Marshall v Dir-Gen Dept of Transport

[2000] HCATrans 554

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2000

B e t w e e n -

MELVILLE ROBERT MARSHALL

Appellant

and

DIRECTOR‑GENERAL,
DEPARTMENT OF TRANSPORT

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 DECEMBER 2000, AT 10.16 AM

(Continued from 7/12/00)

Copyright in the High Court of Australia

MR KEANE:   Your Honours, yesterday we were addressing submissions to your Honours about the text of section 20(1)(b) and we have had distributed to your Honours, as you will see, an excerpt from a text The Law Affecting Valuation of Land in Australia by Hyam, 2nd Edition.  Can we take your Honours to that to make ‑ ‑ ‑

KIRBY J:   Is this common text to other land acquisition statutes in Australia or is it peculiar to Queensland?

MR KEANE:   No, your Honours, it is Australian, but it is of particular use because it does refer to some Queensland cases.  In particular, we would like to take your Honours to three points.

KIRBY J:   I meant the statutory text we are concentrating on.  Have you done a comparative analysis?

MR KEANE:   I am sorry, your Honour, I beg your Honour’s pardon.  The text that Queensland retains is, I think, different from – it is similar to South Australia, which retains this notion of compensation for damage for injurious affection, but the statutes of the other States are different.

KIRBY J:   It could be useful to us to have this because in a sense it is relevant to your subsidiary argument about restraint.  If it has significance throughout the country, then that doubles, or multiplies by six, the implications of it.

MR KEANE:   Yes, your Honour, I know, it is quite different, and we can provide your Honours – we will provide your Honours, within a short time, with a comparative table of the compensation provisions.

KIRBY J:   Especially relevant would be one, or a couple of States, have amended things in a way that, as it were, solves the problems.

MR KEANE:   Yes, your Honours.

KIRBY J:   They may not, and they may all have relied on Edwards.

CALLINAN J:   Mr Solicitor, I am sorry to interrupt you, but, in your submission, is there very much difference between the so-called softening of the principle which was referred to, I think, in one of the cases and the position that Mr Jackson takes?

MR KEANE:   Well, there is the difference in principle, your Honour.

CALLINAN J:   But in practical terms ‑ ‑ ‑

MR KEANE:   But in practical terms, for example, by reference to this case, to take a case in point, here, on the findings, none of the activities which have adversely affected the land, on any view, have taken place on the resumed land.

CALLINAN J:   But did they, in that case, where the Land Appeal Court said that the formula that had been devised, I think, in Beaver ‑ ‑ ‑

MR KEANE:   Beaver Dredging?

CALLINAN J:   Yes – was really a softening of the harshness of the application of the principle in Edwards’ Case.

MR KEANE:   Well, your Honour, firstly, there is nothing new about that.  It is merely another application of what was said in the Sisters of Charity of Rockingham Case and of what was said in Morison, that where one cannot identify and quantify the damage flowing from the use made of the land taken from the claimant in isolation from that flowing from an activity of which that use is an integral part, then because one cannot dissect, the principle of full compensation applies.  In that sense, there is a softening, but whether that identification and quantification is possible is a matter of fact and expert opinion, as Lord Parmoor said, quite distinctly, in the Sisters of Rockingham Case, and as Chief Justice Barwick said in Morison.  Your Honour, can we take your Honour to that in a moment?

CALLINAN J:   Yes.  You were just about to say that, or you may have said that there was nothing done on the subject land, that is the acquired land ‑ ‑ ‑

MR KEANE:   Yes, the resumed land.

CALLINAN J:   In relation to road works, is that right?

MR KEANE:   That is right.

CALLINAN J:   But was there not some rock spill?

MR KEANE:   That is right, your Honour.

CALLINAN J:   Why is not that part of the road works?

MR KEANE:   The member found not, your Honour.

CALLINAN J:   No.  Well, the member may have done but can you explain to me why it was not.

MR KEANE:   I suppose it is just a little bit of wastage on spill from the batter that ‑ ‑ ‑

CALLINAN J:   It is part of the works.  It is a consequence of the works.

MR KEANE:   It is a consequence.

CALLINAN J:   How can you possibly say it is not part of the works?

MR KEANE:   It is a consequence of the works, your Honours.

CALLINAN J:   It is part of them, is it not?  I mean, there may be a need for some space for rock spill.

MR KEANE:   Your Honour, of course.  In a sense, what your Honour puts to me is correct but we do think we are right in saying that whatever the status of the rock spill is it certainly was not part of the works which caused the flooding.  The rock spill did not cause the flooding.

CALLINAN J:   The road, of which the rock spill is part, caused the flooding, arguably, and that may be a matter that needs further consideration in the Land Appeal Court but that is at least arguably so, is it not?

MR KEANE:   Your Honour, the member found that the rock spill certainly did not cause any flooding.  Your Honours, what we were going to take your Honours to Hyam for were three things.  Firstly, on page 242, the first page of the excerpt, the first couple of paragraphs which speak of “injurious affection” as:

“A piece of jargon having a respectable pedigree and prolific of litigation –

and stating the test stated by Lord Justice Harman in Edwards as being:

“whether that which is done on the claimant’s land was causing injury to the claimant’s land”.

