Little v Minister for Land Management
[1993] QCA 10
•11/02/1993
| IN THE COURT OF APPEAL | [1993] QCA 010 |
| QUEENSLAND |
Appeal No. 170 of 1992
BETWEEN:
DAVID EDWARD LITTLE First Respondent (First Plaintiff)
- and -
DONALD CHARLES LITTLE Second Respondent (Second Plaintiff)
- and
TIMOTHY CARUTHERS LITTLE Third Respondent (Third Plaintiff)
- and -
DIANE ROSEMARY CANTONI Fourth Respondent (Fourth Plaintiff)
- and -
DAVID EDWARD LITTLE and TIMOTHY CARUTHERS LITTLE Executors of the Estate of Jessica
Margaret Little, Deceased Fifth Respondent (Fifth Plaintiff)
- and -
MINISTER FOR LAND MANAGEMENT First Appellant (First Defendant)
- and
MINISTER FOR ADMINISTRATIVE SERVICES
(Second Defendant) Second Appellant
- and -
MINISTER FOR EDUCATION Third Appellant (Third Defendant)
- and -
STATE OF QUEENSLAND Fourth Appellant (Fourth Defendant)
- and -
DENIS JOHN MORETTA Fifth Appellant (Fifth Defendant)
- and -
MICHAEL THOMAS LINNAN Sixth Appellant (Sixth Defendant)
REASONS FOR JUDGMENT OF THE PRESIDENT AND DERRINGTON J.
Delivered the eleventh day of February, 1993
This is an appeal against part of an order made by a
Judge in the Trial Division on 10 July 1992 in the following terms:
"IT IS THIS DAY DECLARED
"1. That, upon its proper construction the Acquisitionof Land Act 1967 Queensland, and in particular
sub-sections 7(3)(e)(iii), 8(1) and 8(2) thereof
require the Defendants and each of them, in
affording the Plaintiffs a hearing in terms of
sub-sections 7(3)(e)(iii) and 8(1), to observe the
rules of natural justice and/or the duty ofprocedural fairness.
2. That the hearing offered to the Plaintiffs on 15
January 1992 was not a hearing in terms of the
sub-sections 7(3)(e)(iii), and 8(1) of the
Acquisition of Land Act 1967 because the
Defendants and each of them failed to observe the
rules of natural justice and/or the duty of
procedural fairness in that:
(a)
they unreasonably refused the Plaintiffs an adjournment of the said hearing;
(b) they did not allow adequate time after
service of notices of intention to resume for
the Plaintiffs to obtain relevant evidence,
prepare submissions and engage Counsel to
represent them at the said hearing;(c) they did not allow proper or sufficient
opportunity to the Plaintiffs to see and
consider the material referred to in
declaration 3 hereof.3. That before the hearing referred to in sub-
sections 7(3)(e)(iii) and 8(1) occurs the
Plaintiffs are entitled to be supplied with copies
of the following documents.
(a) the real property description and address
sufficient to readily identify every piece of
land considered by the constructing authority
as a variable alternative site to the
Plaintiff's land;(b) all relevant selection criteria documents in
existence stating the policy for choice of
location of sites for the particular purpose
specified in the Second Schedule to the
Acquisition of Land Act 1967, namely school
purposes;(c) any reports to the First, Second or Third
Defendants detailing investigations of
potential sites for acquisition for the
relevant purposes, namely school purposes;(d) any other documents relating to the proposed
resumption of the Plaintiffs' land being
documents considered by the First, Second or
Third Defendants before the notice of
intention to resume dated 10 December 1991
was sent.And the Court further declares that all such
documents are to be supplied in sufficient time to
enable the Plaintiffs to properly consider such
documents before the hearing pursuant to sub-
sections 7(3)(e)(iii) and 8(1) commences.4. That the Plaintiffs are entitled to a hearing
pursuant to sub-sections 7(3)(e)(iii) and 8(1) of
the Acquisition of Land Act 1967, in support of
their grounds of objection at which hearing oral
evidence may be called and documentary evidence
tendered in support of the grounds of objection,
and that the Plaintiffs are entitled to cross-
examine any witnesses called on behalf of the
constructing authority.5. That the Third Defendant, namely the Honourable
Paul Joseph Braddy Esq. LLB., the Minister for
Education, has, in the events which have happened,
so foreclosed his mind to the question of
resumption of the Plaintiffs' land that he can
give no genuine consideration to any report
pursuant to sub-section 8(2) of the Acquisition of
Land Act 1967 and the grounds of objection of the
Plaintiffs, and has thereby indicated bias.6. The Court orders that the Plaintiffs have liberty to apply on the matter of injunctive relief.
7. The Court orders that the Defendants pay the
Plaintiff's costs of and incidental to the action,
including reserved costs, to be taxed."The appellants seek an order setting aside the
declarations in paragraphs 2(c), 3, 4 and 5, and
an order that the respondents pay the appellants' taxed
costs of the appeal.
