Kamerunga Villa Pty Ltd v Cairns City Council

[1997] QSC 38

IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS DISTRICT REGISTRY
  No. 89 of 1995
Brisbane

Before Justice Byrne

[Kamerunga Villa Pty Ltd v. Cairns City Council]

BETWEEN:

KAMERUNGA VILLA PTY LTD
  (ACN 010 777 483)

Plaintiff
AND:

CAIRNS CITY COUNCIL

Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :     14/03/1997

CATCHWORDS:     LOCAL GOVERNMENT - restitution - payment under mistake of law - whether jurisdiction to decide claim.

Counsel:Mr D.B. Fraser Q.C. for the plaintiff (respondent)

Ms M.A. Wilson Q.C., with her Mr A.R. Philp for the defendant (applicant)

Solicitors   Dale Treanor for the plaintiff (respondent)
  McDonnells for the defendant (applicant)

Hearing Date:   8 January 1997

IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS DISTRICT REGISTRY
  No. 89 of 1995
Brisbane

Before Justice Byrne

[Kamerunga Villa Pty Ltd v. Cairns City Council]

BETWEEN:

KAMERUNGA VILLA PTY LTD
  (ACN 010 777 483)

Plaintiff
AND:

CAIRNS CITY COUNCIL

Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :     14/03/1997

The plaintiff has instituted an action in the Cairns Registry claiming almost $300,000 as moneys had and received. Such claims are frequently litigated in this Court.  The defendant contends however that there is no jurisdiction to entertain this one. This, at first blush surprising, result is said to be required by s.28 of the City of Brisbane Town Planning Act 1964, in combination with s.34(15) of the Local Government Act 1936. If this be correct, the merits of the claim can never be determined judicially.  For it is common ground that no other tribunal has, or ever had, jurisdiction to adjudicate upon it.
           To understand the litigation, it is necessary to consider not only the ill-drawn statement of claim but also foreshadowed amendments which would add allegations designed to attract the operation of the principles discussed in David Securities Pty Ltd v. Commonwealth Bank of Australia.[1]   The defendant, which now applies for the action to be struck out on the footing that the Court lacks jurisdiction to entertain it, is presently content that the pleading be treated as if it contained allegations sufficient to establish a prima facie entitlement to recover the claimed moneys as having been paid by the plaintiff in the mistaken belief that it was under a legal obligation to do so.
           The plaintiff once owned land at Lake Placid, which is within the defendant's area.  In September 1985 the plaintiff applied for permission to subdivide the land.  In April 1986 the defendant approved the application, subject to conditions.  One such condition required a contribution of almost $400,000 towards the cost of water supply and sewerage headworks servicing 74 of the proposed allotments.  In mid-1989 the plaintiff paid the assessed contribution.  That amount is alleged to exceed the sum exigible under s.34(12)(H)(aa) of the Local Government Act. The overpayment is also said to have involved a mistake of law by the plaintiff resulting in the defendant's unjust enrichment in the amount of the excess beyond the maximum contribution the defendant was permitted to exact.
           In the mid-80s,[2] s.34(15) of the Local Government Act permitted an applicant for subdivisional approval who was "dissatisfied with the decision" of a local authority to appeal to the Local Government Court within 30 days of the notification of approval.  In those days, under s.28 of the City of Brisbane Town Planning Act, the Local Government Court had to "hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court ...".  On such an appeal, the plaintiff could have contended for a determination that the condition relating to the headworks contribution was unlawful. In other words, s.34(15) of the Local Government Act and s.28 of the City of Brisbane Town Planning Act afforded an opportunity to challenge the condition.  The plaintiff did not appeal, and the stipulated contribution was paid, apparently without relevant complaint.[3]  The defendant argues that the omission to invoke the jurisdiction of the Local Government Court to challenge the contribution precludes the plaintiff from obtaining judicial consideration of its case that the condition was unlawful.
           In advancing its contention that this Court lacks jurisdiction to determine the restitutionary claim, the defendant attaches significance to s.28 of the City of Brisbane Town Planning Act. By s.28(2), subject only to a right of appeal to the Full Court for error of law on the part of the Local Government Court, the "jurisdiction" of that Court "under this Act" was expressed to be "exclusive ...".  So no other tribunal had jurisdiction to deal with any "matter" that the Local Government Court was authorised to decide under the City of Brisbane Town Planning Act.[4] However, that Court's jurisdiction was exclusive only as to "matters" within its jurisdiction. "Matter" in this context connotes the substantial subject matter for determination in the proceeding.[5] The matter which the plaintiff was entitled to have the Local Government Court decide was an appeal against the subdivisional approval.  It was that matter which that Court had exclusive jurisdiction to decide.[6]
