Hooker Corp. Ltd v The Commonwealth of Australia

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
AUSTRALTAN CAPITAL TERRITORY
XISTRICT REGISTH
GENERAL DIVISION	1

BETWEEN:

HOOKER CORPORATION LIMITED

Applicant

AND:	THE COMMONWXLTH OF AUSTRALIA

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.

r	DATE OF ORDER	: 11 July 1986
WHERE MADE	: Canberra

-	TKE COURT ORDERS THAT:

1. The

application

for

leave

appeal

from

Lhe

judgment of the Supremc Court of the Australian Capital Territory given on 12 May 1986 bc dlsmissed.

2. The

applicant;

pay

the

respondent‘s

costs

of the

application.

Note:

Settlement and entry

of orders is dealt with In Order

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)	i
)
AUSTRALIAN CAPITAL TERRITORY	)	j -
1 No. ACT G 29 of 1986	!
DISTRICT REGISTRY	)
)
GENERAL DIVISION	1

BETWEN:

HOOKER CORPORATION LIMITED

Applicant

AND:

THE COMMONWEALTH OF AUSTRALTA

Respondent

CORAM: Neaves J.

U: 11 July 1986

REASONS FOR JUDGMENT

This is an application by

Hooker Corporation Limited

("the applicant") for leave to appeal from

judgment of the

Supreme Court of the Australian Capital Territory (Kelly

J.)

given

May

1986

dismissing an application that the

applicant

have

leave

amend

its

statement

claim

procecdings in that

Court

between

thc

applicant

and

the

Commonwealth of Australia ( "the respondent").

The judgment

being

Interlocutory,

leave t o appeal is required by

sub-s.Z?(lA) of the Federal Court

of Australia A c t 1976 (Cth).

For

the purpose

this applicatlon the following

facts may be accepted.

The applicant is the

lessce from the

respondent of	certain land known	sls Block 8, Section 35,	!
i
1.

I .

. .

l .

Division of-

Clty In the Australian Capital Tcrritory. Clause

l ( d ) of thc lea.%,

which w a s Trantecl under the

C i t y Area Leases

Ordinance 1936 (A.C.T.

) , provides that the land

may be uset1 for

the purposc only

o€ commercial and pro€cssional of€ices and

such other purposes

as may

hc approvecl in

writing by

the

Minister.

By clause l(c), the applicant

as lcssec covenanted

wlth the respondent as lessor:

"That the lessee will not wlthout the previous approval In writing of the Commonwealth or the

Minister on behalf

o€

the Commonwealth ercct any

building on the said land or make any stxuctxral

all-erations in any building erectrd on the said

land.

The lcase WAS orlginally grdnted on 13 Novernbcr 1973.

The

applicdnt became regist-ered as lcssce on	21 Novcnlber 1383,
presumably by asslgnment.

At thc erid of 1983 or early in 1904 Lhc applicant;

commenccd Lo carry out certain structural alterations in thc

buildlrlq on the land.

Or1 or about 13 October 1983, prior t o

comntenclng such work,

Lhp applicant,, pursuant.

to s .73 of thc

Ruildirls Ordinancc 1972 (A.C.T.

) r caused the

plans for the

proposed nltcrations to

lodged f o r

approval with

the

Building

Controllcr

appointed

under

that Ordinance.

Approval was givcn by the Building Controllcr

o r his deputy

on 6 Deccmhcr 1983 by signing a stamp of approval endorsed	I I
I
!

on the plms and by the addition to the plans of	a notation
to the followlng effect:

3 .

"Building work

.shal l bc cons t ruc t ed i n accordance

w i t h the approved plans,

the Builr l i rq Manual ACT,

the not:ations

made on the p lans

and

any

mat

s p c c i f i e d

the

b u i l d i n g

p e r m i t .

The

approval

p l a n s

o r

the g r a n t of

a b u i l d i n g permit

docs

n o t

a f f c c t

the

ope ra t ion of

any

other

l a w i n the

T e r r i t o r y ,

n o r

d o e s

i t a u t h o r i s c thc

use

t.hc

l a n d

c o n t r a r y

t o

provis jon ,

covcnant

o r

I .

cond i t lon of	T,ease. "	!
I

b u i l d i n g permlt

was

a150

i::sucrl

p ~ r r s u a n t

t o

t h e

R u i l d i n q

---

Ordtnarlce

1.972 (A.C.T. ) au thor j s ing

t.hc

nominaLcd

b u i l d c r t o

proceed	w l Lh	t h c b u i l d i n g	work	in accordance	W] t.h	the approved
p l a n s .

