Adelaide Brighton Cement Ltd v Victorian Rail Track

Lord

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4183 of 2003

ADELAIDE BRIGHTON CEMENT LTD (ACN 007 870 199)	Plaintiff
v
VICTORIAN RAIL TRACK	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	8, 9 and 10 August 2005
DATE OF JUDGMENT:	30 August 2005
CASE MAY BE CITED AS:	Adelaide Brighton Cement Ltd v Victorian Rail Track
MEDIUM NEUTRAL CITATION:	[2005] VSC 343

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Statutory Interpretation – whether entitlement under an Act to a transfer of land, or compensation, if certain events occur in the future amounts to an accrued right arising under that Act – repeal of Act giving entitlement – whether repeal abolished entitlement or was the subject of saving provisions – North Geelong to Fyansford Railway Construction Act 1916 - North Geelong to Fyansford Railway Construction Act 1934 – North Geelong to Fyansford Railway Deviation Act 1961 – Railways Act 1915 (Vic) – Transport Act 1983 (Vic), s. 254 and Schedule 11 – Statute Law Revision Act 1984 (Vic), s. 4(1) and Schedule 2 – Acts Interpretation Act 1958 (Vic), s. 7(2)(c) – Interpretation of Legislation Act 1984 (Vic), s. 14(2)(e) – Statute Law Revision Act 1995 (Vic), s. 3(1) and Schedule 1.

Equity and Trusts – payment by company to statutory authority to enable purchase of land – company’s money used by statutory authority to purchase land – land registered in name of statutory authority – construction of railway track and associated infrastructure on the land – entitlement by company under Act to transfer of the land to it, or compensation in lieu, if certain events happen in future – repeal of Act containing entitlement – whether, if entitlement not preserved, land purchased with money of the company is held on trust by successor or assignee of the original statutory authority for the benefit of the successor or assignee of the company which paid for the land – resulting trust – constructive trust – Quistclose trust - doctrine of supremacy of Parliament – Constitution Act 1975 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Hanks QC with Mr M Gronow	Blake Dawson Waldron
For the Defendant	Dr C Jessup QC with Mr J Moore	Deacons

TABLE OF CONTENTS

Introduction.................................................................................................................................... 1

Facts and Legislation.................................................................................................................... 3

Summary of Issues.......................................................................................................................... 22

Nature of the Company’s rights under s. 17 of the 1916 Act as amended.................... 24

Were the s. 17 rights extinguished by the Transport Act 1983?....................................... 25

Trust Claims.................................................................................................................................... 41

Conclusion...................................................................................................................................... 44

HIS HONOUR:

Introduction

In this proceeding, the plaintiff makes claims relating to certain land (“the Land”) acquired by the defendant’s predecessors, the Victorian Railway Commissioners (the “Commissioners”), for the purpose of the construction of a railway line between the North Geelong Railway Station and a cement plant and works (the “cement works”) owned by a predecessor of the plaintiff at Fyansford North, known as the “North Geelong to Fyansford railway line” (“the Line”).

Although the Land was acquired by the Commissioners and registered in their name as legal owner, the Commissioners did not pay any sum for the acquisition of the Land. The Land was purchased with moneys provided by the plaintiff’s predecessor, The Australian Portland Cement Company Proprietary Limited (“the Company”).

Following the acquisition of the Land by the Commissioners with the money provided by the Company, another Victorian government statutory authority, the Board of Land and Works (“the Board”), constructed the Line on the Land.

Once constructed, the Line was owned and operated by the Commissioners and its successors, who accepted goods of the Company and its successors, and others, for carriage by rail on the Line.

In 1997, the plaintiff, which by then was the owner and operator of the cement works, ceased using the Line for the purpose of transporting its products. By this time, there were no other users of the Line. Accordingly, the Line has not been used since 1997 and has fallen into disrepair. As a result, since 1997 there has been no revenue earned by any person as a result of the use of the Line.

The plaintiff’s principal case is that, as successor of the Company, it has an entitlement under s. 17 of the North Geelong to Fyansford Railway Construction Act 1916 (Vic) (“the 1916 Act”), as amended, to have the Land transferred to it by the defendant or, if the defendant certifies that it requires all or part of the Land for railway purposes, to be paid compensation in respect of the Land or part thereof which is the subject of such certification.

Alternatively, it is the plaintiff’s case that, if it has no entitlement under the 1916 Act, for whatever reason, then the Land is held by the defendant on its behalf as trustee.

The defendant says that the plaintiff’s claims must fail for a number of reasons. In the first place, the defendant contends that any right or entitlement which the plaintiff or its predecessors enjoyed under the provisions of the 1916 Act, as amended, was abolished upon repeal of that Act in 1983. In this regard, it was submitted on behalf of the defendant that any entitlement of the plaintiff’s relevant predecessor as at 1983 was not an accrued right existing at the time of repeal of the 1916 Act. Accordingly, any such entitlement was abolished when the 1916 Act was repealed.

Secondly, it is contended on behalf of the defendant that even if, notwithstanding the repeal of the 1916 Act, the entitlements of the plaintiff and its predecessors under the 1916 Act continue in force, the circumstances which would provide the plaintiff with the entitlements which it seeks to assert have not yet arisen.

Thirdly, on the assumption that the provisions of s. 17 of the 1916 Act are no longer operative, the defendant denies that it holds the Land on any trust, or subject to any equitable obligation, in favour of the plaintiff.

I turn to consider the facts and relevant legislation in detail. There is no factual dispute as to what happened. The only disputes relate to the application of the undisputed facts to the relevant legislation and, to a lesser extent, to the inferences to be drawn from the agreed facts.

In respect of the agreed facts, I should note that, without objection, each party relied upon witness statements which were not signed or adopted by the witness by sworn evidence. Counsel for both parties consented to this course, on the basis that I should treat each of the witness statements as if it were proved by sworn evidence or, in any event, as representing a statement of agreed facts. The witness statements carried with them a large number of documents referred to therein. There was no objection taken as to the authenticity, or admissibility, of any document referred to in a witness statement. Accordingly, I marked each of the witness statements as an exhibit, which exhibit included each of the documents referred to in that statement.

Facts and Legislation

During the 1890s, the Company established the cement works at Fyansford.

In 1915, the Railways Act 1915 (Vic) was enacted. By s. 38(1) of that Act, the Board was to construct and complete all railway lines authorised by Parliament to be constructed. By s. 39 of that Act, when the Board had completed construction of a railway line, the governor in council was to make an order transferring the railway line to the Commissioners. By s. 95 of the Act, and subject to its provisions, the Commissioners were under a duty to supervise railways subject to the Act and to see that they were maintained in a state of efficiency. By s. 72 of that Act, any land vested in the Commissioners at the time, and any other land taken by the Commissioners under the authority of the Act or any Act incorporated therewith, was vested in the Commissioners in fee simple for the purposes of the Act.

In 1916, representatives of the Company approached the Minister of Railways and made representations to him concerning difficulties in transporting cement and other products from the cement works to the North Geelong Railway Station. At this time, the State of Victoria was under considerable financial strain and several railway lines which had already been authorised by Parliament had been delayed in construction as a result.

In these circumstances, the Company made certain proposals to the Minister which, I infer, included an offer to contribute to the cost of acquiring the Land and construction thereon of the Line. The Company’s proposals were referred to the Railways Standing Committee, which made certain recommendations which the Minister described as “fairly safe recommendations” because they would result in a situation whereby “the State will be in a safe position, inasmuch as we shall be protected by a bank guarantee for some 15 years against loss”.

In his second reading speech in respect of the Bill which became the 1916 Act, the Minister stated that, as a result of the proposals by the Company and the recommendations of the Railways Standing Committee, the Line was proposed to be constructed subject to certain conditions which would be incorporated in the 1916 Act. The Minister expressed the conditions in the following way:

“The estimated working expenses, interest, and construction, and everything else required have been computed by the Railways Commissioners, and they have entered into the necessary preliminary conditions that the Railways Standing Committee desire. The first condition was that a sum, estimated to be the cost of the survey, should be deposited by the company. That has been lodged. Then the company have to purchase the land at an estimated cost of ₤7,000, and they have to provide against any loss for some 15 years. Should any loss occur in any one year the amount of such loss has to be paid. The Railways Standing Committee made several recommendations in connection with this line, and the company have agreed to submit to them.”

As a result of the proposals made by the Company, the recommendations made by the Railways Standing Committee and the Company agreeing with the Commissioners upon the conditions resulting from those recommendations, the North Geelong to Fyansford Railway Construction Bill was put before the Victorian Parliament and the 1916 Act was enacted.

The 1916 Act reflects the result reached following the proposals made by the Company to the Minister. In my view, construed as a whole, the 1916 Act demonstrates that the Line, and the Land on which it is constructed, were intended by the Victorian Parliament to be the subject of special legislative provisions governing the future use and ownership of the Land and the Line, and the obligations and entitlements of the Commissioners and the Company with respect thereto. In my view, it is clear that the Victorian Parliament intended that the special provisions of the 1916 Act would prevail over the general provisions of the Railways Act 1915 to the extent of any inconsistency.

Section 2 of the 1916 Act contains a number of definitions for the purposes of the Act. The Board, the Commissioners and the Company are defined as I have defined them. A distinction is made between land and railway line. “Land” is defined to include all real estate and legal interests in real estate. “Line” is defined in the following terms:

“Line” means line of railway.

