Anderson v Commissioner of Highways - [2019] SASCFC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ANDERSON v COMMISSIONER OF HIGHWAYS
[2019] SASCFC 119
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
4 October 2019
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - ASSESSMENT
Appeal against the judgment of a judge of the Supreme Court.
The appellant had an interest in land acquired by the Commissioner of Highways under the Land Acquisition Act 1969 (SA) (the Act). He claimed to have suffered personal injury (in the nature of psychiatric injury) as a result of the acquisition and that the injury was not attributable to the compulsory nature of the acquisition. He seeks compensation for this loss.
Section 22B of the Act provides an entitlement to compensation if a person's interest is divested or diminished or enjoyment of the interest is adversely affected. Section 25 prescribes the principles applicable to the determination of the entitlement to compensation.
The appellant referred a question arising in the course of negotiations to the judge pursuant to s 23C of the Act. The question was whether a personal injury of the nature suffered by the appellant is compensable as loss arising under s 22B of the Act as qualified by the principles of compensation set out in s 25 of the Act. The judge answered the question in the negative.
The appellant appeals on one ground. The appellant submits that the judge erred in concluding that statutory compensation payable under the Act is limited to compensation for economic loss related to or arising in the appellant’s capacity as the holder of an interest in the acquired land and does not extend to damages for personal injury alleged to be caused by an acquisition.
Held, per Stanley J (Blue J and Kelly J agreeing):
1. The judge correctly found that compensation provided under the Act does not extend to compensation for personal injury arising from acquisition of land.
2. Appeal dismissed.
Land Acquisition Act 1969 (SA) ss3, 6, 10, 12, 12A, 14, 15, 16, 22B, 23, 23A, 23C, 24, 25; Highways Act 1926 (SA) s 20; Real Property Act 1886 (SA) s 14; Compulsory Acquisition of Land Act 1925 (SA) ss 7, 12, 9; Public Works Act 1912 (SA) s 51; Land Acquisition Act 1978 (NT), referred to.
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, applied.
Northern Territory V Griffiths [2019] HCA 7, distinguished.
Brewarrana Pty Ltd v Commissioner of Highways (1973) 4 SASR 476; Anderson v Commissioner of Highways (No 2) (2018) 131 SASR 437; Commissioner of Highways v George Eblen (1975) 10 SASR 384; South Australian Land Commission v Bletas (1978) LSJS 344; Marshall v Director-General, Department of Transport (2001) 205 CLR 603; Carr v Western Australia [2007] HCA 47; Chadrysiak v Commissioner for Highways (2018) 132 SASR 277; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495; Grace Bros Pty Ltd v The Commonwealth (1946) 72 CLR 269; Caledonian Railway Company v Ogilvy [1856] UKHL 2; Lucas v The Chesterfield Gas & Water Board [1909] 1 KB 16; Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 143 CLR 351; k-Generation v Liquor Licensing Court (2009) 237 CLR 501; Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, discussed.
Thiess v Collector of Customs [2014] HCA 12; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, considered.

ANDERSON v COMMISSIONER OF HIGHWAYS
[2019] SASCFC 119
Full Court: Kelly, Blue and Stanley JJ
KELLY J:

I agree with Blue J and Stanley J that this appeal should be dismissed because a psychiatric injury that might be caused by the acquisition of a person’s interest in land is outside the scope of the compensation to which the person is entitled under s 22B of the Land Acquisition Act 1969 (SA). To the extent that there is a difference between the reasons of Blue J and Stanley J on other matters, it is not necessary for me to express an opinion to determine this appeal and I prefer not to do so.
BLUE J:
I agree with Stanley J that this appeal should be dismissed. This is for the following reasons.
The question turns in my view on the construction of section 22B and the relationship between section 25 and section 22B of the Land Acquisition Act 1969 (SA) (the Act) rather than on the construction of section 25 itself.
Section 22B provides:
22B—Entitlement to compensation
Subject to this Act, a person is entitled to compensation for the acquisition of land under this Act if—
(a) the person's interest in land is divested or diminished by the acquisition; or
(b)the enjoyment of the person's interest in land is adversely affected by the acquisition.
Section 25 provides:
25—Principles of compensation
(1)The compensation payable under this Act in respect of the acquisition of land shall be determined according to the following principles:
(a)     the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land; and
(b)     in assessing the amount referred to in paragraph (a) of this section consideration may be given to—
(i)    the actual value of the subject land; and
(ii)the loss occasioned by reason of severance, disturbance or injurious affection; and
(c)     compensation shall be fixed as at the date of acquisition of the land; and
(d)     where the claimant's interest in the subject land was liable to expire or be determined, any reasonable prospect of renewal or continuation of the interest must be taken into account; and
(e)     any special suitability or adaptability of the land for any purpose shall not be taken into account if it could be applied to that purpose in pursuance only of statute, or if the suitability or adaptability is peculiar to the purposes or requirements of a particular person or of any Governmental or local governing authority but any bona fide offer to acquire the land made before the passing of the special Act shall be taken into account; and
(f)    where the value of the land is enhanced by reason of its use, or the use of any premises on the land, in a manner that may be restrained by any court, or is contrary to law, or is detrimental to the health of any persons, the amount of that enhancement shall not be taken into account; and
(g)     no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person; and
(h)     no allowance shall be made for any enhancement or diminution in the value of the land in consequence of—
(a)the passing of the special Act; or
(b)the acquisition under this Act of any other land; or
(c)any proposed or expected development of the land after its acquisition; and
(i)    where the land is, and but for acquisition would continue to be, devoted to a particular purpose, and there is no general demand or market for land devoted to that purpose, the compensation may, if reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement; and
(j)    allowance shall be made in favour of the Authority for any enhancement in value of land adjoining the subject land in which the claimant is interested by reason of development of the land after its acquisition, but in no case shall the claimant be liable to make any payment to the Authority in respect of such enhancement in value; and
(k)     where a notice of intention to acquire land has been served upon a person interested in the land, any sales, transactions, arrangements, licences or approvals effected or obtained with respect to the land, and any improvements to the land effected, after service of the notice, shall not be taken into account unless it is proved that they were effected or obtained bona fide.
(2)The reference to “loss” in subsection (1)(a) extends, in the case of acquisition of native title, to diminution, impairment or other adverse effect on native title that results or will result from the acquisition project.¹
(3)Subject to subsections (1) and (2), the total compensation payable for the acquisition of native title must not exceed the amount that would be payable for the acquisition of an estate in fee simple in the relevant land.
