (a)
    legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
  2. (b)
    the following costs relating to the purchase of land by a claimant to replace the land taken—
    1. stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken;
    2. financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage;
    3. legal costs reasonably incurred by the claimant;
    4. other financial costs, other than any taxation liability, reasonably incurred by the claimant;
  1. (c)
    removal and storage costs reasonably incurred by the claimant in relocating from the land taken;
  2. (d)
    costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken;
  3. (e)
    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;
  4. (f)
    an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
  5. (g)
    other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.

 Example of costs for paragraph (g) –

 cost of school uniforms for children enrolled in a new school because of relocation from the land taken

  1. [13]
    The claim here is brought in pursuance of section 20(1)(b), for “disturbance”. Subsection 5 sets out in detail the things that, for the purposes of section 20, fulfill the description of “disturbance”. Subsection 5(g) is relied upon by the applicant as the basis upon which the whole of its remaining claim, still in excess of $2 million, rests.

The applicant’s submissions

  1. [14]
    The applicant advances the argument that it is not material to the operation of section 20(5)(g) that the resumption did not occur until 10 July 2020 because losses which occur before the resumption, in anticipation of it, may be accepted as being caused by it[1]. It is also submitted that the resuming authority must take a dispossessed owner as it finds it, adopting an analogy with the “egg-shell skull” principle in the wider, including criminal, law that the perpetrator of, say, an assault, cannot complain that the victim is not of “normal fortitude”.[2]
  2. [15]
    The applicant claims that once the “declaration” was made on 19 December 2018, the result was that it effectively became a mere caretaker of the land for the respondent, required to bear the costs of ownership but obliged to wait in the penumbra of resumption until the respondent chose to proceed. The applicant claims that the “declaration” was a constructive resumption. On that characterisation, its claim stands, or falls. 
  1. [16]
    This proposed understanding of what occurred is the basis of the applicant’s case. Learned King’s Counsel for the applicant re-stated it at the conclusion of the hearing in this unambiguous way:

“It’s never been our case that your Honour should interpret that expression [“the taking of the land” in section 20(5)(g)] as covering the declaration. Rather, our case is that the declaration was what we’ve termed a … constructive resumption and its significance is in relation to the notion of loss under paragraph (g).”[3]

  1. [17]
    The “declaration” is therefore important to the claim. Its effect is clearly explained in Exhibit 48, the letter dated 19 December 2018, from the Acting Executive Director (Transport Planning Projects) of the Department of Transport and Main Roads to, in  effect, the applicant. The Acting Executive Director is representing the respondent for present purposes. The letter contains the following passages:

“As outlined in previous correspondence in September 2018 from the Department of Transport and Main Roads (TMR), the Clapham Yard Stabling Project is one of the network enhancement projects that will support an increase in services across the wider rail network, unlocked by the Cross River Rail Project, the Queensland Government's top infrastructure priority. 

TMR has now declared its land requirements for the Clapham Yard Stabling Project as 'future railway land' under Section 242 of the Transport Infrastructure Act 1994, in the Queensland Government Gazette. The declaration protects the site against development applications that are incompatible with the future rail project. Please refer to the map enclosed, which shows the land protected as 'future railway land' as well as a copy of the notice from the Government Gazette. 

The timing of the future delivery of the Clapham Yard Stabling Project is based on a range of factors including detailed design, network requirements and project funding. During the detailed design phase, more technical studies will be undertaken. On completion of detailed design, the formal land acquisition process will commence, and this precedes construction.

The recent declaration of 'future railway land' makes available the option for impacted property owners to apply for early acquisition under provisions of TMR's Early Acquisition Policy, subject to meeting the early acquisition criteria. A copy of the Early Acquisition Policy has been included with this letter. You can also view this Policy online by going to www.tmr.qld.gov.au and click on (1) Community and environment (2) Property Information (3) Early Acquisition policy. 

Should you have any questions regarding the status of the project and impacts to your property, I encourage you to contact the project team directly by telephone 1800 957 066 (8.30am-5pm, Monday to Friday) or email at [email protected].”

