Douglas Shire Council v Caber Investments Pty Ltd and Day Ford Pty Ltd

[1998] QCA 408

IN THE COURT OF APPEAL	[1998] QCA 408
SUPREME COURT OF QUEENSLAND

Appeal No. 5297 of 1997

Brisbane

[Douglas Shire Council v. Caber Investments P/L & Anor]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(Respondent) Appellant

AND:

CABER INVESTMENTS PTY LTD
ACN 010 066 234 and
DAY FORD PTY LTD

ACN 010 494 121

(Appellants)	Respondents
de Jersey CJ McMurdo P White J

Judgment delivered 4 December 1998

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

1.          APPEAL ALLOWED;

2.          THE ORDER MADE BY THE PLANNING AND ENVIRONMENT COURT ON 5 JUNE 1997 BE SET ASIDE;

3.          THE MATTER BE REMITTED TO THE PLANNING AND ENVIRONMENT COURT FOR THE PURPOSE OF THE GIVING OF DIRECTIONS AS TO THE FURTHER PROSECUTION OF LG APPEAL NO. 46 OF 1988;

4.          THE RESPONDENTS PAY THE APPELLANT’S COSTS OF AND INCIDENTAL TO THIS APPEAL TO BE TAXED;

5.          THE RESPONDENTS BE GRANTED AN INDEMNITY CERTIFICATE UNDER THE APPEAL COSTS FUND ACT 1973.

CATCHWORDS:	PLANNING AND ENVIRONMENT - jurisdiction of Judge appointed under repealed act to hear matter commenced prior to repeal of relevant act - statutory interpretation - unresolved application for rezoning gives no "accrued right" pursuant to Acts Interpretation Act 1954 - whether Judge assuming responsibility for hearing the matter should use evidence previously given or adopt the order foreshadowed by the previous Judge.
Director of Public Works v. Ho Po Sang [1961] AC 901 Robertson v. City of Nunawading [1973] VR 819 Kentlee Pty Ltd v. Prince Consort Pty Ltd [1998] 1 Qd R 162 Durrisdeer Pty Ltd v. Nordale Management Pty Ltd [1998] 1 QdR 138 R v. Lewis (1988) 165 CLR 12 Wentworth v. Rogers (1986) 6 NSWLR 642
Counsel:	Mr P Lyons QC, with him Mr M Hinson for the appellant. Mr D Gore QC, with him Mr T Trotter for the respondents.
Solicitors:	Williams Graham and Carman as town agents for O'Mara Patterson and Perrier for the appellant. Greer and Timms for the respondents.
Hearing Date:	19November,1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5297 of 1997

Brisbane

Before de Jersey CJ McMurdo P White J

[Douglas Shire Council v. Caber Investments P/L & Anor]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(Respondent) Appellant

AND:

CABER INVESTMENTS PTY LTD
ACN 010 066 234 and
DAY FORD PTY LTD

ACN 010 494 121

(Appellants) Respondents

REASONS FOR JUDGMENT - de Jersey CJ

Judgment delivered 4 December 1998

1                In December 1988 the respondent appealed to the Local Government Court against

the appellant’s decision refusing the respondents’ application for rezoning of land in the

Douglas Shire. His Honour Judge Wylie QC, sitting as a judge of the Local Government

Court, heard the appeal on 14th and 15th February 1989. On 15 February he announced

that he was satisfied that the appellant’s decision to refuse the application was wrong, and

that in due course he would make an order allowing the appeal. He adjourned the further

hearing of the appeal to enable the parties to consider the question of what if any conditions
should be imposed. His Honour subsequently delivered reasons.

2                The respondents’ appeal had been instituted under the Local Government Act 1936.

The Local Government Court was established under the City of Brisbane Town Planning

Act 1964. The Local Government (Planning and Environment) Act 1990, which as

relevant commenced on 15 April 1991, repealed the City of Brisbane Town Planning Act

and the relevant provisions of the Local Government Act.

3                Judge Wylie had been “notified” as a judge to constitute the Local Government

Court under s.27(2) of the City of Brisbane Town Planning Act. Section 27(5) obliged him

to constitute the court “while his name remain (ed) so notified”.

