Kelsall and Anor v State of Queensland and Anor

[2013] HCATrans 134

[2013] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B5 of 2013

B e t w e e n -

PAUL ANTHONY KELSALL

First Applicant

EUNICE YING TENG KELSALL

Second Applicant

and

STATE OF QUEENSLAND

First Respondent

BRISBANE CITY COUNCIL

Second Respondent

Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON THURSDAY, 6 JUNE 2013, AT 12.01 PM

Copyright in the High Court of Australia

____________________

MR S.J. KEIM, SC:   Your Honours, I appear with my learned junior, MR P.R. SMITH, for the applicants.  (instructed by Harding Lawyers)

MR M.D. HINSON, SC:   May it please the Court, I appear for the first respondent.  (instructed by Crown Solicitor (Qld))

MR G.J. GIBSON, QC:   I appear with MR D.A. QUAYLE for the second respondent.  (instructed by Brisbane City Legal Practice)

HAYNE J:   Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  This application is not about seeking to establish new principles to match the complexity of the modern world.  Rather it is about ensuring that time‑honoured principles guiding the construction of acquisition legislation are not abandoned for the sake, in this case, of the hypothetical benefits of modern road infrastructure.  The fundamental nature of the principle concerned is reflected by the fact that it featured as part of the principle of legality in a recent paper by the Chief Justice titled “Property, Planning and Human Rights”, in which it was said:

It can be regarded today as a particular aspect of the principle of legality – a principle which says that laws are not to be interpreted as interfering with common law rights and freedoms generally unless that interpretation is required by the clear words of the statute.

The outlines filed on behalf of each of the respondents to our application in our submission seek to avoid rather than confront our argument head on.  In our allotted time we would seek first to address what we say is a school of red herrings strewn across the path of the Court’s consideration of our argument by our learned friends.  This covers the matters raised in the slightly narrower discussion in the second defendant’s outline as well. 

Your Honours, the respondents say firstly that the argument that we seek to raise is moot.  They say that the applicants have no rights to worry about what they are say undisputed factual reasons.  That can be seen, for example, in the first respondent’s outline at paragraphs 16 to 17 at page 44 of the application book and in the second respondent’s outline at paragraph 3, pages 47 to 48 of the application book.  What we say with regard to that is that the evidence is undisputed in the sense that the two affidavits are the only evidence that were filed on the subject but we say its effect, as is claimed for it by the two respondents, is strongly challenged.

Your Honours, can we take you to the paragraph that is relied upon.  It is paragraph 15 of the affidavit of Mr Buyers and it can be found, the paragraph in question can be found at page 4 of the supplementary material - your Honours should have an application book and a book of supplementary material.  The particular paragraph is paragraph 15, but perhaps in order to gain some context it is useful to read from paragraph 7 at the bottom of page 2 through page 3 and then to the paragraph on page 4.

HAYNE J:   Well, in aid of what proposition, Mr Keim?  Are you seeking to have us make some finding of fact or what are we doing here going back into the evidence?

MR KIEM:   Our learned friends say that the question is moot because of the undisputed facts.  What we wish to show the Court, your Honour, is that if one looks at the evidence, and looks at that paragraph in particular, the case is not moot.  That is the point for which we ask the Court to go there.  The paragraph we point out is expressed in conditional terms.  It says:

since the Lots were resumed by Council, they have been –

and this is crucial –

and, to the extent that they contain NSBT infrastructure, still are, required by it, for the purpose.

The reason why the possibility or, from our learned friend’s point of view, the exclusion of the possibility that all of the land is required for the NSBT infrastructure is to suggest that our client has no rights under either sections 41 or 17 of the Acquisition of Land Act, and it is those rights which we seek to protect by the construction for which we argue and which was not favoured below, we say, for reasons which departed from fundamental principle.

KEANE J:   Mr Keim, what error does this material show in the judgment below?

MR KEIM:   The error is dealt with in our outline, your Honour, and what we chose to do was to go to this to show that the error indicated in the outline is in a proper vehicle for this Court to grant special leave to because the arguments which our learned friends put forward that the question is moot is one that should not be adhered to.  What we say with regard to our principal argument is that the section in question, that is section 26A of the Transport Planning and Coordination Act, was ambiguous.

It was ambiguous in this sense.  The land which was our client’s land until it was resumed by the Brisbane City Council was used for a local government purpose, that is the North‑South Bypass Tunnel or the “CLEM7” as it is known locally.  However, what happened then, using section 26A of the Transport Planning and Coordination Act, is that the land was the subject of a declaration made pursuant to that section saying that the land was now to be used for and was deemed to be required for for two State government purposes.  There were two declarations - one related to the Airport Link infrastructure and the other related to the Northern Busway. 

Now, the argument, the fundamental argument is that section 26A does allow the residual rights of a person whose land has been resumed to be extinguished, in effect, by taking the land in question from the purpose for which it was originally sought and devoting that to another purpose, another transport purpose, but we say that the correct construction of the section in question is that it can only be used if the land in question was acquired in the first instance by a State government instrumentality and in particular the chief executive. 

What has happened here is that land which we say is no longer required by the Brisbane City Council and therefore should give rise to rights under sections 17 and 41 of the Acquisition of Land Act has been commandeered, as it were, for State government purposes which the section does not permit.  Our learned friends say with regard to that ‑ ‑ ‑

HAYNE J:   It is that I do not understand, Mr Keim.  If we go to 26A, the section applies to transport land taken under the Acquisition Act for a particular transport purpose.  Was 26A(1) satisfied?

