Maroochydore Central Holdings Pty Ltd (No.2) v Maroochy Shire Council
[2007] QLAC 3
•2 February 2007
LAND APPEAL COURT OF QUEENSLAND
CITATION: Maroochydore Central Holdings Pty Ltd (No.2) v Maroochy Shire Council [2007] QLAC 3 PARTIES: Maroochydore Central Holdings Pty Ltd
(appellant)v. Maroochy Shire Council
(respondent)FILE NO: LAC2006/0122 DIVISION: Land Appeal Court of Queensland PROCEEDING: An appeal from a decision of the Land Court refusing to make a declaration concerning the jurisdiction of the Land Court under the Acquisition of Land Act 1967. ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 2 February 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBERS: Justice White
Mr J J Trickett
Mr R S JonesORDER: 1. The appeal is dismissed.
2. The appellant is to pay the respondent's costs of and incidental to the appeal such costs to be assessed on the standard basis.
CATCHWORDS: Practice – Estoppel – Res judicata distinguished – Anshun principle – matter or defence not raised in prior litigation – no explanation for not raising – possible conflicting decision of Court – estoppel applied.
Statutory Construction – whether mandatory duty or discretionary power in constructing authority to revest land – need to construe consistently with Act overall – use of "may" and "shall" – Acquisition of Land Act 1967 ss.17, 41.
Practice – estoppel – whether applicable when issues of "public law".Practice – "Equity and good conscience" provisions of Land Court Act 2000 – purpose – not to avoid consequences of established rules of law.
APPEARANCES: Mr G Allan of counsel for the appellant
Mr A Skoien of counsel for the respondentSOLICITORS: P & E Law, solicitors for the appellant.
Maroochy Shire Council Legal and Property Services, for the respondent.
Maroochydore Central Holdings Pty Ltd has appealed against a decision of Mrs MacDonald of the Land Court not to make a declaration that the Land Court did not have jurisdiction to hear and determine the appellant's claim for compensation presently filed in the Registry of that Court.
The History and Background of the Appeal
The appellant was the owner of land described as Lot 7 on Registered Plan 895682, County of Canning, Parish of Mooloolah, situated in the Shire of Maroochy. Part of the appellant's land was resumed by the Maroochy Shire Council, the respondent to the appeal, for road purposes by proclamation published in the Queensland Government Gazette dated 19 March 1999. On 20 June 2000, the appellant served a claim for compensation on the respondent in respect of the land taken. Between September 2000 and March 2001, the respondent paid advances to the appellant against compensation pursuant to s.23 of the Acquisition of Land Act1967 (the Act) totalling $180,000. An amended claim for compensation for $392,199.97 was served on the respondent on 19 March 2001 and on 27 March 2001 the appellant filed by way of an originating application its claim for compensation in the Registry of the Land Court.
Subsequent to the resumption, on 24 July 2001, the respondent wrote to the appellant in the following terms:
"Please be advised Council by resolution of the 4th July 2001 resolved viz:
'…Council discontinue the taking of the land from Maroochydore Central Holdings and in accordance with the Acquisition of Land Act – Section 17(1A) seek the dispossessed owners agreement in having the resumed area of 645 m² transferred back to the dispossessed owner'
Council subsequently seeks your agreement in writing to the revesting as provided by the aforementioned section of the land and the land is hereby offered to you at the price determined by the Valuer General (Acquisition of Land Act – Disposal of land 41.(1) and 41.(1A)), namely $180,000.00
This offer shall lapse at the expiration of 28 days from the date of this letter."
The references in the letter of 24 July 2001 to ss.17 and 41 of the Act, led to correspondence between the solicitors acting for the appellant and the respondent. On 15 August 2001, the appellant's solicitors wrote to the respondent that it had fallen into error in offering the land back to their client pursuant to s.41 of the Act and the proper course of action was to proceed with the revesting of the land pursuant to s.17. This correspondence added:
"In addition, the Council's offer to accept $180,000 for the land pays no regard to the significant cost incurred by our client to date. …
Council's resolution was to proceed under s.17(1A) of the Act. Therefore, Council's purported offer to our client to accept $180,000 is, in our submission, invalid. Council should offer to revest the land strictly in accordance with its own resolution.