(4)A reference in this section to a claimant is limited to a claimant who is entitled to compensation.²
Notes—
1 Compare section 51(1) of the Native Title Act 1993 (Cwth).
2 See section 22B.
On its proper construction, section 22B does not, as the appellant submits, merely address in a binary way the standing of a person to be paid compensation. Rather, as the respondent submits, section 22B identifies – and hence limits – the subject matter for which a person is to be paid compensation, namely compensation for the acquisition of the person’s interest in land which is divested, diminished or the enjoyment of which is adversely affected by the acquisition. If the acquisition or the acquisition process causes the person to suffer a psychiatric injury, that injury is separate and distinct from the person’s interest in land divested, diminished or the enjoyment of which is adversely affected by the acquisition and outside the scope of the compensation to which the person is entitled under section 22B.
Starting with the text of section 22B, it provides that “a person is entitled to compensation for the acquisition of land under this Act” if one of the conditions in paragraph (a) or (b) is satisfied. This is the provision which on its face creates the entitlement to compensation and it expressly provides that the compensation is “for the acquisition of land” (emphasis added). It does not provide that the compensation is for loss suffered as a result of the acquisition of land. It is not confined merely to identifying who has standing to receive compensation: that is but an aspect of its role defining the subject matter for which compensation is payable.
The alternative conditions contained in paragraphs (a) and (b) can be stated compendiously as that the person's interest in the land is divested or diminished or enjoyment thereof is adversely affected by the acquisition. This supports the construction that it is the divestment, diminishment or loss of enjoyment of the interest in the land that is the subject of compensation as opposed to any more general loss suffered as a result of the acquisition of the land.
The essential concept of compensation under section 22B is that the compensation is consideration for the acquisition of the person’s interest in the land and that consideration is fixed such that the person is compensated for the monetary value of the loss suffered by reason of the loss or diminution of that interest and of the person’s enjoyment thereof. In the simplest case when the person’s ownership of the entire land is acquired, the starting point for determining the loss will usually be the market value of the land. That person’s ownership of the land may have a special value to that person which exceeds the market value, in which case the loss will usually encompass that special value. The acquisition itself may entail that the person is required to incur costs in purchasing replacement land, in which case the loss will usually encompass those costs. The concept of loss suffered by reason of the divestment or diminution of the person’s interest in land and enjoyment thereof does not extend to loss resulting from any personal injury the person might suffer as a result of the acquisition or acquisition process: that loss would be the result of a separate event over and above the acquisition for which the person is to be compensated under section 22B.
Turning to the context of section 22B within Part 4 Division 2 of the Act, that Division is entitled “Compensation”. Section 22B is its first section and addresses the entitlement to compensation. Sections 23 to 23C address the negotiation of compensation, the requirement for the acquiring authority to make an offer of the compensation it is prepared to pay and to pay that amount into court and determination by the Court of questions arising in the course of negotiations. Section 25 addresses principles on which compensation payable under the Act is to be determined. None of the other sections in the Division purport, as does section 22B, to confer an entitlement to compensation or define the subject matter of the compensation. This reinforces the construction that it is section 22B which performs those functions. In addition, there is nothing in any other section of the Division which is inconsistent with section 22B operating in the manner suggested by its text to create the entitlement to compensation and provide that the compensation is for the acquisition of land as opposed to loss suffered as a result of the acquisition of land.
Dealing with section 25 more particularly, it may be accepted, as has been held by single Judges of this Court,[1] that the first principle for the determination of compensation contained in section 25(1)(a) that the compensation shall be such as adequately compensates the claimant for any loss suffered by reason of the acquisition is not limited to the two matters set out in the second principle contained in section 25(1)(b). However, section 25 only purports to set out principles in accordance with which compensation is to be determined: it does not purport to confer an entitlement to compensation or define the subject matter of the compensation: this function is performed instead by section 22B. Thus, under the first principle the compensation to compensate the claimant for loss suffered by reason of the acquisition is limited by reason of section 22B to compensation for the acquisition of the person’s interest in land which is divested, diminished or the enjoyment of which is adversely affected by the acquisition.
[1] Commissioner of Highways v George Eblen Pty Ltd (1975) 10 SASR 384 at 390 per Wells J; South Australian Land Commission v Bletas (1978) LSJS 344 at 347 per Wells J; Commissioner of Highways v Tynan (1982) 54 LGRA 1 at 5 per Wells J; Chadrysiak vCommissioner of Highways [2018] SASC 77 at [67] per Blue J.
Turning to the context of section 22B within the Act more generally, section 3 provides that “The object of this Act is to provide for the acquisition of land on just terms”. This is not inconsistent with the above construction of section 22B as confining the entitlement to compensation for the acquisition of land and supports that construction by referring to providing for the “acquisition of land” on just terms.
Turning to the historical context, the appellant accepts that the Act’s predecessor, namely the Compulsory Acquisition of Land Act 1925 (SA), was confined to compensation for the acquisition of the land and did not extend to compensation for any personal injury suffered as a result of the acquisition or acquisition process. Although the historical context is of limited relevance, there is nothing in the Act that indicates that the legislature intended to depart from that approach.
Turning to the Parliamentary context, there is nothing in the second reading speech given by the Minister that is inconsistent with or calls into question the above construction. The following passage from the second reading speech supports a construction that compensation is for taking land as opposed to an injury separate and distinct from the person’s interest in land being divested or affected:
This Bill deals, and is intended to deal, only with procedures and compensation for taking land. The Land Acquisition (Legislation Review) Committee, which recommended this Bill, had before it some submissions relating to the need to provide compensation for losses suffered by persons whose land had not been taken for announced public works projects, but who, in some way (often indirectly), had suffered other losses or disadvantageous consequences either as the result of the announcement of a project or as the result of its execution. Those other losses or consequences are not, in the opinion of the committee and of the Government, susceptible of legislative cure of the kind embodied in the land acquisition legislation.
Both the committee and the Government are firmly of the opinion that the solution to the problem of the special sort of losses referred to must be found either in administrative action or in legislation of a social nature specifically directed to the social problems involved, of which monetary compensation is only one. Whether administrative action is taken or social legislation is introduced, the adequacy of the solutions attempted will best be debated as separate issues in Parliament.
Turning to evident purpose, the evident purpose of section 22B, and of the Act as a whole, is to provide compensation for the acquisition of a person’s interest in land which is divested, diminished or the enjoyment of which is adversely affected by the acquisition. This evident purpose does not extend to compensation for a psychiatric injury caused by the acquisition or acquisition process. Section 25 does not identify or define the subject matter of the compensation but merely sets out principles in accordance with which the determination of compensation is to be made.
For these reasons, the appeal should be dismissed.
STANLEY J:
Introduction
This is an appeal from the judgment of a judge of the Court.
The appellant held an interest in land that was acquired by the Commissioner of Highways under the Land Acquisition Act 1969 (SA) (the Act). He claimed to have suffered personal injury as a result of the acquisition. He seeks compensation for this loss.
The appellant referred a question arising in the course of negotiations to the judge pursuant to s 23C of the Act. The question referred to the Court was whether a personal injury of the nature suffered by the appellant is compensable as loss arising under s 22B of the Act as qualified by the principles of compensation set out in s 25 of the Act.