Section 3(1) authorised the Board to make and construct the Line (as I have defined it) upon the Land, which is described in the schedule to the Act. The Line is described in s. 3(1) as:

“A five feet three inches gauge railway for goods traffic commencing at or near North Geelong railway station and terminating near the township of Fyansford in the parish of Moorpanyal all in the county of Grant in the line and upon the lands described in the Schedule to this Act, to be called the North Geelong to Fyansford Railway.” (Emphasis added.)

Section 3(2) of the 1916 Act provides that the Line shall not be the subject of the provisions of the Railway Lands Acquisition Acts. This reinforces the special nature of the statutory provisions governing the Line and the Land on which it is constructed.

Section 5(1) of the 1916 Act fixed a maximum expenditure for the construction of the Line.

Section 5(2) of the 1916 Act provided:

“(2)All land required for the said line which is not conveyed or transferred to the Board free of cost shall be acquired by the Board and paid for out of the sum which is to be lodged for the purpose with the Treasurer of Victoria by the company in accordance with section eight of this Act.”

Although the Land was initially acquired by the Board, as appears hereafter it was subsequently transferred to the Commissioners under s. 39 of the Railways Act 1915.

Section 8(1) of the 1916 Act prohibited any expenditure upon the construction of the Line until certain conditions were met. Section 8(1) provides:

“8. (1)No contract shall be entered into or expenditure made for the construction of the said line of railway until –
(a)the company has deposited with the Treasurer of Victoria the sum of Seven thousand pounds or such larger sum as the Board requires out of which he is to pay the whole cost of land purchase and compensation and expenses in connexion therewith, but any balance of such deposit which the chief engineer for railway construction certifies from time to time is not required for land purchase and compensation and expenses in connexion therewith shall be refunded by the Treasurer of Victoria to the company within two calendar months from the date of the certificate of the chief engineer for railway construction;
(b)the Commissioners have accepted from the company a guarantee by a bank approved by the Commissioners undertaking to pay to them within one calendar month of demand made after the end of each year for fifteen years from the opening of the line for traffic any sum by which the annual revenue falls short of the amount of Two thousand three hundred and fifty-four pounds in the first year and of a reduced amount (which shall be fixed by the Commissioners) in each succeeding year so that the amount fixed for the fifteenth year shall be One thousand eight hundred and twenty-eight pounds and the total of the amounts for the fifteen years shall be Thirty-one thousand three hundred and sixty-six pounds or such lesser amount as is consequent upon any deduction pursuant to section nine of this Act; and
(c)such contract or expenditure has been previously approved in writing by the Treasurer of Victoria.”

Section 18 of the 1916 Act obliged the Company, after opening of the Line for traffic, to convey over the Victorian Railways the whole of the traffic of the Company to and from Fyansford, with certain exceptions.

Sections 19(1) and 19(2) of the 1916 Act prescribed the freight rates to be paid by the Company[1] for carriage of freight to and from Fyansford and the proportion of those rates which was “to be credited to the said line”. Section 19(3) gave the Commissioners the power to fix, from time to time, the freight rates to be charged to persons other than the Company[2] “in respect of traffic which is hauled over the said line on his or their behalf”. Further, s. 19(3) contains a general provision as to the manner in which the “revenue of the said line” is to be computed. As will be apparent, the concept of “revenue of the said line” is critical to the understanding and operation of s. 17 of the 1916 Act. Section 19(3) provides, in this regard, that:

“... in computing the revenue of the said line for the particular year in which the traffic is carried the said line shall be credited with the proportion of such rates due to the said line after deducting relative working expenses.”

[1]And also to the Australian Paper Mills Company Limited.

[2]And The Australian Paper Mills Company Limited.

Section 10 is also relevant to the meaning of the phrase: “revenue of the said line” in s. 17. Like s. 19(1) and s. 19(2) it provides for “credit” to “be allowed to the said line”. That credit is to be calculated by reference to a notional freight rate to be charged to the Commissioners or the Board in respect of cement or other materials purchased by one or other of them from the Company and transported over the Line.

In my view, it is clear that the phrase “revenue of the said line” appearing in s. 17 of the 1916 Act refers only to revenue earned by the Commissioners from freight charges paid or credited in respect of the carriage of goods on the Line. This construction of the phrase is, in my view, the only meaning open in circumstances where the 1916 Act draws, in its definition section, a clear distinction between land and railway line. This construction is reinforced by the provisions of s. 19 and s. 10 of the 1916 Act. Accordingly, any revenue earned by the Commissioners, or their successors or assignees, from the use of the Land, such as by leasing it or granting licences to use it, is not included within the phrase “revenue of the said line” when used in s. 17 of the 1916 Act.

Pursuant to the provisions of the 1916 Act, the Company deposited ₤7,000 with the Treasurer and this money was used to purchase the Land. The whole of the ₤7,000 was not required for this purpose, and the balance was refunded to the Company. The Land was registered in the name of the Board and, when the Line was completed, transferred to the Commissioners under s. 39 of the Railways Act 1915.

Once the Land was acquired, the Board proceeded to construct the Line upon it. Pursuant to s. 8(1)(b) of the 1916 Act, the Board was not entitled to commence construction of the Line until the Company provided to the Commissioners a bank guarantee approved by the Commissioners as described in that paragraph.

By September 1918, the Line had been constructed by the Board. The Line opened for traffic at that time.

In August 1921, in conformity with s. 39 of the Railways Act 1915, the ownership of the Land and the Line was transferred from the Board to the Commissioners. This step must have been contemplated at the time of enactment of the 1916 Act, because s. 17 of the 1916 Act treats the Commissioners as the owner of the Land and the Line.

Accordingly, by 1921, the Commissioners were vested with the legal ownership of the Land and Line. The Land had been paid for by the Company. Furthermore, it appears that the cost of construction of the Line, and interest thereon, was fully underwritten by the Company under the terms of the guarantee required under s. 8(1)(b) of the 1916 Act.

In his second reading speech in respect of the Bill which became the North Geelong to Fyansford Railway Construction Act 1934, the then Minister of Railways referred to the conditions which were attached to the construction of the Line under the 1916 Act and, in respect of s. 8(1)(b) said:

“The conditions attachable to the construction of the line were – (a) That [the Company] should bear the cost of acquiring the requisite land; and (b) That the company should guarantee to pay to the Commissioners, for a period of fifteen years from the opening of the line, any amount by which the revenue fell short of a sum representing the estimated working expenses, plus the cost of construction and interest charges upon such cost. The full amount of revenue so guaranteed (₤29,746) was earned during the first eight years of operation.” (Emphasis added.)

Accordingly, the Company paid for the Land and provided a guarantee which ensured that the Commissioners and the Board recovered the whole cost of construction of the Line, and interest thereon, together with estimated working expenses of the Line for a period of 15 years. The guaranteed amount was in fact received by the Commissioners within the first eight years of operation of the Line.

The Line was used by the Company and its successors and assigns, for the carriage of cement and other goods from the cement works to the North Geelong Railway Station, for a period of 79 years. During this 79 year period, the Company paid freight charges to the Commissioners in respect of such carriage of goods. The evidence does not disclose whether the freight rates specified in the 1916 Act were ever altered. In any event, in 1997 the plaintiff ceased utilising the Line to transport cement and other goods from the cement works. For a period of approximately four years, the plaintiff used road transport for this purpose. In 2001, the cement works were closed. I will return to these recent events later in this judgment.

On 22 January 1925, the assets and undertaking of the Company were acquired by Australian Cement Limited (“ACL”).

On 18 October 1929, the assets and undertaking of ACL were acquired by Australian Portland Cement Pty Ltd (“APCPL”).

There were a number of material statutes passed by the Victorian Parliament during the 79 year period that the Company utilised the Line for its transport requirements from the cement works.

The 1916 Act was amended by the North Geelong to Fyansford Railway Construction Act 1934 (Vic) (“the 1934 Act”). In the second reading speech for the Bill which became the 1934 Act, the Minister for Railways noted, as described above, the fact that the minimum revenue guarantee under s. 8(1)(b) of the 1916 Act had been met within the first eight years of operation of the Line. The Minister described the Bill as “an extraordinary Bill... because it deals with a payable railway line”.

As to the reasons for the amendments which were proposed to be effected by the Bill which became the 1934 Act, the Minister:

(1)noted that the Company had sold its undertaking and property to ACL and was being wound up. However, the Company was being kept in existence to preserve its rights under the 1916 Act in the event of the Line being closed;
(2)stated that, because ACL had purchased the undertaking and property of the Company, ACL “appears equitably to possess a right of reversion to it of the land, which... was purchased at the expense of [the Company]”;
(3)stated that it was a purpose of the Bill to secure to ACL:
“and any future successors and assigns, the rights possessed by [the Company] to [the Land] upon which [the Line] was constructed, in the event of [the Line] being closed. It will also impose upon all successors and assigns of [the Company] the obligation to cause their traffic to be conveyed by rail in accordance with s. 18 of [the 1916 Act], with the exceptions specified in the section, and will secure to the successors and assigns the freight rate of 2s per ton in truck loads between the works and Geelong which is provided for in s. 19 of [the 1916 Act]. This rate is considered by the Commissioners to be reasonable. Clause 3 provides a new section in substitution for s. 17 of [the 1916 Act]”;

(4)drew attention to further amendments to the 1916 Act which would allow the Commissioners, if the line was closed, to retain any portion of the line required for railway purposes. In this event, the Commissioners would be required to pay ACL, its successors and assigns, compensation for the land which was retained for railway purposes.