If our client were to consent to a revesting of the land, the parties can discuss reasonable terms and conditions for that revesting, which should include an allowance for our client's costs. …"
By 20 August 2001, the respondent not having replied, the appellant's solicitors sent another letter which relevantly provided:
"We are instructed to advise that:
1. Our client consents to the revesting of the subject land under s.17 of the Acquisition of Land Act, as the council resolved to do on 4 July 2001.
2. Our client reserves the right to pursue its claim for costs and losses as a consequence of the resumption and its discontinuance."
On 21 August 2001, the respondent replied noting that its offer of 24 July 2001 was made in "accordance" with s.41 of the Act and that it "did not seek your client's consent" to revest the resumed land. Finally in this context, on 31 August 2001, the respondent purported to make another offer in the following terms:
"We refer to Council's offer 24 July 2001, and note that the offer expired since it was not accepted in the terms proposed. This has necessitated a further resolution and offer in accordance with the provisions of the Acquisition of Land Act 1967 (Q).
Please be advised Council by resolution of 29 August 2001 resolved viz:
1. That Council has taken the relevant property by compulsory process under the Acquisition of Land Act, no longer requires the land.
2. That Council discontinue the taking of the land from Maroochydore Central Holdings and in accordance with the Acquisition of Land Act – s.41(1) offer the land back to the dispossessed owner for $180,000, being the amount valued by the Valuer-General.
Council subsequently seeks your agreement in writing to the revesting of the land for the amount of $180,000…"
The correct procedure under the Act for the return of the resumed land remaining unresolved the appellant sought relief by way of declaration from the Land Court. Relevantly the appellant sought a declaration that: "in the events which have happened and upon the proper construction of the Acquisition of Land Act 1967, the appropriate procedure to follow in respect of Lot 1 on Survey Plan 115996, County of Canning, Parish of Mooloolah is that provided for in s.17 of the Act. Lot 1 on Survey Plan 115996 was the real property description given to that area of the land resumed from the parent parcel owned by the appellant".
On 25 September 2002, the Land Court granted relief in the terms sought by the appellant.[1] Dissatisfied with that decision the respondent appealed to the Land Appeal Court. On 9 April 2003, the Land Appeal Court, for reasons which will be canvassed in more detail below, allowed the appeal and set aside the declaration made by the Land Court and remitted the matter back to the Land Court for further hearing.[2] Upon the return of the proceedings to the Land Court the appellant sought declaratory relief in terms quite different from that originally sought. The relief then sought by the appellant was for a declaration that: "pursuant to s.5 of the Land Court Act 2000 and s.26 of the Acquisition of Land Act 1967, the Court does not have jurisdiction to hear and determine the applicant's claim for compensation;…"
[1] See Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council [2002] QLC 0077.
[2] Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd [2003] QLAC 0024.
On 21 April 2006, the Land Court handed down its reasons for refusing the relief sought[3] and at paragraph 55 concluded:
"In the circumstances I consider that I am bound by the decision of the Land Appeal Court since the applicant's submissions do not establish a basis for reconsidering the matter. My conclusion is that the Land Court has jurisdiction to hear and determine the applicant's claim for compensation under the Acquisition of Land Act 1967."
[3] Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council (No 2) [2006] QLC 0018.
It is that decision which has been appealed to this Court. However, the appellant now seeks relief in different terms again; namely that the decision below should be set aside and this Court should make "appropriate orders to ensure that the land resumed by the Council is revested to the appellant in accordance with s.17 of the Act."
Issues in the Appeal
Notwithstanding the extensive grounds of appeal and written submissions filed on behalf of the appellant, we are of the opinion that in substance three issues arise:
(1)Did s.17 of the Acquisition of Land Act 1967 impose on the respondent a statutory duty or obligation to have the resumed land revested in the appellant in accordance with the procedure therein?
(2)In the circumstances of the appeal does the doctrine of res judicata apply?
(3)Regardless of the operation of res judicata, in the circumstances of this appeal, was the appellant otherwise prevented from arguing that s.17 of the Act imposes a mandatory duty or obligation on the respondent to have the land revested in the appellant?
The Construction Point
Pursuant to s.12(5) of the Act, on and from the date of publication of the taking of the land in the Queensland Government Gazette, the resumed land vests in the constructing authority and the owner's estate and interest in the land is converted into a right to claim compensation under the Act. If compensation is unable to be agreed then, generally speaking, the dispossessed owner would have his or her compensation determined by the Land Court in accordance with the principles set out in s.20 of the Act.
