J.L. Holdings P/L v The State of Queensland and South Bank Corporation

[1994] FCA 298

\

NOT SUITABLE FOR DISTRIBUTION JUDGMENT No. ...A.?.&,J

IN THE FEDERAL COURT OF AUSTRALIA	) )
aUTH AUSTRALIA DISTRICT REGISTRY )	SG 1 of 1994

)

GENERAL DIVISION )

BETWEEN:  J.L. HOLDINGS PTY LIMITED

Applicant

AND :  THE STATE I 3F OUEENSLAND and SOUTH

BANK CORPORATION

Respondents

CORAM: Burchett J.
PLACE: Adelaide

DATE : 28 April 1994

REASONS FOR JUDGMENT	AUST~~ALIA
PRINCIPAL REGISTRY

BURCHETT J.:

In this matter there are three areas of argument; the strike-out application in respect of certain aspects of the statement of claim, an application for security for costs and an application for change of venue.

owed to it by the applicant.

So far as the application for security for costs is concerned, I am prepared to look at it as a very strong case for the applicant. Even so, it is a case where the evidence indicates that the applicant would not be able to meet an order for costs, if it should lose, and the evidence also indicates that the applicant's holding company stands to gain a very great deal if the action succeeds, both by virtue of its share holding and by vlrtue of a debt of some $11,000,000

Mr. Gray suggested I ought to be moved to refuse an order

for security for costs because of the strength of the applicant's case and because that case involves a considerable public interest factor. I am prepared to accept for the purposes of these reasons, that it did indeed involve a very considerable public interest element, and that from every point of view the case is one the prosecution of which should not be stifled by the making of an inappropriate order for security for costs. However, on that issue the onus is on the applicant in the principal proceeding, and no attempt has been made to show or even really to suggest seriously that the action would be stifled if I made an order for security for costs. In the circumstances, I propose to make such an order. However, I think it is the kind of case where it is appropriate to order the provision of security in stages, and the order at this stage should merely provide for security for the costs that will necessarily be involved in the investigation of the claims made, the preparation of defences, and the initial stages, at least, of the preparation of

evidence.

I direct that short minutes be brought in in the morning in respect of what is proposed by the applicant for security, or agreed if some agreement about this limited aspect is possible, so far as regards quantum, to meet the purposes I have outlined.

Turning to the matter of the venue, it does appear to me that in accordance with the principles laid down in the authorities, and particularly those set out in National Mutual Boldinas Pty Ltd v. Sentry Cor~oration (1988) 83 ALR 434 of 442, this case can most suitably, bearing in mind the interests of all parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court, be conducted and continued through the Brisbane registry of the court.

The issues in dispute arose in Queensland. They involved at the time when they arose, the government of Queensland, the South Bank Corporation formed to pursue purposes of government, in the broad sense, in relation to Brisbane, and a Queensland company. The moving force in the Queensland company has since chosen to relocate his business activities in Adelaide. However, that seems to be the only significant factor pointing elsewhere than to Queensland; and the fact is that even in respect of that factor, Queensland has not been

wholly abandoned. The holding company of the applicant	continues to operate, I am told, three restaurants in
Brisbane, and the gentleman in question whom I have described as the moving force in the applicant apparently continues to reside there.
In those circumstances, and notwithstanding the matters eloquently put to me by Mr Gray, I think it is appropriate that an order should be made that this matter be transferred to the Brisbane Registry of the court, and when the short minutes are brought in in the mornlng they should provide for that also.
The more difficult issues which have been argued before me relate to the application to strike out portions of the statement of claim. Two issues are there raised. The first issue depends in substantial measure on the true construction of provisions of the Land Act 1962 as amended of the State of Queensland. Section 343 of that Act provides, by subs. (l), in part:

"The trustees of land granted in trust or of a reserve other than one that is an environmental park -

and this case does not concern an environmental park, I
interpose -

shall not lease or agree to lease the whole or any part of the land under their control without the

obtained." approval in writing of the Minister first had and

It will be noticed that that provision refers, not only to leasing, but also to agreeing to lease. Neither may be done without approval in writing of the Minister first had and obtained. It will also be noticed that the subsection does not merely provide for approval but for the form of approval. Then subs. (2) provides for the making of application for such an approval, and provides for the form of that application.

It does so in some detail, but I shall not pause here to set out all of those details.

Subsection ( 3 ) then provides:

"The application shall be accompanied by a draft of
the proposed lease."

This seems to me to be quite significant as an indication of the depth of the consideration which S. 343 envisages shall be given at the stage of consideration of the matter with which

it is concerned. Subsection ( 4 ) then provides:

"The Minister may, in his absolute discretion, refuse to approve the proposal or, if the Minister is satisfied that the proposed lease is -

and then there follow three bases on which such a lease might

be regarded as appropriate -

approve the proposal in whole or in part, and in

either case subject to such conditions, reservations and modifications as he deems fit."

It will be seen that, on the face of it, S. 343 provides for every aspect of the consideration of a proposal involving a lease of the kind in question, including the agreement pursuant to which the lease is to be granted, and it confers in express and fairly detailed terms an appropriate discretion to enable the Minister to deal with the matter.

There then follows S. 345, which is sufficiently short to be set out conveniently. It provides:

"When a lease under this Division has been duly executed in accordance with the terms and conditions approved by the Minister the original and all other executed copies of such lease shall be forwarded to the Minister for endorsement thereon of his approval of the lease.

Thereafter one copy shall be retained in the

department.