  1. [18]
    This letter is plain about the December 2018 declaration. It was made under the Transport Infrastructure Act 1994 and specifically separates itself from “the formal land acquisition process” which “will commence” at a future time, upon completion of detailed design work.
  2. [19]
    The declaration protects the site against incompatible development applications and makes available the option of the owner to apply for early acquisition of the land. This was not a step taken pursuant to the Acquisition of Land Act 1967. The taking of land under that Act occurred on 10 July 2020 by Taking of the Land Notice no. 3338 2020 which was published in the Queensland Government Gazette vol. 384 no. 73 on Friday 10 July 2020. It is Annexure 3 to Exhibit 2.
  3. [20]
    The applicant’s case is that pursuant to the declaration, the land was “constructively” taken. It is difficult to make this claim in the face of the Government Gazette abovementioned which, at page 637 and following, refers to the land being taken then and vesting in the respondent for an estate in fee simple. That is when the property passed from the applicant to the respondent.[4]
  4. [21]
    The applicant points out that as the hearing progressed, the respondent jettisoned much of the case it had disclosed in the preparation process, including its claims of unreasonableness and lack of commerciality.
  5. [22]
    The applicant also notes that on the second day of the hearing and without explanation, the respondent announced its decision not to call an expected witness, thus changing its approach mid-hearing. The agreed result was that Mr Green’s evidence, he not being called, became original evidence, being evidence of the making of his statements of facts rather than their truth. This does not, for present purposes, operate to control the outcome of this case. It will not be necessary to refer to that evidence.
  6. [23]
    The applicant refers to the principle that in compensation cases the Court should favour the applicant such that doubts should be resolved in favour of a more liberal estimate.[5]
  7. [24]
    The concept, undoubtedly correct and appropriate when it is understood that the power of the Parliament is being used to take someone’s land away from them, has been expressed in various ways, but the principle is consistent.
  8. [25]
    It is also said that any doubt or obscurity should be resolved in favour of the person who has had their property taken from them.[6]
  9. [26]
    The applicant also calls in aid some comments made in Marshall v Director-General, Department of Transport[7]. That case involved the acquisition of land near Nambour for road purposes. The High Court found that it was not a requirement that works be undertaken on the resumed land in order to gain a right to compensation for injurious affliction. While agreeing with the first judgment of Gleeson CJ, Gummow, Kirby and Callinan JJ, Gaudron J added some observations of her own:

It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning.

Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.[8]

  1. [27]
    In that case, Hayne J, also agreeing substantially with the reasons in the joint judgment and with the proposed orders, added that he agreed “with the observations of Gaudron J about the importance of construing legislation according to its natural and ordinary meaning where, to do otherwise, would limit or impair individual rights”[9]. 
  2. [28]
    The admonition that the Court must construe the words with their natural and ordinary meaning, and with all the generality that the words permit, is heeded by this Court without any reluctance whatsoever.
  3. [29]
    While it is very clear that the courts are referring to how a statute should be construed when the comments set out above were made, consideration for the claimant’s rights in cases such as the present goes further. As a matter of principle, the exercise of government power to take land from the lawful owner is a very serious step, taken within the statutory powers that exist and in a situation of power imbalance. The courts will look carefully at the lawfulness of the process in a way not dissimilar to where a person is deprived of their personal liberty. An indication of this appears in comments from the High Court bench in the course of argument in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[10], where the transcript records the following exchange: 

MR YOUNG: No, your Honour. Our submission is that the Court of Appeal did not articulate any legal limitation on the meaning of “proposal” based on anything in section 56(1)(a) and when one turns to section 56(1)(a), as I will now, it is apparent that the meaning and the limitations the Court of Appeal imposed are not consistent with the language of the section. We also say it is not consistent with the language of the authorities which applied similar provisions by reference to the notion of a scheme. That is where the word “scheme” comes from, San Sebastian and Murphy in this Court and other cases which approached earlier provisions which likewise did not use the word “scheme” but they applied those cases by applying what had been the common law principle established in the Pointe Gourde case.

GUMMOW J: Wait a minute, what common law principle? All this comes out of the Land Clauses Acts of 1846 and thereabouts, does it not?

MR YOUNG: It comes out of the use of the concept of value in statutes which then was given a meaning that required any increase or decrease in value attributable to the scheme for acquisition to be disregarded and that principle was first established by judicial decision in Pointe Gourde and later cases.

GUMMOW J: Yes, but in construing statute law. One thing the common law did not provide was for swiping other people’s property.

HAYNE J: It is called theft.

MR YOUNG: We agree with that, your Honour.

GUMMOW J: So there is layers of glosses upon a statutory tangle that starts in 1846.

MR YOUNG: Yes.

GUMMOW J: I am not saying it is bad for that, but that is what it is.

MR YOUNG: That is where the word “scheme” derives from.

GUMMOW J: You will not get much traction with me by invoking the common law. Common law would find a lot of this deeply offensive.