However, the Act also provides for the circumstance where, after publication of the resumption in the Government Gazette, resumed land is no longer required by the constructing authority. Section 17 of the Act is concerned with revocation of the gazette resumption notice and, as at the date of resumption it relevantly provided:
"Revocation before determination of compensation
17.(1) If, at any time after the publication of the gazette resumption notice and before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made, it is found that the land or any part thereof is not required for the purpose for which it was taken, the Governor in Council, by a gazette notice (the revoking gazette notice) may revoke the gazette resumption notice and, if the gazette resumption notice has been amended, any amending gazette notice, or both the gazette resumption notice and any such amending gazette notice, either wholly or so far as the Governor in Council or Brisbane City Council thinks necessary.
(1A) However, the revoking gazette notice shall not be made or published in the gazette unless the person entitled as owner to compensation in respect of the taking of the land has previously agreed in writing to the revesting as provided by this section of the land or part to which that notice relates.
…
…
(4) Any person entitled to claim compensation under this Act in respect of the taking of any land may, upon the revesting of such land or part thereof pursuant to this section, claim from the constructing authority compensation for the loss or damage and (if any) costs or expenses incurred by the person in consequence of the taking of the land and prior to its revesting.
(5) The constructing authority and the claimant may agree upon the amount of the compensation to be paid under subsection (4), or they may agree that such amount be determined by the Land Court, in which case such amount shall, upon the reference of either of them, be determined by the Land Court as if the land had been taken and not revested and the claim were limited to the compensation payable under that subsection.
The respondent does not wish to avail itself of the s.17 procedure but rather wishes to compensate the appellant under s.41 which appears in Part 5 of the Act titled "General" and provides:
"Disposal of land
41(1) Notwithstanding any provision of any other Act, where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act and, within 7 years after the date of taking, the constructing authority no longer requires the land, then the constructing authority shall offer the land for sale to the former owner at a price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered.
(1A) Unless sooner accepted by the former owner the offer shall lapse at the expiration of 28 days after it is made…."
The respondent's correspondence of 24 July 2001, offering to revest the resumed land at a price of $180,000 sought to rely on both ss.17 and 41 of the Act as justification or authority for its offer. In our opinion it is clear that ss.17 and 41 provide quite different and separate regimes for the returning of resumed land to the previous owner and the respondent could not seek to rely on both sections. Notwithstanding, it is also our opinion that it was open to the appellant to agree to the terms of the offer of 24 July 2001 and, providing that the agreement was in writing, the requirements of s.17(1A) would seem to have been satisfied. However, as the correspondence set out above clearly shows, the appellant did not agree to the terms and conditions of the respondent's offers of 24 July 2001 or of 31 August 2001. Mr Allan for the appellant submitted that as s.17(1A) does not permit revocation subject to conditions the correspondence evinces an agreement to the revocation by the appellant. Accordingly, so the argument goes, the pre-conditions for revocation as expressed in s.17 were met and the respondent was obliged to exercise its power to set in train a revoking gazette order.
In Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd[4] the Land Appeal Court held that there was no reason why a resuming authority could not seek to include a term in the agreement contemplated in s.17(1A) to the effect that the previous owner must return any advances paid pursuant to s.23 of the Act. We agree and consider that such terms need not be limited to the return of any advance against compensation. Depending on the circumstances surrounding any particular case, the agreement contemplated by s.17(1A) could include a range of terms and conditions that the parties consider appropriate to finally resolve all the outstanding issues between them.
[4] [2003] QLAC 0024 at [37], [38].
When these parties first came before the Land Appeal Court, the Court concluded that it was not necessarily apparent that the construction of each of ss.17 and 41 must result in the mutually exclusive operation of those sections and, depending on the circumstances, a constructing authority may be able to avail itself of the procedures under either s.17 or s.41 of the Act to dispose of resumed land no longer required.[5] We agree with those conclusions. It follows that the correspondence sent on behalf of the appellant consenting to the revocation did not, in the circumstances of this case, constitute or create an agreement as contemplated by s.17(1A), or any other obligation or duty requiring the respondent to revest the land.
[5] [2003] QLAC 0024 at [41] to [48] and [51].
Mr Allan argued that to interpret s.17 of the Act so as not to impose a mandatory obligation or duty upon the respondent to revest the land in accordance with that section would offend the principles laid down by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority[6] that all the provisions of the Act are intended to give effect to harmonious goals.