The judge answered the question in the negative.
The land was acquired by the Commissioner of Highways under the Act so as to enable the undertaking of major road works. The appellant contended that he suffered psychiatric injury as a consequence of the acquisition and further contended that the injury was not attributable to the compulsory nature of the acquisition.
The significance of that contention lies in the terms of s 25(1)(g) of the Act which provides that, in determining compensation, no allowance shall be made on account of the fact that the acquisition is effective without the consent, or against the will, of any person.
The appellant submits that the judge erred in concluding that statutory compensation payable under the Act is limited to compensation for economic loss related to or arising in the appellant’s capacity as the holder of an interest in the acquired land and does not extend to damages for personal injury alleged to be caused by an acquisition.
Background
The background to the appellant’s application for compensation is set out in the judge’s reasons for decision on his ruling that the interests of justice would be best served by answering, as a preliminary point, the question of whether or not personal injury is compensable under the Act.[2] His Honour said:[3]
For many years the parents of the applicant owned a home on Main South Road at Bedford Park (“the Property”). The Property has been compulsorily acquired by the Commissioner for the purpose of undertaking major road works. Compensation has been paid to the applicant’s parents and they have moved to another home in a nearby suburb.
The applicant is now aged 43 years. From 1980 to 2002 he resided with his parents at the Property and operated home businesses from that address. From 2002 to 2009 the applicant resided elsewhere in Adelaide but still attended at the Property on a daily basis for the purpose of conducting his home businesses. The applicant married in 2007 but separated in November/December 2015. In 2009 the applicant resumed living at the Property with his wife and two children and continued to conduct his business activities at and from the Property. The two businesses conducted by the applicant have been described as a vending machine business and a blind cleaning business.
The applicant contends that during the period from July 2014, being about the time that the Commissioner notified the applicant and his parents of the proposed acquisition, until May 2016 the applicant suffered from an adjustment disorder with post-traumatic stress disorder type symptoms including anxiety, mental stress, forgetfulness, insomnia, depression, feelings of hopelessness and helplessness and suicidal ideations. The applicant further contends that this injury was caused by factors other than the acquisition process being made without his consent or against his will. The latter contention is of particular importance given that s 25(1)(g) of the Act provides that, in determining compensation, no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person.
[2] [2018] SASC 13.
[3] [2018] SASC 13 at [5]-[7].
The Act and the statutory scheme for the compulsory acquisition of land

The Act repealed the Compulsory Acquisition of Land Act 1925 (SA) (the repealed Act). By s 3 of the Act its object is to provide for the acquisition of land on just terms. The Act provides a mechanism by which the State can compulsorily acquire land required in the public interest. The Act further provides an entitlement to compensation where land is compulsorily acquired. The sole statutory source of the entitlement to compensation for the acquisition of land under the Act is to be found in s 22B. The Act establishes machinery for the purposes of awarding such compensation. Section 25 of the Act prescribes the principles applicable to the determination of the entitlement to compensation.
The Act operates where other legislation (special Acts) confer authority to compulsorily acquire land. For example, the respondent is authorised by s 20 of the Highways Act 1926 (SA) to acquire compulsorily any land or interest in land for the purposes of present or future road work. The mandatory procedure for the compulsory acquisition of land commences with a notice of intention to acquire the land given to each relevant person.[4] A caveat is entered upon the title of the land where the land is subject to the Real Property Act 1886 (SA).[5] Each person who has an interest in the land has a right to object to the acquisition[6] which is subject to review by the South Australian Civil and Administrative Appeals Tribunal (SACAT).[7] It is also possible for the land to be acquired by agreement.[8]
[4]    Section 10(1).
[5]    Section 14.
[6]    Section 12.
[7]    Section 12A.
[8]    Section 15.
A compulsory acquisition of land occurs by the publication of a notice of acquisition in the Government Gazette.[9] On publication the land vests in the acquiring authority to the extent of the interest specified in the notice.[10] Once that has occurred, the authority may commence the procedure to enter into possession of the acquired land.[11]
[9] Section 16(1).
[10] Section 16(2)(a).
[11] Section 24.
Subject to the Act, a person is entitled to compensation for the acquisition of land if the person’s interest in land is divested or diminished by the acquisition or the enjoyment of the person’s interest in the land is adversely affected by the acquisition.[12] An “interest” in land is broadly defined.[13] The Act facilitates negotiation and requires the acquiring authority to make an offer to all persons it believes to be entitled to compensation for the acquisition by paying the offered money into court.[14]
[12] Section 22B.
[13] Section 6(1).
[14] Section 23 and s 23A.
The Act enshrines principles to be followed in determining the compensation payable in respect of the acquisition of land.[15] The compensation payable to a claimant shall be such as adequately compensates the claimant for “any loss” that the claimant has suffered by reason of the acquisition of land.[16] In assessing compensation consideration “may” be given to the actual value of the subject land; and the loss occasioned by reason of severance, disturbance, or injurious affection.[17] A number of other principles are prescribed,[18] including that no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person.[19]
[15] Section 25(1).
[16] Section 25(1)(a).
[17] Section 25(1)(b).
[18] Section 25(1)(c)-(k).
[19] Section 25(1)(g).
The acquiring authority or a claimant may refer a question arising in the course of negotiations into Court.[20] The Court may make any order necessary to resolve the dispute, including to make orders for compensation that the Court finds to be justified on a claim.[21]
[20] Section 23C(1).
[21] Section 23C(2)-(3).
It is convenient to refer to the relevant provisions of the Act.
The relevant provisions of the Act
3—Object of this Act
The object of this Act is to provide for the acquisition of land on just terms.
6—Interpretation
(1)     In this Act, unless the contrary intention appears—
…
compensation means compensation to which a person is entitled under this Act, and includes the purchase price of land purchased by agreement;
…
interest in land means—
(a)     a legal or equitable estate or interest in the land; or
(b)     an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or
(c)     native title in the land;
Division 2—Compensation
22B—Entitlement to compensation
Subject to this Act, a person is entitled to compensation for the acquisition of land under this Act if—
(a) the person's interest in land is divested or diminished by the acquisition; or
(b) the enjoyment of the person's interest in land is adversely affected by the acquisition.
23A—Offer of compensation and payment into court
(1)When the Authority gives notice of the acquisition of land, it must make an offer to the person or persons whom it believes to be entitled to compensation for the acquisition, stating the amount of compensation the Authority is prepared to pay.
(2)The offer must (where appropriate) differentiate between, and quantify, the component of compensation representing the value of the acquired land and the component referable to disturbance or other compensable matters.
…
23C—Reference of matters into court
(1) The Authority or a claimant may refer a question arising in the course of negotiations into Court.