The respondents are the registered proprietors of
29.7931 hectares of land on Myola Road near Kuranda ("the
land"). They operate "Moana Stud" on the land and contiguous
land, with the majority of the stud facilities on the land.
On 23 July, 1991, the then Minister for Education
determined that the land would be the site for a new
secondary school in Kuranda.
On 12 November, 1991, the Department of Administrative
Services submitted a site services report to the then
Minister for Education approving the land as suitable for a
school site, and, on 26 November, the Minister for
Education confirmed his approval for the acquisition of the
land to the Department of Administrative Services. In the
interim, the respondents had indicated that they did not
wish to sell the land.
On 10 December 1991, the Secretary, Land Administration
Commission as delegate for the Minister for Land Management sent a notice of intention to resume the land in the following terms:
"NOTICE is hereby given that in pursuance of the
provisions of Acquisition of Land Act 1967-1990, it is
intended to take the land described in the Schedulehereto for School purposes.
You may set forth in writing any objections, not having
reference to compensation, to the taking of such land,
stating therein the grounds of any such objection and
the facts and circumstances relied on in support of
those grounds. Such written objections must be served
upon the Secretary, Land Administration Commission atthe above address on or before the 10 January 1992.
If you state in your written objection referred to
above that you desire to be heard in support of the
grounds of your objection, the Land Agent Cairns will
be at her Office, Ground Floor National Mutual Towers,
15 Lakes Street, Cairns, Queensland at 10.00 a.m. on 15
January 1992, in order that you may appear and be heardaccordingly.
This Authority is willing to negotiate to acquire the
land by agreement, or, failing agreement and if the
land is acquired, to treat with you as to the amount of
compensation payable or negotiate any other matterarising out of the acquisition of the land."
At a general meeting on 2 January 1992, the Mareeba
Shire Council reversed its previous resolutions supporting
the location of a school on the land.
On 3 January 1992, the then Minister for Education,
wrote to Mr TJ Gilmore MLA in the following terms:
"I refer to your letters of 11 and 12 November 1991, TJG:CL D/50/100/35/20 concerning suggested sites for the Kuranda State High School.
A decision has already been made on the location of the high school for the Kuranda area. The property on Portions 12V and 13V on Myola road will be acquired as the site for the new school.
Contour maps of the Kuranda area indicate that the
properties on Lot 3, RP 717326, and Lots 1 and 2,
previously Portion 4IV, have slopes which are
unsuitable for the construction of educationalfacilities.
Your interest in the future site of the Kuranda State
High School is appreciated."
On 9 January 1992, the respondents' solicitors,
MacDonnells, sent a letter by facsimile to the Secretary,
Land Administration Commission, Department of Lands
accompanied by a notice of objection to the proposed
resumption of the land. The grounds of objection were:
"(1) That the proposed resumption of the land for
| school | purposes would create an undue risk to children | travelling to and from the proposed school; |
(2) That the area of the land proposed to be resumed manifestly exceeds the area which could (3) That the proposed resumption for school purposes will involve substantial public expense regarding (4) That the land does not satisfy the requisite
| school | site criteria; |
(5) That more suitable sites are available in the
district;(6) That the Council of the Shire of Mareeba is
| opposed | to the siting of a school on the land." |
The letter advised that the solicitors had instructions
to obtain "relevant expert opinion" to support the grounds
of objection and sought to have the nominated hearing date,
15 January 1992, vacated and a new hearing date set "not
less than 6 weeks from the date of this letter."
Additionally, access was sought to "relevant documents held
by the Land Administration Commission in relation to the
matter." The documents sought included any plans, diagrams,
relevant reports and other documents held by the Land
Administration Commission and relied upon by it to support
its contention that the land is the appropriate site for the
proposed school rather than a Forestry Reserve at Speewah.
The letter also asserted that the respondents' right to
be heard included "a right to be apprised of the case which
they must answer" and also asked the identity of "the
Minister of the Crown and Department of the Crown which is
the Constructing Authority in relation to the proposed
resumption."
On 10 January 1992, the solicitors for the respondents
sent a further letter by facsimile to the Land
Administration Commission requesting that their clients be
heard in support of the grounds for their objection before
the Commission in Brisbane rather than before the Land Agent
in Cairns.
On 13 January 1992, the Department of Land Management
sent a letter by facsimile to the respondents' solicitors
advising that the Constructing Authority is the Crown,
represented by the Departments of Education, Administrative
Services and Land Management and that the Constructing
Authority was not prepared to postpone the hearing set down
for 15 January 1992 "there being no discretion in the Act so
to do." The letter, which also outlined the Department's
understanding of the objection procedure, concluded :
"When the outcome of the Hon. the Minister for
Education's deliberations are known and is considered satisfactory to the Hon. Minister for Land Management the This Department will offer no objection to your town agent perusing its file however the background material On 15 January 1992, before the proposed hearing had
begun, the respondents' solicitors sent a letter by
facsimile to the Land Administration Commission which
disagreed with the Department's earlier statement that there
was no discretion to adjourn the hearing fixed for that day
and stated that the objectors had had inadequate time to
prepare their case for the hearing properly. The solicitors
also referred to their clients' instructions to engage
counsel to represent the objectors and their inability,
owing to time constraints imposed by the Department, to
arrange for counsel to appear at the hearing. The letter
concluded by stating that the objectors would appear "under
protest" and considered that they would not be afforded a
"hearing as provided by the relevant legislation."
