Marshall v Dept of Transport

[2000] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B74 of 1999

B e t w e e n -

MELVILLE ROBERT MARSHALL

Applicant

and

DIRECTOR‑GENERAL, DEPARTMENT OF TRANSPORT

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2000, AT 12.37 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR R MACK, for the applicant.  (instructed by James Conomos Lawyers)

MR G.J. GIBSON, QC:   May it please the Court, I appear with my learned friend, MR R.S. JONES, for the respondent.  (instructed by the Crown Solicitor for Queensland)

GAUDRON J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  This application invites the Court’s consideration of a short ‑ ‑ ‑

McHUGH J:   We are familiar with it, but it seems to me it raises an important point.  But is it a suitable vehicle, having regard to the evidentiary situation?

MR JACKSON:   Well, your Honour, the determination of this issue is one that will determine, of course, the future conduct of the case and the way in which the matters has been dealt with in the three courts below, has meant that the decision of this issue against us affects our ability to obtain compensation on a particular basis and, your Honour, the question whether we would be entitled to get it has not been decided, but it has been precluded, and the issue, your Honour, has been directly decided in the three courts below.

McHUGH J:   I appreciate that, but what about this new evidence?  If you were to succeed on this particular point, is there evidence already in the case that would enable you to get your compensation on that ‑ ‑ ‑

MR JACKSON:   Yes, your Honour.

McHUGH J:   There is.

MR JACKSON:   Yes, there is.

McHUGH J:   So, it is quite independent of the new evidence.

MR JACKSON:   Yes.

GAUDRON J:   In that case, we might be assisted by hearing from Mr Gibson, Mr Jackson.

MR GIBSON:   Thank you, your Honours.  In our submission, the application should be refused.  It raises no principle of statutory interpretation and, secondly, it raises no question as to which there is a difference between the views of courts of different States or, indeed, otherwise as to the ‑ ‑ ‑

GAUDRON J:   But why does it not raise a principle of statutory interpretation in circumstances in which the construction which has been imposed by the courts of the United Kingdom in respect of a different provision has simply been adopted?

MR GIBSON:   Not adopted without question, your Honour.  Adopted after consideration of the merits of the arguments considered in those courts, and the reasons offered by the courts, including the Privy Council, for the conclusions expressed.  In none of the cases, certainly not in the Court of Appeal in this case, has there been what might be taken or said to be a slavish adoption of established principle overseas.  Rather, the court has looked at those cases and looked at the section under consideration and formed its own opinion.

GAUDRON J:   Formed its own opinion by reading words into the subsection which are not there.  If the section were given a literal construction, you would be out of Court now, would you not?

MR GIBSON:   I would not wish to consent in quite such unqualified terms.

GAUDRON J:   No.  But if it were given a literal construction.

MR GIBSON:   We would acknowledge, your Honour, that the language of the provision is capable of supporting an argument which would defeat our submissions, yes.

GAUDRON J:   Yes, and capable of defeating it in an important area affecting the property rights of people whose property is taken from them without their consent?

MR GIBSON:   That is so.  We acknowledge that.

GAUDRON J:   Well, on ordinary principles, at least, one would give it a construction, would one not, to benefit the person whose land has been acquired?

MR GIBSON:   Indeed.

GAUDRON J:   And that has not happened?

MR GIBSON:   Well, it is true that there is a more beneficial interpretation of the language of the provision than that which has been adopted by the courts, but one bears in mind two considerations.  Firstly, there must be a line of demarcation in any case as between those persons who are and who are not entitled to compensation in any particular circumstance.  The Court of Appeal has taken the view, we would submit correctly, that the interpretation of this provision and provisions to like effect in other jurisdiction, and I might say that in all States other than South Australia the particular language of this provision has been discounted in favour of language which is more in accord with that of the Commonwealth legislation.  I might return to that briefly in a moment.

In our submission, the Court of Appeal has correctly said that the interpretation which has been adopted both in the UK and in numerous cases in Queensland and interstate of this provision, at least have the benefit of certainty and they have, accordingly, a field of operation which should only be overturned by legislative intervention.