In fact, the references by the Minister to ACL in his second reading speech for the 1934 Act were in error. By this time, ACL had transferred its assets and undertaking to APCPL. However, having regard to the expanded definition of “Company” effected by the 1934 Act, this is of no consequence.

The 1934 Act was passed on 29 September 1934. It did two things. First, it substituted a new definition of “Company” in s. 2 of the 1916 Act. The definition was expanded to include successors and assigns of the Company. Secondly, the 1934 Act substituted a new s. 17 for s. 17 of the 1916 Act. Section 3 of the 1934 Act reads as follows:

“3.For section seventeen of the Principal Act there shall be substituted the following section:-
17. (1) If at any time after the expiration of the term of the guarantee the revenue of the said line ceases for a period of three years to be sufficient in the opinion of the Commissioners to pay for the maintenance and working expenses of the said line, the Commissioners –
(a)may close for traffic so much of the said line as they may certify under seal is not required by them for railway purposes; and
(b)thereupon may remove the rails fastenings points and crossings sleepers ballast and other materials erections or equipment of the portion of the line so closed but not including the earthworks and not including any fencing which abuts on private property.

(2) Upon the expiration of six calendar months after the date of such closing the Commissioners shall convey or transfer (as the case may be) to the company the land purchased for that portion of the line which has been closed, but if the company is not then in existence or has been wound up and its assets distributed the said land shall remain the property of the Commissioners.
(3) In respect of so much of the land purchased for the railway as is certified under seal by the Commissioners to be required by them for railway purposes, the Commissioners shall pay to the company purchase money or compensation as if the company were the owner of such land; and the provisions of the Lands Compensation Act 1928 shall, so far as the same are applicable and with such adaptations as are necessary, extend and apply to the assessment and payment of compensation for the purposes of this sub-section, and in particular, for the said purposes, in the construction of the said Act unless inconsistent with the context or subject-matter –
‘The Board of Land and Works’ and ‘the Board’ shall mean ‘the Commissioners’; and
‘The Special Act’ shall mean this section of this Act;

Provided that the Commissioners shall not be required to pay any purchase money or compensation under this sub-section if the company has ceased to exist or has been wound up and its assets distributed.”

Immediately after the enactment of the 1934 Act, the Company assigned its rights under the 1916 Act (as amended) to APCPL.

In 1959, the Commissioners decided to close a section of the Line so that this section could be part of the North Geelong goods yard and be used to provide for a connection with the Ballarat line. Discussions and correspondence between APCPL and the Victorian Railways resulted in Ministerial approval being obtained to instruct the parliamentary draftsman to prepare legislation.

The legislation which resulted was the North Geelong to Fyansford Railway Deviation Act 1961 (“the 1961 Act”).

Section 12 of the 1961 Act provided that, upon payment by the Commissioners to APCPL of the sum of ₤750:

(a) the specified section of the Line would cease to form part of the Line; and
(b)the provisions of s. 17(2) of the 1916 Act would not apply in respect of that portion of the Land on which the specified section of the Line was constructed.

In the Minister’s second reading speech for the Bill which became the 1961 Act, the Minister identified the payment of ₤750 to be made by the Commissioners to APCPL as being “for the surrender of its rights to the portion of line affected by the proposed deviation”. In my view, this statement by the Minister cannot be used by me in construing the words of s. 17 of the 1916 Act (as amended by the 1934 Act) for the purpose of considering whether, as at 1961, APCPL had any accrued right to the Land or any portion thereof.

On 12 December 1962, APCPL changed its name to Australian Portland Cement Limited (“APCL”).

By s. 51(1) of the Railways (Amendment) Act 1972 (Vic), the Victorian Railways Board succeeded the Commissioners. All real and personal property of the Commissioners was vested in the Victorian Railways Board. All powers, authorities, immunities, rights, privileges, functions, obligations and duties of the Commissioners were vested in or imposed upon the Victorian Railways Board. Accordingly, by force of s. 51 of this Act, the Victorian Railways Board became the owner of the Land and the Line, and the government authority bound by the obligations, and entitled to the benefits, provided for in the 1916 Act as amended.

In 1983 there was substantial reform to, and consolidation of, Victorian statutes dealing with public transport and other matters. As a result, the Transport Act 1983 (Vic) was enacted. By s. 254(1) of that Act, each of the 1916 Act and the 1934 Act was repealed (“the repeal”).

Section 254(2) of the Transport Act 1983 contained detailed saving provisions. Section 254(2) provided:

(2)Except as in this Act expressly or by necessary implication provided –
(a)all persons things and circumstances appointed or created by or under any Act which is repealed by this Act or existing or continuing under any such Act immediately before the appointed day shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if this Act had not been enacted; and
(b)in particular and without affecting the generality of paragraph (a), this Act shall not disturb the continuity of status operation or effect of any proclamation regulation rule by-law order determination decision declaration direction report recommendation confirmation rescission resolution proposal petition approval disapproval nomination appointment delegation application classification warrant apportionment contribution reference election grant revocation suspension condition certificate security agreement lease licence permit registration easement pension compensation debenture stock contract notice instrument vesting transfer sale acquisition rate fee indemnity immunity permission consent authority sanction charge summons proceeding action appeal matter thing liability or right made done effected obtained issued granted given presented passed imposed paid fixed accrued incurred or acquired or existing or continuing before the appointed day by or under any Act which is repealed by this Act.” (Emphasis added.)

On behalf of the plaintiff, it was submitted that s. 254(2) had the effect of preserving the rights of APCL under s. 17 of the 1916 Act, which rights had been obtained by it, had been issued or granted to it, had been acquired by it, or were accrued or continuing rights enjoyed by it under the 1916 Act. Accordingly, such rights were expressly saved by s. 254(2) of the Transport Act 1983. As I have said in the introduction to this judgment, this is disputed by the defendant.

Further to the saving provisions contained in s. 254(2) of the Transport Act 1983, the interpretation of legislation in Victoria was, at the time that Act was passed, governed by the Acts Interpretation Act 1958 (Vic) and by the common law. In 1983, s. 7(2)(c) of the Acts Interpretation Act 1958 provided that where any Act repeals or amends any other enactment, then, unless the contrary intention appears, the repeal or amendment shall not:

“(c)affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed or amended.”

The Transport Act 1983 also had the effect of abolishing the Victorian Railways Board and replacing it with the State Transport Authority. From that time, the State Transport Authority became the owner of the Land and the Line and assumed all of the rights and obligations of the Victorian Railways Board.

Next, the Parliament of Victoria enacted the Statute Law Revision Act 1984 (Vic). By s. 4(1) of that Act, ss. 254(1) and 254(2) of the Transport Act 1983 were repealed. In other words, there was a repeal of the repeal of the 1916 Act.

Section 4(2) of the Statute Law Revision Act 1984 only confuses the matter further. It provides:

“(2)The repeal of any Act or provision of any Act by sub-section (1) shall not –
(a)revive any Act or provision of any Act repealed by the repealed Act or provision;
(b)affect in any way amendments made to any Act or provision by the repealed Act or provision or the operation or effect of those amendments;
(c)revive anything not in force or existing at the time at which the repeal becomes operative;
(d)affect the previous operation of the repealed Act or provision or anything duly done or suffered under the repealed Act or provision;
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act or provision;
(f)affect any penalty, forfeiture or punishment incurred in respect of an offence committed against the repealed Act or provision;
(g)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment mentioned in paragraphs (e) and (f) and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act or provision repealed by this Act had not been repealed;
(h)affect the interpretation, construction, application, description of or reference to the repealed Act or provision or of any Act, proclamation, appointment, Order in Council, rule, regulation or other enactment or any document or person matter or thing whatsoever construed, described or referred to in the repealed Act or provision;
(i)affect any approval, validation, ratification, authorization, indemnity or relief made or given under the repealed Act or provision or the operation and effect of any saving, deeming, declaratory or transitional provision in the repealed Act or provision –

and without derogating from the generality of paragraphs (a), (b), (c), (d), (e), (f), (g), (h) and (i) shall not affect any issue, application, appropriation, payment, expenditure, distribution, contribution, allocation, investment, reimbursement, compensation, liquidation, contract, agreement, works and services, acquisition, development, subdivision, conveyance, sale, transfer, grant, disposition, lease, licence, easement, trust, variation of trust, covenant, condition, exception, reservation, limitation, release, cessation, revocation, excision, divesting, vesting, surrender, discharge, extinguishment, commutation, declaration, dedication, proclamation, Order in Council, Crown Grant, certificate of title, certificate of incorporation, certification, incorporation, registration, cancellation, execution, statement, statutory declaration, entry, annulment, sanction, authority, appointment, resolution, approval, recommendation, verification or decision made given performed effected authorized or executed under the repealed Act or provision.”

Also in 1984, the Interpretation of Legislation Act 1984 (Vic) was enacted. It came into operation on 1 July 1984. By s. 4(1)(a), the provisions of the Interpretation of Legislation Act 1984 extend and apply to all Acts, whether passed before or after the commencement of that Act unless a contrary intention appears in that Act or in the Act concerned.