MR YOUNG: Can I turn to the statute, if I may, your Honour?[11]

  1. [30]
    The Court must be fair, and that fairness is owed equally to both parties. It must also keep in mind that someone has had their property taken and they must be properly compensated for what they have lost. The compensation must be real, not assessed in  a niggardly way. The Court will look at the claimant’s case in that way. It is not at a disadvantage because it is a corporation either; it is a legal person.
  2. [31]
    The Court needs to look at precisely what factually occurred in this case in order to ascertain what has legally occurred. The detailed written submissions of learned counsel for the applicant refer repeatedly to the “declaration” published in the Government Gazette on 19 December 2018.[12] They repeatedly refer to the “Declaration”, capitalised[13], and assert confidently that “the Declaration was a constructive resumption”.[14] The basis for this is the idea that after it was made, the applicant “was a mere caretaker of the land for the respondent…”.[15]
  3. [32]
    The “Declaration” has already been referred to by reference to the letter which the applicant received from, effectively, the respondent. It is dated 19 December 2018 and that date became embedded into the applicant’s case as the date the “declaration” was published[16]. This is factually incorrect. Exhibit 48, tendered by King’s Counsel for the applicant during final address, contains the letter dated 19 December 2018. It uses the word “declaration” so this may explain how the word entered, one might say infected, the lexicon in this case.
  4. [33]
    Exhibit 48 is more useful than recourse only to the letter would be, however, as it also contains the actual item otherwise referred to as the “Declaration”. The presently relevant part of it is the following:

93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads [2023] QLC 10

[17]

  1. [34]
    As a matter of fact, the gazettal occurred on 14 December 2018, not the 19th and was effective from the gazettal. This will not have any influence on the result in this case, save that the relevant date here is the 14th, which might benefit the applicant, at lease potentially.
  2. [35]
    Of significance is not the date, but what this actually was. The “Declaration”, which the applicant characterises as a constructive resumption, was a notification. It was published pursuant to section 242 of the Transport Infrastructure Act 1994, which was then in the following form: 

242  What is future railway land

  1. (1)
    Land becomes future railway land when the chief executive, by written notice to the relevant local government and in the gazette, indicates that the land is intended to be used for a railway.
  2. (2)
    Future railway land ceases to be future railway land when it is subleased to a railway manager under section 240(4).
  3. (3)
    If the chief executive decides that future railway land is no longer to be used for a railway, the chief executive must give written notice of that fact to the relevant local government and in the gazette.
  1. [36]
    The impression in bold font “future railway land” is defined in the dictionary to the Act in this way: “Future railway land has the meaning given by section 242”. This may best be characterised as showing that the expression should be understood with its ordinary and natural meaning. The notification is an indication of intent, doing what it says on its face.
  2. [37]
    Consideration of the submission that this “notice”, to use the word it begins with, is a constructive resumption must include a consideration of the totality of relevant events. This must include the things documented in Annexures 2 and 3 of Exhibit 2, the originating application.
  3. [38]
    Annexure 2 is a letter dated 4 July 2019 from, effectively, the respondent to the applicant. It is worthy of no less consideration than the letter of 19 December 2018. The presently relevant part of this letter, dated 4 July 2019, says:

“I refer to the Department of Transport and Main Roads’ requirement for the above project and serve upon you the enclosed Notice of Intention to Resume. This is the first formal step in the resumption process. The notice and attached documentation contain information on your rights in the process, the objection procedure, and the background for the intended resumption.”[18]

  1. [39]
    The notice enclosed with the letter was described as “the first formal step in the resumption process”[19]. The “notice of intention to resume” that accompanied the letter is sufficiently important to also be set out in part. It, relevantly, stated:

93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads [2023] QLC 10

[20]

  1. [40]
    This step as described as a “notice of intention” and in its final paragraph, refers to “If the land is taken”. 
  2. [41]
    The actual resumption occurred in 2020. The Queensland Government Gazette vol. 384, no. 73, pages 637 records this on Friday, 10 July 2020 as follows:

93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads [2023] QLC 10

[21]