The hearing fixed for 10.00 am on 15 January 1992
lasted from 10.00 am to 12.30 pm on that day before the
sixth appellant, Mr Linnan, the Regional Operations Manager
of the Department of Land Management, presided at the
hearing. At the start of the hearing, Mr Linnan said "My
function today is basically to record the objections before
it goes on to the Department of Administrative Services."
Later, he said that it was a hearing to enable a decision to
be made whether the resumption would proceed, and
subsequently he stated "It is really a hearing of
objections". He also said "My brief is to record the grounds
of objections and to pass them on to the Minister for
Education." The respondents' solicitors again sought an
adjournment. Reasons were stated, including "so that the
objectors can consider the case in favour of the resumption
and engage experts to consider the case against the
resumption and to generally prepare this case." The
insufficiency of time and earlier requests to the Department
of Land Management to provide information and responses were
also mentioned. Mr Linnan said "The decision has been taken
out of my hands. The decision has been made that this
conference would proceed today."
Complaint was made by a solicitor for the respondents
that they were entitled to know the grounds in favour of the
resumption and that they could not present a case if they
had no idea of the case they must answer.
Later, the solicitors for the respondent said:
" I would like to state for the record that the
| objectors | attend at this hearing today under protest. |
The objectors reserve their right to rely upon the failure
of the constructing authority to provide a hearing within the true meaning of the Acquisition of Land Act and to
subsequently challenge the legality of the resumption process in the event that a decision is taken to resume
particulars of the constructing authority's case with
| reference to each of | the grounds of objection raised by |
| the objectors." |
In the course of discussing the grounds of the
objections, the solicitor for the respondents tendered an
extract from the Cairns Post dated 3 January 1992 which, it
was said, quoted the then Minister for Education as having
said that "the decision to resume the Myola Road site is
final." It was then submitted that, bearing in mind that the
Minister for Education had a significant role in the
decision making process, his statement showed bias on his
part and pre-emption of the decision to resume.
About a month later, these proceedings were started,
leading to the declarations set out above which were made,
as stated, on 10 July, 1992.
The declarations appealed against fall into three
categories which may be conveniently dealt with separately. However, it is convenient first to set out sub-s.7 and 8 of the Acquisition of Land Act which are the provisions of most
relevance for present purposes. They provide:
"7. Notice of intention to take land. (1) A
constructing authority which proposes to take any land
shall serve as prescribed by this section the notice
(in this Act called a "notice of intention to resume")
prescribed by this section.
(2) A notice of intention to resume shall be served
upon any and every person who to the knowledge of the
constructing authority -(a) will be entitled to claim compensation under this Act in respect of the taking of the land concerned; or
(b) is a mortgagee of the land.
(3) A notice of intention to resume shall be in
writing and shall -(a) specify the particular purpose for which the land to be taken is required;
(b) state the description of the land to be taken which description -
(i) if the land is described as a separate
lot or parcel in a plan of survey
registered in the office of the Registrar
of Titles or deposited in the office of
the Surveyor-General, shall be that
description; or(ii) if the land is not described as mentioned in subparagraph (i) of the this
paragraph, may be made in any manner
sufficient to substantially identify the
land;
(c) in the case of an easement, also state the rights and obligations to be conferred and imposed by the easement;
(d) state that the person to whom the notice is
directed may, on or before the date specified
in the notice (being a date not less than
thirty days after the date of the notice),
serve upon the constructing authority at the
address set out in the notice an objection in
writing to the taking of the land;(e) in relation to the objection mentioned in paragraph (d) of this subsection, set out -
(i) that the objection must state the grounds
of the objection and the facts and
circumstances relied on by the objector
in support of those grounds;(ii) that any matter pertaining to the amount or payment of compensation is not a
ground of objection;
(iii) that an objector who states in his
objection that he desires to be heard in
support of the grounds of his objection
may appear and be heard by the
constructing authority or its delegate at
the time and place specified in the
notice;
(f) state that the constructing authority is
willing to negotiate to acquire by agreement
or, failing agreement, to treat as to the
compensation to be paid and all consequential
matters.
(4) (a) Where a notice of intention to resume relates
to land under "The Real Property Acts, 1861 to 1963",
the constructing authority shall file a copy of thenotice with the Registrar of Titles.
(b) If the constructing authority amends or
discontinues the resumption it shall forthwith file
with the Registrar of Titles a notice of the amendmentor discontinuance.