Ily

l r t t e r

d a t e d

1 2 March

1981

d n

o f f l c e r

t h e

respondent

wrote

the appl icant :

the

fo l lowing tcrms:

refer

y o u r

t o

company':;

a p p l i c a t i o n

redcvelop

Lhe

p r e m i s e s

s i t u a t e d

Rlock

Sec t ion 35

C i t y

a c c o r d i n g

t o

t h e

b u i l d i n g

p l a n s

submlt tcd on 13.10.03.

a d v i s e that

approva l

has

been

ined

o€

your

Company

a f r e s h lease

toge the r with

the

consen t

r equ i r ed

hy Clause 1(C)

i n the

e x i s t i n g

lease

t o

Lhe

submi t ted p lans .

The

o f f e r is

sub jec t .

t o

the

c o n d i t i o n s t h a t : -

your Company

unde r t akes

t o

comple t e

a l l

formalit ic, : ;

fo r

the

su r rende r of

i t s

e x i s t i n g lease upon heing requircrl	50 t o
do;

.	payment bc madc of a premium of

$447 500.00.

The

s u b s t l t u t i n g l c a s e

w i l l bc

i n a r c o r d a n c e

with

the

terms

a n d c o n d i t i o n s o u t l i n e d i n

t he

a t t a c h e d

specimen

and

schedule

conditions.

l ’he premium

has becn assessed at h a l i the value

which will bo added by

the

conscnt to your

redeveloprncnt plans and includes the widened u5e

covenant, of the new

lease.

1 mcrltion that this offer accords with

the advice

given by letter datrd 18 May

1981 to Manchester

Invcstments ( A C T )	Pty. Limil:f?d your prtvlcccssors
in title.

I would appreciate your

written acreplancc of

Lhis offer l:orJcl.her with payment of thc premium

as soon as

posslble to facilitate endorsement: of

the

bwlding

plans held by this Office. The

ofrer wlll lapsc aftcr 60 ddys from date of this

letter.

”

letter dated

28 Junc 1984

the applicant was

informed that, if building work continued,

a stopwork notice

would he issued under the nuildinq Ordinance

1972 (A.C.T.).

On 31 July 1981 the

applicant,

plaintiff,

commenccd an

action in the Supreme Court of the Australian

I ‘

Capital Territory	against, the respondent,	as defendant,
claiminy -

” (1) A declaration that.

the defendant by

itself

the

Minister

for

Territories

and

Local

Government:

hehalf of the

dcfendont

has

glvcn

approval in writing to the plaintiff to make structural alterations to the building erectcd on the land.

( 2 )

Further

and

in the

alternative

declaration that the defendant cannot

lawfully require the

plaintiff to pay a

sum

money

the defendant as

condition

precedent

the

defendant

grantinq approval to the plaintiff to

make

structural

alterations to

the

building erected on the land.

5 .

A declaration that the plalntlff is not.

rarrying out. h u ~ l c l ~ n g work nn the land

contrary to any provlsion, covenant or

condltlon of the Crown Lease.

I '

An order that the defendant by itself or	I
by its servant the Building Controller
i '

be restrained from Issuing

a stop notice

under Part IV

of the Bullding Ordinance

1972

pursuant to Sectlon

43(l)(e)

that

Ordinance

respect

of the

I-

building work being carrled out by the

plaintiff on the land.

costs.

Lhc delivery in that acLlon of

statement of

claim and

a defence m d after

the filmg on behalf of the

respondent of an

affidavit o€ discovery, Lhe applicant applicd

to the Supreme Court pursuant

to Order 34, rule 15 of the rules

that Court

for an

order €or further discovery. Further

dlscovcry

was

sought

the

basis

khat an issuc

in the

proceedmgs

was whether the respondent

had, by its conduct,

acknowledged that: it would be d suf flcient approval in wrikinq

by the Commonwealth

the

Minister

behalf

of the

Commonwealth to the making of structural alterations to the building on the land for the purposes of clause l(c) of the applicant's lease if the nuildinq Controller appointed under

the Bulldins Ordinanrc

1972

(A.C.T.) or

his deputy, acting

pursuant to the provisions of that Ordinance, approved

Lhe

plans for those structural alterations and issued a building

permit.

