Korab & Co Pty Ltd v Minister for Natural Resources
[1996] QLC 37
•29 March 1996
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BRISBANE
29 MARCH 1996
In the matter of an application for conversion of tenure
Special Lease No.: 06/47783, Brisbane District
Lessee: Korab & Co Pty Ltd
(Hearing at Brisbane)
D E C I S I O N ON J U R I S D I C T I O N
The lessee had in August 1994 lodged an application with the Minister pursuant to s.207 of the Land Act 1962 to convert the special lease to freehold.
By letter dated 22 June 1995 the delegate of the Minister wrote to the lessee advising that the Minister's determination for the purpose of conversion to freehold was in the amount of Three Hundred and Thirty-five Thousand Dollars ($335,000). The letter also informed the lessee applicant that the matter would be referred to the Land Court for hearing and determination of the unimproved value of the land contained in the lease in the event that the lessee advised that it did not accept the Minister's determined value within a period of 42 days from the date of the letter. This letter which I will refer to later as the "letter of offer" was, it seems, written in accordance with the provisions of s.207D of the Land Act 1962.
The Land Act 1994 commenced in large part on 1 July 1995. This Act replaces, to a very large extent, the Land Act 1962 and, in particular, deals with applications to convert special leases to freehold (s.170) and the procedure with regard to lodgment of appeals in this Court. The matter of appeals is discussed in detail below.
Following the letter of offer there were various exchanges between the lessee and the delegate of the Minister by way of telephone and letter and in the form of face-to-face discussions. Whilst the letter of offer was clearly framed in terms of the provisions of the 1962 Act, later letters referred to provisions of the 1994 Act, in particular to Division 2 of Part 3 of Chapter 7 which contains provisions relating to "Internal review of decisions". It is useful to refer to some of these provisions.
Section 422 - "Every appeal against a decision (an 'original decision') under this Act must be, in the first instance, by way of an application for internal review."
Section 424 - "(1) An application by a person for review of a decision must be made within 28 days after notice of the decision was given to the person.
(2)The Minister may extend the period for making an application for review.
(3) An application for review must be written and state in detail the grounds on which the applicant seeks review of the decision."
Section 427 - "A person who has applied for the review of a decision under division 2 and is dissatisfied with the review decision, may appeal to the Court against the decision."
The effect of reading these provisions together is that, except where the Minister extends the period for making an application for review, if an applicant fails to make an application for review within the 28 days provided after the notice of decision is given, then a right of appeal to this Court does not arise.
Section 426 is an important provision in the instant case and provides as follows:
"(1)After reviewing the original decision, the Minister must make a further decision (the 'review decision') to confirm the original decision, amend the original decision or substitute a new decision.
(2)The chief executive must immediately give the applicant written notice of the decision.
(3)If the review decision is not the decision sought by the applicant, the notice must state -
(a)the reasons for the decision; and
(b)that the applicant may appeal against the decision to the Court within 28 days."
There is no provision setting out any particular procedure that needs to be followed in the conduct of a review of an original decision, however, given that s.424(3) provides for the application for review to set out the grounds upon which the review is sought, it can be assumed that the legislature intended that the review process take into account the grounds so expressed. Presumably in expressing the grounds for internal review, the applicant would have been in possession of the reasons for the original decision as s.421 of the Act provides:
"(1)A person who has a right to appeal against a decision under this Act must be given written notice of the person's right to appeal against the decision.
(2)the notice must be given when notice of the decision and the reasons for the decision are given to the person."
In this particular matter the lessee lodged a letter referred to as a "Notice of Appeal" dated 21 September 1995 in the Registry of the Land Court being received there by post on 25 September 1995. The letter referred to enclosures which were not, however, received with it. On the same date a letter was sent to the delegate of the Minister advising of the lodgment of an appeal with the Land Court and that a copy of the "Notice of Appeal" was enclosed. There was evidence that there were no enclosures with this letter to the Minister's delegate.
