Cox, Cox & Cox v State of Queensland, Primary Industries Corporation

[1998] QCA 147

URT OF APPEAL	[1998] QCA 147
NCUS JA RRINGTON J ITE J
peal No 3851 of 1998
CIL ARTHUR COX	First Applicant (First Plaintiff)
d
LARIE MARY COX	Second Applicant (Second Plaintiff)
d
X HOWARD COX	Third Applicant (Third Plaintiff)
d
ATE OF QUEENSLAND	First Respondent (First Defendant)
d
IMARY INDUSTRIES
RPORATION	Second Respondent (Second Defendant)

d

IEF EXECUTIVE, DEPARTMENT

NATURAL RESOURCES Third Respondent (Third Defendant)

ISBANE

DATE 28/04/98

DGMENT

1

NCUS JA: This is an appeal against the judgment of

wsett J. refusing an application for interlocutory relief

two proceedings brought in this Court by Cecil Arthur Cox

d others relating to land in the Burdekin Basin resumed
r a dam. The proceedings in question are an action
mmenced by writ and an application for judicial review.
e plaintiffs in the action and the applicants in the
plication are identical and I shall call them simply "the
aintiffs". They were formerly the owners of land resumed

r the scheme. They all owned land described in the

asons of Dowsett J. as lot 44. The first plaintiff owned

t 42 and the second owned lot 43. The third plaintiff
so owned lot 5 but no argument has been advanced to us on
e basis of that ownership. The plaintiffs unsuccessfully

plied to Dowsett J. for an injunction restraining the sale

land involved in the scheme, which sale was intended to

effected by auction today. These reasons are to be read

th those given by Dowsett J. in which some aspects of the
spute between the parties are discussed and that

scussion is not repeated here.

e plaintiffs' primary case, as explained by counsel on

eir behalf, is that a decision erroneous in law was made

a "without prejudice" letter of 18 June 1996 written by

Bevin from the Office of the Director-General of the

partment of Natural Resources. The letter refers to what

described as the basic agreement reached in relation to

rious matters and says that Mr Bevin "would be prepared to
commend the existing agreement be set aside and a new
reement be negotiated thereby giving your clients the
portunity to purchase" certain lots at current market
ices. It was argued for the plaintiffs that this letter
nstituted a decision which was wrong in law in two
spects: firstly,
sofar as it relied upon what was described as an existing
reement and secondly, insofar as it indicated that lots
oken of by Mr Bevin as being ones which he would recommend
e plaintiffs be given the opportunity to purchase were to

purchased at current market value prices, as opposed to

ices prevailing before acquisition. One difficulty about
e plaintiffs' contention is that on the face of it the
tter is not a decision, but merely an indication that the

iter is prepared to make a recommendation. It would be,

it seems to me, unorthodox for the Court to rule upon the

gality of so preliminary a document. When the nature of
e letter relied on by the plaintiffs was pointed out in

e course of argument, other correspondence was referred to

more easily qualifying as a decision which might be

tacked in this Court; but it does not seem necessary to scuss the alternative case which was thus foreshadowed.

en the matter was before the primary judge, the question
s raised whether section 12(6) of the Water Resources Act
89 contemplates the making of decisions by the chief
ecutive only in advance of an acquisition of land as

posed to decisions after resumption has been completed; I

not set that provision out. The view taken by Dowsett J

s that the "whole of the subsection is to take effect with
spect to a proposed acquisition." Counsel for the
aintiffs challenged that view and went on to argue, in
fect, that although the land in question was resumed some
ars before the letter of 18 June 1996 was written, it
mained open for the chief executive to act under section
(6). This appears to me to be a point which it is
desirable to decide, even provisionally, in view of the
ste which has been involved in the hearing of this appeal
d the small amount of time available for discussion and
cision. As was suggested by counsel for the plaintiffs,
ere are indications in section 12(6) which are perhaps
ainst the view taken by the primary judge. One is that
ragraph (a) contemplates, in subparagraph (ii), that the
ief executive may resume land and thereupon transfer or
ll it back to the owner; plainly, the second part of this
ep cannot be carried out until resumption is complete.
other is that paragraph (b) contemplates an offer relating

land acquired from the owner or other owners and this

ain may imply that steps may be taken under the subsection

ter resumption is complete. I should add that resumption

lot 44 occurred on 22 December 1990 and that of the other

o lots, 42 and 43, on 18 December 1992.

aving aside the difficulty the plaintiffs have, at least

far as the document primarily relied on is concerned,

at it appears to be merely an indication of intention to commend, the question is whether the chief executive can

under any obligation under section 12(6) in view of the
reement to which the letter of 18 June 1996 refers. The
rties argued on the assumption, which I accept for the
rpose of this appeal, that if the agreement was intended

deal wholly with the plaintiffs' rights under section (6), it was not open to the plaintiffs to make further aims under that provision. Counsel for the plaintiffs did

t contend that there was no agreement, but they argued
at the agreement did not exhaust the rights of the
aintiffs under section 12(6) and in the alternative they
id that the agreement might be invalid. As to the first
int, we were referred to no part of the correspondence to
pport the suggestion that the parties agreement was
tended to deal with only part of the possibility of
tention or reacquisition of land under section 12(6). The
imary judge said that the agreement appears to be
bstantially evidenced by a letter dated
July 1992 from the plaintiffs' solicitors; and that seems
t to be disputed. If one examines the terms of that
tter it is impossible to find within it any indication,
press or implicit, that the agreement was to deal only
rtially with the section 12(6) possibilities. It is true