6. I .

On 26 February 1985 Kelly J. dismissed the application

for further discovery. His Honour summarised thc effect

relcvant provisions of the Ruildinq Ordinancc

1972 (A.C.T.) and

the

Buildinss

(Dcsiqn

Sitinq)

Ordinance

l964

(A.C.T.)

the followirlg passage in

his reasons for judgment (Hookcr

Corporation

Ltd.

Commonwealth

Australia

(1985)

A.C.T.R. 37 at p.43) -

" .... if the [National

Capital

Development7

Commission has approved proposals with respect

the cxternal design and siting of a building or

a building proposed to

altered and the

plans

the building arc in accordancc with

thosc proposals and if the building

as proposed

erected

altered

structurally

sufficient, safe and stable for the purpose, the

building

controller

must approve the plans and

issue

a building permit unless he

is satisfied

that it is necessary to refuse thc approval

permit in order to prevent a contravention of a	. .
provis~on of the Ordinance or of somc other law	l

of the terms and conditlons

of a

lease or

tenancy granted

by Lhe Commonwealth.

' I

His Honour contlnued	-	1 .
I

" B u t ~t

doos not follow from

the exception lust

referrcd to that

the building controller's

failure to refuse such an approval or permit can

constitute the previous approval

writing of

the Commonwealth or the Minlst,er

on behalf of the

Commonwealth undcr a clausc equivalent, to

cl l(c)

of the

lease.

Nothing in eithcr the

CBuildingIl

Ordinance or the Design and Siting Ordinance

warrants

such

a vicw.

Nor

there

any

suggestion that application for. the approval

plans or the issue

of a building permit is

application to

the Commonwealth or the Minister

on behalf of the Commonwealth

f o r the approval in

writing required under cl l(c)

of the lease or

under similar clauses in other leases."

! .

His Honour concluded that no facts

had been pleaded that

would support the contention which thc	plairltlff had satd it	l
wished to advance.

Thereafter, on 6 February 1986, the

applicant

applied to statement of claim. In

the

Supreme

Court

for

leave

amend

the

his	reasons for judgment delivered

28 February 1906 dismissing the application, Kelly

said :

"Counsel

for

the

plairitiff submittcd, as I

understood him, that the proposed statement

claim disclosed

a cause

of action in two ways.

The fxrst, was that it pleaded

an implied term in

the

contract

between

the plaintiff and

the

defendant evlclenced by

the Crown Lcase that the

previous approval in writing

of the Commonwealth

o r of the Minister

on behalf of the Commonwealth

referred to in clause

l( c) of thc Crown Lcase

should be evidenced by the action of the Building

Controller

his

deputy

authorised

that

behalf in approving building plans and issuing

huilding permit in respect of

a building to be

erected

upon

structural

alteration

building already erected upon land the subject of

the

Crown

Lease.

The second

was

that

the

defendant

was

estopped

its

conduct

particularly described in the statement of claim

from

allcging

that

the

approval

writing required by clause	l(c)	of the	Crown
Lease had not been granted."

His Honour concluded that the facts

as pleaded dld

not give rise to thc necessary implication contended

for by

I .

the applicant and were not sufficient t o ra ise an estoppel

against the respondent.

8 .

The

applicant did not seek to appeal from that

judgment hut made the furt;her application

for leave to amend

the statcmcnt

of claim which was dismissed by Kelly J. by

the judgment given on 12 May 1906

from which the applicant

now seeks leave to appeal.

The

amendments proposed to the

statement of cldlm were sclld by counsel for thc applicant to found a clam to relief based on an est.oppc1 created by the

respondent’s conduct.

The claim to relief on

the basis of

an implied term in the Crown

lease, which had formed part

the eclrlicr	application for leave	to amend, was no longer
pressed.

The proposed amended statement

claim contains

allegations to

the

effect

khat,

sincc

the

coming

into

I I

operation of the Buildinq

Ordinance 1972 (A.C.T.), the

respondent had,

so far as lessees under Crown leases were

concerned, by administrative usage, custom, procedure and

practice

treated

approval

the

Building

Controller

pursuant

that

Ordlnancc

plans

for

structural

alterations to buildings erected on land the

aub~ect

of such

a Crown lease and the subsequent issuc of an dppropriate building permlt as the approval in writing to the making of

such structural alterations requlred under clause l(c) or

other relevant provision of the lease and had not required

such lessees to obtain any further or other approval to the

making of such structural alterations;

that

Crown lessees

3 .

had relied on thc approval under the Buildinq Ordinance

1972

(A.C.T.) of plans	f o r such structural	alterations followed	I-
i

the

issue

appropriate

building

permlt

constituting

the

necessary

approval

rcqulred

under

the

relevant provision

the lease; that

thc applicant had

knowledge of that administrative usage, custom, prOCedUre and practice and, in reliance on that knowledge, it had

sought no approval to the

making

of the

structural

alterations to thc building on the land the subject of its

Crown lease other than the approval

of the relevant plans by

the Building Controller and the issue of

appropriate

building permit; and that it had acted to its detriment in

proceeding

make

the

structural

alterations

wlthout

obtaining a specific approval under clause l(c)

its

lease.