For the purpose of this paragraph (b),
notwithstanding that a constructing authority has not
served notice under section sixteen of this Act, it
shall be deemed to discontinue a resumption if the
application prescribed by subsection (3) of section
nine of this Act has not been made within the time
prescribed by that subsection or, in the case of
Brisbane City Council, if the Notification of
Resumption has not been published in the Gazette within
twelve months after the date of the notice of intention
to resume.
(5) The failure by the constructing authority to serve
upon the owner a notice of intention to resume, where
such failure is due to circumstances beyond the control
of the constructing authority, or the failure of the
constructing authority to serve upon any person other
than the owner a notice of intention to resume, or the
failure of the constructing authority to serve upon any
person other than the owner a notice of intention to
resume, or the failure of the constructing authority to
observe paragraph (a) of subsection (4) of this
section, shall not prejudice any Proclamation or, in
the case of Brisbane City Council, Notification of
Resumption made under this Act, with respect to any
land, and any land included in any such Proclamation or
Notification shall be taken in terms of the
Proclamation or Notification concerned notwithstanding
any such failure, and the failure by the constructing
authority to serve upon any person entitled thereto any
notice as prescribed by this Act shall not invalidate
the continuance or discontinuance of any resumption.In this subsection the term "owner" means, in the
case of land under "The Real Property Acts, 1861 to
1963", the person registered as the proprietor in fee-
simple at the date of the notice of intention to
resume.
8. Dealing with objections. (1) A person entitled to be
served with a notice of intention to resume land who
has objected as prescribed to the taking shall not be
entitled to be heard in support of the grounds of his
objection unless he stated in his objection that he
desired to be so heard and appears, in person or by
counsel, solicitor or agent, at the time and place
specified in the notice.(2) The constructing authority shall consider the grounds of objection to the taking of any land and -
(a) if the objector has been heard by the
constructing authority, the matters put forward by
him in support of such grounds; or
(b) if the objector has been heard by the
delegate of the constructing authority, the report
thereon of such delegate.If upon such consideration, the constructing
authority is of opinion that the resumption should be
discontinued or that the notice of intention to resume
should be amended, the constructing authority may
discontinue the resumption or amend the notice of
intention to resume;Provided that a notice of intention to resume shall not be amended so as to include therein land additional to the land the subject thereof.
(3) Without the consent in writing of the owner
Brisbane City Council shall not take any land for the
purpose of park or recreation grounds unless such land
is, under the Town Plan for the City of Brisbane in
force for the time being under the City of Brisbane
town Planning Act 1964-1977, included in a zonereferred to in the Second Schedule to this Act.
An owner who, at the time when any land to which
this subsection applies is taken by the Brisbane City
Council, has an unsatisfied claim for compensation for
injurious affection as prescribed by the City of
Brisbane Town Planning Act 1964-1977 shall in respect
of the taking of the land be entitled to compensationas if the land were not so injuriously affected."
It was not disputed that the respondents are entitled
to procedural fairness which they had not received at the
hearing on 15 January, 1992. Declarations 1 and 2(a) and
(b), which are to that effect, were not challenged on this
appeal.
As is well established, procedural fairness does not
call for the inflexible application of a fixed body of rules
but fairness in all the circumstances, which include the
nature of the jurisdiction or power exercised and the
statutory provisions governing its exercise: National
Companies and Securities Commission v. News Corporation Ltd.
(1984) 156 CLR 296, 312. In the future, the Judicial Review
Act 1991 and/or the Freedom of Information Act 1992 may bear
upon what is appropriate in circumstances such as the
present, but in this instance neither party sought to base
argument upon either of these statutes, which are
accordingly disregarded for present purposes.
The material provisions of the legislation now under
consideration, the Acquisition of Land Act, commence from
the premise that at least a tentative decision has already
been made on the matter in issue, namely, that specified
land is to be taken by a construction authority, before
those potentially affected are notified. It is in this less
than encouraging context that those potentially affected are
permitted to object in writing to the Constructing Authority
within a period of not less than 30 days and to appear and
be heard by the Constructing Authority or its delegate in
support of the written objection, which "must state the
grounds of the objection and the facts and circumstances
relied on by the objector in support of those grounds".
There is no express restriction on the permitted grounds of
objection except that "any matter pertaining to the amount
or payment of compensation" is excluded, and, of course, a
requirement of relevance is implicit.
Legislation such as that now under consideration
derives from an era in which challenges to administrative
decisions were routinely discouraged and often made as
difficult as possible. Not only are persons potentially
affected presented with a decision already at least
tentatively made, but the reasons for the decision are not
disclosed; instead, the grounds for objection and supporting
facts and circumstances must be prepared without that
knowledge, and the objections must be addressed to the very
authority which has made (at least tentatively) the decision
which it is sought to challenge.