           The subject matter for determination in this Court is the claim that the defendant has been unjustly enriched by payment of the stipulated contribution. The legality of the condition is central to this restitutionary claim.  If the point be well taken, it would also have been decisive against an approval of the subdivision by the Local Government Court while the condition attached.  But the notion that the Local Government Court could properly have determined the legality of the condition does not of itself mean that its jurisdiction to do so was exclusive.  Generally speaking, this Court is not deprived of jurisdiction to examine the legality of a local authority's decision merely because the Local Government Court[7], in the course of exercising its jurisdiction, is entitled or obliged to decide the same question.[8]  And, as I have said, the subject matter for determination in the proceedings cannot be characterised as a controversy in the nature of an appeal against the subdivisional approval.  The words of s.28(2) do not in terms deny this Court jurisdiction to decide the restitutionary claim.
           However, that interpretation point is not the only ground of objection.  Other, related considerations are said to reveal that the plaintiff's only right to a judicial vindication of its challenge to the legality of the condition was by an appeal to the Local Government Court. This is a familiar kind of problem. The books contain many illustrations of statutory arrangements for the review of decisions of emanations of government which have been held to prescribe the sole means by which a contest may be adjudicated.[9]
           Apart from s.28, two considerations were relied on as indicating that the Parliament had confided to the Local Government Court any judicial consideration of the legality of conditions attaching to subdivisional approvals: first, cases in the tradition of Barraclough v. Brown:[10] secondly, impractical consequences which are said to attend the existence of a jurisdiction in this Court to examine the legality of such conditions.  The first does not require elaborate discussion. The plaintiff had no right to subdivide the land without approval, and the right of appeal to the Local Government Court did not exist under the general law. However, the relief now sought in this Court - a money judgment - is not the remedy created by s.34(15) of the Local Government Act in respect of challenges to subdivisional approval.  Nor is it a remedy unknown to the general law, as David Securities has decided.  Accordingly, Barraclough v. Brown is no impediment to the prosecution of the litigation.[11] A more difficult question is whether the legislative scheme necessarily implies an intention that all contests arising out of the new rights can only be pronounced upon judicially in a claim for the new remedy of appeal to the Local Government Court.      
           The argument did not descend to a detailed examination of the ramifications of a conclusion that this Court can decide the present contest.  Only one matter was pointed to as being subversive of  the vesting of exclusive jurisdiction in the Local Government Court if the Supreme Court can compel the defendant to disgorge the excess beyond the maximum exaction permitted.
           It was said, correctly,[12] that the plaintiff would have risked refusal of its subdivision had it successfully raised the illegality point on an appeal to the Local Government Court.  That is because its proposal might not have been appropriate unless the services envisaged by the defendant were provided, and the defendant might not have been able to construct them without the contribution sought.  So if this action succeeds, the plaintiff will have retained the benefit of an approval which an appeal to the Local Government Court might have put in jeopardy.  This possibility, it is suggested, shows that the restitutionary claim undermines the statutory scheme for the resolution of disputes concerning subdivisional approvals.
           This objection seems more apparent than real. There was no suggestion that the defendant cannot successfully defend the case on the footing that any enrichment was not unjust by proving that the plaintiff would not have secured subdivisional approval had the contribution been limited to the permissible maximum.  Of course, it will be inconvenient if the defendant defends on the ground that the development might not have proceeded had the plaintiff appealed.  An assessment of the merits of such a defence would require an examination of planning concerns of a kind the Local Government Court was established to consider.  That prospect, however, is not, I think, a satisfactory basis for concluding that the litigation is inconsistent with the legislative scheme.
           In my opinion, the action is not prohibited, expressly or by necessary implication.
           Incidentally, I express no opinion on whether the plaintiff's failure to appeal against the terms of the subdivisional approval bears on whether the defendant's enrichment by the amount of any excess beyond the permitted exaction is unjust[13] or on whether the payment resulted from mistake.[14]
           The application is dismissed.