(2) On the reference of a matter into the Court, the Court may—
(a)     if of the opinion that the question should be the subject of further negotiation—adjourn the matter to allow further negotiation to take place; or
(b)     make any order necessary to resolve the question.
(3) In particular—
(a)     if there is a dispute about whether the claimant is interested in the subject land, or the nature of the claimant's interest—the Court may, subject to subsection (4), declare whether the claimant has an interest in the subject land and, if so, the nature of the interest; and
(b)     the Court may make orders for compensation that the Court finds to be justified on the claim; and
(c)     the Court may make other orders that may be just in the circumstances of the case.
…
25—Principles of compensation
(1) The compensation payable under this Act in respect of the acquisition of land shall be determined according to the following principles:
(a)     the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land; and
(b)     in assessing the amount referred to in paragraph (a) of this section consideration may be given to—
(i) the actual value of the subject land; and
(ii) the loss occasioned by reason of severance, disturbance or injurious affection; and
(c)     compensation shall be fixed as at the date of acquisition of the land; and
(d)     where the claimant's interest in the subject land was liable to expire or be determined, any reasonable prospect of renewal or continuation of the interest must be taken into account; and
(e)     any special suitability or adaptability of the land for any purpose shall not be taken into account if it could be applied to that purpose in pursuance only of statute, or if the suitability or adaptability is peculiar to the purposes or requirements of a particular person or of any Governmental or local governing authority but any bona fide offer to acquire the land made before the passing of the special Act shall be taken into account; and
(f)      where the value of the land is enhanced by reason of its use, or the use of any premises on the land, in a manner that may be restrained by any court, or is contrary to law, or is detrimental to the health of any persons, the amount of that enhancement shall not be taken into account; and
(g)     no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person; and
(h)     no allowance shall be made for any enhancement or diminution in the value of the land in consequence of—
(a) the passing of the special Act; or
(b) the acquisition under this Act of any other land; or
(c) any proposed or expected development of the land after its acquisition; and
(i)      where the land is, and but for acquisition would continue to be, devoted to a particular purpose, and there is no general demand or market for land devoted to that purpose, the compensation may, if reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement; and
(j)      allowance shall be made in favour of the Authority for any enhancement in value of land adjoining the subject land in which the claimant is interested by reason of development of the land after its acquisition, but in no case shall the claimant be liable to make any payment to the Authority in respect of such enhancement in value; and
(k)     where a notice of intention to acquire land has been served upon a person interested in the land, any sales, transactions, arrangements, licences or approvals effected or obtained with respect to the land, and any improvements to the land effected, after service of the notice, shall not be taken into account unless it is proved that they were effected or obtained bona fide.
(2) The reference to loss in subsection (1)(a) extends, in the case of acquisition of native title, to diminution, impairment or other adverse effect on native title that results or will result from the acquisition project.
(3) Subject to subsections (1) and (2), the total compensation payable for the acquisition of native title must not exceed the amount that would be payable for the acquisition of an estate in fee simple in the relevant land.
(4) A reference in this section to a claimant is limited to a claimant who is entitled to compensation.
Notes –
1 Compare section 51(1) of the Native Title Act 1993 (Cth).
2 See section 22B.
Principles of statutory construction
At issue is a question of statutory construction. It gives rise to a constructional choice. The principles applicable to the interpretation of statutes are conveniently set out in the joint judgment of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross.[22] Their Honours said:[23]
[22] [2012] HCA 56, (2012) 248 CLR 378.
[23] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognize that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
[Footnotes and citations omitted.]
In SZTAL v Minister for Immigration and Border Protection,[24] Gageler J said:[25]
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from” a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.
[Footnote omitted.]
[24] [2017] HCA 34, (2017) 262 CLR 362.
[25] [2017] HCA 34 at [38], (2017) 262 CLR 362 at 375.
The judge’s reasons
The judge analysed the statutory text, context and purpose of the relevant provisions of the Act. The judge considered that this analysis did not support the construction for which the appellant contends.
The judge found support for this analysis in this Court’s reasons in Brewarrana Pty Ltd v Commissioner of Highways.[26]Bray CJ considered the type of losses which are compensable as disturbance. The Chief Justice said that “disturbance has always been understood to relate to the disruption of, or interference with some business or process of living or some other activity carried on, or proposed to be carried on on the subject land”.[27] The judge considered that Bray CJ would not have intended the words “process of living … carried on on the subject land” to extend the right to compensation to cover personal injury. Wells J, in a passage also cited with approval by the judge, said:[28]
… you take the owner's land as you find it, with all its potentialities as land; you do not take the victim's indigence as it is or the owner's financial arrangements or profit-making adventures, in which the land happens to be fulfilling a role, as they are.
[26] (1973) 4 SASR 476.
[27] (1973) 4 SASR 476 at 484.
[28] (1973) 4 SASR 476 at 502.
The judge applied the observation of Wells J that the award of compensation must focus upon providing just compensation for the acquisition of an interest in land rather than the characteristics of the person who has been dispossessed.[29]
[29] Anderson v Commissioner of Highways (No 2) [2018] SASC 121 at [62], (2018) 131 SASR 437 at 453.
The judge considered that to extend the entitlement to compensation for the compulsory acquisition of land to loss suffered as a result of personal injury would have represented a fundamental change from the approach previously adopted to compensating those with an interest in land which has been compulsorily acquired. Had the legislature intended such an expansion in the entitlement to compensation the judge said it would be expected that this would have been unequivocally identified in the second reading speech. The failure to do so provided strong support for the conclusion that the payment of compensation for personal injury was not intended by the legislature.
The judge held that the Act is concerned with compensating a claimant for the loss of their interest in the land, rather than any personal injury he or she may have suffered, because each of the heads of compensation specified in the Act arise from either the diminution in value of the claimant’s interest in land as a result of the acquisition or the incurring of expenses by the claimant as a result of the acquisition, not from any personal injury arising from the acquisition. The terms of s 22B, which provides compensation is only payable to a person having an interest in land in their capacity as the holder of that interest, supports a construction of the expression “any loss” in s 25(1)(a) as excluding loss by way of personal injury. Further, the terms of s 25(1)(g) supports exclusion of compensation for a loss by way of personal injury arising from the acquisition of land. This construction is reinforced by the absence in the Act of administrative machinery for assessing personal injury loss.
Submissions on appeal
The appellant contends that the judge erred in his construction of s 25(1)(a) of the Act which provides that the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land. The appellant contends that the judge erred in adopting an unduly narrow construction of the phrase “any loss” which he contends extends to a loss suffered by reason of personal injury caused by the acquisition of the land. A more expansive construction of the expression “any loss” in s 25(1)(a) is consistent with the object of the Act, enshrined in s 3, to provide for the acquisition of land on just terms. It is also consistent with the established approach to the construction of remedial provisions.