Not surprisingly in such a context, but nonetheless
impermissibly, the respondents' notice of objection was
couched in generalised terms and lacked details of the facts
and circumstances relied on. Instead, it was accompanied by
a wide ranging request for public documentation. The
primary judge not only declared that such documentation must
be provided to the respondents but, in the reasons for his
judgment, went so far as to state that such documentation
should have been provided with the original notice of
intention to resume.
That is plainly incorrect and indeed would frequently
prove impractical and wasteful. However, there is validity
in the underlying notion that, in an appropriate case,
procedural fairness entitles a potential objector to timely
access to information reasonably required for the
preparation of a properly detailed notice of objection and
any subsequent hearing. Procedural fairness also requires
that a potential objector be given adequate time for steps
required, such as preparation of a notice of objection and
preparation for a hearing when one is required.
In the present matter, events have somewhat run out of
order, with the respondents simultaneously seeking
information and lodging a non-complying notice of objection,
no doubt in order to meet the deadline imposed by the notice
of intention to resume.
Documents required by the respondent
No separate complaint was made by the appellants to
declaration 2(c), although in practical terms it adds very
little, if anything, since it is merely a particular in
relation to the substantive aspect of declaration 2.
The appellants' complaint in respect of declaration 3
was principally concerned with the requirement that
additional information be provided rather than with the
nature of the specific information referred to in the
declarations.
It is a sufficient justification for such declarations
that they provide the respondents with information material
to, and necessary for, the proper preparation and
presentation of their objection.
No detailed argument was presented with respect to the
form of the declarations and the court should not
unilaterally set out to reframe them in more suitable terms.
We have read and agree with what is said by Pincus JA.
concerning paragraph 3(d), but consider that the other
paragraphs should stand because of their direct relationship
to paragraph 5 of the respondents' grounds of objection. The
one qualification which we would add is that the word
"relevant" should be added to the first line between the
words "any" and "report" in paragraph 3(c) to confine its
operation to documents which are genuinely material: cf.
para 3(b).
Both declaration 2 and the further declaration appended
to declaration 3 provide for a further hearing to take
place. In order to allow the Act to operate effectively in
the present circumstances, the [respondents should remedy
the deficiencies in their notice of objection within a
reasonable time after the documents specified are provided
to them and a reasonable period before the new date fixed
for the hearing]. However, subject to the deletion of
paragraph 3(d) and the alteration to paragraph 3(c) the
appeal against declarations 2(c) and 3 should be dismissed.
| 2. | Cross-examination at the hearing Although the appellants' notice of appeal sought to |
have the whole of declaration 4 set aside, their argument,
in both their written and oral submissions, was confined to
so much of the declaration as entitled the respondents to
cross-examine any witnesses called on behalf of the
Constructing Authority at the hearing.
Although this Court has joined in the convenient step
of referring to a "hearing", the term is capable of
misleading and has clearly been misunderstood by the
respondents and their solicitors in their references to such
matters as being apprised of the case which they have to
answer and their assumption of a hearing which is a contest.
That is not the type of hearing which the Act
envisages. As already indicated, the respondents are
entitled to relevant information and documentation. The Act
then gives them two complementary rights to present a case
in opposition to the resumption proposed. The first, the
notice of objection, must be in writing. The second is a
"right to be heard in support of the grounds of his
objection" (sub-s.7(3)(iii); that is to say, an objector is
given a right to elaborate upon and explain the basis of his
opposition and to argue for his point of view. There is
nothing in the statutory silence which suggests that an
adversarial proceedings is contemplated.
There is nothing either particularly unusual or unfair
in an administrative procedure which entitles those
potentially affected access to material information and
documentation and an opportunity to respond before the final
decision is made on all relevant material, including any
subsequent information obtained in response to any issues
raised by the objectors. However, in such circumstances, it
might be appropriate to provide objectors with a chance for
further response, but that would depend on the existence of
circumstances which would otherwise make it unfair to
proceed to a final decision.
In South Australia v. O'Shea (1987) 163 CLR 378, Mason CJ. said at p.389:
"There are many illustrations of this legislative model
which entails the holding of any inquiry by a body
authorised to make a recommendation to a Board or
Minister which may make a decision rejecting the
recommendation without conducting any further enquiry:
see Taylor v. Public Service Board (NSW) (1976) 137 CLR
208; Kioa v. West (1985) 159 CLR 550; Minister for
Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR
24. The hearing before the recommending body provides
a sufficient opportunity for a party to present his
case so that the decision making process, viewed in its
entirety, entails procedural fairness. If the decision
maker intends to take account of some new matter, not
appearing in the report of the recommending body, and
the party has had no opportunity of dealing with it,
the decision maker should give him that opportunity:Peko-Wallsend."
See also p.403 per Wilson and Toohey JJ. and per
Brennan J. at p.409-410.
In these circumstances, the respondents' right to be
heard does not carry with it the right not only to present
their own case but to have the case against them, already
communicated to them, repeated in their presence by
witnesses susceptible of cross-examination.