4                The Local Government (Planning and Environment) Act continued the Local

Government Court in existence, renaming it the Planning and Environment Court. Under

s.7.3(2) of that Act, the Governor in Council was to notify the names of the judges to

constitute the Planning and Environment Court. The Governor in Council did so, but his

Honour Judge Wylie was not among the judges named.

5                On 30 September 1996, the respondent sought directions from the Planning and

Environment Court as to the further prosecution of its appeal. His Honour Judge Brabazon

QC, a judge of the Planning and Environment Court, heard that application on 26 May

1997.

6                The appellant contended before his Honour that the appeal should be struck out,

or reheard. It was common ground between the parties that after 15 April 1991, when the

Local Government (Planning and Environment) Act commenced, Judge Wylie could not

proceed further with the matter. Judge Brabazon held to the contrary, and adjourned the

matter for further consideration by Judge Wylie. The appellant contends that Judge
Brabazon erred in law, attracting the jurisdiction of this court on appeal.

1. It is difficult to understand how Judge Wylie retained any capacity to deal with the matter

after 15 April 1991, with the repeal of the City of Brisbane Town Planning Act. His Honour’s

jurisdiction derived from s.27(2) of that Act, together with the notification that he was to constitute

the Local Government Court. There was no provision in the City of Brisbane Town

Planning Act, or the Local Government (Planning and Environment) Act, to the effect

that notwithstanding the repeal of the City of Brisbane Town Planning Act, a judge

constituting the Local Government Court could continue in office to complete any matter

then outstanding. Compare s.10(3) of the Industrial Relations Act 1990, s.23(2) of the

Supreme Court of Queensland Act 1991, and s.14(2) of the District Courts Act 1967. See

also 44 Halsbury (4th) para 971. It seems clear that upon the notification of the judges to

constitute the Planning and Environment Court under s.7.3(2) of the Local Government

(Planning and Environment) Act, they alone thenceforth constituted that court.

1. His Honour Judge Brabazon relied on s.8.10(9) of the Local Government (Planning

and Environment) Act, which provides:

“Where, prior to the commencement of this Act, an application of any kind to which this Act refers was duly made to a local authority (but was not finally approved by the local authority or the Governor in Council, as the case may be, prior to the commencement of this Act), the application is to be dealt with as if this Act had not commenced.”

The instant application had not been finally approved prior to the commencement of the

Local Government (Planning and Environment) Act on 15 April 1991. His Honour

concluded that the provision that it be “dealt with as if”that Act had not commenced

extended to authorising the court as previously constituted, to continue to deal with the

matter to completion. I consider however that the words, “the application is to be dealt

with as if this Act had not commenced”, are concerned with the statutory provisions dealing

with how an application is to be processed. I have in mind such matters as advertising,

amendments of applications, assessment of applications (what matters are to be taken into

account), the form of the decision, the manner of notification of decision, rights of appeal

and so on. The words are not, however, apt to include the constitution of the court to hear

the matter.

9 His Honour also relied on s.20(1)(c) and (e), and s.20(2) of the Acts Interpretation

Act (as they provided prior to 15 April 1991). Section 20 (1) follows:

“20.(1)Saving of operation of repealed or expired Act as regards rights and liabilities thereunder, etc. Where any Act repeals or amends or has repealed or amended wholly or in part any former Act, or any Act or part of an Act expires or has expired, then, unless the contrary intention appears, such repeal or amendment or expiry shall not -

(a)        Revive anything not in force or existing at the time at which such repeal or amendment or expiry took or takes effect; or

(b)         Affect the operation of any repealed or amended or expired Act or part of an Act, or alter the effect of the doing, suffering, or omission of anything prior to such repeal or amendment or expiry; or

(c)         Affect any right, interest, title, power, or privilege created, acquired, accrued, established, or exercisable, or any status or capacity existing, prior to such repeal or amendment or expiry; or

(d)         Affect any duty, obligation, liability, penalty, forfeiture, or punishment incurred or imposed or liable to be incurred or imposed, prior to such repeal or amendment or expiry; or