The appellant submits that the judge erred in construing the words “any loss” as excluding loss by personal injury by relying on the reasoning of Bray CJ and Wells J in Brewarrana. The appellant submits that the judge did so without realising that Brewarrana related to the very different compensation provisions in the repealed Act. He characterises this as the primary error made by the judge.
The appellant submits that there are three fundamental differences between the Act and the repealed Act which are highly significant to the outcome of this appeal.
First, he contends the repealed Act contained no provision equivalent to s 3 of the Act. Second, he contends that the repealed Act had no compensation provision similar to s 25(1)(a) and did not otherwise mandate that “the compensation payable to a claimant shall be such as to adequately compensate him for any loss that he has suffered by reason of the acquisition of the land”. Third, he contends that the definition of “compensation” under the repealed Act was different from the definition of “compensation” under the Act.
The appellant contends that the definition of compensation in s 7 of the repealed Act, together with the categories of compensable matters referred to in s 12(1) to (9), were all “land focussed” and the s 12 compensation provisions, while similar in most respects to the terms of s 25(1)(b) to (k) of the Act, did not have any provision equivalent to s 25(1)(a) of the Act.

Accordingly, the appellant contends that the judge erred in relying upon the dicta of Bray CJ and Wells J in Brewarrana because the reasons in that case could not assist in the construction of the Act, and in particular, s 25(1)(a) and the words “any loss”.
The appellant submits that the error made by the judge had a compounding effect in that he adopted an impermissibly narrow construction of s 25(1)(a). He contends that this construction was contrary to the approach taken in a series of subsequent judgments of Wells J in Commissioner of Highways v George Eblen,[30] South Australian Land Commission v Bletas,[31] and Commissioner of Highways v Tynan.[32]The appellant relies upon the observation of Wells J in Eblen that the word “loss” in s 25(1)(a) is quite at large.[33]
[30] (1975) 10 SASR 384.
[31] (1978) LSJS 344.
[32] (1982) 53 LGRA 1.
[33] (1975) 10 SASR 384 at 390.
The appellant also relies upon the reasons of the High Court in Northern Territory v Griffiths.[34]In Griffiths the High Court had to construe the provisions of the Native Title Act 1993 (Cth) (NTA) concerning compensation for the extinguishment of native title rights and interests over land. The Court held that the NTA granted an entitlement to compensation to native title holders for both economic loss and non-economic or cultural loss occasioned by the extinguishment of native title rights. The plurality held that compensation for non‑economic or cultural loss is compensation “for a particular effect of a compensable act”.[35] Edelman J drew a distinction between, on the one hand, the value of the cultural loss of native title rights which is not captured by the exchange value of the property extinguished and, on the other hand, the particular subjective distress or mental suffering that arises from the disruption to a native title holder’s life that follows the compulsory, rather than voluntary, nature of the deprivation of the person’s rights. Edelman J considered the latter is the province of an award for solatium.
[34] [2019] HCA 7.
[35] [2019] HCA 7 at [154].
The appellant submits that the hurt feelings contemplated by the High Court in Griffiths are not attributes of the land. They are attributes of those holding a compensable interest in it. He contends it follows that the Act does not exclude a right to compensation for non-economic loss consistent with the way the NTA provides for compensation for intangible losses for both cultural and subjective distress or mental suffering.
The respondent submits that the judge was correct in his analysis of the text, context and purpose of the Act in determining the nature of the losses compensable under the Act. The judge did not misapply the dicta of Bray CJ and Wells J in Brewarrana. The respondent further submits that the appellant’s construction is acontextual and ahistorical. It would be erroneous to attribute to the legislature an intention to depart from the settled legal basis of compensation for compulsory acquisition, which does not extend to compensation for personal injury, in the absence of an express provision or, at the very least, a clear statement of such purpose in the second reading speech. Finally, the respondent submits there is nothing in the reasons of the High Court in Northern Territory v Griffiths that contradicts the judge’s reasons or conclusion in this matter.
Consideration
The issue on this appeal is whether the expression “any loss” in s 25(1)(a) extends the entitlement to compensation conferred by s 22B to a loss in the nature of personal injury suffered by reason of the acquisition of land. In my view, for the reasons that follow the judge was correct in holding that it does not.
While the text of s 25(1)(a), considered in isolation, might lend some support to the construction pressed by the appellant, that construction is contrary to the context and purpose of the Act. Further, it is not supported by the authorities.
The appellant emphasises the obiter observation of Wells J in Eblen that the meaning of “loss” in s 25(1)(a) is at large. That observation does not answer the question of constructional choice that arises on this appeal. The meaning of “any loss” in s 25(1)(a) is to be ascertained by application of the accepted principles of statutory construction. The appellant also seeks to rely on the reasons of Gaudron J in Marshall v Director-General[36] that:[37]
[T]he right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.
[36] [2001] HCA 37, (2001) 205 CLR 603.
[37] [2001] HCA 37 at [38], (2001) 205 CLR 603 at 623.
At issue on this appeal is what limitations or qualifications on the right to compensation, if any, are found in the terms of the Act.
While the compensatory provisions of the Act are remedial, it is well to remember the cautionary note struck in Carr v Western Australia[38] by Gleeson CJ who said:[39]
Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
[38] [2007] HCA 47, (2007) 232 CLR 138.
[39] [2007] HCA 47 at [5], (2007) 232 CLR 138 at 143.
The appellant’s construction relies heavily upon affording the expression “any loss” in s 25(1)(a) the widest meaning attributable to that expression so as to include loss in the nature of personal injury. The appellant contends this is reinforced by the object of the Act in s 3 which is to provide for the acquisition of land on just terms. That textual analysis goes further than the proposition that the categories of loss contemplated by s 25(1)(a) are not closed. It extends to the proposition that any loss that is suffered as the result of the acquisition of land that can be proved causally to result from the acquisition, is compensable. That construction is divorced from orthodox contextual analysis. Context includes legislative history,[40] the existing state of the law and the mischief the statute is intended to remedy.[41] It includes the general purpose and policy of a provision so that the provision is consistent with the language and purpose of all the provisions of the statute being interpreted. The principles of statutory construction recognise that the context of the words used in a statute, the purpose of the statute or the canons of construction may require the words of a statutory provision to be read in a way that does not correspond with its literal or grammatical meaning.[42]
[40] Thiess v Collector of Customs [2014] HCA 12 at [22], (2014) 250 CLR 664 at 671.
[41] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
[42] Certain Lloyds Underwriters v Cross [2012] HCA 56 at [24]-[25], (2012) 248 CLR 378 at 389-390.