The appeal against so much of declaration 4 as entitled the respondents to cross-examine should be allowed.
| 3. | Bias The remaining point of dispute concerns declaration 5, |
which states that the then Minister for Education has, in
the events which have happened, so foreclosed his mind to
the question of resumption of the [respondents'] land that
he can give no genuine consideration to any report pursuant
to sub-s.8(2) of the Acquisition of Land Act 1967 and the
grounds of objection of the [respondents] and has thereby
indicated bias". Since the judgment was handed down in July
1992, there has been a general election in Queensland and a
new ministry has been appointed. The former Minister for
Education has a new portfolio which is unrelated to any of
the three departments, Education, Administrative Services
and Land Management, with a role to play in relation to the
proposed resumption.
In the circumstances, it would be of merely academic interest to determine whether or not declaration 5 should have been made.
The declaration now lacks utility and should be set
aside without any further investigation of the merits.
| 4. | Summary The appeal is allowed to the extent that the word |
"relevant" is added between the word "any" and the word
"report" in the first line of declaration 3(c), paragraph
(d) is deleted from declaration 3, the words "and that the
Plaintiffs are entitled to cross-examine any witnesses
called on behalf of the constructing authority" are deleted
from declaration 4 and declaration 5 is deleted. Otherwise
the appeal is dismissed. In the circumstances, there should
be no order as to the costs of the appeal.
IN THE COURT OF APPEAL
QUEENSLAND
Appeal No. 170 of 1992
Before the Court of Appeal
The President
Mr Justice PincusMr Justice Derrington
BETWEEN:
DAVID EDWARD LITTLE First Respondent (First Plaintiff)
- and -
DONALD CHARLES LITTLE Second Respondent (Second Plaintiff)
- and
TIMOTHY CARUTHERS LITTLE Third Respondent (Third Plaintiff)
- and -
DIANE ROSEMARY CANTONI Fourth Respondent (Fourth Plaintiff)
- and -
DAVID EDWARD LITTLE and TIMOTHY CARUTHERS LITTLE Executors of the Estate of Jessica
Margaret Little, Deceased Fifth Respondent (Fifth Plaintiff)
- and -
MINISTER FOR LAND MANAGEMENT First Appellant (First Defendant)
- and
MINISTER FOR ADMINISTRATIVE SERVICES
(Second Defendant) Second Appellant
- and -
MINISTER FOR EDUCATION Third Appellant (Third Defendant)
- and -
STATE OF QUEENSLAND Fourth Appellant (Fourth Defendant)
- and -
DENIS JOHN MORETTA Fifth Appellant (Fifth Defendant)
- and -
MICHAEL THOMAS LINNAN Sixth Appellant (Sixth Defendant)
REASONS FOR JUDGMENT OF THE PRESIDENT AND DERRINGTON J.
Delivered the eleventh day of February, 1993
| MINUTE OF ORDER: | By majority appeal allowed to the extent that the word "relevant" is added between the word "any" and the word "report" in the first line of declaration 3(c), paragraph (d) is deleted from declaration 3, the words "and that the Plaintiffs are entitled to cross examine any witnesses called on behalf of the constructing authority" are deleted from declaration 4 and declaration 5 is deleted. Otherwise appeal dismissed. No order as to the costs of the appeal. |
| CATCHWORDS: | ADMINISTRATIVE LAW - Natural justice - Compulsory acquisition of land - whether objector entitled to procedural fairness |
under Acquisition of Land Act -
Documents to be provided by constructing authority to objector - whether objector has a right to cross-examine.
BUILDING CONTROL AND TOWN PLANNING -
compulsory acquisition - whether objector
entitled to procedural fairness
Acquisition of Land Act - Documents to be
provided by constructing authority to
objector - whether objector has a rightto cross-examine.
DECLARATORY DECREES, JUDGMENTS AND ORDERS
- amending, varying, and setting aside -
whether declaration should be set asideas lacking in utility.
RESUMPTION AND ACQUISITION OF LAND-
whether objector entitled to procedural
fairness under Acquisition of Land Act
1967 Documents to be provided to objector
- whether objector has a right to cross-examine.
