Fitzgerald v Fahey

FEDERAL COURT OF AUSTRALIA

Fitzgerald v Fahey [2000] FCA 95

ADMINISTRATIVE LAW – judicial review of decision to require possession of land – whether a reasonable expectation of consultation.

Lands Acquisition Act 1989 (Cth), ss 57, 132
Australian Heritage Commission Act 1975 (Cth), s 30(3)
Environment Protection (Impact of Proposals) Act 1974 (Cth), s 5(1), s 8

PATRICK FITZGERALD v JOHN FAHEY, MINISTER FOR FINANCE AND ADMINISTRATION
Q 275 OF 1999

DOWSETT J
8 FEBRUARY 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 275 OF 1999

BETWEEN:	PATRICK FITZGERALD APPLICANT
AND:	JOHN FAHEY, MINISTER FOR FINANCE AND ADMINISTRATION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	8 FEBRUARY 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs of the proceedings, including the costs of the application for an adjournment.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 275 OF 1999

BETWEEN:	PATRICK FITZGERALD APPLICANT
AND:	JOHN FAHEY, MINISTER FOR FINANCE AND ADMINISTRATION RESPONDENT

JUDGE:	DOWSETT J
DATE:	8 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 3 February 1972, the Department of the Interior advised the father of the present applicant that certain property owned by him had been acquired by the Commonwealth, vesting therein on 16 December 1971.  The land was described as Subdivisions 3 and 4 of Portion 19V and Subdivision 2 of Resubdivision 3 of Subdivision B of Portion 24, Parish of Witheren, County of Ward, containing a total area of 171 acres, 31 perches.  Thereafter, and until his death in 1997, the applicant's father, the applicant and other members of the family entered into correspondence with various representatives of the Commonwealth with respect to the right of Mr Fitzgerald senior to continue to reside there.  At one stage, an order for possession was obtained against him, but it was never executed.  The Government authorities appear to have been reluctant to force the issue and allowed him to continue in possession under various arrangements.  During that period, there was also correspondence between the Fitzgerald family and Commonwealth authorities as to the management and use of the land.  Those authorities appear to have extended quite exceptional courtesy to the Fitzgeralds throughout this very lengthy period, presumably taking into account their peculiar family interest in the property which is of some significant environmental value.  That value has been recognised by various environmental protection agencies.

2. As I have said, Mr Fitzgerald senior died in 1997, and, as far as I can see, whatever claims to continued occupation he may have had died with him. No suggestion to the contrary has been made. It has been asserted at various stages that the present applicant has a right to possession of the land, but no factual or legal basis has been laid for such claim. In those circumstances, on 25 August 1999 or thereabouts, the present respondent decided to give the…