[6] (1998) 194 CLR 355 at 381 – 382.
Section 17 of the Act, although rearranged, is in its original form and s.32 CA of the Acts Interpretation Act 1954 which mandates a discretionary meaning for “may” when it appears in an Act applies only to legislation passed after 1 January 1992, s.32 CA (3).
In support of his argument, Mr Allan referred to the judgment of Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation[7] and of Gleeson CJ and McHugh J in Samad & Ors v District Court of NSW & Anor.[8] In Finance Facilities the High Court was concerned with the construction of s.46(3) of the Income Tax Assessment Act 1936 -1968 (Cth). That section effectively provided that the Commissioner "… may allow … a private company … a further rebate in its assessment" provided that he was satisfied that certain specified preconditions were met. Windeyer J put the question before the Court in the following terms[9]:
"Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?"
His Honour answered[10]:
"If the Commissioner, having considered the matter, is satisfied of facts out of which the power to allow a rebate arises, he cannot nevertheless refuse to allow it…"
Barwick CJ agreed with Windeyer J and Owen J reached a similar conclusion.
[7] (1971-1972) 127 CLR 106 at 134-135.
[8] (2001-2002) 209 CLR 140 at 152-153.
[9] At 134.
[10] At 135.
Critical to the reasoning of Windeyer J was his opinion that the relevant section created certain rights for the benefit of the taxpayer. His Honour said[11]:
"The right of a taxpayer to a discount or rebate arising from facts objectively determinable is quite properly called an entitlement. A claim to a discount or rebate dependent upon the Commissioner being satisfied of certain fact is equally properly called an allowance, something to be allowed. In some contexts the word 'allow' in the phrase 'may allow' might enhance a discretion said to be embodied by the word 'may'. But not, I think, in this context. The Act is filled with provisions about allowable deductions which are mandatory."
[11] At 133-4.
As Gaudron, Gummow and Callinan JJ observed in Samad at 161, Finance Facilities was a case in which the word “may” conferred a power to be exercised not a discretion to be weighed and was consistent with the approach in Ward v Williams (1955) 92 CLR 496 at 505-6 that it lies on those who assert that the word “may” conveys a command to show that this is so as a matter of construction of the statute taken as a whole.
In our opinion s.17(1) is quite a different provision to that considered in Finance Facilities. It creates no rights or entitlements. The words "… may revoke the gazette resumption notice… so far as the Governor in Council … thinks necessary" are intended to confer a discretionary power or authority on an administrative body rather than an authority which must be exercised if the other conditions necessary for the operation of s.17(1) are satisfied.
As Brennan CJ observed in Project Blue Sky[12], the purpose of construing the text of a statute is to ascertain the intention of the enacting Parliament. There is nothing to suggest that the legislature intended to displace the usual meaning of “may” and nothing which would dictate that s.17(1) read together with s.17(1A) creates a right to compensation calculated in accordance with s.17(4). The Acquisition of Land Act is replete with provisions using "may" and also "shall". For example "shall" is used in ss.12(1), 12(5), 17(1A) and 41(1) and the word "may" is used in ss.17(1), 17(4) and 17(5). Parliament made a deliberate choice to use the word "shall" when meaning to impose a duty or obligation and the word "may" when intending to allow for the exercise of a discretion. To interpret s.17(1) as creating a discretion to be exercised by the relevant authority is, in our opinion, consistent with the reasoning of the High Court in Ex parte Falkiner[13] and The King v Trebilco & Ors[14] and not inconsistent with the reasoning in Finance Facilities and Samad v District Court (NSW). To interpret s.17 as conferring a discretion rather than imposing a mandatory obligation or duty also does not, in our opinion, offend the principles enunciated by the High Court in Project Blue Sky.
[12] At 374.
[13] (1929) 35 Argus Law Reports 303.
[14] (1936-1937) 56 CLR 20, per Dixon J at 31-32.
It was also argued on behalf of the appellant that the respondent held the land in trust for the benefit of the appellant once the respondent passed the resolution determining that the resumed land was no longer required. The nature of this trust was said to be a "constructive trust" or a "statutory trust". Having regard to our conclusions concerning the proper construction of s.17(1) and s.17(1A), it is not necessary to fully consider this argument. Even on the appellant's case, the creation of any such trust is dependent on an acceptance that s.17(1) imposed the mandatory duties and obligations contended for by it. That construction of s.17(1) has not been accepted.