The second aspect of the issue, if I might turn to it, is that even the language of the Commonwealth legislation which was under consideration in Morison and, as I have said, which has subsequently been largely adopted in most of the other States, with the exception of South Australia, has not so far as we are aware been so interpreted as to confer an entitlement to compensation on a land owner, part of whose property has been resumed, but in respect of which property none of the works pursuant to the resumption have been constructed on the resumed land.  In other words, the mere fact of the resumption of part of the land has not, so far as we ‑ ‑ ‑

GAUDRON J:   Maybe the question has not arisen, because it is most likely to arise in relation to the construction of highways, which is primarily a State function.

MR GIBSON:   Yes.  However, the interstate legislation, which we have included in the application book, is in terms which is materially identical to that of the Commonwealth legislation.  It is true that the issue did not arise in terms in Morison’s Case, because part of the land resumed was applied to the airport construction.  However, it is possible, it is conceivable, but, we would submit, highly unlikely that such a fact situation has not since arisen, having regard to the ordinary exigencies of life.

In Morison, of course, both Chief Justice Barwick, with whom Justice McTiernan agreed, and also Justice Walsh, acknowledged the force of the English cases.  Their observations were, admittedly, obiter in the circumstances of the case but that, notwithstanding, represent, in our submission, powerful and persuasive judicial observations in support of the interpretation of section 20 of the local Act, which has been adopted.

Your Honours, I am happy to turn to the details of the provisions but we acknowledge that the matter is to be approached as one of principle and the submissions which we have made are directed to the principles involved.  In our submission, for those reasons, there is no occasion for the grant of special leave.  Should we add, however, this, that the draft notice of appeal goes beyond the primary issue in question in that, by paragraphs 3, 4 and 5 at page 106 of the record, the notice of appeal calls into question the exercise or the manner of exercise of discretion by the Land Appeal Court and, ultimately, the Court of Appeal in respect of the admission of further evidence.  It is not an issue which has been taken up in the applicant’s summary of argument ‑ ‑ ‑

GAUDRON J:   Well, that is the consequence of a finding that the applicant is correct on the first issue, is it not?  If the applicant were correct on the construction point, 3, 4, and 5 would follow, would they not?

MR GIBSON:   In our submission, not, your Honour, for this reason.  The Land Court found, or held, rather, and it is perhaps most succinctly expressed in the Court of Appeal’s judgment at page 92 of the record, at lines 40 to 45:

The Land Court member found that the evidence failed to establish that any part of the works was performed upon the resumed land.  Neither was it established that any works on the resumed land caused or contributed to the flooding problem.  On the findings of the Land Court member on the issue, which was clearly litigated before him, the flooding problems were entirely attributable to the performance of the works beyond the boundary of the resumed land.

Now, the submissions that were put on appeal to the Land Appeal Court in support of an application to adduce further evidence were considered by the Land Appeal Court at page 75 – in fact, over a number of pages, but at page 75 of the record.  The content of the supporting affidavit of an engineer, Mr Winders, was noted by the Land Appeal Court in these terms, firstly, at line 5, that he, Mr Winders, was able to reach a “preliminary opinion” as to certain conclusions to be drawn from a report which had not been made available to the applicants during the hearing.  We would refer your Honours to lines 15 to 20, without reading them ‑ ‑ ‑

McHUGH J:   But the point is, does it not come to this, that if the applicant succeeded on the point of construction, then the Land Appeal Court might take a very different view concerning the three volume report that was called the Connell Wagner Report, or the complete survey of the flood plain, and matters of that nature?  They might just take a different view of it.

MR GIBSON:   We would submit not and that the reasons of the court would support our position in that regard, your Honour.  The key to the court’s conclusion, both the Land Appeal Court and, ultimately, the Court of Appeal on this issue, that is, the admissibility of further evidence, did not turn on the application of the Edwards’ Case.

McHUGH J:   I appreciate that and, in effect, they have had a trial and now they want to re‑run it on different evidence.

MR GIBSON:   Yes.

McHUGH J:   But, that said, it may be that, put the section 20 point into the balance, the Court might take a different view.  So that it may have to be dealt with, in any event.  Subject to hearing Mr Jackson, I would not be in favour of granting special leave to appeal on those grounds – 3, 4 and 5 – as it stands, but that is not to say that the issues raised by them may not have to be reconsidered, if the matter went back.

