Great Southland Resources Pty Ltd v Underhill
[2012] QSC 153
•14 June 2012
SUPREME COURT OF QUEENSLAND
CITATION:
Great Southland Resources Pty Ltd v Underhill & Ors [2012] QSC 153
PARTIES:
GREAT SOUTHLAND RESOURCES PTY LTD
(applicant)
v
STUART UNDERHILL, MANAGER, STATE BOAT HARBOURS AND DELEGATE OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(first respondent)
and
CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(second respondent)
and
MINSTER FOR MAIN ROADS, FISHERIES AND MARINE INFRASTRUCTURE
(third respondent)
and
STATE OF QUEENSLAND
(fourth respondent)
FILE NO/S:
BS10893/11
DIVISION:
Trial
PROCEEDING:
Application
DELIVERED ON:
14 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
2 March 2012
JUDGE:
Douglas J
ORDER:
Application dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where the applicant was the lessee of land from which it operated a barge service – where the applicant became lessee by assignment from the original lessee – where the lease contained no provision for its renewal – where the lease expired – where the relevant parcel of land was allocated to the State of Queensland by an order of council – where the applicant’s interest was subsequently referred to as a sub-lease of that land on the register kept under the Land Act 1994 (Qld) – where applicant claiming entitlement to apply for renewal – whether the land was a lease or a sub-lease – whether the applicant had an accrued right to apply for a new lease – whether the applicants were afforded procedural fairness
Land Act 1994 (Qld), ss 158(1), 303, 505
Transport Planning and Coordination Act 1994 (Qld), s 24(3)
Britcourt Pty Ltd v Curlew Apartments Pty Ltd [2006] 1 Qd R 101 referred
Griffith University v Tang (2005) 221 CLR 99 referred
COUNSEL:
P G Bickford for the applicant
M Hinson SC with S A McLeod for the respondents
SOLICITORS:
MacGillivrays Solicitors for the applicant
Crown Solicitor for the respondents
Douglas J: This is an application for judicial review of decisions relevant to an attempt by the applicant to renew a lease or sub-lease of State land.
Background
The applicant, Great Southland Resources Pty Ltd (“GSR”), was the lessee of land from which it operated a barge service from Rosslyn Bay Boat Harbour to Great Keppel Island. Originally, when the lease commenced on 16 November 1992, the Harbours Corporation of Queensland was the lessor of the land described in the lease, the land being vested in it pursuant to the Harbours Act 1955 (Qld). GSR became the lessee by assignment from the original lessee, Anscott Pty Ltd in October 1993 on payment of $650,000. The lease contained no provision for its renewal.
By the time the lease expired on 19 October 2011, the Harbours Corporation had ceased to exist by that name and its assets had become assets of the State.[1] The relevant parcel of State land had been allocated to the State of Queensland by an Order in Council made on 14 December 1995 and GSR’s interest was subsequently referred to on the register kept under the Land Act 1994 (Qld) (“Land Act”) as a sub-lease of that land.
[1]See s 99(1) of the Transport Infrastructure Act 1994 (Qld) introduced by s 3 of the Transport Infrastructure Amendment Act 1994 (Qld).
The applicant claims that it is entitled to apply for a renewal of its tenure and seeks judicial review of a number of decisions connected with the refusal to renew it. One issue at the heart of the problem is the nature of the tenure held by the applicant. Was it a lease or a sub-lease?
The question whether the land was held pursuant to a lease or a sub-lease is important because, if it were a lease to the applicant under the Land Act, then s 158(1) of that Act provides that “the lessee of a term lease may apply for an offer of a new lease.” There are also rights of appeal from a refusal of such an application to the Land Court. “Lessee” there does not, however, include a sub-lessee; see schedule 6 of the Act defining “Lease” as “the interest in land comprising a lease held under this Act as shown by the current particulars of the interest in the appropriate register” but explicitly including “sub-lease” only in a context irrelevant to this case. See also Britcourt Pty Ltd v Curlew Apartments Pty Ltd[2].
[2][2006] 1 Qd R 101, 104 at [15].
The respondent’s submission is that the land is not held pursuant to a term lease under the Land Act and that s 158(1) does not apply. It points out that s 505 of the Land Act provides, in respect of changing tenures of harbour land, that an interest in the land is not affected by the allocation of the land to another body, even though the interest may not be an interest that may be granted or issued under that Act.
The applicant also argues that it has an accrued right to apply for a new lease and says that its application should have been treated in accordance with the rules of procedural fairness, something that it argues has not happened.
The respondent’s approach to those issues is that there was no accrued right of renewal under the original lease and that the decision not to grant a new tenure over the land was authorised under s 24(3) of the Transport Planning and Coordination Act 1994 (Qld) as an exercise of a power to deal with property which was not amenable to judicial review, relying on the decision in Griffith University v Tang.[3]
[3](2005) 221 CLR 99, 129 at [82], 130-131 at [89] and [91].
Lease or sub-lease?
As I have mentioned already, the original document described as a lease did not contain a provision for its renewal. By the time of the events relevant to this application the registered instrument described the tenure as a sub-lease where the registered lessee was the State of Queensland (represented by the Department of Transport and Main Roads).