Res judicata and Estoppel
On 9 April 2003, the Land Appeal Court set aside the declaration made by the Land Court on 25 September 2002 and remitted the matter to the Member for further hearing. At paragraphs 53 to 58 the Land Appeal Court said:
"[53]Before compensation has been determined or agreed, a constructing authority that finds it no longer requires the resumed land for the purpose for which it was taken, must consider whether it is an appropriate case to invoke s.17 of the Act. In these circumstances, as a matter of construction of the Act, until the constructing authority has decided that it is not appropriate to implement the process under s.17 or otherwise exhausted the possibility of discontinuance under s.17, the constructing authority should not proceed to apply s.41 of the Act to a proposed parting by the constructing authority with the resumed land.
Whether a declaration should have been made
[54]On the one hand, the appellant may have good grounds for not proceeding under s.17 which would make s.41 of the Act applicable to any disposal of the land by the appellant. On the other hand, there may not be a good reason for the appellant not to embark on a discontinuance under s.17 of the Act.
[55]It is not apparent on the material that was before the learned Member that the appellant has undergone the process of considering whether it is appropriate or feasible to seek the respondent's consent to the revesting of the land on the terms provided by s.17.
[56]What is apparent from the resolution that was passed by the appellant on 4 July 2001 was that the appellant did not appreciate the distinction between a discontinuance of the subject land under s.17 of the Act and a disposal of the land under s.41 of the Act. This confusion also seems to be evident in the appellant's resolution of 29 August 2001. The processes are distinct, but the appellant seems to have blurred the processes.
[57]It is not for the Land Court or this Court to substitute its views as to how the appellant should exercise its decision making powers, in considering whether a declaration and, if so, what declaration should be made under s.33 of the LCA.
[58]In view of the state of the material before the learned Member, it was not open to the learned Member to make a declaration in the terms of that made on 25 September 2002. In the light of these reasons, it may be that there is a form of declaration which could be made, if the parties have an opportunity to place further material before the learned Member."
When the matter on remittal came before the Land Court evidence was led by the respondent to the effect that it had on 24 November 2004 resolved not to revest the land pursuant to s.17, but to proceed with the disposal of the land in accordance with s.41 of the Act. By letter dated 11 January 2005, the respondent wrote to the appellant's solicitors saying, inter alia:
"Council now offers the land back to your client at the price determined by the Valuer General (Acquisition of Land Act – Disposal of Land 41(1) and 41(1A)), namely $400,000.
We note that Council's drainage easement which was relinquished at the time of acquisition would require reinstatement.
This offer shall lapse at the expiration of 28 days from the date of this letter."
The appellant rejected the offer and sought relief from the Land Court to the extent identified in paragraph 8 above. In the Land Court, both sides made further submissions in writing and orally and, as was the case before this Court, it was argued on behalf of the appellant that s.17(1) of the Act imposed a duty upon the respondent to revest the land. At paragraph 110 of the appellant's written submissions in the Court below the argument in part was stated in the following terms:
"In other words, an application of the principles summarised by the High Court in Samad result in the conclusion that on its proper construction s.17(1) of the Act did not confer a discretion on the Governor in Council but rather conferred a power and a duty to exercise that power, provided that the Governor in Council was satisfied that the previous owner had agreed in writing to the revesting as provided for in s.17(1A) of the Act. Similarly, properly construed as a "remedial" provision, there was a duty first, on the Council and second, on the Minister, to take the necessary steps to revest the land where the statutory preconditions to the revesting had been satisfied."
Mr Skoien, counsel for the respondent, in his written submissions to the Land Court at the remitted hearing argued that in respect of the construction of s.17(1), the Member was bound by the reasoning of the Land Appeal Court decision of 9 April 2003 and that the appellant was "estopped" from re-litigating the issue.
When considering the submissions made on behalf of the parties concerning the construction of s.17 the Land Court[15] at paragraphs 50 to 51 said:
[15] (2006) QLC 0018.