That seems to us to be a succinct statement of the principle.  The second point that we gave your Honours Hyam for is in relation to the discussion we were having with your Honour Justice Callinan yesterday in relation to context and, in that regard, we refer your Honours to the citation from Justice Ollson which is in the next paragraph where the point is made that:

“The expression ‘injurious affection’ is not defined in the statute.  Its meaning is to be derived with the aid of a number of published authorities which bear upon such an expression.  However, the published authorities should be read with considerable care ‑ ‑ ‑

GAUDRON J:   Why should they not be given their ordinary meaning?  You say they are terms of art?

MR KEANE:   They are certainly the subject of judicial exegesis.

GAUDRON J:   Yes, but why?  These are laws that speak to the people and if they are not terms of art, why should they not be given their ordinary meaning?

MR KEANE:   Where they have a meaning that is settled by judicial decision and the Parliament has used those words, then that is ‑ ‑ ‑

GAUDRON J:   Justice Gibbs in Morison thought the words in 23(1)(c) should be given their ordinary and grammatical meaning, which seems to be a much more appealing proposition than saying that they bear whatever meaning has been produced as a result of judicial exegesis.

MR KEANE:   Their Honours Justice Gibbs and Justice Menzies in that case made the point that the language of section 23 of the Commonwealth statute was distinctly different from section 63.

GAUDRON J:   Yes, but he thought that language should be given its ordinary and grammatical meaning.

MR KEANE:   And in relation to the English predecessor of our section 20(1)(b), that is section 63 of the Lands Clauses Consolidation Act, at pages 56 at the bottom to 57, speaking of that provision, his Honour said at the bottom of 56:

Since the section refers to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken.  In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed.

His Honour was expressing that view of the natural meaning of the words in relation to section 63 of the Lands Clauses Consolidation Act, which is the predecessor, the lineal ancestor, of our section 20(1)(b).

To return to the question your Honour Justice Gaudron asks though, the other thing we would say in response to your Honour is to repeat, without repeating in extenso, the points we made yesterday that, even with the most innocent study of section 20(1)(b), it becomes apparent that the section is not explicit and does require interpretation for the reasons we mentioned, that it speaks of damage caused but which we all know is not damage caused as an historical fact.  It speaks of “the exercise of statutory powers” but it is accepted on all sides that that has to be read down in some way, and it speaks of “injurious affection”, it speaks of:

damage (if any) caused by…..

(b)  the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

If the words “injurious affection” added nothing and did not require interpretation, then the meaning for which our learned friends contend could have been conveyed much more simply by simply saying “the damage caused by the exercise of statutory powers”.

So, your Honour, it is our submission that there are a number of indicators that these provisions do require interpretation and they have received it and the Parliament has legislated on the strength of the received interpretation, we said yesterday to Justice Kirby an interpretation hallowed by usage, and when we come to the decision of the Privy Council in Rockingham, we submit that that description is probably justified.

GLEESON CJ:   Is it part of your submission that injurious affection is a legal term of art that, by the time of the enactment of the legislation in Queensland with which we are here concerned, had acquired a meaning which confined it in the manner for which you contend?

MR KEANE:   Your Honour, it may be putting it a little high to same a “term of art”.  Lord Justice Harman spoke of it as a piece of jargon, albeit respectable pedigree, but we would say it is a term which was used and which has been interpreted as having the meaning which your Honour put to us, in this context, in section 63 Land Clauses Consolidation Act context.

GLEESON CJ:   I was just wondering whether part of your argument is, and I am not intending to express any opinion for it or against it, that the use of that jargon “injuriously affecting” in paragraph (b) achieves the result of importing into paragraph (b) those missing words, that is to say, the exercise on the land resumed.

MR KEANE:   Your Honour, it is our submission that that is the case and that that is so, that that is the theoretical basis for the point, is demonstrated by reference to the authorities and, in particular, Cowper Essex and the Sisters of Charity of Rockingham and that is why we said at the outset that we intended, firstly, to take your Honours to the text of the statute, and that was with a view to demonstrating that it requires interpretation, and then we would take your Honours to the cases which have interpreted it in the way, in our submission, that your Honour the Chief Justice puts to us.

It is then on that basis that we move to our submission that the Parliament has enacted the statute on that footing.  In saying all that, we bear in mind what your Honour Justice McHugh put to us yesterday about the need to come to grips with section 20(3).

McHUGH J:   Yes.  Mr Jackson’s argument, I think, would probably be the same, even if the words “injuriously” were not there.  In other words, his argument seems to be that it is damaged by the exercise of statutory powers, otherwise affecting such ‑ ‑ ‑

MR KEANE:   Quite, your Honour, and that was a point of distinction we were seeking to make in our discussion with Justice Callinan yesterday in relation to Morison’s Case.

HAYNE J:   Now, the expression “injurious affection”, or equivalents, is used in several different kinds of statutory context, is it not?

MR KEANE:   Yes, it is.