Mr Paterson, counsel for the Minister, made an application to the Court for the matter of the appeal to be struck out for want of jurisdiction of the Court, in particular, on the basis that s.428(6) of the Land Act 1994 had not been satisfied. Section 428(6) provides:
"(6)The notice of appeal must state fully the grounds of the appeal and the facts relied on."
Mr Paterson argued that the letter of 21 September 1995 to the Court did not satisfy the provisions of s.428(6) as the enclosures were not included with that letter and, even if the enclosures were included with it, their contents would not have been sufficient to satisfy the provision.
Mr Paterson further submitted that similar deficiencies applied to the notice given to the Chief Executive. Section 428(2) requires service of such notice.
He argued that in the absence of a complete Notice of Appeal the jurisdiction of the Court was not enlivened, therefore, the appeal must be struck out for want of jurisdiction. Mr Paterson referred also to s.428(3) and (5):
"(3)The notice of appeal must be filed within 28 days after the day the applicant receives notice of the review decision or the decision is taken to have been made."
"(5)The Court may extend the period for filing the notice of appeal by a further 28 days."
With respect to these provisions he submitted that any extension of the period for filing the Notice of Appeal and to thereby cure any defect could only apply to a 28-day period commencing at the conclusion of the 28-day period provided for in s.428(3). It would therefore not be open to this Court some five months after the conclusion of the 28-day period referred to in s.428(3) to grant an extension.
Mr Paterson's application was argued and then replied to by Mr Percival, for the lessee, on 26 and 27 February 1996. On 6 March 1996 I handed down my decision that the matter could not proceed for want of jurisdiction, however, that decision was based on different grounds from those argued by Mr Paterson. At the time of handing down my decision I outlined the reasons for it. I now publish those reasons, and other comments, more fully and hopefully with greater clarity than expressed in the verbal reasons I gave from the Bench.
By a letter dated 23 August 1995 the delegate of the Minister referred in passing (as the letter was concerned largely with other matters) to an "amended offer of August 9, 1995". I have no other evidence concerning this offer but assume it to have arisen out of the negotiations that have been carried out since the formal letter of offer of 22 June 1995 had been made.
As I have mentioned above, the formal letter of offer of 22 June 1995 was, it seems, made in accordance with the provisions of s.207D of the Land Act 1962. Notwithstanding the fact that the parties appeared to act from some stage in July or August 1995 as if a right to internal review under the 1994 Act came into existence, it seems to me that the rights of the lessee were established by that formal offer. In this regard ss.20(1)(b) and (e) and s.20(2) of the Acts Interpretation Act are relevant.
"20.(1) The repeal, amendment or expiry of an Act or a provision of an Act does not -
...
(b)affect the previous operation of the Act or provision or anything suffered, done or begun under the Act or provision; of
...
(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the Act or provision had not been repealed or amended or had not expired."
The letter of offer constitutes, in my opinion for the purposes of s.20(1)(b), a thing "begun under the Act" and therefore would not be affected by the coming into law of the provisions of the Land Act 1994 in particular those provisions relating to internal review of decisions. This is not to say that the delegate of the Minister could not consider and review the matter of the value to be applied to the conversion in the instant case but that the formal procedures established by the new legislation would not govern such a review.
Subsection (20)(1)(e) refers to a "proceeding" which is said in s.36 to mean "a legal or other action or proceeding". The initiation of a procedure under the Land Act 1962 by the letter of offer would satisfy such a definition, it thereby creating a right for the lessee to have the Minister refer the matter to the Land Court if he was not satisfied with the offered price. Section 20(2) provides that any such proceeding may be continued.
I find then that this particular matter is not one in which the lessee needs to initiate the jurisdiction of this Court by the lodgment of an appeal which satisfies the provisions of s.286 of the Land Act 1994, but is one which having commenced under the Land Act 1962 must, at least in a procedural sense and based on the evidence I have before me, proceed to finality under the provisions of that Act. As I indicated when I handed down my decision on this application, it would be a matter for the Minister to consider making a reference to the Court under s.207D of the Land Act 1962. At the time of writing of these reasons for decision I note that such reference has been made and that the matter has been set down for determination on the merits.