"[50]As stated above, the Land Appeal Court heard and determined an appeal from a declaration that I had made in response to an application seeking a declaration that in the events that had happened the appropriate provision under which the applicant should proceed was s.17 of the Act. The construction of s.17 of the Act was a matter in issue before me. It is apparent from the Land Appeal Court decision that the construction of s.17 was also a central issue before that Court (see, in particular, paragraphs [22] – [24] and [34] – [40] of that Court's decision). I consider that as part of the ratio of its decision, the Land Appeal Court held that, in an appropriate case, a constructing authority has a choice as to whether it proceeds under s.17 or s.41, although where both avenues are open, the constructing authority must consider first whether it is appropriate to proceed under s.17. Thus the Land Appeal Court said –
At LAC [41])
"As a matter of construction of the Act, it was not necessarily apparent that the construction of each of ss.17 and 41 must result in mutually exclusive operation of the provisions."
At LAC [44]
"the constructing authority is not bound to implement the process of revoking a resumption under s.17(1), if the condition on which s.17(1) depends does exist and the period in which s.17(1) can be invoked has not passed."
At LAC [48]
"It is theoretically open that in a particular case where the constructing authority finds that the resumed land is not required for the purpose for which it was taken the processes under ss 17 and 41 could both apply. In view of the structure of the Act which supports the process under s.17 occurring at a relatively early stage after the resumption and the effect of revesting being to reverse the resumption, the constructing authority would have to consider whether it would proceed under s.17, before acting under s.41 of the Act. If the process under s.17 was successfully invoked, there is no longer a taking of land and therefore no room for s.41 to operate."
[51]Counsel's submission that there is a mandatory obligation on the respondent to put in train the s.17 process in this case is directly contrary to the Land Appeal Court's decision. However, as Counsel acknowledged, the matters raised in this part of his submissions were not raised before the Land Appeal Court. There was no explanation for this omission and therefore, I do not know why these issues were not raised before me originally or on the hearing of the appeal to the Land Appeal Court, particularly when the construction of s.17 was in issue in both of those forums."
In respect of the so called "estoppel" point raised on behalf of the respondent, it appears that the Land Court below was urged to conclude that the appellant was estopped from agitating the construction of s.17(1) now contended for in accordance with the principles enunciated by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd.[16] In its reasons for judgment the Land Court said in respect of this issue:
[16] (1980-1981) 147 CLR 589.
"[53]In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, the High Court considered the circumstances in which an estoppel might arise in subsequent litigation when a matter had not been pleaded in earlier litigation between the same parties. Gibbs CJ, Mason and Aickin JJ said (at 602) –
"In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
Their Honours also said (at 603, 604) that –
"It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, although they may not be pronounced in the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."
[54]Although there are no pleadings in this Court, I consider that these principles are applicable to proceedings in this Court. The issues raised by Counsel for the applicant in these submissions were clearly relevant to the subject matter of the earlier litigation and should have been raised at that time. The consequence of that failure is that two applications have been brought dealing with the construction of s.17 of the Act. Moreover, if the submissions were successful, they would lead to conflicting judgments in the sense referred to in Anshun. I consider therefore that the applicant is estopped from relying on this part of Counsel's submission because it was unreasonable for the applicant not to have raised these matters in the earlier proceedings where the construction of s.17 was in issue."
In his written submissions to this court, Mr Skoien at paragraphs 4.10 and 4.12 contended to the effect that the appellant was seeking to litigate issues that should have been litigated previously before the Land Appeal Court and that it should be "estopped" from attempting to relitigate "… the issues concerning the proper operation of Section 17 of the Act". In his oral submissions Mr Skoien indicated that it was probably more correct to identify the circumstances of these proceedings as falling under the doctrine or res judicata rather than being governed by the principles enunciated in Anshun.
While the doctrines of res judicata and issue estoppel are distinct it may be that in the circumstances of a particular case it is not immediately apparent which of the doctrines strictly apply. In Blair & Ors v Curran & Ors[17] Dixon J made the following well known observations:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." (emphasis added)
[17] (1939-1970) 62 CLR 464 at 531-532.
The distinction between res judicata and issue estoppel identified by Dixon J in Blair & Ors v Curran& Ors was specifically referred to by Gibbs CJ, Mason and Aickin JJ in Anshun at 597 in the following way:
"The distinction between res judicata (in England called 'cause of action estoppel') and issue estoppel was expressed by Dixon J in Blair v Curran (37) in these terms: 'in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
The distinction was restated by Fullagar J in his dissenting judgment in Jackson v Goldsmith (38). His Honour expressed the rule as to res judicata by saying: 'where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa'. His Honour went on to discuss issue estoppel, citing the comment of Dixon J in Blair v Curran (39): 'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
…
The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding." (emphasis added)
As was pointed out by Brennan J in Anshun at 610 the phrase "…cause of action" referred to by Dixon J is not always one of clear meaning or definition.