Section 14(2)(e) of the Interpretation of Legislation Act mirrors s. 7(2)(c) of the Acts Interpretation Act 1958. It provides that, where an Act or a provision of an Act is repealed or amended, the repeal or amendment shall not, unless the contrary intention expressly appears:

“(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.”

In 1987, APCL changed its name to Australian Cement Ltd (“ACL2”).

In 1989, pursuant to the Transport (Amendment) Act 1989, the Public Transport Corporation (“PTC”) became the successor corporation to the State Transport Authority. Accordingly, the PTC became the owner of the Land and the Line and assumed all of the rights and obligations of the State Transport Authority.

In January 1993, the plaintiff purchased the business, assets and undertakings of ACL2. The plaintiff commenced to operate the cement works and to utilise the Line for the transport of cement and other materials from those works. This purchase by the plaintiff was pursuant to an agreement dated 20 November 1992 between ACL2 and the plaintiff (“the 1992 agreement”).

An issue arises as to whether, by the terms of the 1992 agreement alone, any rights of ACL2 under s. 17 of the 1916 Act (as amended) which continued to exist were assigned to the plaintiff. The defendant contends that any such rights were not so assigned by virtue of the 1992 agreement alone. However, the defendant concedes that any such rights enjoyed by ACL2 were, to the extent that they still exist, duly assigned to the plaintiff by a “Confirmatory Deed of Assignment” dated 5 August 2005 (“the 2005 Deed”). Accordingly, there was no issue that, by the time of the trial of this proceeding, the plaintiff was a successor of the Company within the meaning of the 1916 Act (as amended). Accordingly, although there is no longer any issue as to the standing of the plaintiff to bring this proceeding, an issue as to costs may arise, given the late execution of the 2005 Deed and consequent amendment to the pleadings. At the request of both parties, I will not now determine whether the plaintiff was, absent the execution of the 2005 Deed, a successor of the Company within the meaning of the 1916 Act (as amended) so as to give it standing to sue. If need be, this issue can be re-visited following the delivery of this judgment and the hearing of any argument as to costs.

On 19 May 1995, the PTC transferred a part of the Land (“the excised portion of the Land”) to “Her Majesty Queen Elizabeth II” (“the Crown transfer”). At the time of the Crown transfer, the PTC did not certify that the excised portion of the Land was or was not required for railway purposes. Nor did the PTC offer to transfer the excised portion of the Land to the plaintiff or to compensate it pursuant to ss. 17(2) or 17(3) of the 1916 Act as amended by the 1934 Act. For convenience, when this judgment refers to “the Land” at a time after the Crown transfer, that term means the Land excluding the excised portion.

The statutory labyrinth is further complicated by the Statute Law Revision Act 1995 (Vic). By s. 1 of that Act, it is stated that:

“The purpose of this Act is to repeal Acts and provisions of Acts which no longer have any purpose or effect.”

By s. 3 of that Act, the Statute Law Revision Act 1984 was repealed. In other words, the repeal in 1983 was itself repealed in 1984, and the 1984 repeal was repealed in 1995.

In 1997, the plaintiff ceased using the Line for the transport of cement and other materials from the cement works. Instead, it commenced transporting cement and other materials from the cement works by road. Since that time, the Line has carried no railway traffic. Accordingly, there has been no “revenue of the said line” since 1997.

Furthermore, it follows that the Land has not been used for “railway purposes” since that time.

In 1996 there was further reform of the public transport system in Victoria. Pursuant to the Rail Corporations Act 1996, the defendant was established as a statutory corporation. Pursuant to Allocation Statements made pursuant to that Act, the Land and the Line were transferred from the PTC to the defendant and the defendant assumed the rights and obligations of the PTC. These transfers occurred in and between 1997 and 1999.

In 1999, the defendant leased the Land to the Director of Public Transport (“the Director”) pursuant to a document titled “Primary Infrastructure Head Lease” (“the Head Lease”). By the Head Lease, the defendant leased all of “the land” as therein defined, which included all such land in Victoria on which railway infrastructure was erected and all such railway infrastructure. Accordingly, by the Head Lease, the defendant leased the Land and the Line to the Director.

The term of the Head Lease is 45 years. The total rental payable by the Director to the defendant is $10, which has been paid.

In turn, in 1999 the Director entered into a sub-lease of all of the land and railway infrastructure which is the subject of the Head Lease, including the Land and the Line, to Freight Victoria Ltd (“Freight Victoria”) (“the sub-lease”). The sub-lease is for an initial term of 15 years and two further terms of 15 years, a total of 45 years. The sub-lease requires Freight Victoria to pay $4M per annum rental adjusted annually for CPI. Having regard to the vast amount of land and railway infrastructure which is the subject of the sub-lease, the notional rental payable by Freight Victoria under the sub-lease in respect of the Land and the Line is only some $1,600 per annum.

Pursuant to various leases and licences by Freight Victoria relating to the Land, the Land is earning approximately $47,000 per annum. However, none of this income is earned from the Line and, as I have said, such income is not, in my view, “revenue of the said line” within the meaning of s. 17 of the 1916 Act as amended. In any event, it is not revenue earned by the defendant, or even its lessee the Director. It is earned by Freight Victoria, a non-government entity, as sub-lessee.

It is a term of the sub-lease that the Director may require Freight Victoria to surrender any part of the land and railway infrastructure that has not been used for or in connection with railway operations for a continuous period of 24 months. If the Director requires Freight Victoria to surrender any part of the land and railway infrastructure, then the Director is obliged under the Head Lease to surrender such land and railway infrastructure to the defendant. However, under the terms of the Head Lease, the defendant does not have the power to demand that the Director require Freight Victoria to surrender any such land or railway infrastructure. To date, the Director has refrained from requiring Freight Victoria to surrender the Land. The result is that, although the Land and the Line have not been used for or in connection with railway operations since 1997, and a continuous period well in excess of 24 months as elapsed since the sub-lease was entered into, Freight Victoria is not obliged to surrender the Land and the Line to the Director and thus bring about a surrender, in turn, of the Land and the Line to the defendant.

It is not necessary to canvass the commercial negotiations between 1999 and 2003 in any detail. It suffices to say that the plaintiff and its solicitors wrote to the defendant and its solicitors asserting that the Line had been closed. The plaintiff requested the defendant to make a decision under s. 17(1) of the 1916 Act (as amended) to close the Line and, if the defendant required any part of the Land for railway purposes, to so certify. In the event that the defendant was not prepared to close the Line, written reasons for its decision not to do so were sought by the plaintiff. In response, the defendant has refused to close the Line or to provide any reasons for its decision not to do so.

In 2000, Freight Victoria refused to surrender its sub-lease of the Land and the Line without compensation. However, in 2001, Freight Victoria agreed with the plaintiff to surrender part of the Land to the Director in return for certain salvageable rail infrastructure on the Land. I was informed by counsel for the plaintiff from the bar table, without objection from counsel for the defendant, that the part of the Land which was the subject of this agreement between the plaintiff and Freight Victoria is a large tract of the Land which is contiguous with the land upon which the cement works were situate,[3] and which is owned by the plaintiff. Accordingly, the portion of the Land which was the subject of this agreement with Freight Victoria has a special value to the plaintiff. I was informed that the plaintiff wishes to combine this portion of the Land with the land from which the cement works were previously conducted, and to sell or develop the combined parcel of land with a view to a profit.
[3]As appears hereafter, the cement works were closed in 2001.

However, the agreement between the plaintiff and Freight Victoria has not been able to be concluded or implemented. This is because the defendant has required the plaintiff to purchase the relevant portion of the Land which is subject to the surrender agreement between the plaintiff and Freight Victoria, for a sum of $600,000. In order to resolve the dispute, the plaintiff offered $30,000 for the portion of the Land in question, but this counter-offer was refused.

In addition to demanding the sum of $600,000 from the plaintiff as consideration for a transfer of part of the Land, the defendant has:

(1)refused to consider, under s. 17(1) of the 1916 Act as amended, whether the revenue of the Line has ceased, for a period of three years, to be sufficient in its opinion to pay for the maintenance and working expenses of the Line;
(2)refused to close for traffic so much of the Line as is not required by the defendant (or the Director or Freight Victoria) for railway purposes, as contemplated by s. 17(1)(a) of the 1916 Act as amended;
(3)refused to certify under seal what portion of the Line is not required by it (or the Director or Freight Victoria) for railway purposes, as contemplated by s. 17(1)(a) of the 1916 Act as amended;
(4)refused to provide reasons for its decisions not to close the Line, or any part thereof, or to certify whether any part of the Land is required for railway purposes; and
(5)in addition, the defendant has opposed applications for rezoning of the Land to enable its development.

This conduct on the part of the defendant is explained by its contentions made in this proceeding that, as a matter of law, the plaintiff has no existing entitlement under s. 17 of the 1916 Act as amended. There is no other rational explanation. This is particularly so in circumstances where there is no evidence of the defendant, the Director or Freight Australia having any plans to use any part of the Land for railway purposes. Further, there is no dispute that the Line has fallen into such a state of disrepair that it is incapable of being used as a railway line.

The remaining aspects of the relevant chronology can be shortly stated. In 2001, the plaintiff closed the cement works and ceased to transport any cement or other products from those works to any destination.