The lease commencing on 16 November 1992 was between the “Harbours Corporation of Queensland, the Harbour Board under and within the meaning of the Harbour Act 1955-1990 in respect of the Rosslyn Bay Boat Harbour” as lessor and Anscott as lessee. It covered land described as lot 2 on plan LN803409 which was itself part of lot 105 on SP161849 in the County of Livingstone Parish of Hewittville. Lot 105 was leased in perpetuity by the Crown in right of the State of Queensland (represented by the Department of Transport) as a lease in perpetuity commencing on 30 July 2004. Thereafter the State (from 14 September 2010 described as “represented by Department of Transport and Main Roads”) was designated as the lessee of lot 105 and GSR’s tenure was described as a sub-lease. That change in the tenure of the land was said to be authorised by an order in council made 14 December 1995 changing tenures of Harbours land and providing:
“The relevant tenures which were formerly managed by the Harbours Corporation of Queensland pursuant to sections 64 and 196 of the Harbours Act 1955 are allocated to the State to be then dealt with as tenures pursuant to the provisions of the Land Act 1994 in so far as the terms and conditions of the existing tenure allow.”
The respondent’s argument, which seems to me to be correct, is that the effect of those steps was to leave the lease as one granted under the authority of s 196 of the Harbours Act 1955 (Qld) (“Harbours Act”), which contained no contractual or statutory right of renewal and whose terms required the lessee to vacate the land and remove movable improvements which were its property.[4]
[4]See s 64(12) of the Harbours Act 1955 (Qld).
In other words, the lease never became a “term lease” for the purposes of s 158 of the Land Act which came into force after this lease was created. The effect of s 505(4) of the Land Act was that the interest in the land was not affected by its allocation to the State under s 505(1) and it did not become a “lease held under” the Land Act for the purposes of the definition of “lease” in schedule 6 of that Act. Rather the lease held under that Act was the perpetual lease to the State commencing 30 July 2004.
Mr Hinson SC submitted for the respondents that there was nothing to demonstrate that the lease under the Harbours Act had been changed into one arising under the Land Act and that the register kept under the Land Act recognises that land for which a register is to be kept includes harbours corporation land such as is in question here and means land for which “the Minister may exercise continuing powers for the State.”[5] He also pointed out that s 303 of the Land Act makes a registered document conclusive evidence of the registration of the applicant’s interest as a sub-lease, not a lease, and submitted that nothing in the evidence permitted those provisions to be used to identify the lease granted under the Harbours Act as one capable of arising under the Land Act.
[5]See s 44 of the Land Regulation 2009 (Qld).
Accordingly, in my view, the land is properly regarded now as a sub-lease not covered by s 158 of the Land Act. It is not, therefore, a lease with a statutory right of renewal.
Accrued right
That conclusion also resolves the issue whether there was any accrued right to renew the lease. There was no such right when it was created. The legislative changes since the entry into the lease have at no stage made it a lease arising under the Land Act to give it the right arising under s 158. Accordingly, there was no accrued right able to be exploited by the applicants.
Procedural fairness issues
The resolution of the issue about the tenure of the land also resolves the procedural fairness arguments of the applicant. Some of those issues were complicated by some confusion as to the identity of the appropriate respondents or decision-makers and in respect of the relevant legislation applicable to the decision not to grant a new lease.
The first respondent, in a letter of 19 October 2011, refused the applicant’s request for a renewal, referring to the formal renewal requirements under s 159(1) of the Land Act. Later, however, by a letter of 4 November 2011, he said:
“We have reviewed the provisions of the relevant legislation and note, with respect, that section 158 of the Land Act 1994 only applies to term leases. In relation to this, we refer you to that section and the definition of ‘lease’ in Schedule 6 of the Land Act 1994. Section 158 of the Land Act 1994 does not apply to subleases.
As the agreement between the Department and your client is a sublease, the Department does not consider that your client has the express statutory right set out in section 158(1) to apply for an offer of a new lease (in any event, such an application would have to be decided by the Department of Environment and Resource Management). Nor is there a contractual right under your client’s sublease to make such an application.
While the Department has in the past indicated, in its discretion, that it is prepared to consider applications for renewal of subleases, the decision whether or not to do so is ultimately a commercial one and not made under any specific enactment, and the Department therefore does not consider its decision not to grant a further sublease to be a reviewable decision under the Land Act 1994 or the Judicial Review Act 1991.”
Section 24(3) of the Transport Planning and Coordination Act 1994 (Qld) gives the chief executive under that Act power to enter into contracts and to deal with property. That chief executive is the manager of the Rosslyn Boat Harbour and the respondents’ argument simply is that he, in refusing to deal with the property by entering into a new lease with the applicant, did not alter or affect legal rights or obligations. The result argued for was that his decision was therefore not amenable to judicial review.
Reliance was placed on the decision of the High Court in Griffith University v Tang.[6] That decision is authority for the proposition that a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. Their Honours went on to say “a legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party.”
[6](2005) 221 CLR 99, 129 at [82], 130-131 at [89] – [91] per Gummow, Callinan and Heydon JJ.
Here there was no evidence that the respondents had, for example, encouraged the applicant to apply for a new lease. Properly analysed, the evidence is simply that they refused to enter into negotiations with the applicant for the grant of a fresh lease over the property. Accordingly, as the respondents submitted, the sub-lease expired on 19 October 2011 and, thereafter, the applicant’s legal rights and obligations were those which flowed from the fact of the expiration of the lease.
Conclusion and orders
The application should be dismissed. I shall hear the parties as to costs.
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