Fairview Farming Co Pty Ltd v Cairns City Council

[1998] QCA 6

IN THE COURT OF APPEAL	[1998] QCA 006
SUPREME COURT OF QUEENSLAND
Brisbane

Appeal No. 3244 of 1997

[Cairns City Council v. Fairview Farming Co. P/L]

BETWEEN:

CAIRNS CITY COUNCIL

(Defendant) Appellant

AND:

FAIRVIEW FARMING CO. PTY. LTD. ACN 009 656 660

(Plaintiff) Respondent

Appeal No. 3245 of 1997

[Cairns City Council v. Kamerunga Villa P/L]

BETWEEN:

CAIRNS CITY COUNCIL

(Defendant) Appellant

AND:

KAMERUNGA VILLA PTY. LTD. ACN 010 777 483

(Plaintiff) Respondent

Davies J.A. Moynihan J. Ambrose J.

Judgment delivered 10 February 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS

Court exclusive jurisdiction under s.28 City of Brisbane Town Planning

Act 1964.

Counsel:	Mr. P. A. Keane Q.C., with him Mr. A. R. Philp, for the appellant Mr. D. B. Fraser Q.C. for the respondents
Solicitors:	Clayton Utz town agents for MacDonnells for the appellant W. H. Tutt & Quinlan town agents for Dale Treanor for the respondents
Hearing Date:	2 October 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Davies J.A. Moynihan J. Ambrose J.

Appeal No. 3244 of 1997

[Cairns City Council v. Fairview Farming Co. P/L]

BETWEEN:

CAIRNS CITY COUNCIL

(Defendant) Appellant

AND:

FAIRVIEW FARMING CO. PTY. LTD. ACN 009 656 660

(Plaintiff) Respondent

Appeal No. 3245 of 1997

[Cairns City Council v. Kamerunga Villa P/L]

BETWEEN:

CAIRNS CITY COUNCIL

(Defendant) Appellant

AND:

KAMERUNGA VILLA PTY. LTD. ACN 010 777 483

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 10 February 1998

The central question in this appeal, as it was below, is whether the Supreme Court has jurisdiction in respect of an action by the respondent against the appellant Council for moneys had and received, based upon an allegation that a condition imposed by the appellant upon an approval granted

to the respondent to subdivide land, which required payment of a sum of money, was not lawfully

imposed. The appellant's contention was and is that the legality of that condition could have been

challenged only in an appeal to the Local Government Court which was never pursued.

The question arose in the following way. The respondent in 1985 applied to the appellant to

subdivide land which it owned within the Cairns area. In April 1986 the appellant granted approval to

the application subject to conditions, one of which was that the respondent contribute approximately

$400,000 towards the cost of water supply and sewerage headworks. The respondent did not appeal

against the imposition of this condition; in 1989 it paid that sum and the development proceeded. There

is an allegation in the present action that this amount exceeded the amount which could have been

lawfully required and the claim for moneys had and received is based on this allegation.[1]

[1]            See David Securities Pty. Ltd. v. Commonwealth Bank of Australia (1992) 175 C.L.R. 353.

The appellant relies on s.28 of the City of Brisbane Town Planning Act 1964.[2] That section

[2] See now s.7.4 of the Local Government (Planning and Environment) Act 1990.

relevantly provided:

"28 (1) The Court shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court including every appeal which under this Act may be made to the Court.

(2) Save as prescribed in subsection (3) of this section the jurisdiction of the

Court under this Act shall be exclusive, and every decision of the Court shall be final
and conclusive and shall not be impeached for any informality or want of form, or be
appealed against, reviewed, quashed or in any way called in question in any Court.
... "

Section 34(15) of the Local Government Act 1936 provided that an applicant for subdivisional approval

who was "dissatisfied with the decision" of a local authority might appeal to the Local Government Court

within 30 days of the notification of the decision. There could be no doubt that the combined effect of

these provisions was that the only appeal against the imposition of the above condition as a condition

of subdivisional approval was to the Local Government Court pursuant to s.28. But the question is not

whether an appeal could have been determined elsewhere than in that Court but whether the validity and

legality of the condition can be determined as an issue in any other proceeding between the same

parties. Mr. Keane Q.C., who appeared with Mr. Philp for the appellant, submitted that it could not.

This argument, as we understood it, involved the following steps.