In January 2003, the land upon which the cement works had previously been conducted, together with certain parts of the Land and other land owned by third persons, was rezoned by the City of Greater Geelong from “Industrial 1 Zone” to “part Residential 1, part Business 1, part Mixed Use, part Public Conservation and Resource and part Public Park and Recreation Zones”.

By at least 2004, the Line was in substantial disrepair and incapable of being used as a railway line.

On 5 August 2005, ACL2 and the plaintiff executed the 2005 Deed, as referred to above.

Summary of Issues

Mr Hanks QC, who appeared with Mr Gronow for the plaintiff, submitted in summary that:

(1)At the time of the repeal in 1983, the plaintiff’s predecessor APCL had an accrued right to benefits conferred on the Company by s. 17 of the 1916 Act, notwithstanding the fact that the right was conditional or contingent on closure of all or part of the Line.
(2)That accrued right was not extinguished by the repeal in 1983, or by subsequent legislation.
(3)In all the circumstances, the defendant is obliged under s. 17 of the 1916 Act as amended to:
(a)form an opinion as to whether the revenue of the Line has ceased for a period of three years to be sufficient to pay for the maintenance and working expenses of the Line. In this regard, it was submitted that I should infer that such an opinion had already been formed or, if not, that the circumstances of the case dictated that the defendant was obliged to form such an opinion;
(b)decide whether the Line or any part thereof was required by the defendant for railway purposes. In this regard, it was submitted that I should infer that the defendant has already decided that the whole of the Line is not required for railway purposes;
(c)certify under seal as to that part of the Line which is, and that part of the Line which is not, required by the defendant for railway purposes;
(d)close for traffic that part of the Line which has been certified as not being required by the defendant for railway purposes; and
(e)to thereafter act in accordance with sub-ss. 17(2) and 17(3) to transfer the Land or part thereof to the plaintiff and, if all such land is not transferred by reason that some part of it is certified by the defendant to be required by it for railway purposes, to pay compensation in respect of that part of the Land.

(4)Alternatively, if, by reason of the repeal, the plaintiff has no rights under s. 17 of the 1916 Act as amended then the Land is held by the defendant on trust for the plaintiff. The Crown transfer and the Head Lease were each in breach of that trust and the plaintiff is entitled to compensation as a result.

On behalf of the defendant, Dr Jessup QC, who appeared with Mr Moore, submitted in summary that:

(1)Any right which the plaintiff’s predecessor APCL had at the time of the repeal in 1983 was not an accrued right which was saved by the saving provisions of the Transport Act 1983 or by the Acts Interpretation Act 1958 or the Interpretation of Legislation Act 1984. None of these saving provisions included contingent or conditional rights and, in any event, in 1983, APCL had a mere expectation that it might have a right if certain events happened in the future.
(2)Alternatively, if APCL had an accrued right which was saved by the saving provisions in the Transport Act 1983 or by the provisions of the applicable interpretation legislation, subsequent legislation has abolished any rights which APCL or its successors had.
(3)Alternatively, if the provisions of s. 17 of the 1916 Act as amended continue to be operative, the circumstances giving rise to an entitlement by the plaintiff to have the Land, or part thereof, transferred to it or to be paid compensation in respect of any part of the Land not transferred have not arisen. In this regard, it was submitted that no factual inference should be drawn that any opinion had been reached by the defendant as to the sufficiency of the revenue of the Line or as to whether the Line or any part thereof was required by the defendant for railway purposes.
(4)In the event that the plaintiff has no rights under s. 17 of the 1916 Act as amended, it would be inconsistent with the applicable statutory regime at material times to find that the Land is held by the defendant on trust for the plaintiff. In any event, the plaintiff does not come to court with clean hands and should be denied equitable relief for this reason.

Nature of the Company’s rights under s. 17 of the 1916 Act as amended

Before considering whether the Company’s rights under s. 17 (“the s. 17 rights”) have survived the repeal, it is first necessary to consider the nature of the s. 17 rights as at the time of the repeal in 1983.

Under s. 17 of the 1916 Act as amended, the Company (and its successors and assigns) was only granted rights if an event occurs. That event is the Commissioners (or its successors and assigns) forming the opinion, after the expiration of the 15 year guarantee, that the revenue of the Line has ceased for a period of three years to be sufficient to pay for the maintenance and working expenses of the Line. Accordingly, the event upon which any entitlement of the Company arises under sub-ss. 17(2) and 17(3) is an event which may or may not happen. This is so whether the event is seen as the occurrence of a situation where, on any objective view, the revenue of the Line has ceased for a period of three years to be sufficient to pay for its maintenance and working expenses, or whether the event is the formation of the requisite opinion by the Commissioners or their successors in a situation which is not so obvious. In either case, the event may never happen.

Accordingly, any entitlement of the Company and its successors and assigns under s. 17 was truly contingent upon the happening of an event which may or may not happen, or was inchoate, in the sense that it was not fully formed or developed. Whatever label is attached to the rights, they depend for their existence upon the happening of the relevant event, which may never occur.

Were the s. 17 rights extinguished by the Transport Act 1983?

As I have said, by s. 254(1) of the Transport Act 1983, each of the 1916 Act and the 1934 Act was repealed in its entirety. Accordingly, at common law, the s. 17 rights ceased to exist and the law must, in the absence of common law or statutory exception, be applied as if s. 17 had never existed[4].
[4]Maxwell v Murphy (1957) 96 CLR 261 at 266-7, per Dixon CJ; Esber v The Commonwealth (1992) 174 CLR 430 at 445, per Brennan J (dissenting in the result).

At common law, there is a presumption that, in the absence of clear words, a repealing statute does not apply to “accrued rights”[5], “past matters”, “past events” or “transactions past and closed”[6]. In Maxwell v Murphy, Dixon CJ summarised the common law rule in the following way[7]:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events.”

[5]Esber v The Commonwealth (1992) 174 CLR 430 at 445.

[6]Maxwell v Murphy (1957) 96 CLR 261 at 267.

[7](1957) 96 CLR 261 at 267.

This common law principle is reflected in the interpretation legislation applying throughout Australia. As appears above, in Victoria, s. 14(2)(e) of the Interpretation of Legislation Act 1984 provides that, in the absence of contrary intention expressed in the repealing Act, the repeal of an Act does not:

“(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.”

Section 7(2)(c) of the Acts Interpretation Act 1958 used the same language.

Further, the Transport Act 1983 contained its own saving provisions. As appears above, s. 254(2) expresses an extremely broad saving provision which relates to matters beyond existing rights, privileges, obligations or liabilities. However, insofar as s. 254(2) is relevant to the facts of this case, it does not, in my view, express the saving provision in respect of rights in a manner which is wider than the language of s. 14(2)(e) of the Interpretation of Legislation Act 1984. Whilst it is true that, in place of the words “acquired, accrued or incurred” the words “made, done, effected, obtained, issued, granted, given, presented, passed, imposed, paid, fixed, accrued, incurred, or acquired, or existing, or continuing” are used, it is still necessary to identify a “right” which exists at the time of the repeal.

In my view, the contingent or inchoate right of APCL, as successor or assign of the Company in 1983, was not an existing “right” within the meaning of either s. 14(2)(e) of the Interpretation of Legislation Act 1984 or s. 254(2) of the Transport Act 1983 at the time of enactment of the latter Act in 1983. As I have said, the s. 17 rights do not arise at all until the happening of the triggering event specified in s. 17 of the 1916 Act. That event is the formation of the requisite opinion by the Commissioners or their successors or, perhaps, the fact that, on any view, the revenue of the line has ceased for a period of three years to be sufficient to pay for its maintenance and working expenses. On any view of the evidence, neither of these events had occurred at the time of the repeal.

On behalf of the plaintiff, it was submitted that the s. 17 rights, although contingent or inchoate, were nevertheless “rights” within the meaning of the authorities. In this regard, it was argued that the Company acquired “the right” to have the Commissioners apply s. 17 of the 1916 Act (as amended) for its benefit if the triggering events specified in s. 17 occurred. It was put that this “right” arose out of and was defined by facts or events which had already occurred at the time of the repeal in 1983. In this regard, reliance was placed upon the following facts and events which occurred before 1983:

(1) the deposit by the Company of ₤7,000 from which the Land was purchased;
(2)the provision by the Company of the required revenue guarantee, which enabled the recovery of the construction costs of the Line;
(3)the specification in the 1916 Act of the freight rates to be paid by the Company and the proportion or part of such freight charges which, when paid, were to be credited to the Line; and
(4)the giving to the Commissioners of the powers specified in s. 17 of the 1916 Act.

It was submitted that all of these factors which were in existence before the repeal indicated that the Parliament intended to confer a right upon the Company and its successors, albeit one which was contingent upon future events.

Furthermore, it was submitted on behalf of the plaintiff that the Company had done all that it needed to in order to avail itself of these contingent rights.

I accept that the Company did all that was required on its part, or on the part of its successors and assigns, to establish an entitlement to the s. 17 rights in the event that the triggering circumstances specified in s. 17 arose. However, in my view, this was not enough to give APCL, as successor to the Company, an existing right as at the time of the repeal.

In my view, in order to have a “right” in the relevant sense, the necessary events which give rise to that right must have already occurred at the time of the repeal. As I have said, in this case the necessary triggering event giving rise to the s. 17 rights had not occurred at the time of the repeal.

