Dore v Penny[2006] QSC 125

SUPREME COURT OF QUEENSLAND

[1] The applicants are the registered proprietors as tenants in common of land described as Lot 47 on RP 892091 Parish of Tyson, County of Cardwell.

[2] On 2 April 2004 in the Magistrates Court at Tully each applicant pleaded guilty to an offence under the Integrated Planning Act 1997 (“IPA”) in relation to the clearing of trees on their property without a development permit and a further offence under the Land Act 1994 of clearing trees on a road without a tree clearing permit.  They were each fined $15,000 in respect of the first offence and $3,000 in respect of the second.  They were represented by experienced counsel at this hearing.

[3] By an amended Application filed on 23 January 2006 the applicants apply for a prerogative order for review pursuant to s 43 of the Judicial Review Act 1994 (“JRA”) to quash the convictions.  The grounds on which the application is made are:-

1. That the decision was not authorised by the enactment under which it was purported to be made;

2.                    That the decision involved an error of law; and

3.                    The decision was otherwise contrary to law.

[4] The respondents applied on 25 January 2006 pursuant to s 48 of JRA for the dismissal of the application on the grounds:-

(a) It would be inappropriate –

(i) For proceedings in relation to the application or claim to be continued; or

(ii) To grant the application or claim.

(b) No reasonable basis for the application is disclosed.

(c) The application is frivolous and vexatious.

(d) The application or claim is an abuse of the process of the court.

[5] The respondent’s argument essentially focussed on the lack of basis for the primary application which is a sequel to earlier appeals taken respectively to the District Court pursuant to s 222 of the Justices Act 1886 and to the Court of Appeal.  In the latter proceedings (CA 366, 367, and 368 of 2004), the Court of Appeal adverted to the prospect of the convictions being challenged on the basis that they relate to an offence not known in law.  The time within which such an application should be made has long passed but the respondent does not seek to rely on this fact.  Rather, the respondent argues that the primary application is completely devoid of legal merit, premised as it is upon notions of tenure and of the sovereignty of Queensland Parliament that are untenable at law.

[6] Many issues were agitated in the applicants’ written submissions but the recurring theme and the substance of the argument is that they are registered owners of the subject land which, pursuant to a Deed of Grant[1], signed by the Governor of Queensland on 6 April 1932, was land alienated from State control save for the reservations there expressed.[2] 

[7] The subject land was subsequently transferred to the applicants recording their interests as tenants in common in an estate in fee simple[3].  The applicants argue that their land is not freehold land but is alienated land held in an estate in fee simple.  They contend that by reference to a variety of statutes the respondent has no jurisdiction to exercise any function over the alienated land so held in fee simple.  They argue that there is a distinction between the fee simple interest held by them and the freehold interest to which the statutes giving rise to the offences refer.  The applicants further argue that the Deed of Grant is a contract between themselves and the Sovereign of the Commonwealth, there being no sovereign for the State of Queensland.

[8] The misguided nature of the argument is amply demonstrated at that point.  The grant of land from which the applicants derive their title was not a contract but was a grant pursuant to a statute of the parliament of Queensland, namely the Land Act 1910.  See s 6(1).[4]  The fee simple interest at common law is not identical with the fee simple interest that is pursuant to that statute.  That has been the situation since the enactment of Crown Lands Alienation Act 1860 to which reference was made by McPherson JA in Bone v Mothershaw[5] in the following terms:-

[18] It is however, a mistake to suppose that s 6(1) of the Land Act 1962 is directed to defining the extent of the rights conferred on a grantee of land from the Crown. The section is one of several successive re-enactments of earlier statutory provisions, of which in Queensland the first was the Crown Lands Alienation Act 1860; 22 Vic. No. 1 (1 Pring’s Statutes 833). Section 2 of that Act, and comparable provisions of other statutes that applied here before Separation in 1859, represented the culmination of a political struggle with the imperial government over local control of the waste lands of the Crown and the revenue arising from their sale.  As sovereign of Australia, the King exercised through the colonial governor as his local representative a prerogative power at common law of granting out parcels of the alienated land of the Crown that in English legal theory was vested in him in that capacity.  The immediate effect of the legislation in question was to supersede the Crown’s prerogative by a statutory power to make grants of land, and so to bring its alienation or disposal under the authority of the colonial legislature.  The subject is discussed in the reasons for judgment of Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71, of Brennan J in the Tasmanian Dam Case (1983) 158 CLR 1, 209-212, and in many historical accounts of the evolution of representative and responsible government in Australia.  The royal prerogative is, it is well settled, displaced by legislation that covers the same subject matter: Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, 560.  The primary function of s 6(1) and other such legislation is facultative.  Its object and effect are to confer on the Crown legislative, as distinct from prerogative, authority to grant waste lands, and so to transfer the power of doing so from the uncontrolled discretion of the Crown to the Governor in Council acting under the direction of the legislature, while at the same time limiting the range of interests that can be granted in such land to those designated in the section.  Crown land may be granted, demised or dealt with only “subject to this Act”.