Whilst this disposes of the question of jurisdiction raised by Mr Paterson, there were other matters raised in argument, some of which I will now take the opportunity to comment on. I expressly decline, however, to comment on the questions of what would be sufficient to constitute a Notice of Appeal for the purposes of s.428(6); the time by which a copy of the Notice (of Appeal) must be served on the Chief Executive (s.428(2)); and the time from which any extended period for filing a Notice of Appeal may run pursuant to the discretion granted to the Court by s.428(5).
I am concerned, however, about two other matters raised in argument.
The delegate of the Minister had, by a letter dated 23 August 1995, advised the lessee of the outcome of the review process purportedly conducted under s.426 of the Land Act 1994. I will return to this letter in detail in a moment, however I wish first of all to dispose of the matter of a letter of 19 September 1995 which purported to both extend and continue the process of internal review after the giving of a review decision by the letter of 23 August 1995; and to also extend the time for appeal provided for in s.426(3)(b) referred to above.
When one considers the various provisions in Division 2 of Part 3 of Chapter 7 of the 1994 Act, it is quite clear that a review of an original decision cannot be carried out until an application for review is received, that is, until the grounds upon which the applicant seeks review have been crystallised and communicated to the Minister or delegate. As a matter of practicalities, it may be open to the delegate to consider matters other than the grounds expressed, whether those other matters come from within the Department or from the applicant, however, it does not seem appropriate to me for a review decision to issue and then for the review process to recommence to allow a further decision to be made. The review decision should be made by the delegate in full possession of the material facts and should not be drawn out as if it were an accumulative process assisted by an expanding body of evidence. It would always be open to the parties to negotiate further and to possibly settle a matter; and there is nothing in the provisions of the Land Act 1994 that I referred to which would preclude this occurring.
The letter of 23 August 1995 from the delegate of the Minister to the lessee purported to convey a "decision on reconsideration" in accordance with the provisions of s.426 of the Land Act 1994. That letter is, however, framed in terms of providing reasons as to why there was no change to the valuation figure offered by the Minister rather than being expressed as reasons in support of the final valuation figure, that is the "review decision". Section 426(3)(a) provides that the notice of the decision must include "the reasons for the decision", that is reasons in support of the figure contended for by the Minister.
The policy underlying Division 2 of Part 3 of Chapter 7 of the Land Act 1994 appears to be, firstly, one of providing an opportunity for a deliberate reconsideration of a decision; and, secondly, of informing the applicant adequately of the reasons for the decision so that the applicant may make an informed decision as to whether or not to appeal. The policy intent appears to be one of not just enhancing an applicant's rights, but also of disposing of matters, where possible, without the need for such matters to come to this Court. As I would explain the matter, then, the notice of decision must include reasons which are sufficient to lay an intellectual foundation for the decision arrived at. Section 27B of the Acts Interpretation Act is relevant:
"If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also -
(a)set out the findings on material questions of fact; and
(b)refer to the evidence or other material on which those findings were based."
This section must be read, however, subject to other provisions in the Land Act 1962 (preserved by s.521 of the Land Act 1994)and I refer in particular to s.41A and s.41B dealing with discovery of information as to basic properties and the mutual exchange of valuations, respectively. It would not be a matter of intellectual challenge I would suggest for a review decision, including reasons, to be expressed in terms which satisfy s.27B of the Acts Interpretation Act, yet preserve the processes available under s.41A and s.41B of the Land Act. Some assistance on the matter of giving reasons is provided by decisions arising from judicial review legislation. I refer first of all to the Administration Decisions (Judicial Review) Act (Commonwealth) which contains a provision (s.13) which is drawn in quite similar terms to that of s.27B of the Acts Interpretation Act. Section 13 says that the reasons are required to consist of:
"... a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision."