(e)        Affect any investigation, legal proceeding, or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, penalty, forfeiture, or punishment as aforesaid, and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed and enforced, as if the repealing or amending Act had not been passed, or as if the expired Act or part had not expired, as the case may be:

10              As to (c), one observes at once that an unresolved application for rezoning gives no

“accrued right” within the meaning of the provision: Director of Public Works v. Ho Po

Sang [1961] A.C. 901, Robertson v. City of Nunawading [1973] V.R. 819, Kentlee Pty Ltd

v. Prince Consort Pty Ltd [1998] 1 Qd R 162 and Durrisdeer Pty Ltd v. Nordale

Management Pty Ltd [1998] 1 Qd R 138. Neither (c) nor (e) could apply anyway, because

the requisite “contrary intention”, bearing on the question of the constitution of the court,

appears from s.7.3(1) and (2) of the Local Government (Planning and Environment) Act

1990, which is in these terms:

“7.3(1) The Local Government Court established under the City of Brisbane Town Planning Act 1964 is hereby preserved, continued in existence and constituted under this Act under the name and style the Planning and Environment Court.

7.3(2) The Governor in Council is, from time to time by notice published in the gazette, to notify the names of judges of District Courts who are to be the judges who constitute the Court.”

The intention clearly to be drawn from that provision is that the court was thereafter to be

constituted by the newly notified judges, and by them alone, so that it fell to them to

determine this outstanding application.

1. His Honour also referred to s.20(2) of the Acts Interpretation Act:

   “Matters in progress may be concluded under repealed enactment. Any Act or enactment notwithstanding the repeal or expiry thereof, shall continue and be in force for the purpose of continuing and completing under such repealed or expired Act or enactment any act, matter, or thing commenced or in progress thereunder, if there is no substituted Act or enactment adapted to the continuance and completion thereof.”

That provision also was inapplicable, because the City of Brisbane Town Planning Act was

repealed by an Act, a “substituted Act” which set up a mechanism apt for the continuation

and completion of such matters.

12              I conclude that Judge Wylie has no jurisdiction to deal with the matter, and that in

holding to the contrary, Judge Brabazon erred in law. We should therefore set aside his

Honour’s order adjourning, for further consideration by Judge Wylie, the issues raised by

the respondent’s application filed on 30 September 1996.

13              It emerged before this court that the parties would be unlikely to agree to the use,

by the learned judge who assumes responsibility for the further hearing of the matter, of

what has gone before - the evidence previously given and the adoption of the order

foreshadowed by Judge Wylie in February 1988. The appellant’s disinclination to agree

to that may be explained by significant intervening events, including the circumstance that

a new planning scheme for the Douglas Shire came into force in December 1996. There

is also a suggested “staleness” about the intimated approval at this stage, with so many

years having passed by. Counsel made submissions as to the way in which any further

hearing should proceed.

14              In R v. Lewis (1988) 165 CLR 12, 15-16, the High Court said this:

“Of course, it is of fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality. If through force of circumstances that cannot be done then the hearing must be commenced de novo unless there is some other more convenient arrangement which has the consent of all the parties and is not inimical to the proper adjudication of the matter.”

Kirby P had advanced a similar principle as the “primary rule” in Wentworth v. Rogers

(1986) 6 NSWLR 642, 649, adding:

“The primary rule is subject to the exception that if an ancillary, severable and distinct matter is severed and not dealt with in an earlier proceeding, it may be determined by another judge, or an appeal court including another judge.”

Judge Brabazon considered this issue, and concluded that it was not possible to regard the

consideration at this stage of the unresolved rezoning conditions as “ancillary, severable

and distinct” from the intended approval Judge Wylie intimated in February 1989.

1. While Mr Gore QC, who appeared for the respondent, urged this court to conclude

that the matters currently unresolved are ancillary, severable and distinct, justifying their

separate determination as it were by another judge now, preserving and working from the

intended approval intimated in 1989, Mr Lyons QC, for the appellant, primarily submitted

that this court would thereby trespass beyond its jurisdiction.

