Graham v Western Australian Planning Commission - [2014] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GRAHAM -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASCA 234

CORAM: MARTIN CJ
BUSS JA
BEECH J

HEARD: 4 APRIL 2014

DELIVERED : 17 DECEMBER 2014

FILE NO/S: CACV 90 of 2013

BETWEEN: NEIL ROBERT GRAHAM
VALMAI EVELYN GRAHAM
First Appellants
MANDURAH ENTERPRISES PTY LTD
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J A CHANEY (PRESIDENT)
Citation  :WESTERN AUSTRALIAN PLANNING COMMISSION and GRAHAM & ORS [2013] WASAT 112
File No  :DR 190 of 2012

Catchwords:

Real property - Compulsory acquisition of land - Whether taking order valid

Real property - Compulsory acquisition of land - Offer of compensation by acquiring authority not in respect of land validly taken - Whether State Administrative Tribunal has jurisdiction under s 222 of Land Administration Act 1997 (WA)

Appeal - General principles - Interference with discretionary judgment - Judgment based on inaccurate assumption as to the facts

Practice and procedure - Application in the State Administrative Tribunal to strike out proceedings - Supreme Court allegedly a more appropriate forum - Proper construction of s 50 of the State Administrative Tribunal Act 2004 (WA) - Interaction between s 50 of the State Administrative Tribunal Act and those provisions of the Land Administration Act which confer jurisdiction on the State Administrative Tribunal and courts

Legislation:

Interpretation Act 1984 (WA), s 18
Land Administration Act 1997 (WA), s 177, s 179, s 202, s 207, s 211, s 214, s 215, s 217, s 218, s 219, s 220, s 221, s 222, s 223, s 224
State Administrative Tribunal Act 2004 (WA), s 5, s 16(2), s 50

Result:

Leave to appeal granted
Appeal allowed
Decision of the Tribunal set aside
Matter remitted to the Tribunal for reconsideration of the application to strike out the part of the proceedings which is within the jurisdiction of the Tribunal

Category: A

Representation:

Counsel:

First Appellants            :     Mr R I Viner QC & Ms L E Rowley
Second Appellant          :     Mr R I Viner QC & Ms L E Rowley
Respondent:     Ms F B Seaward

Solicitors:

First Appellants            :     Norton Rose Fulbright Australia
Second Appellant          :     Norton Rose Fulbright Australia
Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney‑General (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469
Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424
Barker v The Queen (1983) 153 CLR 338
Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475
Graham v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Mandurah Enterprises Pty Ltd v Western…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASCA 234
Decision Date: 17 DECEMBER 2014

CaseChat Overview and Summary

In the case of Graham v Western Australian Planning Commission, the High Court was tasked with reviewing the validity of a compulsory land acquisition order and the jurisdiction of the State Administrative Tribunal in handling compensation claims. The dispute arose from the Western Australian Planning Commission's (WAPC) acquisition of certain land parcels, with the landowners contesting the validity of the taking order and the subsequent compensation offer. The landowners argued that the taking order was invalid for certain portions of the land, and that the Tribunal lacked jurisdiction to determine compensation claims as no valid compensation offer had been made for the disputed land.

The primary legal issues before the court were whether the taking order was valid in its entirety or only in part, and if the State Administrative Tribunal had the requisite jurisdiction to hear the compensation claims under the Land Administration Act 1997 (WA). The court had to interpret the provisions of the Act to determine the scope of the taking order and the conditions under which the Tribunal could exercise its jurisdiction. It was also necessary to consider the principles governing the Tribunal's jurisdiction and whether the Supreme Court was a more appropriate forum for the proceedings.

The High Court, through the plurality, determined that the taking order was valid for certain portions of the land but invalid for others. They held that the Tribunal's jurisdiction under section 222 of the Land Administration Act was contingent upon the making of a valid compensation offer, which in turn required the taking order to be valid for the land in question. Since the offer of compensation included land that was not validly taken, the landowners' rejection of the offer was not effective, and therefore the Tribunal did not have jurisdiction. However, the court clarified that the taking order was valid in respect of New Lots 7, 8, and 30, as well as Lot 49, which meant that the landowners' claim regarding the invalidity of the taking order was only partially successful. The court's decision also highlighted the importance of the proper construction of statutory provisions and the interaction between different legislative frameworks.

In conclusion, the High Court upheld the validity of the taking order for certain portions of the land but ruled that the Tribunal did not have jurisdiction to hear the compensation claims due to the invalidity of the compensation offer. The landowners' contention that the taking order was invalid in its entirety was rejected by the majority, and the court's reasoning affirmed the principles of statutory interpretation and jurisdictional limits. The orders of the court reflect the partial success of the landowners' appeal and the necessity for precise compliance with legislative requirements in compulsory acquisition proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 179 of the Act relevantly provides:179.Registration of taking order, effect of On the registration of a taking order in relation to land - (a) the order has effect according to its terms; and (b) if the order provides that the land is taken - every registered and unregistered interest in the land not preserved under section 178(2)(a) is extinguished, and each person who formerly held such an interest has that holding converted into a claim for compensation under Part 10…It is therefore clear that in the passage immediately above the plurality held that s 179(b) of the Act had operated to extinguish the landowners' interest in the portions of land validly taken - that is, New Lots 7, 8 and 30. The tenor and effect of the plurality's decision is put beyond doubt by their conclusions which were expressed in the following terms:The taking order of 5 August 2003 is valid in respect of the reserved portions of lots 7, 8 and 30 and the whole of lot 49. It is invalid in respect of the zoned portions of lots 7, 8 and 30. This result constitutes substantial but partial success for the appellants as the WAPC's submissions have succeeded in respect of the reserved portions of lots 7, 8 and 30 and the whole of lot 49…[13][13] Reasons [49]. Further, it is significant that Hayne J disagreed with the plurality because of his view that the taking order could not be read down in its operation so as to apply only to the portions of the lots which the acquiring authority was authorised to take. It is clear from the reasons of the court as a whole that the plurality thought otherwise and held that the taking order was valid in respect of the land which I have described as New Lots 7, 8 and 30, and Lot 49. It follows that the landowners' submission to the contrary is contrary to the majority decision of the High Court and must be rejected. The jurisdiction of the Tribunal which WAPC sought to invoke is that conferred by s 222 of the Act. By the express terms of that section, the jurisdiction arises when:(a)a claimant for compensation rejects an offer of compensation; and(b)does not, within six months after service of the notice of rejection, either institute an action for compensation or refer the claim to the Tribunal. The landowners contend that these two requirements are facts upon which the jurisdiction of the Tribunal depends. They contend that neither jurisdictional fact exists because there was no offer of compensation in respect of the land compulsorily taken, within the proper meaning given to that expression in Part 10 of the Act, and therefore no rejection by the landowners of an offer of compensation within the meaning properly given to that expression in Part 10 of the Act. It is conceded, however, that these contentions only apply to New Lots 7, 8 and 30, and do not apply to Lot 49.[14] That is because the argument relies upon the fact that the offers of compensation made by WAPC in 2004 were made in respect of the land the subject of the taking order and therefore included, in the case of Lots 7, 8 and 30, an offer of compensation for land not validly taken. However, as all of Lot 49 was validly taken, in respect of that lot there is no discrepancy between the terms of the offer of compensation and the land actually taken.[14] Appeal transcript p.9.