Another case often referred to in any discussion concerning this topic is that of Henderson v Henderson[18] where Sir James Wigram V.C. said:
"Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points on which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
In the joint judgment of Deane, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation[19] their Honours referred to the "existence of the principle in Henderson v Henderson" being affirmed by the High Court in Australia and by superior Courts in England. Similar comments concerning Henderson v Henderson were made by Gibbs CJ, Mason and Aickin JJ in Anshun at 598 to 599 where their Honours also expressed the view that while it has been said that the principle established in Henderson v Henderson operates to extend the doctrines of issue estoppel and res judicata, its application to cases of issue estoppel is to be treated with caution
[18] (1843) 3 Hare 100 [67ER313].
[19] (1987-88) 164 CLR 502 at 509.
Finally, in this context, in the majority judgment of Deane, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation at 509, it was said that in truth Hendersonv Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised which could and should have been litigated in the earlier proceedings.[20]
[20] see also Dawson J at 512.
In the circumstances surrounding this appeal and bearing in mind the principles referred to above, it is our opinion that if the appellant was subject to the operation of an estoppel it is more likely that it fell within the principles established in Anshun rather than from the operation of the doctrine of res judicata in its strict sense. We have reached this conclusion primarily because the Land Appeal Court at first instance did not finally dispose of the proceedings between the parties but remitted the matter back to the Land Court for further hearing.
A reading of the previous judgments concerning this matter makes clear two things. First, the proper construction to be given to s.17(1) and s.41 of the Act has always been a critical issue. Second, not until December 2005 at the hearing of the matter by the Land Court on remittal was it argued that s.17(1) imposed mandatory obligations on the respondent. In this context, the consent orders agreed to by the parties[21] dated 29 September 2004 and correspondence sent by the appellant's solicitors[22] on 3 December 2004, suggest that the appellant was awaiting an offer by the respondent to sell the land pursuant to s.41 and reserved its rights to seek compensation pursuant to s.20 of the Act.
[21] Appeal Record (AR) 155-156.
[22] AR158.
When the matter first came before the Land Appeal Court the following observations were made by the Court:
"[27]The respondent relies on the general structure of the Act, the language of s.17 of the Act, unsatisfactory features of the s.41 procedure and the legislative history as supporting the conclusion that s.17 rather than s.41 of the Act applies in the circumstances of this matter…
[29]Mr Gore of Queen's Counsel who appeared on behalf of the respondent submitted that, having regard to where s.41 of the Act is placed in Part 5 of the Act, it is not intended to be operative, until compensation has been finally determined and paid. Mr Gore submitted that the structure of the Act allowed for the conclusion that the Legislature intended by implication that the procedure under s.41 of the Act would be exclusive of the procedure under s.17 of the Act. It was submitted that it did not make sense that the Legislature would require the constructing authority to 'offer the land for sale to the former owner', if the former owner had not been paid for the land in the first place. The respondent also relies on the period of 7 years after the taking of the land referred to in s.41 of the Act as reinforcing the assumption that the taking be truly completed, by the finalisation of the compensation process, before s.41 of the Act could be invoked."
It is immediately apparent that before the Land Appeal Court it was argued on behalf of the appellant that the land should be revested pursuant to s.17 of the Act. It was also argued, as is the case now, that the procedures provided for under s.41 were not intended to be operative except in circumstances where compensation had been paid. The Land Appeal Court in its judgment on 9 April 2003 rejected these submissions and found that ss.17 and 41 were not mutually exclusive in their operation. For this Court now to determine that s.17 should be given the meaning and effect contended for by the appellant would be to create a judgment which conflicts with the previous judgment of the Court.
In the circumstances of this appeal it is therefore relevant to ask whether the appellant ought to have been allowed to pursue the construction of s.17(1) contended for having regard to the fact that those matters could and should have been raised before the Land Appeal Court in the previous appeal.