GAUDRON J:   Certainly the Court of Appeal determined whether or not the discretion had been properly exercised, by reference to the construction, did it not?

MR GIBSON:   Your Honours, the Court of Appeal really addressed the issue at pages 93 and through to 95 of the record.  The short answer to your Honour’s point is, with respect, no, we would not accept that and we have endeavoured to make good our position by reference to these pages.  At line 45, before any reference to, or any discussion of, the judgment in Edwards, the court referred to the items of additional evidence which were identified and listed earlier in its judgment at page 90, lines 15 to 30.  The point which their Honours made may be seen at line 50 of page 93.  The Court of Appeal was of the view that:

It might fairly be said that the appellant in this respect is still hoping that something favourable might turn up, and that the proposal is for the presentation in due course of the results of a fishing expedition.

McHUGH J:   But that has to be read in the context of the statement at page 92, line 40, that there was no evidence:

to establish that any part of the works was performed upon the resumed land…..On the findings of the Land Court member…..the flooding problems were entirely attributable to the performance of the works beyond the boundary of the resumed land.

MR GIBSON:   Yes.

McHUGH J:   Now, once you are entitled to take into account activity outside the review plan, it may be that one has a different view of this evidence.

MR GIBSON:   Well, in a way, your Honour, if the court, that is, the court assessing compensation, is to be instructed by this Court that it matters not whether the works are carried out on or off the resumed land, such a conclusion would further mitigate against the need for the additional evidence which the claimant seeks because ‑ ‑ ‑

McHUGH J:   But it might depend on the nature of the evidence and what it says.  I do not know what is in this three volume report.  It is called the Connell Wagner Report, but it ‑ ‑ ‑

MR GIBSON:   Nor it seems does Mr Winders because he ‑ and other evidence which they seek to have adduced in the same way.

GAUDRON J:   There is certainly some evidence which goes to the extent of damage with respect to the flooding from works constructed, other than on the resumed land.

MR GIBSON:   The extent of the flooding from the works constructed, whether or not it would be on the resumed land.  That is quite so.  But both the Land Appeal Court ‑ ‑ ‑

GAUDRON J:   Would it not seem prima facie that that would be relevant evidence, if it is the case that you are entitled to compensation?

MR GIBSON:   Put in that way, the answer is yes, your Honour.

GAUDRON J:   Yes.

MR GIBSON:   However, the court was considering the application of the specific test for admissibility of further evidence posed by section 44 of the Land Act which required that the applicant demonstrate that grave injustice would result from the failure to be granted leave to call that evidence and that such evidence was not reasonably available to the applicant during the hearing.

We would submit quite strongly that the conclusions of both the Land Appeal Court and the Court of Appeal with respect to this fresh evidence issue did not depend upon the outcome of the application of the Edwards’ principle or the interpretation of section 20.  It was not absolutely

unrelated, but the extent of the relationship was purely collateral.  The decision to refuse leave was based on the merits of that application which relevantly turned on the manner of the issues as they were litigated in the Land Court, the circumstances in which the applicant failed to adduce evidence of this character ‑ ‑ ‑

GAUDRON J:   Mr Gibson, approximately how long will you be?

MR GIBSON:   Your Honours, five more minutes.

GAUDRON J:   Yes.  We will adjourn now and resume at 2.15pm.

AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAUDRON J:   Yes, thank you, Mr Gibson.

MR GIBSON:   Your Honours, Mr Jackson has been good enough to inform me that he does not press the retention of grounds 3, 4, and 5 in the notice of appeal, that is at page 106.  In those circumstances, unless there are any matters that the Court wishes to raise with me, we have no further submissions to make.

GAUDRON J:   Thank you, Mr Gibson.  You confirm that, do you, Mr Jackson, 3, 4 and 5?

MR JACKSON:   Yes, your Honour.  Could I just say one thing in relation to it and that is that it may be that some of the orders sought might need some amendment in consequence to that, but may we have the Court’s leave, if the Court were otherwise minded to grant special leave, to amend the notice of appeal consequentially?

GAUDRON J:   Yes.  There will be a grant of special leave on those terms,

AT 2.16 PM MATTER WAS CONCLUDED