In Abbott v Minister for Lands[8] the appellant, Abbott, purchased 40 acres of Crown land in 1871. He was registered as the owner in fee simple. In 1873, he took up a conditional purchase of 40 acres adjoining the land owned by him. Over time, he became the conditional purchaser of a further 200 acres of adjoining land. At this time, under the applicable legislation, Abbott had the right to apply for further conditional purchases of adjoining land up to a limit, without being subject to a residential requirement applying to others who might apply to purchase such additional land.
[8][1895] AC 425.

In 1884, the applicable legislation was repealed, subject to a saving provision, and substantially re-enacted. However, the re-enactment imposed a residential requirement upon any further application which a person in the position of Abbott might make for additional conditional purchases of land adjoining that which he already owned.

In 1892, Abbott applied for the conditional purchase of further land adjoining his combined holding which had been formed by the purchases already mentioned. However, Abbott did not satisfy the residential requirement which had been imposed in 1884 when the previous legislation had been repealed. In these circumstances, the application by Abbott for the conditional purchase of further adjoining lands was refused.

It was contended on behalf of Abbott that he had purchased his combined holding of land under a legislative regime which entitled him to make further conditional purchases in the absence of a residential requirement. In these circumstances, it was contended on his behalf that he had an accrued right which was the subject of the relevant saving provision in the repealing Act, which provided:

“All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal.”

The Privy Council rejected the arguments on behalf of Abbott. The fact that Abbott had not applied for the further conditional purchases before the repeal of the legislation which gave him an entitlement to do so, without being subject to the residential requirement, was conclusive. In this regard, the Lord Chancellor, who delivered the judgment on behalf of the Privy Council said[9]:

“It may be, as Windeyer J observes, that the power to take advantage of an enactment may without impropriety be termed a ‘right’. But the question is whether it is a ‘right accrued’ within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words ‘obligations incurred or imposed’. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a ‘right accrued’ within the meaning of the enactment.”

[9][1895] AC 425 at 431.

In my view, it is clear when the facts of Abbott v Minister for Lands are examined, that the “act done by an individual towards availing himself of that right” spoken of by the Lord Chancellor was a reference to the fact that Abbott had not made his application for further conditional purchases prior to repeal. In other words, the event which would have given him an entitlement to make conditional purchases without being subject to a residential requirement, as provided for in the repealed Act, had not occurred at the time of repeal.

The decision in Abbott v Minister for Lands was followed by the Full Court of this court in Total (Australia) Ltd v Registrar of Companies[10]. In that case, the applicable companies legislation provided that, if a foreign company increased its capital, it should, within one month after such increase, lodge with the Registrar a notice of the increase. If that was done, no fee was payable on the lodging of the notice. Total, which was a foreign company, did increase its capital. But it did not lodge the notice of increase within the one month period specified. Before the late notice was lodged, the legislation was changed to provide for fees to be payable on the lodging of such a notice. At the time, the relevant saving provision was contained in s. 7(2)(c) of the Acts Interpretation Act 1958.
[10][1969] VR 821.

The Full Court, based on the reasoning in Abbott v Minister for Lands[11], held that Total should pay the fee payable under the amended companies legislation. After referring to Abbott v Minister for Lands with approval, the Full Court said[12]:

“Nor, in our opinion, was there a ‘liability’ of such a kind as the sub-section speaks of, which was not to be affected by the fact of the amending Act imposing a fee where no fee had been imposed before, for, as the present Windeyer J, said in Ogden Industries Pty Ltd v Lucas[13], the word ‘liability’ in this provision ‘describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of the past events create a completed liability.’ No liability pertaining to a fee had been incurred by the appellant in the absence of any lodging by it of the statutory notice. It needed such a lodging before there could come into existence a liability in respect of a fee of such a complete character that the provision of the Acts Interpretation Act would save it from being affected by the amendment.
Thus, in our view, no right to lodge the notice without fee, and no right against the Registrar to have him receive the notice without fee, and no liability to pay a fee could be said to have been ‘acquired, accrued or incurred’, within the meaning of s. 7(2) of the Acts Interpretation Act, in the absence of the appellant taking the step of lodging the notice.”

[11][1895] AC 425 at 431.

[12][1969] VR 821 at 823.

[13](1967) 41 ALJR 146 at 163.

In Boyce v Hughes[14] it was held that the appellant did have an accrued right before the relevant repeal. The case concerned a right granted under legislation to certain relatives of a tenant to continue residing in the leased premises after the death of the tenant, on the same terms that the tenant would have been entitled to continue in possession if the tenant had not died. The tenant died and the appellant was a relative within the specified class. After the death of the tenant, the relevant provision of the Act which gave the appellant the right to continue in possession of the leased premises was repealed. The trial judge found in favour of the landlord, and held that the situation was governed by the amended legislation. The appellant successfully appealed.
[14](1970) 72 SR (NSW) 54.

The Court of Appeal held that the appellant had an accrued right within the meaning of the applicable interpretation legislation, with the result that his rights under the repealed section had been saved. Sugerman P, with whom Asprey and Holmes JJA agreed, said[15]:

“Such a savings clause applies only to the specific rights given to an individual upon the happening of one or other of the events specified in the repealed statute – see per Atkin LJ in Hamilton Gell v White[16]. It had previously been said by Channell J, in Starey v Graham[17], that a ‘right acquired’ means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got.
It is not, however, essential in my opinion, although it commonly happens, that the acquisition or accrual of the specific right should occur by virtue of some act done on the part of the individual who acquires it or to whom it accrues. The right may be acquired or accrue by reason of the happening of any event specified by the statute which is independent of the act of the individual concerned... In the present case the event on which the right was acquired or accrued under s. 83A of the Landlord and Tenant (Amendment) Act was the death of Mrs Clements. This was coupled with the circumstance that the plaintiff had resided with Mrs Clements, the lessee, for a period of not less than two years immediately before her death, and was thus one of the classes of persons qualified to acquire a right to continue in possession under the section as it then stood.” (Emphasis added.)

[15](1970) 72 SR (NSW) 54 at 56-7.

[16][1922] 2 KB 422 at 431.

[17][1899] 1 QB 406 at 411.

As can be seen from the emphasised words in the passage quoted, the fact that the person claiming the accrued right has done all he, she or it is required to do in order to take advantage of the right is not conclusive if, as here, the happening of the relevant event is independent of the actions of the person claiming the right.

Boyce v Hughes was approved by the High Court in Mathieson v Burton[18].
[18](1971) 124 CLR 1.

An accrued right may exist for the purposes of saving provisions such as those under consideration in this case where the facts which have occurred at the time of the relevant repeal are sufficient to give rise to a cause of action or something in the nature of a cause of action. For example, in Free Lanka Insurance Co Ltd v Ranasinghe[19] the Privy Council considered an amendment to the Motor Car Ordinance 1938 of Ceylon. Under s. 133 of that Ordinance, a person injured in a motor vehicle collision had a right to make a direct claim against the insurance company of the driver at fault if a notice of the proceeding against the insured driver was given to the insurer under s. 134 and the person injured was successful in his proceeding and was awarded damages.
[19][1964] AC 541.

The respondent was injured in a motor vehicle collision in March 1948. He sued the insured driver and gave the requisite notice under s. 134. His action against the insured driver at fault was determined in his favour on 24 September 1951 and he was awarded damages. However, on 1 September 1951, the relevant Ordinance had been repealed and replaced by the Motor Traffic Act 1951. The 1951 Act contained, as an essential condition of a claim against the insurer, a condition which the respondent could not meet.

The District Court and the Supreme Court of Ceylon each found in favour of the respondent. They found that, at the time of the repeal of the Motor Car Ordinance, the respondent had an accrued right to receive payment from the appellant, who was the insurer of the driver at fault. This was so notwithstanding that the respondent had not commenced proceedings against the appellant insurer until September 1957.

The judgment of the Privy Council was delivered by Lord Evershed. His Lordship said[20]:

“The Board respectfully agrees with the Supreme Court in thinking that the respondent had, on September 1, 1951, ‘acquired a right’ against the appellants within the meaning of paragraph (b) of that sub-section.[21] ... The distinction between what is and what is not ‘a right’ must often be one of great fineness. But their Lordships agree with Gunasekaraj in thinking that on September 1, 1951, the respondent had as against the appellants something more than a mere hope or expectation – that he had in truth a right, within the contemplation of s. 6(3)(b) of the Interpretation Ordinance, under s. 133 of the Ordinance of 1938 although that right might fairly be called inchoate or contingent. In Director of Public Works v Ho Po Sang[22] the Board was concerned with an analogous problem under the language (closely approximating to that of the Ceylon Interpretation Ordinance) of the Interpretation Ordinance of Hong Kong. Their Lordships are well content to accept and adopt the language used by Lord Morris of Borth-y-Gest in the judgment of the Board in that case[23]: ‘It may be... that... a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected or preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.’ In the present case, as it seems to the Board, the appellants cannot now be heard to say that the respondent was not immediately after the accident an injured third party entitled to recover damages against [the insured driver] and, as they think, his service upon the appellants of the notice of his claim (together with a copy of his plaint) pursuant to section 134 of the 1938 Ordinance was an assertion by him of his statutory right against the appellants; and nonetheless effectively so because the quantum of his claim was dependent upon the finding of the court in a decree made in his favour in his action against [the insured driver].”