The object of the Act in s 3 is to provide for the acquisition of land on just terms. It can be seen that its first purpose is the acquisition of land for public purposes. The subject matter of that purpose is an interest in land. Its second purpose is to establish a scheme of compensation where land is acquired under the Act. The entitlement to compensation for the acquisition of land is conferred solely by s 22B.[43] The loss to be compensated is the loss of land (emphasis added). The entitlement arises if the person’s interest in land is divested or diminished by the acquisition, or if the enjoyment of that interest in land is adversely affected by the acquisition. Section 25(1)(a) is to be construed by reference to s 22B. The claimant referred to in s 25(1)(a) is expressly limited by s 25(4) to a claimant who is entitled to compensation. That is the entitlement found in s 22B. Section 22B creates that entitlement in respect of interests in land per se. This is the context in which the “loss” referred to in s 25(1) is to be understood. “[A]ny loss” is to be understood as a reference to a loss of an economic nature connected with the interest in land. That is consistent with the evident purpose identified in s 3 of “just terms” compensation. The acquisition of land on just terms is achieved by awarding compensation that is intended to put the affected party in the same position they would have been in economically if the land had not been acquired.
[43] Chadrysiak v Commissioner for Highways [2018] SASC 77 at [62], (2018) 132 SASR 277 at 285.
Contrary to the submission of the appellant the object that the acquisition be on just terms does not support a construction of s 25(1)(a) that includes within the expression “any loss”, a loss in the nature of personal injury. The appellant seeks to rely upon a passage in the reasons of Dixon J, as he then was, in Nelungaloo Pty Ltd v The Commonwealth.[44]In Nelungaloo the High Court was concerned with the construction of war time regulations for the acquisition of wheat by a Board established by the Commonwealth government. Dixon J in considering whether the regulations contravened an obligation of the Commonwealth arising from s 51(xxxi) of the Commonwealth Constitution, to acquire property only on just terms, said the obligation arose as a restriction on the legislative power conferred on the Commonwealth. He said:[45]
It rests on the somewhat general and indefinite conception of just terms, which appears to refer to what is fair and just between the community and the owner of the thing taken. Importing this conception into the purposes of the Board’s powers, the result seems to me to be that the disposal of the wheat … must be in return for a recompense to the pool which is honestly fixed or estimated as a fair and reasonable value.
[44] (1948) 75 CLR 495.
[45] (1948) 75 CLR 495 at 569.
However, Dixon J was not suggesting that the requirement of fairness extended to anything other than fair compensation for the value of the thing acquired. That conclusion is supported by his Honour’s reasons in Grace Bros Pty Ltd v The Commonwealth[46] where the Court considered a compulsory land acquisition statute. Dixon J in deciding whether the provisions of the statute contravened the just terms protection in s 51(xxxi) said:[47]
The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property …
[Emphasis added.]
[46] (1946) 72 CLR 269.
[47] (1946) 72 CLR 269 at 290.
I do not accept that the object of acquiring land on just terms provides any support for the appellant’s construction of the expression “any loss” in s 25(1)(a). On the contrary, Nelungaloo and Grace Bros support a construction of the object in s 3, providing for the acquisition of land on just terms, as confining the losses for which there is an entitlement to compensation as losses of an economic or monetary nature connected with the interest in land.
While the Act defines “interest” in land broadly[48] the concept is limited to specified legal or equitable relationships between a person and the land to be acquired. This suggests that the “loss” in s 25(1)(a) refers to a detriment or disadvantage suffered by reason of the acquisition of the claimant’s legal or equitable interest in the land. To hold otherwise would create anomalies.
[48] Section 6(1).
It would mean that a person who happened to have a legal or equitable interest in the acquired property would be compensated for a personal injury, whereas a person who also resided at the property, but had no such legal or equitable interest, such as a child, would receive no compensation if he or she suffered personal injury arising from the acquisition of the land.
Further, a construction which excludes any entitlement to compensation for personal injury resulting from the compulsory acquisition of land, recognises that frequently the holder of an interest in land will not be a natural person. A corporate entity with an interest in land the subject of compulsory acquisition could not be entitled to compensation for personal injury. A construction of the Act which precludes a claim by a natural person for compensation for personal injury as a result of the compulsory acquisition of land provides consistency in the right to compensation irrespective of how the interest in land is held.
The other provisions of s 25(1) provide further contextual support for the construction of “any loss” which excludes any loss in the nature of personal injury. Section 25(1)(b) provides that in assessing compensation consideration “may” be given to the “actual value of the subject land” together with “loss occasioned by reason of severance, disturbance or injurious affection”. The “actual value” of land does not extend to matters that are not referable to a particular attribute of the land or use of the land, such as mere subjective affection or emotional involvement. Payment for compensation for severance, as with compensation for injurious affect, is based upon diminution in the value of the claimant’s land that has not been acquired. Disturbance covers economic or monetary losses which result naturally, reasonably and directly from acquisition.[49] While the terms of s 25(1)(b) are not intended to be exhaustive[50] none of these matters include personal injury.
[49] Marshall v Director-General, Department of Transport [2001] HCA 37 at [20] and [44]-[46], (2001) 205 CLR 603 at 616 and 625-626; Boland v Yates Property Corporation Pty Ltd [1999] HCA 64 at [294], (1999) 74 ALJR 209 at 269-270.
[50] Commissioner of Highways v Eblen (1975) 10 SASR 384 at 390; Chadrysiak v Commissioner of Highways [2018] SASC 77 at [67]-[68], (2018) 132 SASR 277 at 287-288.
The provision of s 25(1)(c) is a cogent contextual indicia against the appellant’s construction. If personal injury is to be compensable under the Act it is more likely to be psychiatric injury. It is difficult to contemplate how physical injury might result from the acquisition of the land. It is a matter of notoriety that psychiatric injury frequently develops over time rather than in an instant. The requirement that compensation should be fixed as at the date of acquisition of land leaves little, if any, scope for the assessment of compensation to include compensation for any loss suffered as a result of psychiatric injury arising from the acquisition of the land. In that regard I do not overlook the view of Wells J in Eblen[51] that compensation under s 25 is to be assessed as at the date of acquisition but having regard to events that have occurred as well as future events that can be reasonably predicted. The gradual development of a psychiatric injury is not always susceptible to reasonable prediction.
[51] (1975) 10 SASR 384 at 390-393.
Section 25(1)(d) to (k) provide matters that must be taken into account in the assessment of compensation. With the exception of s 25(1)(g) none of these provisions could be construed as referring in any way to a loss that is not founded upon either the actual value of the subject land or the economic loss occasioned by reason of severance, disturbance or injurious affection.
Section 25(1)(g) provides that when assessing compensation, no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person. The provision excludes liability to pay compensation on account of either a recognised illness or emotional reaction if those conditions are caused by reason of the acquisition occurring without consent. Accordingly, in contrast with some other jurisdictions, no compensation is paid for solatium.
This is significant. It would be contrary to logic to construe the Act to permit an award of compensation for personal injury arising from the acquisition of land while excluding an award of compensation by way of solace for injured feelings caused by the compulsory nature of the acquisition. The appellant was unable to explain what legislative purpose there is in enacting such inconsistent outcomes.