HAYNE J:   Some of which are exemplified by what Justice Gibbs refers to in Morison at the foot of 57 and the top of 58.

MR KEANE:   Yes, your Honour.

HAYNE J:  

injuriously affected … by the nature of the works in question”)…..injuriously affected by the taking”) –

or –

“by the exercise of any statutory powers…..otherwise injuriously affecting such other lands”).

MR KEANE:   Yes.

HAYNE J:   Do you accept they are three different usages in which “injurious affection” ‑ or the amount to be allowed on that account could, perhaps would, necessarily be different?

MR KEANE:   May, your Honour.  The reason we equivocate in our response to your Honour is that when one looks at Morison’s Case, one has a situation where two of their Honours, Chief Justice Barwick and Sir Edward McTiernan, who agreed with him, took the view that the difference in the language between section 63 of the Land Clauses Consolidation Act and the Commonwealth statute did not displace the principles developed in the English cases.  Two judges, Justices Menzies and Gibbs, held that it did, and in that regard they agreed with Justice Stephen at first instance, that there was a radical difference in the difference in language and Justice Walsh seems to have steered a middle course.

Your Honour, we equivocate because the later cases, where different statutes are being looked at in the light of the discussion of the earlier statutes, tend to equivocate.  Our point is that our section ‑ subject to the section 20(3) point, our section 20(1)(b) is the substantial replication of section 63.  So that we say we are, indeed, in pari materia, and the possible differences that arise from context, the sort of difference that Justice Olsson is referring to the passage in Hyam, does not arise.

McHUGH J:   Mr Keane, I notice on page 58 there is reference to that statute that I was groping for yesterday ‑ ‑ ‑

MR KEANE:   Yes, your Honour, we were going to take your Honour to that.  It is significant.  Yesterday, we said to your Honour the difference in language is significant.  His Honour Justice Gibbs seemed to think so, too.  May we take your Honour to that in a moment?

McHUGH J:   Yes.

MR KEANE:   Directly – we just want to take your Honours to a couple of other points in Hyam.  The first is the second‑last paragraph, or the last full paragraph on 242, where your Honours will recall yesterday we made the observation that the reference to severance and the exercise of any statutory power otherwise injuriously affecting suggested a relationship between the two and, indeed, that severance was a species of injurious affection, the genus of which shared a connection with the land taken.  We draw your Honours’ attention to the reference to what was said in Suntown Pty Ltd v Gold Coast City Council by the Land Appeal Court in 1979 that:

“Both are forms of damage flowing from a resumption and both are in respect of land retained by the claimant.  In one sense severance damage is a specialised form of injurious affection to the retained land.”

The other thing to which we take your Honours in a passage from Hyam is at 245 where, at about point 6 on the page, further reference is made to the decision of the Queensland Land Appeal Court in Suntown, and the passage from the decision of the court is set out.  Can we draw your Honours’ attention, particularly, to the second sentence:

This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of the resumption and the consequent depreciation in the value of the retained land –

and if we could invite your Honours to read the balance of that citation. 

If we may then, now, take your Honours to Morison (1972) 127 CLR 32. It is item 15 on our list, your Honours. Your Honours, in taking your Honours to the case, can we say, firstly, that we wish to take your Honours to it, firstly, to rebut the suggestion which has been made that there is disapproval of Edwards in the judgments in Morison.  If we can take your Honours, firstly, to the judgment of the Chief Justice at page 38, and if your Honours will look at the third paragraph beginning at about point 5 on the page, the Solicitor-General for the Commonwealth was seeking to make a submission that the statute there before the court, the text of which your Honours will see underneath the headnote which speaks of:

the enhancement or depreciation in value of the interest…..by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired.

In other words, no reference to injurious affection.  The Solicitor-General was seeking to suggest that the two provisions were equivalent and your Honours will see the text of section 63 relevantly set out in the third last paragraph on page 38 and your Honours will see that it does bear a distinct resemblance to section 20(1)(b).  Then he says:

Somewhat in apparent contrast to this formula, the Lands Acquisition Act speaks of the change in value “arising from the carrying out of or the proposal to carry out the public purpose for which the land was acquired”.  Having regard to the structure of the Lands Acquisition Act and this Court’s decision, this must mean the public purpose for which the land is stated to be acquired.

Where the work to be done in carrying out the statutory powers, and the stated public purpose, are, in each case, wholly confined to the acquired land, little difference in my opinion, can exist in the application, vis-à-vis the assessment of compensation, of the two provisions, i.e. s. 63 and s. 23(1)(c).  But where the accomplishment of the stated public purpose involves the use of other land in conjunction with the acquired land, divergence of result might possibly arise in the application of s. 23(1) as compared with the application of s. 63 in identical circumstances, particularly if the statutory powers to which that section refers are limited to the use of the acquired land.  It seems to me that the formulae of s. 63 and s. 23(1) are not identical and that s. 23(1) is not an attempt to re‑express the provisions of s. 63.  But that does not mean, in my opinion, that the principle which underlies each provision is not the same or that the decisions so far made on s. 63 are irrelevant in all cases to the application of s. 23.  It is, in my opinion, a sound principle in the application of s. 23 that the depreciation in value of retained land for which compensation is to be given is the depreciation caused by the use of the constructions placed on the acquired land.  In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors.