[20][1964] AC 541 at 551-2.

[21]This was a reference to s. 6(3) of the Ceylon Interpretation Ordinance 1900, which provided:

(3) Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected....

(b)any right... acquired or incurred under the repealed written law;...”

[22][1961] AC 901.

[23][1961] AC 901 at 922.

In my view, the Free Lanka Insurance case does not stand for the general proposition that any form of contingent or inchoate right will constitute a right for the purposes of the saving provisions under consideration. In that case, prior to the repeal of the Motor Car Ordinance, the respondent had an existing cause of action against the insured driver. Although not adjudicated upon by a court at the time of repeal, the negligence of the insured driver and the consequent injury to the respondent had already occurred. Accordingly, even though the event which gave rise to the entitlement to payment from the insurer was the making of a decree by a court in respect of the liability of the insured driver, the cause of action giving rise to that decree had already occurred prior to the repeal in question. Further, the respondent had given the requisite notice to the insurer under s. 134 of the Ordinance, notifying the insurer of the commencement of his proceeding against the insured driver seeking a decree. This is to be contrasted with the present case, where the triggering event depends for its occurrence upon facts which had not, on any view, occurred as at the time of the repeal in 1983.

In Director of Public Works v Ho Po Sang[24], the Privy Council held that the making of an application for the exercise of an administrative discretion did not, even where a beneficial exercise of discretion was to be expected, give rise to an accrued right which survived the repeal of the relevant legislation. The case concerned premises in Hong Kong. The second appellant (“the lessee”) was the Crown lessee of the premises. The respondents were tenants and sub-tenants. The lessee applied for the renewal of his lease. A memorandum of agreement for renewal was signed. It provided that the lessee was to develop the site by erecting new buildings on it within a certain time. Once these new buildings were erected, the lessee was to have a new lease.
[24][1961] AC 901.

The premises were the subject of a Landlord and Tenant Ordinance which provided that if the first appellant, the Director of Public Works, gave a rebuilding certificate, the lessee was entitled to call on the respondent tenants to quit the premises. The lessee applied for a rebuilding certificate and was notified by the Director of Public Works of his intention to give him a certificate. This notification generated a statutory obligation under the Ordinance for the lessee to serve notices on the respondent tenants. In turn, the respondent tenants appealed to the Governor in Council and the lessee cross-appealed.

Before the appeal and cross-petition were determined by the Governor in Council, the relevant provisions of the Ordinance, which gave the lessee the entitlement to call on the respondents to quit the premises if a rebuilding certificate was issued by the Director of Public Works, were repealed. At the time of the repeal, no rebuilding certificate had been issued and no entitlement had arisen in the lessee to require the respondent tenants and sub-tenants to quit the premises.

On behalf of the lessee, it was contended that he had an accrued right to a rebuilding certificate and, as a result, an accrued right to vacant possession of the premises, as at the time of the repeal. The Privy Council disagreed. It was held that the lessee had no more than a hope that a rebuilding certificate would be given and that he would thereby acquire a right to vacant possession of the premises.

The judgment of the Privy Council was delivered by Lord Morris of Borth-y-Gest. Lord Morris said[25]:

“It is to be observed that under s. 10(e)[26] a repeal is not to affect any investigation, legal proceeding or remedy ‘in respect of any such right.’ The right referred to is the right mentioned in s. 10(c), ie, a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of s. 10 does not and cannot operate unless there is a right as contemplated under paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.”

Lord Morris continued[27]:
“... the procedural steps which had been taken as a preliminary to obtaining a decision of the Governor were not invalidated: they were, however, rendered abortive, for the repeal ended the hope or possibility of being given a rebuilding certificate. The lessee enjoyed no right which was kept alive. He did not have any right even of a contingent nature.”

[25][1964] AC 901 at 922.

[26]Section 10 of the Interpretation Ordinance of Hong Kong provided: “The repeal of any enactment shall not - .... (c) affect any right, privilege... acquired, accrued or incurred under any enactment so repealed; ... (e) affect any investigation... in respect of any such right.”

[27][1961] AC 901 at 924.

Lord Morris then considered the case of Hamilton Gell v White[28] in which it was found that there was an accrued right[29]. His Lordship continued[30]:

“The difference between that case and the present is that in that case a right existed and the investigation, which was unaffected, was an investigation in respect of it; whereas in the present case no right existed or had accrued, and the intended investigation which had not taken place before the time of the repeal (i.e., the consideration by the Governor in Council) was an investigation in order to decide whether a right should or should not be given. It was not itself a right or privilege which was preserved by the Interpretation Ordinance.”

[28][1922] 2 KB 422.

[29][1901] AC 901 at 925-6.

[30][1901] AC 901 at 926.

The decision of the Privy Council in Director of Public Works v Ho Po Sing was approved by a Full Court of this court in Robertson v City of Nunawading[31].
[31][1973] VR 819 at 825-6.

In Esber v The Commonwealth[32] the High Court considered, in an administrative law setting, whether an application for review of an allegedly “wrong” decision made under a Commonwealth Act constituted an accrued right to have the application determined under the legislation as it stood at the time the application for review was made. The case concerned an application by the appellant who was a former member of the defence forces. As a result of injury suffered by him whilst he was a member of the defence forces, he was in receipt of compensation payments which exceeded $50 per week. These payments were payable to him under the Compensation (Commonwealth Government Employees) Act (1971) (Cth) (“the 1971 Act”). Pursuant to s. 49 of the 1971 Act, he applied to redeem his weekly payments so that he might receive a lump sum in lieu thereof. The application for redemption was rejected by the responsible officer. The appellant appealed to the Commonwealth Administrative Appeals Tribunal. After the application for review was made, but before it was heard by the AAT, the 1971 Act was repealed and replaced by the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”). The 1988 Act provided that weekly payments of compensation over $50 were not redeemable.
[32](1992) 174 CLR 430 at 440.

Section 8 of the Acts Interpretation Act 1901 (Cth) provided that, unless the contrary intention appeared, an Act repealing a former Act would not “(c) affect any right... acquired under any Act so repealed” or “(e) affect any investigation, legal proceeding or remedy in respect of any such right...”

It was held by Mason CJ, Deane, Toohey and Gaudron JJ (Brennan J dissenting) that the 1971 Act applied to the application for review. The majority said[33]:
[33](1992) 174 CLR 430 at 440-1.

“... at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Part V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision. ...
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister [the Winbar Claim]:
‘The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.’

Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘although that right may fairly be called inchoate or contingent’. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.” (Emphasis added.) (Citations omitted.)

The decision in Esber v The Commonwealth is not, in my view, authority for the proposition that any inchoate or contingent right will satisfy the requirement of saving provisions of the kind under consideration for there to be an existing right at the time of the relevant repeal. Not only did the majority describe the right in question as “a right in existence at the time the 1971 Act was repealed”, but the reference to inchoate or contingent rights was made with reference to the Free Lanka Insurance case. In my view, as their footnote reveals, the majority were referring to an inchoate or contingent right in the sense discussed in the Free Lanka Insurance case, and in Ho Po Sang, as discussed above. The majority seemed to have regarded the application for review as setting in train a process of defining and quantifying the rights of the appellant by reference to facts which had already occurred and which were before the delegate at the time of his decision. This is to be contrasted with this case, where the contingent or inchoate right relied upon is contingent upon events which, at the time of the repeal, were yet to occur.

On behalf of the plaintiff, reliance was placed upon Re Commissioner for Railways[34]. It was submitted that this case was authority for the proposition that, where the person claiming that a contingent or inchoate right has survived a repeal has done all that the person is required to do to effectuate those rights, the rights become substantive accrued rights. In my view, reliance upon this case was misplaced. It is a decision which is consistent with the authorities discussed above and does not assist the plaintiff to establish that the s. 17 rights were accrued or existing rights at the time of the repeal.
[34][1998] 2 Qld R 339.

In Re Commissioner for Railways, s. 222(1)(a) of the Electricity Act 1976 (Qld) prohibited an Electricity Authority from erecting electricity lines on or over a railway which was vested in the Commissioner for Railways, except in terms of an agreement made between the Electricity Authority and the Commissioner for Railways. Section 222(1)(b) provided that, where such an agreement was made, the Commissioner for Railways could require the Electricity Authority to remove or relocate the electricity lines erected pursuant to such agreement in terms of that agreement and, if there was no contrary provision in the agreement, that such removal or relocation should be at the cost of the Electricity Authority.

The respondent was an Electricity Authority. With the consent of the Commissioner, the respondent erected electricity lines over railway land. At the time of the consent, there was no formal agreement. A later agreement governing the existence of the electricity lines on railway land was the subject of argument as to whether or not its provisions were sufficiently certain to be enforceable. Accordingly, de Jersey J considered the matter on the basis that the consent to the original installation of the electricity lines was an agreement for the purposes of s. 222.

The applicant Queensland Rail (as successor to the Commissioner for Railways) no longer required the relevant land for railway purposes. It sought, by originating summons, a declaration that the respondent Electricity Authority was required to remove the electricity lines at its own cost.