Rejection of the appellant’s construction is reinforced by the terms of s 23A(1) which requires an authority to make an offer of payment of a specified amount to a person it believes to be entitled to compensation. As with the operation of s 25(1)(c) there is obvious difficulty in satisfying the statutory obligation in s 23A(1) in relation to a psychiatric condition that in most cases will develop gradually after the acquisition has occurred.
Some light is also thrown on the constructional choice by the terms of s 23A(2) which requires the authority to make an offer of compensation which differentiates between, and quantifies, the component of compensation representing the value of the acquired land and the component referable to disturbance or other compensable matters. The reference to “other compensable matters” should be construed ejusdem generis. Following on from the preceding words the phrase is to be construed as limited to matters related to the economic value of the land.
The judge was correct to recognise the historical position in relation to land acquisition legislation informing the construction of the Act. Long before the enactment of the Act in 1969 the law was that compensation was not payable under compulsory land acquisition statutes for personal injury. In Caledonian Railway Company v Ogilvy[52] Lord St Leonards in a compulsory acquisition case referred to the price of land and compensation for severance saying:[53]
But in respect of any other injury, unless it be injury to the land, no claim can be founded upon the circumstances that compensation is given for land.
[52] [1856] UKHL 2.
[53] [1856] UKHL 2 at 247.
By 1969 it was well established that compensation for compulsory acquisition related to economic loss. In Lucas v The Chesterfield Gas & Water Board, Fletcher Moulton LJ said:[54]
The principles upon which compensation is assessed when land is taken under compulsory powers are well settled. The owner receives for the lands he gives up their equivalent, i.e., that which they were worth to him in money. His property is therefore not diminished in amount, but to that extent it is compulsorily changed in form.
[54] [1909] 1 KB 16 at 29.
In Nelungaloo Dixon J said:[55]
Now “compensation” is a very well understood expression … It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived.
Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him.
[55] (1948) 75 CLR 495 at 571.
The appellant accepts that personal injury was not compensable under the repealed Act. However, he submits that the inclusion of the reference to “any loss” in s 25(1)(a) extended the right to compensation to include compensation for loss by way of personal injury. That submission proposes a dramatic change in the legal position that existed before the enactment of the Act. The appellant’s construction relies on differences in the text of the Act and the repealed Act. Those differences are the reference to “any loss” in s 25(1)(a), the reference in s 3 to “just terms” and the changed definition of “compensation”. I have dealt with the appellant’s reliance on “any loss” and “just terms” earlier in these reasons. I reject the appellant’s submission that there is any fundamental difference in the definition of “compensation” in the Act from the definition in the repealed Act. The definition of “compensation” in the repealed Act was:
“Compensation” means any compensation (whether for land purchased or taken, or for the injurious affection of any land, or otherwise) to which any person is entitled under this Act or the special Act from the promoters, and includes the purchase price of any land purchased by agreement.

The definition of “compensation” in s 6(1) of the Act is that it means compensation to which a person is entitled under the Act, and includes the purchase price of land purchased by agreement.
Both the Act and the repealed Act provide broadly expressed definitions of compensation allowing for the value of the land and loss occasioned by reason of severance, disturbance or injurious affection. A comparison of the definitions of “compensation” and a consideration of their context in each statute does not suggest that compensation under the Act is in substance broader than under the repealed Act. There is no basis for concluding that the textual differences between the definitions establish a basis for extending compensation under the Act to include compensation for personal injury.
The judge was correct in reasoning that had such a fundamental change been intended by the legislature it would be expected that would have been unequivocally identified in the second reading speech. The absence of such an expression of intention provides strong support for the rejection of the appellant’s construction. The authorities establish that it is permissible for the Court to consider the terms of the second reading speech to ascertain the mischief which a statute is intended to remedy.[56]
[56] K-Generation v Liquor Licensing Court [2009] HCA 4 at [51]-[53], (2009) 237 CLR 501 at 521-522.
Further, it is to be expected that if the Parliament intended such a fundamental change it would have made its intention clear in the text of the Act by expressly providing for compensation to include compensation for personal injury, rather than by the side wind of the expression “any loss”. In Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA),[57] Mason J, with whom Jacobs and Murphy JJ agreed, in an appeal concerning the construction of s 25, rejected a submission that compensation pursuant to s 25 departed from the Pointe Gourde principle, enshrined in s 25(h),[58] by reason of the enactment of s 25(b).[59] Mason J considered that there was no rational explanation for why the Parliament would have sought to achieve such a result in a singularly oblique and devious fashion.[60] The same reasoning applies with equal cogency in this case.
[57] (1979) 143 CLR 351.
[58] Now s 25(1)(h).
[59] Now s 25(1)(b).
[60] (1979) 143 CLR 351 at 367.
In addition, the judge was correct in reasoning that if Parliament had intended that the Act would provide an entitlement to compensation for personal injury resulting from the acquisition of land it would be expected that it would have included the administrative machinery necessary to deal with such claims e.g. investigative powers. The absence of such powers is a further indicium against the appellant’s construction.
I reject the submission that the judge committed the primary error complained of by relying upon dicta from Bray CJ and Wells J in Brewarrana on the basis that Brewarrana is irrelevant to the issue of construction of the Act as it was a decision concerning the repealed Act.
The judge in the impugned passage[61] addressed the meaning of the term “disturbance” which, along with “severance” and “injurious affection”, is found in s 25(1)(b)(ii). This expression was considered in Brewarrana and in Boland v Yates Property Corporation Pty Ltd.[62] Brewarrana concerned the repealed Act. Boland concerned the compensation provisions in the Public Works Act 1912 (NSW). Obviously neither case concerned the Act. The judge addressed the question of whether, while compensation for personal injury could not be characterised as falling within the concepts of severance or injurious affection, the concept of disturbance could extend to personal injury suffered by reason of the acquisition of land.[63] There is no reason to consider that the judge was under the misapprehension that the Court in Brewarrana was addressing the Act rather than the repealed Act. Rather, the judge’s analysis of the reasoning in both Brewarrana and Boland supported the conclusion that the subject matter of the compulsory acquisition of land legislation confers an entitlement to compensation for a form of economic loss suffered by a claimant in their capacity as a holder of a relevant interest in land. This underpinned the judge’s conclusion that there was nothing in either case to suggest that “disturbance” extends to personal injury.[64] In considering Brewarrana the judge was doing no more than considering a further case that addressed the meaning of the term “disturbance” in its historical context. The judge’s reliance upon the dicta of Wells J in Brewarrana is to be understood as part of his consideration of the reasoning of Wells J in the line of authority commencing with Brewarrana referred to above.
[61] Anderson v Commissioner of Highways (No 2) [2018] SASC 121 at [43], (2018) 131 SASR 437 at 449.