| Counsel: | Mr N. M. Cooke Q.C.with him Mr R. Needham for the Appellants |
| Mr G. Fryberg Q.C. with him Mr P. Bickford for the Respondents | |
| Solicitors: | Crown Solicitor for the Appellants Messrs. MacDonnells for the Respondents |
Hearing date: 27th November, 1992
IN THE COURT OF APPEAL
QUEENSLAND
Appeal No. 170 of 1992
BETWEEN:
DAVID EDWARD LITTLE First Respondent (First Plaintiff)
- and -
DONALD CHARLES LITTLE Second Respondent (Second Plaintiff)
- and
TIMOTHY CARUTHERS LITTLE Third Respondent (Third Plaintiff)
- and -
DIANE ROSEMARY CANTONI Fourth Respondent (Fourth Plaintiff)
- and -
DAVID EDWARD LITTLE and TIMOTHY CARUTHERS LITTLE Executors of the Estate of Jessica
Margaret Little, Deceased Fifth Respondent (Fifth Plaintiff)
- and -
MINISTER FOR LAND MANAGEMENT First Appellant (First Defendant)
- and
MINISTER FOR ADMINISTRATIVE SERVICES
(Second Defendant) Second Appellant
- and -
MINISTER FOR EDUCATION Third Appellant (Third Defendant)
- and -
STATE OF QUEENSLAND Fourth Appellant (Fourth Defendant)
- and -
DENIS JOHN MORETTA Fifth Appellant (Fifth Defendant)
- and -
MICHAEL THOMAS LINNAN Sixth Appellant (Sixth Defendant)
The President
Mr Justice PincusMr Justice Derrington
Judgment delivered on the eleventh day of
February, 1993. Reasons for judgment by the
President and Derrington J. jointly. Pincus
JA. separately.
BY MAJORITY, APPEAL ALLOWED TO THE EXTENT
THAT THE WORD "RELEVANT" IS ADDED BETWEEN THE
WORD "ANY" AND THE WORD "REPORT" IN THE FIRST
LINE OF DECLARATION 3(C), PARAGRAPH (D) IS
DELETED FROM DECLARATION 3, THE WORDS "AND
THAT THE PLAINTIFFS ARE ENTITLED TO CROSS
EXAMINE ANY WITNESSES CALLED ON BEHALF OF THE
CONSTRUCTING AUTHORITY" ARE DELETED FROM
DECLARATION 4 AND DECLARATION 5 IS DELETED.
OTHERWISE APPEAL DISMISSED. NO ORDER AS TO
THE COSTS OF THE APPEAL.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 170 of 1992
BETWEEN:
DAVID EDWARD LITTLE First Respondent (First Plaintiff)
- and -
DONALD CHARLES LITTLE Second Respondent (Second Plaintiff)
- and
TIMOTHY CARUTHERS LITTLE Third Respondent (Third Plaintiff)
- and -
DIANE ROSEMARY CANTONI Fourth Respondent (Fourth Plaintiff)
- and -
DAVID EDWARD LITTLE and TIMOTHY CARUTHERS LITTLE Executors of the Estate of Jessica
Margaret Little, Deceased Fifth Respondent (Fifth Plaintiff)
- and -
MINISTER FOR LAND MANAGEMENT First Appellant (First Defendant)
- and
MINISTER FOR ADMINISTRATIVE SERVICES
(Second Defendant) Second Appellant
- and -
MINISTER FOR EDUCATION Third Appellant (Third Defendant)
- and -
STATE OF QUEENSLAND Fourth Appellant (Fourth Defendant)
- and -
DENIS JOHN MORETTA Fifth Appellant (Fifth Defendant)
- and -
MICHAEL THOMAS LINNAN Sixth Appellant (Sixth Defendant)
JUDGMENT OF PINCUS J.A.
Delivered the Eleventh day of February 1993
I have read the joint reasons prepared by the President and Derrington J. and agree with their Honours' views there expressed, other than those relating to the third declaration, which is to the effect that the respondents have to be supplied with copies of certain documents.
There are two questions. The first is whether objectors are ever entitled, as a matter of procedural fairness, to copies of documents in the possession of the Government relevant to the making of the decision to acquire the land in question. The second is the scope of the obligation to provide copies of documents, assuming any such obligation to exist.
The appellants' argument on the point as foreshadowed in the written outline was, in essence, that the scope of the right to object was limited to "something personal to the owner", making governmental documents necessarily irrelevant. In the course of oral argument, counsel for the appellants appeared to support the attack on the third declaration on a rather similar basis, contending that the right to object could not involve a review of the process of selection of the site for resumption. The appellants' counsel also suggested, as I understood them, that it would be unreasonable to require the constructing authority to comb its files looking for every reference to every site which had been considered. The contention for the respondents emphasised that the material showed that a number of sites had been considered before the decision was made to resume the site in question.
It is convenient to use the term "discovery" as the name of the process which the declarations in question require, namely the selection of documents answering the description set out in paragraphs (a), (b), (c) and (d) of the third declaration and the furnishing of copies of the documents selected. The name is reasonably apt here, for paragraph (d) is rather general. It is:
"Any other documents relating to the proposed resumption of the plaintiff's land being documents considered by the first, second or third defendants before the notice of intention to resume dated 10 December 1991 was sent".
This differs from paragraphs (a), (b) and (c) in that those three paragraphs are narrower, having to do with the question why the subject site, rather than another, was selected. Paragraph (d), on the other hand, is not confined to that issue, but is capable of catching documents relevant to questions such as whether a need for a new school in the area had been shown.