"he conduct;, adminlstrative usage, custom, procedure

and practice so pleaded are said to constitute

"a representation by the Commonwealth, or by the Minister acting on behalf of thc Commonwealth, which was made to Crown lessees including the

plaintiff

that

approval

writing

the

Commonwealth, or the Minister

on behalf of the

, .

Commonwealth,

structural alterations to

buildings

erected

on the land

under

the Crown

lease was granted

if the steps referred to in

paragraph 5 [that is to say, the steps referred

to above3 took place."

The

critical question identified by Kelly

J. was

whethcr, on the facts

as pleaded, thc representation alleqed

could be regarded

as hdving been made to the applicant. His

Honour	considered	that	it	was	not	consonant	with the	!
: -

10.

authoritie~ Louchirlg the on s u b ~ e c t to rcgard a representation as having been mdAe to a party if all t.hat. is establlnhed is that thc party observed that the person with

whom hc had cntcrcd into

conLractua1 relationship had

followed

a particular course

of conduct with rcspect

third

partjcn

each

of whom

had a stinilar

contractual

relationship w1t:h

that person.

thc rcsult, his IIonour

held that

the

fartr;

plrdded

did

not

dinclosc

such

representation

as wCis required

t o found an

es1:oppt.l.

folluwcd that Lhc proposed amended statement

O K tlnlm failed

to disclosc a cause

of action and the application for leave

f	to amend was dismisspd.

Counsel for the applicant submitted that

lcnve to

appeal should he granted on

the basis that there 15 a point

of law involved and

that thc matter is of

some slgniflcancc.

acknowledged that,,

succeed in thc claim which it

wishes to pursuc. i t is neccssary fnr the applicant

to plcild

(and ultimately prove) facts amotlnting

to a rcprescntatlon

madc by the respondent. to the appllcant. He submittcd that

Xclly ,J. should have concludcd that thr f'tcts 3 s pleaded in thc proposcd amended statement of clmm arc, I € proved,

sufficient, to constitute thc necessary representation to the

appllcant

and

thus

to support

estoppcl

against

the

respondent. The application was opposed by counsel for the

respondent-.

.i ,	11
!I	'!

The

proposed amended s ta tement

c la im

does

not

allrgc

that

any r cp re f2en ta t ion

had

been

rnadc

d i r e c t l y to the

appl icar l t

o r

thdt;

t.hcrc

had beer1 J. course of

d c a l l n g betwecw

t~hc appl icant assumption	and	the	respondent	g lv inq	rlse	t o	the	I-
!

upon

which

the

a p p l i c a n t ,

a l l e g e s

it actcd.

Some

fourldatiorl

Tot-

the

a p p l i c a n t ' s

c l a i m

may

have

been laid If

i t were

a l l e g e d that the

appl icant

had

been

in formed

tha t

approval of plans

the Bui ld ing

Cont ro l le r

and

the

i s s u e

of a bullcling

permit

woilld bc

regarded

as a

s u f F i c i u n t

approval under c lause

l( c ) of

thc lcase o r i f

there had

been

e a r l i c r

o c c a s i o n

e a r l i e r

o c c a s i o n s

whlch

the

a p p l l c a n t

had allcges

i t s e l f b e e n t r e a t e d i n t h e

same

mctnncr

thi t :

i n which

it:

o t h e r Crown

l e s s e p s wcrc

t r e a t e d .

n u t ,

as I have

s a id ,

such

a l l cga t ions

a r c

madc.

The

conduct

t h c

B u i l d i n g

C o n t r o l l e r ,

a c t i n g

u n d e r

t.he

s t a t u t o r y

p r o v i s i o n s

t o

whlch

r e fe rence

has

a l r cady

been

mddc,

j n

glvlng

a p p r o v a l

t o

thc applicant's

bui ld ing

p l ,ms

and

l s s u i n g

a bu i ld ing

pe rmi t

ca r lno t ,

o f

I t s e l f ,

amount

t o a

r c p r c c c n t a t i o n

t h a t

that:

was

suff ic icnt

t o

s a t , i s f y

t h e

requlrcments of the ledse.