  1. [42]
    This is how, and when, the actual taking of the applicant’s land occurred. The submission that it occurred constructively by the notice which is in Exhibit 48 must be considered in the light of all of the facts, including the legal resumption carried out in accordance with statute law. Consideration of the effect of the notice in Exhibit 48 will include consideration of its full factual context.
  2. [43]
    The originating application, Exhibit 2, specifies that the claim is made under section 20 of the Acquisition of Land Act 1967. The provision, which the applicant relies upon for its remaining claim is sub-section 5(g). The case for the applicant is that, “s. 20(5)(g) is not complex. The plain meaning of the words of the sub-section reveal its reach. It is a catch all provision directed to costs or economic losses not specifically captured by any of the earlier sub-sub-paragraphs.”[22]
  3. [44]
    Under section 12(1) of the Act, the land is taken on and from the date of the publication of the notice in the gazette; 10 July 2020 in this case. The claim for compensation, assessed under section 20, which is in Part 4 of the Act, follows the taking process in Part 2. A plain reading of the Act requires the conclusion that the assessment of compensation in section 20 is something which follows the taking of land under the Act, which may occur following the process set out earlier in the Act. In order for section 20 to be applied, the process set out earlier in the Act must have occurred, as indeed it did in this case. The originating application included the Notice of Intention to Resume, annexure 2 of Exhibit 2, and the gazette notice of 10 July 2020, the instrument by which the land was taken.
  4. [45]
    The applicant must rely on section 20 for its claim, while maintaining that the resumption constructively occurred before the steps required for it to occur as a legal reality in accordance with the Act, which “constructs” how a resumption is to occur. Section 7(1) of the Act provides that:

A constructing authority which proposes to take any land shall serve as prescribed by this section the notice (a notice of intention to resume) prescribed by this section. [emphasis in original]

  1. [46]
    This is mandatory and must precede resumption, and compensation. To interpret section 20(5)(g) as sought by the applicant would require the words “the taking of the land” at the end of that provision to include the constructive taking of the land by something other than the process set out in the Act in that it operates prior to the subsequent carrying out of the prescribed process.

The respondent’s submissions

  1. [47]
    At this point, it is useful to turn to consider the respondent’s submissions as it is argued on behalf of the Chief Executive that, in effect, the answer to the question as to whether it can be said that there was a constructive resumption may resolve the case entirely.
  2. [48]
    The respondent’s submission, through King’s Counsel, was that constructive resumption is unknown to the law, the proper construction of section 20 depending on its text, context and purpose. The provision, it was submitted, provides compensation for the taking of the land, not for the “declaration”, the notice given in the gazette of 14 December 2018. The taking on 10 July 2020 is the operative act.
  3. [49]
    If it was accepted, and it is not, that what is claimed is entirely within the wording of sub-section (5)(g) of section 20, the respondent submits that the claims, even if a direct and natural consequence of the notice, are not and could not be in such a relation to the “taking of the land” as required by the provision.
  4. [50]
    Section 20(5), in its current form, was inserted by the Acquisition of Land and Other Legislation Amendment Act, No. 5 of 2009. The principal act itself, by its long title, is described as:

An Act to consolidate and amend the law relating to the acquisition of land for public works and other public purposes, and for other purposes.

  1. [51]
    It, as stated early in the reasons, is a code for these purposes. Section 20(5)(g) must be read in a way that its full and proper scope is allowed and in a way that could be described as according to its natural and ordinary meaning, not as to limit or impair the rights of, in this case, the applicant.
  2. [52]
    The Court, of course must interpret and apply the statute which Parliament has enacted. 
  3. [53]
    Section 20(5)(g), it is submitted, is very specific. By use of the expression “the taking of the land”, the Parliament has defined with precision the event which is a requirement for compensation within 20(5)(g). A proper reading of the provision, it is submitted, does not allow any scope for a constructive resumption. Any claims which rely on a constructive resumption in order to be allowed are simply not “costs attributable to disturbance” within section 20(5).

Resolution

  1. [54]
    When approaching the case in the manner appropriate for a compensation claim in respect of land compulsorily acquired, determining the natural and ordinary meaning of section 20 (5)(g) will provide a point at which, depending on that interpretation, it will be fruitful and necessary, or unnecessary, to proceed to further consider the submissions relating to whether the claims made are “a direct and natural consequence” of the relevant event or not. A consequence is something that is a result of something which has preceded it. 
  2. [55]
    Parliament has provided that “the taking of the land” is the relevant event. The right to compensation as claimed depends on a finding that the “declaration” was a constructive resumption, something different to the taking which the Act requires for there to be compensation. An examination of the facts and of the legislation discloses that the requirement, correctly expressed, is “taking”; nothing else. The use of the expression “constructive resumption” on behalf of the applicant illustrates the impossibility of saying that what is said to be a constructive resumption was a “taking” as required by section 20(5)(g). The reasoning leading to this conclusion has been set out in detail in consideration of the submissions and need not be repeated to be clearly expressed. Engaging with this question, in view of the conclusion which has been reached, makes it unnecessary to proceed further in order to fully dispose of the case.
  1. [56]
    It is unnecessary to consider whether any of the applicant’s claims are a direct and natural consequence of the constructive resumption contended for, in view of the conclusion that the notice which is pointed to as a constructive resumption does not amount to the “taking of the land” as required by section 20(5)(g) of the Act. Whether or not the claimed amounts are a direct and natural consequence of the notice is not relevant as that is not the trigger for the compensation contemplated by section 20(5)(g).
  2. [57]
    In the applicant’s outline of closing submissions, it is made clear that the declaration was the immediate and natural cause of the losses.[23]
  3. [58]
    The failure of the applicant’s constructive resumption submission is determinative of all the claims made. What the statutory provision makes capable of compensation is limited by the requirement of a taking within the meaning of the Act.
  4. [59]
    The Court must dismiss the originating application. 