MR KEIM:   Yes, your Honour.

HAYNE J:   It was?

MR KEIM:   Yes, your Honour.

HAYNE J:   Then (2) can be engaged with the consequence specified in (3).

MR KEIM:   Yes, your Honour.

HAYNE J:   What is the vested property right that is the subject of ground 2(a) of your proposed notice of appeal?

MR KEIM:   We say this, your Honour, that when land is resumed pursuant to traditional acquisition legislation, the land is resumed subject to three things.  One is the right to compensation.  The second thing is that in certain circumstances, rights under section 17 arise which allow the land to go back to the owner, and under other circumstances rights under section 41 arise.  We say those residual rights are specifically preserved by acquisition of land legislation because it is specifically directed to affect property rights of property owners to the minimum degree and, in particular, where the original purpose – i.e. with regard to part of the land or whole of the land in the case of section 17 or the whole of the land in section 41 – when that purpose is no longer required with regard to part or whole, as I say, in the case of section 17, then rights arise in the owner to get the land back on certain terms.  They are the rights ‑ ‑ ‑

HAYNE J:   But the hypothesis for the debate is that 26A is validly engaged.  Is that right?

MR KEIM:   We say that section 26A would be validly engaged if it was only intended to extend to land which was owned by the State government, and the original transport purpose was a State government purpose.  We say that that can be divined from three distinct aids to interpretation.  One is the context in which the section lies.  The second is the legislative history, and the legislative history shows that section 26A has been put into the legislation and has grown up with section 27 which gives a power to the chief executive to lease, sell or otherwise dispose of land. 

The other thing that the transport legislation does, including this Act, is that it allows in certain circumstances land to be acquired by public processes and then for private entities to be used in the development of that land for the public purpose.  That is the purpose of section 27, and the purpose of section 26A is to add flexibility to section 27.

What we have here, where the land was resumed in the first instance for local government purposes by a local government agency, is that we now have, if the declarations are valid, this incongruous situation where the land is said to be able to be used for State purposes.  The Brisbane City Council cannot use it for State purposes because they are not an authorised constructor with regard to the State projects, and the State government cannot use it for State purposes because the State government does not have any access to the land and can only receive access to the land if the land is disposed of by the Brisbane City Council, but the Brisbane City Council does not have, under section 27, any power to dispose of the land.

For an entity without express statutory authorisation to dispose of the land offends another principle, which is that public processes should not be used to benefit other entities which are not, whether they be State government entities or private entities, the original intended beneficiaries of the power. 

We know that that is not the case with regard to this land because it was acquired for a purpose which was a purpose that the City Council was authorised to do and not a purpose that the State government was authorised to do.  Then we reverse it by making these purported declarations.  We have the land still in the hands of the local government and not able to dispose of that either to a private entity or to the State government.

Our learned friends seek to answer that last question by going to Part 4B of the Act and section 28D and in that section, sections (1) and (2) provide a power for the local government to sell which is analogous to section 27, that is, section 27 bestows a power on the State government to sell in certain circumstances.  Section 28D bestows power on the local government to dispose of acquired land for certain purposes but in both cases that power to dispose is restricted to the specific purposes that are mentioned in the section.  In the case of 28D our learned friends look at the wide phrasing of (2)(b) which says, “Without limiting subsection (1), a local government may”:

(b)dispose of land acquired by the local government for an approved tollway project or local government tollway to another person.

They say that is a general power for them to dispose of land which has been acquired for that purpose to anybody.  If one reads that in the proper context of (2)(a) and (1) and particularly the words, “Without limiting subsection (1)” one sees that that does not fill in the gap and so we go back to this incongruous situation where the City Council has land, if the declarations are said to be valid it can be used for a certain purpose, the Council cannot use it for that purpose because it is not an authorised constructor and the State government cannot use it for that purpose because the local government has no power to dispose of it even in terms of possessory titles to the State government to allow the State government either to carry out the development itself, or as it did in this case, to give rights to private entities to use the land for the purpose of the State government projects.

The reason why I started, your Honour, with regard to the factual matters is our learned friends say that there are undisputed facts that say that the Council has no continuing purpose for the land and therefore there are no section 17 or section 41 rights but if one went to the factual material what one would be able to see is that the photographs and the affidavits themselves show that there is no longer any State government infrastructure on the land – sorry, there is no longer any CLEM7 infrastructure on the land.

The only infrastructure that is visible, as the deponents indicate, including Mr Pasieczny, who is the second deponent to whom I was going to take the Court, he makes it clear that the only visible infrastructure there is State government infrastructure.  So the suggestion that there are no section 17 or section 41 rights because of undisputed factual questions is clearly incorrect because the factual material, when one looks at it, shows that the only infrastructure there is State government infrastructure and Mr Pasieczny even says the Council cannot use it if there is a State infrastructure there.  So it immediately qualifies on the face of it, pursuant to section 17, and section 17 rights would arise, therefore the question is not moot.  They are our submissions, thank you, your Honours.

HAYNE J:   Thank you very much, Mr Keim.  We will not trouble counsel for either respondent.

An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.

MR HINSON:   Your Honours, I ask for costs.

HAYNE J:   Do you also, Mr Gibson?

MR GIBSON:   Yes, thank you, your Honour, we do. 

HAYNE J:   Can you resist costs, Mr Keim?

MR KEIM:   No, thank you, your Honour.

HAYNE J:   With costs.

The Court will adjourn to reconstitute.

AT 12.17 PM THE MATTER WAS CONCLUDED