[9] Reference to ss 30 and 40 of the Constitution Act 1860 (Qld) makes clear that the power to dispose of and manage the “wasteland of the Crown” is vested in the legislature of Queensland.  It follows then that the applicants’ various arguments which proceed on the basis of some contractual right arising from the Deed of Grant cannot be sustained.

[10] In a variant of this argument the applicants seek to maintain some distinction between their interest in land described as “fee simple” and the interest commonly referred to as “freehold”.  At common law the major forms of estates in land were either freehold estates or leasehold estates.  Within the classification of freehold estates, the common law recognised –

(i) Fee simple;

(ii) Fee tail; and

(iii) Life estates

[11] It follows from the remarks in Bone v Mothershaw about the effect of legislative power over land titles that the common law position no longer applies.  This was discussed by McPherson JA at paragraph 19 in the following terms:-

In addition to historical considerations like these, a mere reference in a statute to an interest in land that is recognised at common law, such as an estate in fee simple, does not have the effect of transforming that interest, or the rights incidental to it, into statutory interests and rights.  If it were so, s 24 of the Australian Courts Act 1828 (Imp.) in introducing English law into eastern Australia would have had the effect of converting the whole of the common law received here in 1828 into a body of statute law, which, moreover, would have had the status and force under s 24 of an imperial enactment, with all the consequences which that entailed.  Quite plainly, that is not what happened.  The common law received in Australia under that Act was received as a body of common law and not of enacted law…The whole notion is, in any event, opposed to the established view that local laws or by-laws are capable of altering the received English law, as was recognised in Widgee Shire Council v Bonney.”

[12] Bone v Mothershaw was concerned with the application of municipal by-laws made pursuant to the City of Brisbane Act and its relationship with the Vegetation Management Act and Integrated Planning Act.  Putting to one side the issue of whether the by-laws were inconsistent with statutes, the other issue concerned the question whether the section prohibiting the felling of vegetation without a permit was valid in the absence of compensation.  Such a prohibition was held not to amount to the taking of any interest in land. 

“[The owner] retains unimpaired, for what it is worth, his estate in fee simple absolute in the land…But the law provides no remedy for this action or its consequences when it is the result of legislation validly passed under law-making authority that by its terms or nature authorises or permits such an outcome.”[6]

[13] Once it is recognised that the rights of landholders are statutorily determined, it must be accepted that the law in Queensland provides for two types of freehold land, mainly –

(a) Estate in fee simple;

(b) Estate for life or lives.[7]

[14] Reference in statutes to “freehold land” primarily applies to these types, though specific definition altered the scope.  The applicants referred to terms of the freehold land definition in the schedule to the Vegetation Management Act – “includes land in a freeholding lease as defined under the Land Act 1994”.  That definition obviously was not intending to exclude fee simple interest but rather extends the scope to include a specific leasehold which ordinarily would not have been embraced by the term.  In fact, despite the extensive reference to it, the Vegetation Management Act has no relevance to the applicants’ convictions.  Nonetheless, the foregoing remarks apply to references to freehold land as that term appears in the Integrated Planning Act and the Land Act.

[15] Finally, the applicants suggest that the relevant statutes are invalid because they are inconsistent with laws of the Commonwealth of Australia.  There is no basis for this submission.  The making of laws in respect of land (other than Commonwealth places) is a residuary power of the states.  Section 107 of the Constitution provides:-

“Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be.”

The applicants, in their submission, make reference to various Commonwealth/State arrangements including the natural heritage trust partnership agreement and inter-governmental agreement on the environment.

[16] In my view there was nothing in any of the submissions which indicated any inconsistency between the laws of the State and the laws of the Commonwealth which had any application to the issues raised in the application for judicial review.

[17] In summary, the applicant’s bid to establish that there was no legal basis for the statutory offences fails.  For the reasons stated above I can find no reasonable basis for the application for review.  The applicants acting on proper legal advice pleaded guilty to the offences referred to above.  The charges were based on facts which clearly demonstrated the commission of the offences.  In bringing this application the applicants have acted upon advice by a person who has no legal qualifications but who holds views about land tenure and parliamentary sovereignty which are plainly misguided. It might well be that these views are sincerely held and for this reason I hesitate to find, as a basis for dismissing the application, that it was frivolous or vexatious.  It is sufficient to say that I take the view that the applicants’ application has no prospects of success and for this reason the respondent’s application should be upheld and the plaintiffs’ application dismissed.

Order

[18] 1.The application for prerogative order is dismissed.

2.I adjourn consideration of the question of costs allowing parties to make written submissions within 14 days from the date hereof.