His Honour goes on at page ‑ ‑ ‑

GLEESON CJ:   Is that the genesis of what was described earlier as some softening?

MR KEANE:   Your Honour, in our submission, the genesis of the idea of softening is actually in the Sisters of Charity of Rockingham Case and the approach has been picked up, although perhaps not necessarily with attribution.  At page 40 your Honours will see reference without disparagement at about point 4 on the page to Edwards and at page 41 one sees the beginning of his Honour’s development of the softening approach.  At page 41 at about point 6 the reference to the:

Corpus Juris Secundum, in relation to the assessment of compensation for injurious affection, that whilst the basic rule is that “the damages”, i.e. to the retained land,

“…should be limited to those accruing from the improvement on the land condemned –

that is taken –

some courts have modified this rule, stating that where a part of an owner’s land is taken for a public improvement, and the use of the part taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put, the owner is entitled to recover the full damage to his remaining property due to such public improvement, even though portions of the public improvement are located on land taken from surrounding owners –

His Honour then goes on to apply, as one sees from the bottom of that page and over, that that soft approach, as it were - and your Honours, that is the approach - to come back to your Honour Justice Callinan’s question earlier,  that, in our submission, is the approach that is applied in Beaver Dredging.  But it is an approach that is applied without disapproval of Edwards.

In relation to the decision of Justice Menzies, your Honours, at page 45, your Honours will see reference to the English decisions beginning with Stockport and including Sisters of Charity of Rockingham and Edwards and if we can invite your Honours to read that paragraph at page 45, your Honours will see that Justice Menzies took the view that the difference in language was sufficient so that the Commonwealth statute should not be construed by reference to the English authorities.

In the judgment of Justice Walsh there is reference to Edwards, once again without disapproval, at the top of page 47, and we might mention that in the reference at the end of that paragraph on 47 to Laycock v Victorian Railways Commissioners - that is a case where the Victorian court applied the same principle as Edwards.  There is some further discussion of Edwards at page 50.

McHUGH J:   Chief Justice Barwick had discussed Laycock as well at the bottom of 40, 41 where he said:

The case thus became one in which the claimant sought to be in a different position from others affected by the noise and disturbance of the trunk road, over and above the noise and disturbance exclusively referrable to activity on the land taken from him, simply because that land had been taken.

MR KEANE:   Yes.  It has been pointed out to me, and I should have mentioned to your Honours, that Justice Menzies at 45 point 4 said that if section 23 of the Commonwealth statute was the same, in the same terms as section 63 of the English Act the English cases might have been overwhelming.  The conclusion which Justice Walsh reached can be seen at the bottom of 52 in the paragraph that goes over to 53 where his Honour applies the soft approach which really is a matter of – I should not, I suppose, use that loose language, although it is convenient, but what is really being said is that where it is possible, or where it is not possible to identify and quantify the separate cause of damage, then a principle of full compensation applies, but where it is possible to identify then the narrower principle applies.

In the judgment of Justice Gibbs – we have taken your Honours to 56 and 57.  Then, can we take your Honours to 58 where his Honour discuses the point which your Honour Justice McHugh raised with us yesterday.  He takes up the point in the first full paragraph on page 58 and what was sought to be done by the Solicitor‑General for the Commonwealth in the argument which his Honour is addressing here was, if we might say, with respect, to have the proviso in relation to set-off served to wag the dog, the tail in the proviso affecting the proper construction of the operative provision.  Justice Gibbs rejected that on the basis which he makes explicit at the bottom of page 58 where he says:

The change of terminology suggest that the legislature deliberately intended to adopt a measure for the estimation of the enhancement in value of retained lands which was different from that which the Lands Clauses Consolidation Act had laid down in relation to depreciation.

His Honour goes on to refer to some discussion of that 1901 Commonwealth statute and if we can invite your Honours to read, in particular, what is said at page 59 from about point 6, the sentence beginning, “In reply to this contention”.  His Honour goes on at page 60 to make the point that he looked at the copy of the award that Justice Powers made in the case which he is discussing and goes on to say:

It seems quite clear that Powers J held that under s 28(1)(c) he was bound to have regard to the enhancement of the land retained which resulted from the carrying out of the public purposes on land other than the acquired land in question.

He then went on to say:

The decision therefore gave a different effect to the section from that which the English cases have given to section 63 of the Lands Clauses Consolidation Act, and is quite opposed to the contention of the Solicitor‑General.

He goes on to say that the decision is of persuasive authority and he refers at about point 7:

Perhaps it is unnecessary to go so far as to say that these circumstances call for the application of the principle discussed by Lord Macmillan in Barras v Aberdeen Steam Trawling and Fishing Co Ltd, that where the language of a statute has received judicial interpretation and Parliament again employs the same language in a subsequent statute dealing with the same subject matter there is a presumption that Parliament intended that he language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to it.  However, the history of the legislation confirms me in the view that section 23(1)(c) should be construed according to its own terms and not upon the assumption that the Parliament intended to give its words the same effect as that which the authorities had held should be given to the different words of the English and the Canadian statutes.