The

i s sue

wh ich

t he

app l i can t

wishcs

havc

considcred

by a

F u l l

C o u r t

th is

Court i s

whel.hctr

the

respondent

must

taken

hdvc

mctde

r e p r c s e n t a t l o n to

t h e

a p p l l c a n t

that

approval

t h e

r e l e v a n t

b u i l d i n g

p l a n s

t h c

n u i l d i n g

C o n t r o l l c r

a n d

the grant. of a building

pe rmi t

co l ly t i t u t ed

approva l

unde r

c l aube

l ( c )

Lhe

lease

13.

by reason

only

thc

c i rcumstance

that

the

respondent.

had,

t o

t h e

knowledge of

the

a p p l i c a n t ,

d c a l t i n

that way

w i t h

o t h e r Crown

lcssees

i n r e l a t i o n t o

the makmg

s t k u c t u r a l

a l t e r a t i o n s

t o

b u i l d i n g s

leaswl

l and .

accep t

that

p r o p o s i t i o n w a s

said

Kelly

J. t o be

not

consonanl

w i t h

a u t h o r i t y .

complaint i s

made t h a t his

Honour erred i n

s t a t i n g

t h e

rc levant

p r i n c i p l e s

misundcrsLood

m i s i n t e r p r e t , e d

t h c

a u t h o r i t i e s .

And,

a l though

i t i s by

means derisive,

c o u n s r l

c l t e d

a u t h o r i t y

t o

suppor t

the

proposiLion f o r

which t.hc appl icant

contcndad

and,

indeed,

frankly

acknowlcdged

that

his

r c s e a r c h c s

h a d

f a i l c d

t o

d i scove r

any

dec:ided

case

s u p p o r t i n g t h a t

c o n t e n t i o n .

Counsel €or

the app l i can t

sugges t ed

that

Kel ly

J .

h a d

f a j l c d

t o

g i v e

a n y

o r

a n y

s u f f i c i c n t

w e i g h t

t o

the

fo l lowlng

(a)

t h a t ,

d u r l n g

the time when

thc allcged

adminis t ra t ive

usage ,

cus tom,

p rocedure

a n d

p r a c t i c e

was

fol lowed

the

respondcnt

( o r , a t least,

d u r i n g p a r t

t h a t

Lime) ,

the

a p p l l c a n t

and

the

rcspondcnt were in	a	binding	c o n t r a c t u a l
r r l n t i o n s h l p ;

that

the

c i r cums tances ,

i nc lud l rq

t he

r c lwan t ,

l cg i s l a t ive

background ,

gave

r i s c

t o d

p d r t i c u l a r

framework

w i t , h l n

which

that

c o n t r d c t u a l

~ e l a L i o r l s h i p

i S

t o he viewed;

and

t,hdlI., a t

thc

tunc

I:hr

a p p l l c a n t

d p p l l e d

t o Lhc

Bu i ld ing

Con t ro l l c r

for

approval

thc

p l a n s

s t r u c t u r a l

t h e

f o r

d l t c r a t i o n s ,

Lhc

M i n i s t c r

r e f e r r e d

c l ause

l(c) of

i t s

l c a s e w a s

the ciamc

Minist.cr as had

respons ib j1 i t .y

for

thc

a d m i n i s t r a t i o n

the

Ruildinq

Ordirlance

1 9 7 2 (A.C.T.).

I a n unable t o pe rce lve how

Lhcse mattcrs provide

any suppor t fo r t he p re sen t ,

app l i caL ion .

o p i n i o n ,

t h c

a p p l l c a n t

has

f a i l e d

t o

dcmonstratc

that

the

q u e s t i o n

s u f f l c j e n t l y a r g u a b l e o r

i s

of oufClclent-

Import-ance

o r of

such

gcnora l

appl ica t ion

t o

war ran t

t h r

g ran t . of

l c a v e

t o a p p a l .

The application

i s

dismissed

w i t h c o s t s .

i i

c c r t l f y

L h t this

ar id

the preccding 12 pages

a r e

true ropy of

t h e Rcasorls

f o r Judgment here111 of

t h e

Honourabl i:	Mr	J u s t i c e	I
I-

Dated:

11 J u l y 1986

[1986] FCA 307

7 Nov 1986