[62] [1999] HCA 64 at [294], (1999) 74 ALJR 209 at 269-270.
[63] [2018] SASC 121 at [42], (2018) 131 SASR 437 at 448-449.
[64] Anderson v Commissioner of Highways (No 2) [2018] SASC 121 at [44], (2018) 131 SASR 437 at 449.
In any event, the Court is confronted with a question of statutory construction. The construction adopted by the judge is either correct or incorrect. If the construction adopted by the judge is correct it is irrelevant if he erred in considering that the Court in Brewarrana was construing the Act rather than the repealed Act.
On the issue of construction the appellant relies on the reasoning of Wells J in Eblen, Bletas and Tynan. In Eblen Wells J said that s 25(b)[65] mentions certain traditional heads of compensation, but the appearance of the word “may” makes it clear that the stated heads are not intended to be exhaustive.[66]
[65] Now s 25(1)(b).
[66] (1975) 10 SASR 384 at 390.
In Bletas Wells J considered s 25(a)[67] to be the dominating principle. He said that broadly speaking the loss referred to in s 25(a) falls under two categories: first, the actual value of the land taken; and second, the other losses which are occasioned by reason of the taking, and which may be placed under the headings of severance, disturbance, injurious affection,[68] or any other loss. Wells J said that the categories of loss are not closed.[69]
[67] Now s 25(1)(a).
[68] Section 25(b), now s 25(1)(b).
[69] (1978) 77 LSJS 344 at 347.
In Tynan Wells J again considered s 25(a)[70] in the following terms:[71]
The general principle underlying the assessment of compensation made by this Court in pursuance of its duty under subs.(3) of s.23 and par.(a) of s.25 is that the claimant is to be “adequately” “compensate[d]” “for any loss he had suffered by reason of the acquisition of the land”. It is necessary, when discharging that duty, always to bear in mind that the claimant has been deprived, not just of the parcel of land, as it were, in a vacuum, but of a parcel of land in circumstances of occupation and use, both contemporaneous and prospective. It is, speaking generally, those attendant circumstances that may be of special importance to the claimant. He has lost something that has an objective market value, and he has lost, too, something that once formed an integral part of his life – his personal life or his business life or, it may be, both.
[70] Now s 25(1)(a).
[71] (1982) 54 LGRA 1 at 5.
In my view none of these dicta suggest that compensation for personal injury resulting from the acquisition of the land is a loss compensable pursuant to s 25(1)(a). Accepting the correctness of each of the observations of Wells J relied upon by the appellant, they do not address the issue of the compensability or otherwise of loss in the nature of personal injury. Wells J was not considering that issue. The judge was correct in concluding that these dicta were not intended to suggest that a personal injury would be compensable under the Act.[72] Recognition that the categories of loss prescribed in s 25(1)(b) are not closed does not lead to the conclusion that those categories extend to loss in the nature of personal injury. Further, the observation that a person whose land has been acquired has lost something that once formed an integral part of his personal or business life, or both, does not support the appellant’s construction. In Tynan Wells J was considering a submission by a claimant that the acquired land had special value because of trees on the land which provided shelter for sheep, assisted in weed control and reduced the risk of grass fires being caused by passing motorists. That has nothing to say about the compensability of personal injury resulting from the acquisition of land.
[72] [2018] SASC 121 at [63], (2018) 131 SASR 437 at 453.
The appellant also relies upon this Court’s judgment in Chadrysiak v Commissioner of Highways.[73] Chadrysiak does not assist. Chadrysiak is concerned with whether the Act gives a right to compensation for a loss suffered by a claimant in a rising market where due to the payment of inadequate compensation a claimant cannot afford to buy a replacement property. Blue J found that subject to proof of causation and consideration of the principles of remoteness and mitigation of loss, such a loss is compensable. That conclusion, however, throws no light on the constructional choice in this matter.
[73] [2018] SASC 77, (2018) 132 SASR 277.
For the reasons set out above, consideration of the text, context and purpose of the Act precludes any entitlement to compensation for personal injury arising from the acquisition of land under the Act.
Subsequent to the judgment in this matter, the High Court delivered judgment in Northern Territory v Griffiths.[74] This was an appeal from the Full Federal Court. Griffiths concerned the compensation payable pursuant to s 51 of the NTA. Section 51 provides:
[74] [2019] HCA 7.
51     Criteria for determining compensation
Just compensation
(1)     Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.
Acquisition under compulsory acquisition law
(2)     If the act is the compulsory acquisition of all or any of the native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.
Compensation where similar compensable interest test satisfied
(3)     If:
(a)the act is not the compulsory acquisition of all or any of the native title rights and interests; and
(b)
the similar compensable interest test is satisfied in relation to the act;

the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines similar compensable interest test).
Compensation not covered by subsection (2) or (3)
(4)     If:
(a)      neither subsection (2) nor (3) applies; and
(b) there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable;
the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation.
…
The High Court considered the compensation payable to the holders of native title for cultural loss. The Federal Court had referred to this loss as “non-economic loss” or “solatium”. The High Court held that “cultural loss” occurred due to the special characteristics of native title rights and interests which are distinct from other forms of proprietary interests.[75]
[75] [2019] HCA 7 at [23], [44]-[45], [53], [152], [154], [216], [271]-[272], [304], [309] and [312].
In their reasons the plurality state that under the general law, compensation for the compulsory acquisition of land comprises the freehold value of the land as well as compensation for severance, injurious affection, disturbance, special value, solatium, or other non-economic loss.[76] While the plurality recognise that the various land acquisition statutes address the non-economic aspect of compensation in different terms,[77] there is nothing in their reasons to suggest that non-economic loss is compensable under the Act. There is no equivalent in the Act to s 51 of the NTA. While the judgments in Griffiths refer to the Lands Acquisition Act 1978 (NT), which provides that where the acquired land is the claimant’s principal place of residence the amount of compensation otherwise payable may be increased by an amount that will reasonably compensate the claimant for “intangible disadvantages” resulting from the acquisition, again there is no equivalent provision under the Act. Finally, the judgments give some consideration to the concept of solatium. In particular, Edelman J characterised such compensation as a payment that arises because of the disruption to a person’s life that follows the compulsory, rather than voluntary, nature of the deprivation of their rights.[78] Section 25(1)(g) of the Act expressly precludes payment of this category of compensation. The judgments in Griffiths substantially turn on the construction of s 51 of the NTA. The terms of the Act and the NTA are readily distinguishable. Accordingly, there is nothing in Griffiths which undermines the judge’s reasons or supports the appellant’s construction.
[76] [2019] HCA 7 at [51].
[77] [2019] HCA 7 at [52].
[78] [2019] HCA 7 at [272].
Conclusion
I would dismiss the appeal. I would hear the parties as to costs.