KIRBY J:   Is there not authority in this Court to the contrary of that proposition?  I am thinking of, I may be wrong here, what Justice Dixon said in Reynhoudt Case, what this Court has said since in Zickar and other cases, that this is a mythology that Parliament is paying such close attention to the decisions of the courts when it enacts legislation.

MR KEANE:   Your Honour, it may be that a hard-nosed realistic view of the activities of Parliaments might in some cases suggest that is the case.  We would submit, with respect ‑ ‑ ‑

KIRBY J:   You have in your favour here that the Minister actually referred to the fact that every word had been touched upon.

MR KEANE:   Quite.  Your Honours, we did track down the genesis of section 20(3).  It first found its way into the Queensland statutes in the 1906 Act, which is item 1 on our list.  Your Honours need not go to it.  In section 19 where notwithstanding the use of the operative provision from section 63, the Queensland Parliament included the set-off provision from the 1901 Commonwealth statute that is discussed in that passage in Morison.

CALLINAN J:   What Act is that, Mr Keane?  That is Public Works Land Resumption Act?

MR KEANE:   That is right, your Honour; that is the Public Works Land Resumption Act 1906, which was the predecessor of the current statute.

CALLINAN J:   The one you have given us, the Acquisition of Land Act, is the one that was in force at the time, which makes the Crown and your client, by definition, a constructing authority, is that right?

MR KEANE:   That is right, your Honour.  Could we give your Honours firstly the 1901 Act, in one hit, because we will not take your Honours to it, but we have the 1901 Commonwealth statute, the 1906 Commonwealth statute and the 1955 statute, the 1955 statute being the one which eschews all reference to injurious affection, and they, I think, address your Honour Justice McHugh’s concern as to where section 20(3) came in.  The answer is, it came in in 1906, having been imported from the Commonwealth statute, but we take our stand on the proposition that the difference in language is, as Justice Gibbs says in Morison’s Case, such as to make it clear that Parliament did intend different bases of measurement of enhancement as compared with injurious affection.

Your Honours, we have been saying we would come to the English cases.  May we do that now?  The first, as we mentioned yesterday, which we think is the case which your Honour Justice McHugh was meaning to refer when your Honour spoke of the idea that this was a benefit that has been given to those who are injured, is the Stockport Case.  It is No 16 on our list.  If we could take your Honours to that, firstly, to page 252 in the argument, the argument of Mr Russell in the left‑hand column at the bottom of the page where Mr Russell said:

It has long been laid down that no compensation can be given for anything done in the construction of works under an act of parliament, unless the course complained of as injuriously affecting the land would have been a wrong for which an action could have been maintained had it not been sanctioned by parliament……  Exposing land or houses to damage by fire is not actionable per se.

Then, your Honours, there is a record of Mr Manisty saying:

There is a clear distinction between the cases cited and this.  In the instances referred to no land of the claimant had been taken.

The response to that was the distinction had never been made.  Justice Crompton at page 253 in the left‑hand column in the second paragraph beginning at about point 5 ‑ ‑ ‑

KIRBY J:   What is this court, the Bail Court?

MR KEANE:   Pardon your Honour?

KIRBY J:   The Bail Court 1864.  What is the authority of this court?  I do not know it.

GUMMOW J:   I think it is a list in the Queen’s Bench ‑ ‑ ‑

McHUGH J:   It is a court of the Queen’s Bench.

GUMMOW J:   Yes.

MR KEANE:   Yes.  There was a special assessment process set up involving assessors and juries and this court had a supervisory function over them, as is apparent from the circumstance that his Lordship issued certiorari against the jury.

CALLINAN J:   Was that partly because the company was probably incorporated by statute too?

MR KEANE:   Your Honour, I am not sure.  It could well be that the company was incorporated to carry out the undertakings.  It could well be so.

CALLINAN J:   And if you were giving – I mean, it would be a gross interference with Victorian capitalism to make the railway company pay.

MR KEANE:   Your Honour says that but, of course, these decisions are also the product of judges to whom rights of private property were distinctly important and were certainly not to be frittered away.  The passage that we are taking your Honours to in 253 in the left‑hand column, about point 5:

On the part of the company it was not denied that the premises were rendered less convenient and fit for the purposes of a cotton‑mill, and that the saleable value of the mill was diminished by reason of what had been done by virtue of the provisions of the act.  But it was asserted that no action would have lain against any proprietor for damage from fire arising from the proximity of works or engines carried on and managed, without negligence; and, therefore, that the case fell within the well‑established rule, that compensation is only given by such acts of parliament, when what would have been unlawful and actionable but for the act of parliament, is permitted by the act of parliament, and compensation therefore allowed in lieu and by reason of such right of action being taken away.  I adhere entirely to this rule as laid down by my Brother Willes, in Broadbent v the Imperial Gas Company and in many other cases.  But the question here is, whether such rule is at all applicable to cases where part of the land is taken and compensation is given, not only for the value of the part taken, but for the rest of the land being injuriously affected, either by severance or otherwise ‑

and that language echoes the language of our statute –

and I am of opinion that the distinction pointed out by Mr. Manisty is correct, and that the rule in question does not apply to such cases.  Where the damage is occasioned by what is done upon other land which the company have purchased, and such damage would not have been actionable as against the original proprietor, as in the case of the sinking of a well and causing the abstraction of water by percolation, the company have a right to say, We had done what we had a right to do as proprietors, and do not require the protection of any act of parliament; we, therefore, have not injured you by virtue of the provisions of the act; no cause of action has been taken away from you by the act.  Where, however, the mischief is caused by what is done on the land taken, the party seeking compensation has a right to say, it is by the act of parliament, and the act of parliament only, that you have done the acts which have caused the damage; without the act of parliament, everything you have done, and are about to do, in the making and using the railway, would have been illegal and actionable, and is, therefore, matter for compensation according to the rule in question.

The correctness of this judgment was significantly contested in subsequent cases and the upshot of the contest was that its correctness was affirmed.  If we can take your Honours to ‑ ‑ ‑

HAYNE J:   But the driving force for the decision in the Stockport Case, not surprisingly, is those words in the statute, “injuriously affecting such other Lands by the Exercise of the Powers of this or the special Act”, et cetera.  First catch an exercise of powers.  His Lordship chose in the facts of that case to draw a physical distinction as a convenient way of identifying what was done in the exercise of power, but does it follow that the physical distinction is always applicable or useful?

MR KEANE:   Your Honour, it seems to us, with respect, that his Lordship was making the point that it is the taking under statutory authority of the land which is critical because, absent the lawful taking, the authority for which is the Act of Parliament, the activities that then ensue – forget nuisance – would be a trespass.  In the subsequent cases, the case to which we take your Honours now, the decision explicitly turned on section 63 of the Land Clauses Compensation Act, not on section 68, although we do notice that Justice Crompton did not distinguish.

In that regard we should give your Honours Cripps, the 11th edition of Cripps, being the edition to which Lord Justice Harman refers in Edwards’ Case at 146.  We give it to your Honours because it contains a useful discussion of section 63 of the Land Clauses Consolidation Act and section 68.  Can we mention in that regard the Todd article, the article from the University of British Columbia Law Review which our learned friends handed to your Honours yesterday, simply to say that your Honours should approach it with some care in that at page 134 of the Todd article in the second paragraph it asserts that:

The only sections of

the English legislation –

relevant to the matter of injurious affection are sections 68 of the Lands Clauses Consolidation Act, and sections 6 and 16 of the Railway Clauses Consolidation Act.

That is a remarkable statement, with respect, having regard to section 63 of the Act which Cripps, and, indeed, the authorities, treat as the principal source of compensation, and perhaps Todd’s rather narrower focus explains why the author relegates the Cowper Essex Case and discussion of it to a footnote, footnote (5) on page 128, and does not mention the Sisters of Charity of Rockingham Case at all, which is all the more remarkable, it being an appeal to the Privy Council from Canada.

CALLINAN J:   Mr Solicitor, can I just ask you a question.  The respondent resumed the land for road purposes, is that right?

MR KEANE:   Yes.

CALLINAN J:   Which was a statutory power that it had, its main statutory power.  Now you want to say that the land is not being used for road purposes.

MR KEANE:   No, your Honour.

CALLINAN J:   Why did it resume it if it did not need it for road purposes?  Is not the resumption unlawful unless it required it for road purposes?

MR KEANE:   Your Honour, can we say two things.

CALLINAN J:   But can you deal with that question first.  It would be unlawful if it were not needed for road purposes.  It would be not a bona fide resumption.

MR KEANE:   And the resumption would be declared void.

CALLINAN J:   So it must have had a genuine intention to use it for road purposes.

MR KEANE:   Yes.

CALLINAN J:   Now, you say that that land is not being used for road purposes.

MR KEANE:   No, it is being ‑ ‑ ‑

CALLINAN J:   What purpose is it being used?

MR KEANE:   It is being used for road purposes.  The question though, your Honour, is whether there has been damage caused to the other land retained by the appellant by reason of the exercise of statutory powers by the constructing authority injuriously affecting the land.

CALLINAN J:   But its statutory power is - two statutory powers.  One is to acquire it for road purposes and the other is to use it for road purposes and, relevantly, it has no other powers in relation to this land.

MR KEANE:   Quite, your Honour.  We have ‑ ‑ ‑

CALLINAN J:   Well, why should we not regard this as part of the road?  It has been resumed for the purpose of a road, it must have been intended for the purpose of a road, and now you say, “Do not treat it as part of the road, treat it as a bit of batter or a rock spill which does not cause any nuisance or harm at all”.

MR KEANE:   Well, your Honour, the question we are addressing ‑ ‑ ‑

CALLINAN J:   That is what it comes down to, your submission, does it not?

MR KEANE:   It does, your Honour, and if the opposite of what we are submitting are correct, then none of these cases would have been decided the way they were.