at the letter does not expressly say that it is intended

be exhaustive of the plaintiffs' rights under that

ovision. But it would be strange, as a practical matter,
at the solicitors for the plaintiffs should, apparently by
earrangement, go to the trouble of carefully defining (as
ey did) the way in which the issue was to be dealt with if
at definition was intended to leave it open to the
aintiffs, and presumably to the defendants also, to reopen
e whole question of section 12(6) rights. One positive
dication in favour of the defendants is that the letter
ys "Our clients accept that such area" (being an area
eviously referred to) "shall be accepted by our clients in
tisfaction of your Commission's policy" explaining the
licy. But, more generally, the care and precision with
ich the letter is drawn are indications that the terms set
t were intended to be final. Counsel for the defendants

ferred us to the reply dated 13 July 1992, accepting the

oposal made and expressing the gratitude of the

mmissioner of Water Resources for "your clients' efforts

progressing these difficult negotiations". I note that

ere was a further letter about the agreement dated 21 July

92 from the plaintiffs' solicitors which, again, contains

indication that the agreement between the parties was
tended to leave open the possibility of acquisition of
rther rights relating to the subject lots under section

(6).

e other objection taken to the agreement seems to be based

an assertion, inspired by the decision below, that

ction 12(6) permits only action taken in advance of

sumption. From the dates I have given, it will be seen

at the date of the agreement fell between the resumption

lot 44 and the resumption of lots 42 and 43. The

fficulty about the plaintiffs' argument on that point is
at, if it is right, then their claim to rely on section
(6) long after the resumptions have been completed must
il. There is a dilemma: the plaintiffs can only assert
at the agreement is invalid on the basis of the primary
dge's construction of section 12(6) at the cost of
stroying the foundation of their argument, based on the

ew that action under that section is still available.

the result, I am of opinion that on the arguments

esented, the agreement relied on by the defendants appears

have been intended to resolve the issues arising under

ction 12(6) and appears to be a good answer to the

aintiffs' claim.

these circumstances it would not be in my opinion a

oper exercise of discretion to enjoin the sale of some of

e land the subject of the plaintiffs' action, which sale

intended to take place at auction in an hour or so.

would dismiss the appeal with costs.

RRINGTON J: I agree with the decision of Justice Dowsett,
d his reasons, that section 12(6) of the Act is relevantly
nfined to arrangements made prior to or at the time of the
sumption but not after. The opening words of the
bsection clearly imply that. The other provisions of the
ction are not in conflict with this and on the contrary

e tenor of the whole section is consistent with it.

e reference in subsection 8 to "the land acquired or
oposed to be acquired" does not affect this. That
ovision specially allows for the action it empowers to be

ken, even if the resumption is complete. This extension

logical since the resumption may or may not have been

mpleted before that process reaches maturity.
gnificantly, the prefatory words contained in subsection 6

e not contained in subsection 8.

e whole section seems to have been drafted as a logically
tegrated scheme to operate up to and including the time of
quisition by resumption with special provision for any
tion necessarily outside that time. The price formula
escribed is also consistent with this.
e integrated nature of the scheme is demonstrated in
bsection 6(a)(ii) which contemplates the associated
quential step upon resumption of transferring or selling
ck part of the land to the dispossessed owner in a single
mbined action. The same reasoning applies to paragraph

(6)(b).

also agree with the proposition that the agreement that
s reached totally compromised the appellants' claims, if
y, in respect of the resumption and resale process. Any
eps towards a further sale of the subject land, that is,

e land the subject of these proceedings, would have had to

authorised under section 13, though this is in the power

the corporation and not the chief executive; but the

int is, that there was no power to entertain a further
ansaction under section 12. There is no indication of any
tisfactory case in estoppel particularly in respect of the

ement of detriment.

would agree with the learned presiding Judge in respect of

ose matters and with the orders which he proposes.

ITE J: I agree with the learned presiding Judge's orders
at the appeal be dismissed and for the reasons that he
ves save that I am not persuaded that Mr Justice Dowsett's
proach to section 12(6) may not be correct.
e subsection states in terms that it applies to "a
oposed acquisition by resumption of land" and although
bsection 6(a)(ii) refers to a resumption of the whole of
e land and a transfer or selling back to the owner, that
cond step is to occur contemporaneously with the
sumption. The incorporation of the word "thereupon" into

e subsection dictates this approach as his Honour found.

e reference to "land acquired from the owner" in
bsection 6(b) does not, I think, assist since, as the

cts here have revealed, acquisitions of different parcels

land from an owner can occur at different times and past

quired land can be a source for an additional area under
bsection (b). The reference in that subparagraph to "the
me of the proposed acquisition" affirms the operation of

e subsection to a future acquisition.

is argued that subsection 8 colours the construction of

bsection 6. It refers to "land acquired or proposed to be
quired". It is not inconsistent with the construction
oted by his Honour that a somewhat different regime should
evail in subsection 8. If the third respondent is of the

inion that the plan or proposed plan for subdivision would

unduly adversely affected by granting an application

der subsection 6, the matter must be referred to the

vernor in Council.

use of the expression "land acquired" this contemplates

at the land has been resumed and the third respondent has
fused the application of the owner. Certain consequences
lating to selling other land to the owner may then result
t it is, as the learned presiding Judge has commented,
necessary finally to decide this question of construction
d as I have indicated, I agree with the orders which he
oposes.

NCUS JA: Mr Wilson, is there any other order necessary en appeal dismissed for costs?

WILSON: No, Your Honour.

NCUS JA: What about you Mr Skinner, anything you want to y on your side?

SKINNER: No, Your Honour.

NCUS JA: Very well. The order will be, appeal dismissed th costs.

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