First Mr. Keane submitted that the "matter" within the meaning of s.28(1) was whether the

application should be approved and, if so, on what conditions. In putting his submission in this way he

was relying on the view, accepted in disputes involving ss.75 and 76 of the Commonwealth Constitution,

that "matter" does not mean a legal proceeding but the subject matter for determination in a proceeding.[3]

Having defined "matter" in the above way Mr. Keane could not submit that the question of

whether the condition was legal and valid was itself the matter. But what he submitted was that it was

a "determinative issue" or an "encompassing issue" in any appeal to the Local Government Court and

[3]            See, e.g. In Re Judiciary and Navigation Acts (1921) 29 C.L.R. 257 at 265-6; Fencott v.

that, presumably consequently, it was, in substance, the matter in respect of which that court had
exclusive jurisdiction under s.28.
261 at 290; Crouch v. Commissioner for Railways (Qld) (1985) 159 C.L.R. 22 at 37.

There is some basis for thinking that, notwithstanding the view as to what is a "matter" under

ss.75 and 76 of the Constitution, the term in s.28 was intended to describe a proceeding. The phrase

"all matters .. including every appeal" in subs.(1) leads one to think that the legislature intended an appeal

to be a matter.[4] If all that was intended by s.28 was that the Local Government Court should have

[4] Section 7.4(1) of the Local Government (Planning and Environment) Act 1990, which is

exclusive jurisdiction to hear and determine appeals and other proceedings which might be instituted in

that Court then there was plainly no inhibition upon the jurisdiction of the Supreme Court to hear and

determine the present proceeding. However we do not find it necessary to consider that question.[5] We

[5]            McPherson J. in Veivers v. Cordingley [1989] 2 Qd.R. 278 at 294 lent some support to the

are prepared to assume, as Mr. Keane contended, that the matter in respect of which the Local

Government Court had exclusive jurisdiction in this case was whether the application should be

approved and, if so, on what conditions.

The difficulty with Mr. Keane's argument, on this basis, is that the validity and legality of the

condition was only one of a number of issues which might arise for determination in the matter. To

describe it as an important issue or a determinative issue or an encompassing issue cannot conceal that

fact. The matter, as identified by Mr. Keane, does not arise in this action. Indeed it cannot any longer

arise.

As the learned primary Judge said, on this basis, the matter in the present action is whether the
appellant has been unduly enriched by payment of the $400,000. That matter involves as an issue,

which may possibly even be described as a determinative or encompassing issue, the legality of the

condition. But that does not make that issue the matter.

Mr. Keane sought to overcome this difficulty by submitting, in the alternative, as we understood

his argument, that what was in common between an appeal to the Local Government Court, had such

an appeal proceeded, and this action, was not merely the legality of the condition but also whether, if

it were illegal, approval would have been granted or refused or granted subject to some other condition.

Implicit in that submission, we assume, is a submission that that wider issue was the matter which was

within the exclusive jurisdiction of the Local Government Court.

However, as we have already said, the question can no longer be whether approval should be

granted and, if so, on what conditions. At best for the appellant, in order to determine whether the

appellant was unduly enriched, the Court in this action may have to consider the hypothetical question

of what might have happened had the Local Government Court held the condition to be invalid. This

hypothetical question is of a quite different character from that which would have arisen had the matter

in fact gone on appeal. This alternative argument does not therefore assist the appellant.

For these reasons, in our view, the learned primary Judge was correct in concluding that the

subject matter in these proceedings was not a matter in respect of which the Local Government Court

had exclusive jurisdiction under s.28 of the City of Brisbane Town Planning Act. We would therefore

dismiss the appeal with costs.

Muller (1983) 152 C.L.R. 570 at 591, 602-6; Stack v. Coast Securities (No.9) Pty. Ltd. (1983) 154 C.L.R.

otherwise in materially identical terms to s.28(1) of the City of Brisbane Town Planning Act 1964, adds, after the word "appeal" in s.28(1) "and application for review" because of the power to review, on application, certain decisions of a local government conferred by s.7.2. This lends some support, albeit slight, to this construction: cf. Grain Elevators Board (Vic) v. Dunmunkle Corp (1946) 73 C.L.R. 70.

above construction when he said:

"The matter which, by the combined effect of s.28(2) of the Town Planning Act and s.34(15)(a) of the Local Government Act, the Local Government Court is given authority to hear and determine is the appeal against the decision of the local authority refusing or approving the application."

See however his Honour's remarks in R. v. Brisbane City Council, ex parte: Read [1986] 2 Qd.R. 22 at 26.