[1](1992) 175 CLR 353; see also Commissioner of State Revenue (Victoria) v. Royal Insurance Australia Limited (1994) 182 CLR 51, 67-68, 100.

[2]The application was argued on a shared assumption that transitional provisions in the Local Government (Planning and Environment) Act 1990 make earlier statutes germane.

[3]Presumably the voluntary nature of this decision explains the absence of a contention that the money was paid under compulsion: cf Bayview Gardens Pty Ltd v. The Shire of Mulgrave [1989] 1 Qd R 1.

[4]Hemruth Advertising Pty Ltd v. Karafotias (1988) 46 SASR 532, 534. As to the construction of statutes conferring exclusive jurisdiction on a court other than a superior court, see O'Grady v. The Northern Queensland Company Limited (1990) 169 CLR 356, 372; New Zealand Couriers Ltd v. Curtin [1992] 3 NZLR 562, 565; cf R. v. Brisbane City Council, ex parte Read [1986] 2 Qd R 22, 25-26.

[5]R. v. Brisbane City Council at 27-28; cf Clout v. Queensland Steel & Sheet Pty Ltd (1994) 13 ACSR 519; Crouch v. Commissioner for Railways (Qld) (1985) 159 CLR 22, 37.

[6]Veivers v. Cordingley [1989] 2 Qd R 278, 294; cf CSR Limited v. Pine Rivers Shire Council [1995] 1 Qd R 234, 241.

[7]Now the Planning and Environment Court.

[8]R. v. Brisbane City Council at 27-28,40; cf Makucha v. Albert Shire Council (No. 2) [1995] 1 Qd R 518; Garema Mackay Pty Ltd v. Proserpine Shire Council [1984] 2 Qd R 32, 35-36.

[9]M. Aronson & B. Dyer, Judicial Review of Administrative Action, (1996), pp 882-884; R.P. Meagher, W.M.C. Gummow & J.R.F. Lehane, Equity Doctrines and Remedies, 3rd ed (1992), pp. 475-476; In Re Al-Fin Corporation's Patent [1970] Ch 160; Re the Proprietors Portman Place BUP No 4313 [1995] 1 Qd R 525; Commissioner of State Taxation (WA) v. Bayswater Hire Cars Pty Ltd (1989) 20 ATR 1606. Contrast Salmar Holdings Pty Ltd v. Hornsby Shire Council [1971] 1 NSWLR 192; Totalisator Administration Board of Queensland [1989] 1 Qd R 215; and Harley Development Inc v. CIR [1996] 1 WLR 727, 735-736 where discretionary, rather than jurisdictional, factors are emphasised.

[10][1897] AC 615; cf Aronson & Dyer at 811-813.

[11]See O'Sullivan v. Commissioner of Stamp Duties [1984] 1 Qd R 212, 222-223; Alexander v. Australian National Airlines Commission [1988] 1 Qd R 331.

[12]See Bayview Gardens Pty Ltd v. The Shire of Mulgrave at 3.

[13]K. Mason and J.W. Carter, Restitution Law in Australia, (1995) p. 778;  J. Beatson, "Restitution of Taxes, Levies and Other Imposts; Defining the Extent of the Woolwich Principle", (1993) 109 LQR 401, 421-422.

[14]Kwai-Liew, "Mistaken Payments, The Right of Recovery and the Defences",  (1995) 7 Bond LR 95, 100-102; G. Jones, "Payments of Money under Mistake of Law: A Comparative View", (1993) 52 Camb LJ 225, 226-227; M. McInnes, "Mistaken Payments Return to the High Court: Commissioner of Revenue v. Royal Insurance", (1996) 22 Mon LR 209, 228-230.