CALLINAN J:   There are quite a few statements, I notice, in the earlier cases, that Lord Justice Harman really seemed to me to embark upon a very elaborate and not entirely convincing explanation of, which are against you, the statement by Lord Macnaghten, in one of the cases, I notice.

MR KEANE:   Well, your Honour, we want to come to that.  May we do that now?  In the Cowper Essex Case (1889) 14 AC 153, your Honours will find the text of the statute there under discussion. At page 157, in the footnote at the bottom of the left-hand column – we draw your Honours’ attention to that to make the point this is not about railways, this is actually about construction of sewerage works near a residential subdivision. If your Honours then go to the speech of Lord Halsbury at page 161, in the last paragraph on the page:

My Lords, with reference to the main question I have had less difficulty, since I take it that two propositions have now been conclusively established.  One is, that land taken under the powers of the Lands Clauses Act, and applied to any use authorised by the statute, cannot by its mere use, as distinguished from the construction of works upon it, give rise to a claim for compensation.

That, your Honour, as we apprehend, is because “use”, in accordance with the statute, authorising use, cannot be unlawful:

But a second proposition is, it appears to me, not less conclusively established, and that is, that where part of a proprietor’s land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor’s land, then such damage may be an injurious affecting of the proprietor’s other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing had been taken for the purpose of the intended works.

That, in our respectful submission, is, what we said in answer to your Honour the Chief Justice, the judicial gloss, if one likes, or interpretation, if one likes, which anchors the notion of injury, the notion of adverse affection as being injurious rather than merely adverse because it involves the use of land taken.  At page 162 his Lordship elaborates a little:

It may seem at first sight a little strange that what is injurious affecting in one case should not be in the other.  But it is possible to explain that apparent contradiction by the consideration that the injurious affecting by the use, as distinguished from the construction, is a particular injury suffered by the proprietor from whom some portion of his land is taken different in kind from that which is suffered by the rest of Her Majesty’s subjects.

If we can take your Honours then to the speech of Lord Watson at page 164 at about point 5, the paragraph:

In the case of a proprietor from whom nothing has been taken by the promoters, it has been settled by a series of decisions in this House, that, although his land in the vicinity will necessarily be injured by the use of their works, yet is not thereby “injuriously affected” within the meaning of the Act of 1845, and that he is not entitled to statutory compensation for injury so occasioned. 

His Lordship refers to further authority and concludes, relevantly, at page 166, in the first paragraph on the page, reading from the second sentence:

It appears to me to be the result of these authorities, which are binding upon this House, that a proprietor is entitled to compensation for depreciation of the value of his other lands, in so far as such depreciation is due to the anticipated legal use of works to be constructed upon the land which has been taken from him under compulsory powers.  The construction of the Act which has been thus adopted by the House had previously been enforced by Mr. Justice Crompton in the Stockport Case.

Your Honours, we submit that what his Lordship is there saying is thus far and no further.  Then, taking up what your Honour Justice Callinan mentioned to us, in the speech of Lord Macnaghten at page 178 - your Honours really probably need to start reading this at about 177 halfway down, because there his Lordship is making it clear that the nature of the use does determine the extent of the adverse effect because taking something for a sewerage farm is not the same as taking something for a public garden.  But, returning to the point your Honour Justice Callinan was putting to us, at page 178 in the second full paragraph on the page at about point 3:

I do not think that there is anything in the Act which leads to a conclusion so absurd and so contrary to common sense.  When lands are required for the purpose of a public undertaking, and the owner claims compensation for injury to other lands held therewith, I think the tribunal which assesses compensation is bound to take into consideration the purpose of the undertaking, the consequences likely to result from the execution of the works on the lands required ‑

and, your Honours, we would underline that.  That is Lord Macnaghten saying that –

and any alteration in the character of the property which those works are calculated to bring about.

His Honour’s proposition is anchored in “works on the land required”.

CALLINAN J:   You are reading a whole lot of extra words into section 63, even there, that just are not there.

MR KEANE:   Your Honour, as we said in response to his Honour the Chief Justice, it is – reading him there, because that is what “injurious affection” in this context means, and to similar effect, your Honours ‑ ‑ ‑

CALLINAN J:   I do not understand why Lord Justice Harman referred to it as a piece of jargon.  It seems to me to be a fairly clear expression of the concept.

MR KEANE:   One man’s jargon is another man’s term of art, I suppose, your Honour.

CALLINAN J:   Well, no, it is a perfectly respectable English words which convey a clear meaning.

MR KEANE:   In our respectful submission, it certainly has a meaning which the courts have given it and which the Parliament has taken the courts at their word.

GUMMOW J:   I notice Lord Bramwell at 168 talks about ordinary language.

KIRBY J:   Lord Bramwell was not the wholehearted enthusiastic supporter of the decision in the Stockport Case as appears from the bottom of page 171 and over to 172 but in the end he agreed with it.

GUMMOW J:   But he does at the bottom of 170 talk about “nuisance” as an indication of what the injury is we are talking about, some tortious activity for the cover of which you need a statute.