Some years before the hearing of the application, the Electricity Act 1976 (Qld) had been repealed by the Electricity Act 1994 (Qld). The comparable provision of the 1994 Act was differently expressed and may have led to different consequences, if it was the applicable statute to apply. The new provision was contained in s. 108 of the 1994 Act. It differed from s. 222 of the 1976 Act in that the right of a “railway operator” to require “an electricity entity” to remove or relocate electricity lines was governed by the agreement between them, with no absolute right to require removal being given to the “railway operator”. It appears that the differences between s. 222 of the 1976 Act and s. 108 of the 1994 Act have been mistakenly described by de Jersey J in his judgment[35].
[35][1998] 2 Qd R 339 at 345.

The material question in the case was whether the right of the Commissioner to require the removal of the lines, at the cost of the Electricity Authority, was a “right acquired” within the meaning of s. 20(2)(c) of the Acts Interpretation Act 1954 (Qld) or was a mere power to communicate a requirement for removal of electricity lines, which power ceased to exist on the repeal of the 1976 Act. In this regard, de Jersey J said[36]:

“The act or circumstance on which the applicant relies here is the Commissioner’s agreement to the laying down of the electric lines, under s. 222(1)(a), an agreement which gave rise then to the Commissioner’s right to require removal under subs.(1)(b). Mr Morris submitted however that prior to communication of that requirement, no right was acquired.
In my view, the Commissioner relevantly ‘took advantage’ of this statute by agreeing under s. 222(1)(a) to the laying of the electric lines. He then gained an ‘inchoate’ (cf. Free Lanka Insurance Co Ltd v Ranasinghe [1964] A.C. 541, 552, Esber at 440) right to the removal of the lines, a right which he would assert by communicating his requirement. The right arose by force of subs.1(1)(a), upon the agreement to the laying: that to pursue the right, the Commissioner needed to assert his requirement, does not mean that that right was not a substantive right available for exercise by the Commissioner. See the observations in Director of Public Works v Ho Po Sang [1961] A.C. 901, 922.
I therefore accept the submissions made for the applicant.” (Emphasis added.)

[36][1998] 2 Qd R 339 at 345-6.

Mr Hanks QC, on behalf of the plaintiff, seized upon the reference by de Jersey J to the Commissioner taking advantage of the statute (which he compared to the Company depositing ₤7,000 with the Treasurer in order to take advantage of the 1916 Act) and his Honour’s reference to inchoate rights. However, in my view, the decision in Re Commissioner for Railways is entirely consistent with the authorities canvassed above. In that case, as de Jersey J stated and as I have emphasised, once the Commissioner agreed to the laying of the electricity lines, he acquired then the right under s. 222 of the 1976 Act to require their removal. Although the Commissioner needed to convey his requirement, the right giving rise to so require pre-existed the repeal in 1994.

Based on the above authorities, I find that, at the time of the repeal in 1983, the plaintiff’s predecessor APCL did not have an existing right which was saved by s. 254(2) of the Transport Act 1983, s. 14(2)(e) of the Interpretation of Legislation Act 1984 or the common law. This is because the s. 17 rights do not arise until the happening of the triggering event specified in s. 17. That event is the formation by the Commissioners (or their successors or assigns) of the opinion, after the expiration of the 15 year guarantee, that the revenue of the Line has ceased for a period of three years to be sufficient to pay for the maintenance and working expenses of the Line. It is accepted that this event had not occurred at the time of the repeal in 1983.

In my view, the subsequent repeal of the repeal by s. 4(2) of the Statute Law Revision Act 1984, and the subsequent repeal of that Act by the Statute Law Revision Act 1995, do not have the effect of reviving the s. 17 rights which were abolished by the repeal in 1983. Section 4(2)(a) expressly states that the repeal of any provision of any Act by sub-section (1) shall not:

“(a)revive any Act or provision of any Act repealed by the repealed Act or provision;
...
(c)revive anything not in force or existing at the time which the repeal becomes operative;
...”

Nor can the repeal of these provisions of the Statute Law Revision Act 1984, by the Statute Law Revision Act 1995, have the effect of reviving the s. 17 rights. As I have said, those rights were extinguished by the repeal in 1983.

Trust Claims

On behalf of the plaintiff, it was argued that if, as I have found, the s. 17 rights were abolished by legislation, it would in any event be inequitable for the defendant to deny the plaintiff an interest in the Land. This contention was put in three ways. First, it was submitted that the circumstances gave rise to a “Quistclose” trust.[37] The basis of this submission was that the Land was acquired by the Commissioners in circumstances which gave rise to a “primary” trust in favour of the Company and, as the purpose of that primary trust no longer exists, a “secondary” resulting trust arises. In this regard, the only authority cited or relied upon was Re Australian Elizabethan Theatre Trust[38].
[37]A reference to Barclay’s Bank Ltd v Quistclost Investments Ltd [1970] AC 567.
[38](1991) 30 FCR 491.

Secondly, it was contended that the payment by the Company of the whole of the purchase price of the Land, together with the registration of the Land in the name of the Commissioners, gave rise to a “conditional resulting trust” under which the Commissioners held the Land on a resulting trust for the Company subject to the terms of the 1916 Act. Reliance was placed upon Dyer v Dyer[39] and Calverley v Green[40].
[39](1788) 2 Cox 92.
[40](1984) 155 CLR 242.

Thirdly, it was contended on behalf of the plaintiff that, notwithstanding the repeal of the 1916 Act as amended, it was unconscionable for the defendant to rely upon its legal ownership of the Land. Reliance was placed upon Muschinski v Dodds[41].
[41](1985) 160 CLR 583.

As to the form of relief in the event that I held there to be a Quistclose or resulting trust, or that I find it is appropriate to impose a constructive trust, it was submitted that I should hear further argument, and perhaps evidence, as to the appropriate form of relief. In this regard, reference was made to the discussion of appropriate relief consequent upon the declaration of a constructive trust in Giumelli v Giumelli[42].
[42](1999) 196 CLR 101.

On behalf of the defendant, it was contended that I should not find, imply or impose any of the three trusts contended for by the plaintiff. It was submitted that the plaintiff had failed to establish the necessary elements of any of the trusts. Further, it was submitted that, even if the elements of one or more of the trusts was established, the participation by the Company in a statutory scheme such as that contained in the 1916 Act exposed the Company and its successors and assigns to the risk that the 1916 Act may be amended or repealed. This is what has occurred.

In my view, it is unnecessary to consider whether the elements of the trusts contended for have been established. I accept the submission put on behalf of the defendant that the sole repository of the contingent entitlement which the Company its successors and assigns had to obtain a transfer of the Land was contained in s. 17 of the 1916 Act. Accordingly, that contingent entitlement was at all times subject to the risk or hazard that Parliament might make amendments with respect to it, as was done by the 1934 Act and the 1961 Act, or might extinguish it altogether by repeal, as was done by the repeal in 1983. In reaching this view I have taken account of the doctrine of supremacy of Parliament[43], as confirmed by and recorded in s. 16 of the Constitution Act 1975 (Victoria). That section provides:

“16.The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.”

[43]Craies on Legislation (8^th Edition, 2004) at para 2.2.1.

This result may appear unjust. I recognise that, if the s. 17 rights had not been contained in a statute, but were to be found in a private agreement, arrangement or understanding between the Company and the Commissioners, there would be strong grounds for the common law or equity to intervene. However, the fact remains that the s. 17 rights are not the subject of a private agreement, arrangement or understanding between the Company and the Commissioners. Any such agreement, arrangement or understanding was superseded by the 1916 Act, which comprehensively recorded the rights, entitlements and obligations of the Company and the Commissioners in the event that the Company chose to make the £7,000 deposit referred to in s. 8 of the 1916 Act. The Company did not have to accept the position that its contingent entitlement to a transfer of the Land was contained in a statute. It could have insisted, as a condition of making the deposit, that a private agreement be made with the Commissioners which imposed on them the obligation to transfer the Land if the Line was closed. If that were done, termination or variation of such agreement would be a consensual matter.

In my view, by making the deposit of £7,000, as provided for in s. 8 of the 1916 Act, the Company chose to participate in the statutory scheme provided for in the 1916 Act. The Company was not obliged under the 1916 Act to make the £7,000 deposit. If it did not do so, then the Board would not have constructed the Line and the provisions of the 1916 Act, whilst in force, would have had no operation.

It follows that, by making the deposit of £7,000, the Company exposed itself to the risk or hazard to which I have referred – that Parliament might act so as to amend or repeal any of the provisions of the 1916 Act. This is what occurred. It would be inconsistent with the right of Parliament to amend or repeal legislation that it could extinguish the s. 17 rights by the repeal, and still be subject to the very same rights as conditions attaching to a trust or other remedial equity. The position may be tested in this way. Suppose that the 1916 Act contained an express provision that the Commissioners held the Land on trust for the Company, on terms that the Commissioners were obliged to transfer the Land to the Company in the circumstances specified in s. 17. The repeal of the 1916 Act in such circumstances would, in my view, extinguish the trust which was created by the repealed Act.[44]
[44]Maxwell v Murphy (1957) 96 CLR 261 at 266-7, per Dixon CJ; Esber v The Commonwealth (1992) 174 CLR 430 at 445, per Brennan J (dissenting in the result).

Conclusion

It follows that the plaintiff has not established any of the claims made in the proceeding. The proceeding must be dismissed. I will hear the parties as to costs.

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[2005] VSC 343

30 August 2005