As we understand Mr Allan's argument, while acknowledging that a party on appeal was often bound by the conduct of its case at first instance, he contended that in the circumstances of this appeal no estoppel arises against his client. There were four matters that Mr Allan referred to in this context. First, that the doctrine of res judicata did not apply. Second, that the previous decision of the Land Appeal Court ought not create an estoppel in circumstances where that decision was plainly wrong or was made per incuriam. Third, that it would be wrong to estop the appellant in circumstances when "public law" rights were involved. Fourth, the equity and good conscience provisions of the Land Court Act 2000 should be applied for the benefit of the appellant.
As to the first of these matters, we are prepared to accept that the doctrine of res judicata in its strict sense does not apply.
If the appellant believed that the previous decision of the Land Appeal Court was wrong it could have appealed to the Court of Appeal for relief. For whatever reason it did not. In the circumstances surrounding this appeal, we seriously doubt that it is now open to challenge the correctness of the previous decision of this Court. In any event, for the reasons addressed above we do not accept that the Land Appeal Court was wrong and that the respondent's resolution not to revest the land in accordance with s.17 of the Act was ultra vires.
Given our reasons concerning the correctness of the previous decision of the Land Appeal Court, it is not necessary to deal comprehensively with the final two points raised by Mr Allan, but nonetheless we consider it appropriate to make the following observations: the argument that issues of "public law" are involved would not, in our opinion, provide the appellant with any defence to the operation of an estoppel in accordance with the principles enunciated by the majority in Anshun. Mr Allan placed some emphasis on the judgment of Stein J in Rosemount Estates Pty Ltd & Anor v The Minister.[23] In our opinion that case is clearly distinguishable, as it involved a consideration of legislation which gave to "any person" the opportunity to bring proceedings before the Land and Environment Court of New South Wales. This was clearly an important consideration in the reasoning of Stein J where at page 32, his Honour said:
"In my opinion, the Anshun estoppel principle is inapplicable to the applicants' claim that the environmental impact statement is invalid. This is primarily because the principle has no application to public law proceedings under "open standing" provisions in environmental legislation, such as s.123 of the Act..."
In Rosemount Stein J was dealing with legislation materially different. Insofar as there may be any tension between the reasoning adopted by Stein J and that adopted by the majority in TM Burke v Council of Noosa[24], we would prefer, with all due respect to Stein J, that of McMurdo P and Thomas JA.
[23] (1996) 90 LGERA 1.
[24] (2000-2001) 113 LGERA 368 at 379.
Finally, while this Court is required pursuant to s.7 of the Land Court Act 2000 to act according to equity, good conscience and the substantial merits of the case, that does not mean that well-established principles of law are to be disregarded. Legislative provisions such as s.7 of the Land Court Act 2000 are intended to be facultative and to free the Court from some of the more technical constraints applicable in superior courts. However, they do not provide a means of allowing the Court to act in an arbitrary way or in a way to avoid the consequences of established rules of law.[25]
[25]Townsville City Council v Chief Executive, Department of Main Roads (2006) 1 Qd R77, per Keane JA at [37] to [46].
If the appellant was now to succeed on the basis that s.17 imposed mandatory obligations on the respondent to revest the land it would achieve a judgment and consequential relief which would be in conflict with the previous decision of this Court. The argument now being advanced concerning the construction of s.17 was one that clearly could and should have been raised before the Land Appeal Court on the previous occasion. It was not, and no satisfactory excuse or reason was advanced in respect of that omission. Accordingly, we conclude that an estoppel of the type contemplated by Gibbs CJ, Mason and Aikin JJ in Anshun[26] as applied by McMurdo P and Thomas JA in TM Burke v Council of Noosa,[27] operates to prevent the appellant from raising for the first time before the Land Court and then subsequently before this Court an argument which, if accepted, would lead to an entirely different construction of s.17(1) to that decided by the Land Appeal Court on 9 April 2003.
[26] at 602-603.
[27] at 379.
Conclusions and Orders
For the reasons expressed above we are of the opinion that the appeal should be dismissed with costs to be assessed on the standard basis. Accordingly it is ordered that:
1. The appeal is dismissed.
2.The appellant is to pay the respondent's costs of and incidental to the appeal such costs to be assessed on the standard basis.
WHITE J
JUSTICE OF THE SUPREME COURT
JJ TRICKETT
PRESIDENT OF THE LAND COURT
R S JONES
MEMBER OF THE LAND COURT
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