1. This court’s jurisdiction is relevantly limited to reviewing determinations on the

ground of error or mistake in law (s.7.4(3)) Local Government (Planning and

Environment) Act. The actual determination of Judge Brabazon appears in his order, “

that the issues raised by the application filed 30 September 1996 be adjourned for further

consideration by Judge Wylie QC.” The application of 30 September 1996 sought this

relief:

“1.	directions for the further prosecution of the Appeal;
2.	a direction that, within thirty (30) days the Respondent notify the Appellants as to which, if any, of the conditions listed in exhibit “RVG4" to Affidavit of Robert Victor Griggs, its disputes and the nature and basis of any such dispute;
3.	a direction that, within thirty (30) days the Respondent notify the Appellants of the conditions which it proposes;
4.	an Order adjourning the further hearing of the Appeal to a date to be fixed.”

17              Judge Brabazon has not purported to deal conclusively whether or not, absent

consent, the application must be determined de novo. The full passage in which he makes

reference to the question of severability follows:

“Here, in my opinion, it is not possible to say that the consideration of the conditions was `an ancillary, severable and distinct matter’, as Kirby J put it. Judge Wylie alone can conclude the hearing. Any reconstitution of the Court at this stage, at least without the consent of the parties, would be an irregularity warranting intervention on appeal, or a new trial.

All issues, including the submission that the proceedings have become stale, and that there should be a hearing de novo in any case, are adjourned for further consideration by Judge Wylie. I should say that my observations about the question of the conditions are not meant in any sense to be concluded views, binding on any judge. Should I be wrong about Judge Wylie’s powers, I am available to do all that is lawfully possible to decide any remaining differences between the parties.”

Since Judge Brabazon has not made a “determination” on this aspect, within s.7.4(3) of the

Local Government (Planning and Environment) Act which gives the Court of Appeal

jurisdiction, it would be wrong, and possibly unhelpful, for this court to make any further,

and certainly not any definitive, observations with relation to this aspect, which must be left

for further consideration as necessary by the judge who assumes the further conduct of the

matter.

18              I would make the following orders:

1.          That the appeal be allowed;

2.          That the order made by the Planning and Environment Court on 5 June 1997 be set

aside;

3.          That the matter be remitted to the Planning and Environment Court for the purpose

of the giving of directions as to the further prosecution of LG Appeal No. 46 of

1988;

4.          That the respondents pay the appellant’s costs of and incidental to this appeal to

be taxed;

5.          That the respondents be granted an indemnity certificate under the Appeal Costs

Fund Act 1973.

1. As to order No. 5, it is appropriate that the respondent be granted an indemnity

certificate because the respondent did not contribute to the error which warrants this

court’s setting aside the order made by the Planning and Environment Court.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5297 of 1997

Brisbane

Before de Jersey C.J. McMurdo P. White J.

[Douglas Shire Council v. Caber Investments P/L & Anor]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(Respondent) Appellant

AND:

CABER INVESTMENTS PTY LTD
ACN 010 066 234 and
DAY FORD PTY LTD

ACN 010 494 121

(Appellants) Respondents

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 4 December 1998

1. I have read the reasons for judgment prepared by the Chief Justice and agree with the

   orders he proposes for the reasons given by him.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

Appeal No. 5297 of 1997

Brisbane

Before de Jersey CJ McMurdo P White J

[Douglas Shire Council v Caber Investments P/L & Anor]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(Respondent) Appellant

AND:

CABER INVESTMENTS PTY LTD
ACN 010 066 234 and
DAY FORD PTY LTD

ACN 010 494 121

(Appellants) Respondents

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 4 December 1998

1. I agree with the orders proposed by his Honour the Chief Justice for the reasons which he

   has given that Judge Wylie QC has no jurisdiction to entertain the further hearing of the appeal in

   the Planning and Environment Court.

2 It would be incorrect, in my view, for this court to give any directions for the further
prosecution of the appeal in that court. Judge Brabazon QC made no orders in that regard which

would enliven this court's jurisdiction.