Orders

  1. The originating application is dismissed.
  2. Any submissions in relation to costs must be made within 14 days of the giving of these reasons and any reply must be made within 14 days of those submissions. In absence of any request to make oral submissions being contained in the written submissions, a decision in relation to costs will be given on the papers.

Footnotes

[1] Director of Buildings and Land v Shun Fung Ironworks Ltd [1995] 2 AC 111, 135-138.

[2] Tame v New South Wales [2002] 211 CLR 317, 359 [117] (McHugh J).

[3]  T 3-41, lines 3 to 7.

[4]  Ex 2, page 21-23.

[5] Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358, 373-374 (Dixon J).

[6] Robinson & Co Ltd v Collector of Land Revenue, Singapore [1980] WLR 1614 at 1621. See also Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547, 563; and Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351.

[7]  [2001] 205 CLR 603.

[8] Marshall v Director-General, Department of Transport [2001] 205 CLR 603, 623 [38].

[9] Marshall v Director-General, Department of Transport [2001] 205 CLR 603, 633-634 [67].

[10]  [2008] HCA 5.

[11]  Transcript of Proceedings, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (High Court of Australia, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, 30 August 2007) 5.

[12]  Applicant’s Outline of Submissions 11 May,2023, pages 3-4, the Table. See also Ex 1, page 2-3, para7, the table.

[13]  Applicant’s Outline of Submissions, page 5, para 11-14.

[14]  Ibid, page 5, para 13.

[15]  Ibid, page 5, para 12.

[16]  Ibid, page 3, para 7, the table.

[17]  Ex 48, page 3. This is Queensland Government Gazette No.91,14 December,2018, page 522.

[18]  Ex 2, page 13.

[19]  Ex 2, page 13.

[20]  Ex 2, page 14.

[21]  Ex 2, page 21.

[22]  ‘Applicant’s outline of closing submissions’, page 14, para 53.

[23]  ‘Applicant’s outline of closing submissions’, page 28, para 99, the last sentence.

Close

Editorial Notes

  • Published Case Name:

    93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads

  • Shortened Case Name:

    93 Fairfield Pty Ltd v Chief Executive, Department of Transport and Main Roads

  • MNC:

    [2023] QLC 10

  • Court:

    QLC

  • Judge(s):

    WA Isdale

  • Date:

    27 Jul 2023

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
Buildings and Lands v Shun Fung Ironworks Ltd (1995) 2 AC 111
2 citations
Jump To
Cite 1 - (1995) 2 AC 111
Cite 2 - (1995) 2 AC 111
Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5
2 citations
Jump To
Cite 1 - [2008] HCA 5
Cite 2 - [2008] HCA 5
Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1979) 142 CLR 351
2 citations
Jump To
Cite 1 - (1979) 142 CLR 351
Cite 2 - (1979) 142 CLR 351
Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547
2 citations
Jump To
Cite 1 - (1971) 123 CLR 547
Cite 2 - (1971) 123 CLR 547
Marshall v Director General Department of Transport (2001) 205 CLR 603
4 citations
Jump To
Cite 1 - (2001) 205 CLR 603
Cite 2 - (2001) 205 CLR 603
Cite 3 - (2001) 205 CLR 603
Cite 4 - (2001) 205 CLR 603
Robinson & Co Ltd v Collector of Land Revenue, Singapore [1980] WLR 1614
2 citations
Jump To
Cite 1 - [1980] WLR 1614
Cite 2 - [1980] WLR 1614
Succession Duties (SA) v Executor Trustee and Agency Co. of South Australia Ltd (1947) 74 CLR 358
2 citations
Jump To
Cite 1 - (1947) 74 CLR 358
Cite 2 - (1947) 74 CLR 358
Tame v New South Wales (2002) 211 CLR 317
2 citations
Jump To
Cite 1 - (2002) 211 CLR 317
Cite 2 - (2002) 211 CLR 317

Cases Citing

Case NameFull CitationFrequency
93 Fairfield Pty Ltd ACN 621 146 058 as Trustee for 93 Fairfield Unit Trust v Chief Executive, Department of Transport and Main Roads (No 2) [2023] QLC 162 citations
1

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