In ARM Constructions Pty Ltd v. Deputy Commissioner of Taxation (1986) 65 ALR 343 the Court had for consideration a request for a statement of reasons pursuant to s.13. The following quotation is taken from the judgment at page 349:
"Section 13 is a crucial provision designed to ensure that the basis upon which a decision is made is able to be seen, so that its legality can be determined. It should not be viewed by any decision-maker as a threat to be evaded by a camouflage of obscurity. All it requires to be set out is a statement of the matters the administrator must have considered in making the decision in the first place - what he found the facts to be, what material he considered in arriving at those findings, and the reasons for his ultimate decision.
It would be wrong for courts to construe reasons in any overly critical spirit, forgetful that they are the reasons of an administrator, not of the draftsman of an Act. But it would be as bad to betray the aims of the Administrative Decisions (Judicial Review) Act, by ignoring what has been required by the Parliament to be disclosed in the interests of just and lawful (and not merely unassailable) administration.
In the present cases, the statement of reasons has been unnecessarily obfuscated by a restatement of the decisions themselves ..."
Later on that same page the Court said that s.13:
"demands the furnishing of reasons which make intelligible the true basis of the decision."
In Ansett Transport Industries (Operations) Ltd v. Taylor (1987) 73 ALR 193 at 197 the Court said that the citizen must have when he received a statement of reasons sufficient information to decide whether to accept the decision or to pursue the matter further. The Court went on to say that there was no general requirement that a decision maker must, in substance, specify all relevant law or give a comprehensive legal opinion. The following useful quotation is taken from p.197 of the judgment:
"The purpose of s 13 is to enable persons whose property or whose interests are affected by an administrative decision to be fully informed of the basis on which the decision was made and the reasons for it. Hence the section requires that the statement set out the findings on material questions of fact with reference to the material on which the findings were based and that it give the reasons for the decision.
Whether reasons are sufficient or not must depend upon the circumstances of the particular case. The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically."
Similarly, the administrative decision-maker need not embark upon an elaborate procedure which attempts to emulate the processes of a Court of law. Brennan J in Kioa v. Minister for Immigration and Ethnic Affairs (1988) 62 ALR 32 at 380 said that the applicant need not:
"... be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed."
A useful example of what would satisfy "reasons" sufficient for the purposes of s.3 of the Judicial Review Act Queensland might be found in Sutton v. Rosalie Shire Council (1993) 80 LGRA 363.
This case involved the provision of reasons by the local authority to a third party objector to a rezoning, the reasons being framed in these terms:
"(a)that the application complied with the relevant provisions of the town planning scheme;
(b)that it would not create such conditions that inherently affected the amenity of the locality;
(c)that potential local shopping uses would be removed from the Lucerne Court area;
(d)that such uses would be concentrated in the area zoned 'Local Shopping' on the Goombungee-Meringandan Road; and
(e)that the amenity of the locality would in fact be enhanced by those factors.
What I have said with respect to the provisions contained in Division 2 Part 3 of Chapter 7 of the Act are provided for initial guidance only and may be added to and developed further in later decisions of this Court. In this case it is my view that the question of the completeness of the Notice of Appeal of the lessee and my conclusion that the internal review was not properly completed are not relevant to the matter of jurisdiction as I have found that this Court does not have jurisdiction in the matter because the matter has not yet been referred to the Court pursuant to s.207D of the Land Act 1962. Were it the case, however, that the matter had commenced under the Land Act 1994, my conclusion would be that I did not have jurisdiction for the reason discussed above. This reason is, put simply, as the purported "notice of decision" provided by the delegate of the Minister pursuant to s.426 of the Land Act 1994 was fundamentally deficient, no right of appeal had yet arisen in the lessee as is provided for in s.427.
RP SCOTT
MEMBER OF THE LAND COURT