An attempt to obtain discovery of a document relevant to a governmental decision failed in Local Government Board v. Arlidge [1915] A.C. 120. There, the respondent was interested in a dwelling house which was ordered to be closed as being unfit for human habitation. He had a right of appeal to the Local Government Board, which appointed an inspector to conduct an inquiry and make a report. The
Court of Appeal took the view that the appeal to the Board was "one inter partes" (128) and that the local authority which had made the closing order should not be "distinguished from a party litigant, and therefore the other party ought to know the case it made" (129). The House of Lords, however, refused to equate the matter to a lis inter partes and held that there was no right to see the report.
No doubt suggestions, to be found in some of the reasoning in Arlidge, that ordinarily communications within government are confidential now appear somewhat old- fashioned. But the theme that administrative inquiries and the like are not necessarily to be run as if they were adversary litigation is to be found echoed in some later cases. An example is Bushell v. Secretary of State for the Environment [1981] A.C. 75, which concerned an inquiry into a proposed scheme for construction of roads. Lord Diplock referred to the fact that the statute left the procedure to be followed at the inquiry to the discretion of the relevant Minister or the inspector appointed to hold the inquiry and referred with approval to a discussion in B. Johnson & Co. (Builder) Ltd. v. Minister of Health [1947] 2 All E.R. 395 at 399-400. His Lordship said:
"The judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties" (95).
If the third declaration and in particular paragraph (d) quoted above is allowed to stand, this case might be treated as authority for the proposition that, in general, an objector is entitled to discovery of all the relevant documents considered within the Government before the sending of the notice of intention to resume. Even in ordinary civil litigation, discovery of such width would not necessarily be required; the pleadings might not make all such documents relevant. As the form of declaration in the present case recognises, the documents to be discovered may be within the files of a number of different departments.
There is, of course, nothing in the statute itself to suggest that the legislature contemplated that the objector should be entitled to an examination of such documents.
The other paragraphs (a), (b) and (c), as I have pointed out, catch documents which are in a narrower category and have to do with the question why the particular piece of land rather than another was selected for resumption for school purposes. I am of opinion that no case has been made out for the declaration with respect to the documents in paragraph (d); it appears to me clear that the objection process would not be rendered unfair by the appellants' refusal to accept what is, in effect, a general obligation to discover relevant documents. With more hesitation, I have come to the conclusion that the declarations in paragraphs (a), (b) and (c) should not stand, either. It has been pointed out by the respondents that, on the evidence, a number of sites was considered before the selection of the subject site was made. But that must commonly be so; indeed, it would be a rare case in which the definition of the purpose of resumption would necessarily dictate the identity of the land to be resumed for that purpose. Unless one is to hold that procedural fairness on the hearing of an objection ordinarily requires that the objector be given discovery of all documents bearing on the question whether the subject site rather than another should be resumed, those paragraphs cannot stand.
In my opinion, so to hold would be going too far. If it is the objector's case that the subject site is peculiarly unsuitable for the purpose stated in the notice of intention to resume or that other specified sites are more suitable for that purpose, that can, in general, be put forward without access to governmental documents on those points.
I would therefore allow the appeal to the extent indicated in reasons of the President and Derrington J. and, in addition, would allow it by deleting the rest of paragraph 3 of the primary judge's order, together with declaration 2(c) which is ancillary to it.
IN THE COURT OF APPEAL
QUEENSLAND
Appeal No. 170 of 1992
Before the Court of Appeal
The President
Mr Justice PincusMr Justice Derrington
BETWEEN:
DAVID EDWARD LITTLE First Respondent (First Plaintiff)
- and -
DONALD CHARLES LITTLE Second Respondent (Second Plaintiff)
- and
TIMOTHY CARUTHERS LITTLE Third Respondent (Third Plaintiff)
- and -
DIANE ROSEMARY CANTONI Fourth Respondent (Fourth Plaintiff)
- and -
DAVID EDWARD LITTLE and TIMOTHY CARUTHERS LITTLE Executors of the Estate of Jessica
Margaret Little, Deceased Fifth Respondent (Fifth Plaintiff)
- and -
MINISTER FOR LAND MANAGEMENT First Appellant (First Defendant)
- and
MINISTER FOR ADMINISTRATIVE SERVICES
(Second Defendant) Second Appellant
- and -
MINISTER FOR EDUCATION Third Appellant (Third Defendant)
- and -
STATE OF QUEENSLAND Fourth Appellant (Fourth Defendant)
- and -
DENIS JOHN MORETTA Fifth Appellant (Fifth Defendant)
- and -
MICHAEL THOMAS LINNAN Sixth Appellant (Sixth Defendant)
JUDGMENT OF PINCUS J.A.
Delivered the Eleventh day of February, 1993
| Counsel: | Mr N. M. Cooke Q.C.with him Mr R. Needham for the Appellants Mr G. Fryberg Q.C. with him Mr P. Bickford for the Respondents |
| Solicitors: | Crown Solicitor for the Appellants Messrs. MacDonnells for the Respondents |
Hearing date: 27th November, 1992
2
5
0