A lease to whlch this Division applies which is not endorsed with the Minister's approval shall have no validity or effect in law and in the case of a lease with respect to land granted in trust shall not be capable of registration under the 'm ProDertv Acts. 1861 to 19601."

It will be noticed that this provision contemplates due execution of the lease to which it relates, prior to its forwarding to the Minister, as the section says, for endorsement thereon of his approval of the lease. It will also be noticed that the section says nothing at all about any discretion conferred upon the Minister pursuant to this section, or about the basis on which any such discretion might	be exercised. Nor does the section say anything at all about	the agreement for lease by which parties might have bound
themselves, having first obtained approval under S. 343. Consistently with the terms of S. 345, the agreement for lease might remain valid and effective, notwithstanding that the lease itself, not having the endorsement of the Minister's approval, might not be valid.
In my opinion it can be strongly argued that S. 345 is purely ministerial, .being concerned that a lease in respect of the very special categories of land with which S. 343 is concerned - and it is S. 343, not S. 345, which defines those categories of land, so far as the particular type of land with which we are here concerned may be involved - S. 345 merely ensures that such a lease shall on its face bear the stamp of its approval by the Minister, and thus demonstrate that it was lawfully issued pursuant to the relevant division of the Act. On this view, S. 345 does not confer an independent discretion. Having regard to the detailed provisions in S. 343 prescribing the procedure to be followed, which in a
case where S. 345 comes to have application will have been followed and will have resulted in a formal approval by the Minister, not merely of the agreement to lease but of the terms of the proposed lease, there would be obvious inconvenience in the making of provision for the invalidating, not of the agreement, but of the lease itself upon a second consideration. And it is difficult to see much benefit, for
to reconsider an approval, exactly the same could be said if it be said that the Minister ought to have some opportunity
about any postulated approval under S. 345. Obviously, any such process has to end somewhere, and where more appropriate than at the conclusion of the detailed consideration for which S. 343 provides?
Having regard to these considerations, it seems to me quite impossible to hold on a strike-out application with regard to the paragraphs of the statement of clalm in question, which rely on the force and effect of the approval given under S. 343, that the respondents should succeed merely because the Minister has changed his mind, or purported to do so, at the stage when the document came before him under S. 345. Indeed, it seems to me to be doubtful, as a matter of statutory construction, whether the endorsement referred to in
S. 345 has to be an endorsement by the Minister himself, or
whether it might not be simply an endorsement by a clerk in the department certifying to the fact that the Minlster had given his approval.
It remains to consider the other aspect of the strike-out application, which is concerned with paragraphs of the statement of claim that plead an alleged breach of S. 45D of the Trade Practices Act. In answer to these paragraphs, the respondents in the principal application say that the State of Queensland has an immunity from being affected by the provisions of the Trade Practices Act, and that that immunity,
consolidated Limited v. The Broken Hill Pro~rietarv Com~any according to the decision of the High Court in Bradken
Limited (1979) 145 CLR 107, would extend also to cover the South Bank Corporation.
It seems that this may very well be correct. However an interesting argument was presented by Sir Maurice Byers, who appeared to address me on this aspect of the matter, in reliance particularly on a decision of the Supreme Court of
Canada in Canadian c Broa castin
(1983) 3 CCC (3d) 1, and particularly at 10-11. The argument is fairly complex. It has the support of the Supreme Court of Canada, and it is put that I could not hold, to use the words of Lord Reid in Moraan v Oldhams Press Ltd [l9711 2 All ER 1,156 at 1,159, that it is "plain and obvious" that an argument having such support must be wrong.
An application to strike out, prior to the filing of pleadings, a portion of a statement of claim is, of course, a discretionary application. And in this case it is also put on behalf of the applicant in the principal proceedings that the claim under S. 45D, unlikely as it might at first sight seem, will not extend the evidence to any significant degree in this case. That is because there is also a claim based on an allegation of a civil conspiracy. Nothing has been put before me to suggest that this proposition is in fact incorrect, although undoubtedly some time will be taken up in an examination of the statutory parameters set by S. 45D. In all
the circumstances, I think I should exercise my discretion against striking out the claim under that section at this
stage. I think the respondents should be required to plead to it, and unless it does in fact emerge in the course of preparation of this matter for hearing that the claim will be likely to involve significant additional evidence, I think the question of its availability at law should be determined at the hearing, rather than in advance, and certainly it should not be determined at so very early a stage as the present.
Sight should not be lost of the fact that if it does turn out that the claim is likely to involve a significant expansion of the case into a new area, the court has power to order the trial of separate issues and, apart from any question of determining as a separate issue the validity of the paragraphs, it would be possible to separate them out and defer their consideration until after the determination of the other issues in the case.
In all the circumstances, I think it is not appropriate that I should strike out any portlon of the statement of claim.

I certify that this and the preceding nine (9) pages

are a true copy of the Reasons for Judgment herein

of his Honour Mr Justice Burchett.

Associate: f+aT&

Date: 12 May 1994

Counsel for the Applicants in	Mr R.V. Hanson Q.C.
the motion:	wlth Mr G. Martin
Solicitor for the Applicants	Australian Government
in the motion:	Solicitor
Counsel for the Respondent in	Sir Maurice Byers Q.C.
the motion:	with Mr Tom Gray Q.C. and Mr T. Mathews
Solicitors for the Respondent	Messrs Baker &
in the motion:	OfLoughlin
Date of hearing:	28 April 1994