McHUGH J:   He explains it, really, at 169 about point 3, where he says:

Nay, the legislature has designedly left persons without compensation by action or otherwise who are damaged, but none of whose land is taken, therefore it must be assumed that it meant to leave such cases as the appellant’s without compensation, and that the injurious affecting in sect 49 means an injuries affecting for which an action would lie if the nuisance was not caused in the exercise of statutory powers –

I think in understanding these case one probably has to bear in mind the problem the common law courts had throughout the 19th century with rights of action by statutory authorities and how it impacted on the common law doctrines of nuisance and negligence and so on and it was very difficult for the courts to accept that people’s property could be injured without compensation but they struck a compromise by saying notwithstanding the terms of the statute, nevertheless, it was exercised negligently, he had a cause of ‑ ‑ ‑

MR KEANE:   Quite, your Honour, and taking that further where what was authorised by statute – where the use authorised by statute did cause harm then what was the basis on which one could say one had been injured and the answer was, “Well, if we could do these things without the statute then we were not committing a nuisance but if we did these things taking your land we were injuring you because there was what would otherwise be a trespass”.

McHUGH J:   Yes.

HAYNE J:   And thus, in the present case, if on the resumed land it was necessary to put a passive crash barrier as a necessary part of creating a safe highway, without that passive crash barrier, no road.  What allowance, if any, would be made for the damage occasioned by the construction of the road, the ensuing noise and difficulties that followed?

MR KEANE:   Your Honour, with that passive crash barrier, no damage, and that is the point of the Beaver Dredging line of cases and what we have been talking about the soft principle in Morison, because, in such a case, one can identify and quantify, as a matter of fact, an expert opinion, the damage flowing from the use made on the land, the use made of the land, as opposed to the other sources of nuisance, and all those other sources of nuisance and diminution in value would have happened in any event.  The owner could not have stopped them.

Your Honours, we notice we have exceeded our estimate quite significantly.  Can we take your Honours very briefly to the Sisters of Charity of Rockingham Case (1922) 2 AC 315. Your Honours will find the text of the statute which provided the compensation at page 317 at about point 4:

By section 22 “the compensation money agreed upon or adjudged for any land or property acquired or taken for or injuriously affected by the construction of any public work shall stand in the stead of such land or property”.

So that what your Honours see is “injuriously affected” but certainly not the language of the English Railway Clauses Act.  Can we refer your Honours then to page 322 in the advice of the Privy Council.  Page 322, the first full paragraph:

Compensation claims are statutory and depend on statutory provisions.

If we can invite your Honours to read that, and can we emphasise to your Honours what appears at page 323, at the end of the paragraph that has come over the page, because Lord Palmer is making the point that the reference in the Railways Act, section 6:

by reason of the exercise as regards such lands, of statutory powers vested in the company.....is not to be found in the Canadian statute.

And in the event, the absence of that language made no difference to the application of the English cases, including, as one sees at 324, at the bottom, Stockport and Cowper Essex.  If we can take your Honours to page 324 and draw your Honours’ attention particularly to the passage that appears in the first full paragraph, it is the second sentence:

Where no land of the same owner has been taken, the words “injuriously affected” only include damage or loss which would have been actionable but for statutory powers, and such damage or loss must be occasioned by the construction of the authorized works, as distinct from their user.

and then at the end of that paragraph –

If, therefore, the land taken for the shunting yard had belonged wholly to some owner other than the appellants, the appellants could not have claimed compensation on the ground that their property on the east side of the ‑ ‑ ‑

McHUGH J:   Well, that is wrong, it is the west side.

GUMMOW J:   There is an errata in (1923) Appeal Cases.

MR KEANE:   Your Honours have the advantage of me and, also, obviously, of Lord Parmoor, in terms of appreciation of topography.  But geographical errors aside, that statement of principle is the proposition for which we contend.  At 325 to 326, your Honours will see discussion of the tussle over the judgment of Justice Crompton in the Stockport Case, and can we emphasise, as we have foreshadowed, that at 326, in the second full paragraph on the page, there is reference to the difficulty that:

arises in the assessment of amount where the mischief complained of arises, not only on the land which has been taken from the appellants, but also on land over which they had no ownership claim;  but this is no reason for refusing to entertain a claim, so far as the damage claimed can be shown to arise from the apprehended legal use of the lands taken from them.

His Lordship repeats the point that difficulties in assessment do not defeat the principle at page 328, halfway down the page and over to 329, and can we draw your Honours’ attention, as well, at 327, to the bottom of the page and over the page, where his Lordship distinctly accepts what had been said by Lord Halsbury in the Cowper Essex Case, that:

such damage may be injuriously affecting the proprietor’s other lands, though it would not be injurious affection of the land of neighbouring proprietors, from whom nothing has been taken for the purpose of the intended works.

Your Honours, in our respectful submission, the Queensland Parliament, in enacting section 20(1)(b) in 1967, used language which had an unmistakably settled meaning, settled by the course of early authority, and which, as is apparent from paragraph 21 of our submissions, the Parliament intended to adopt.  Parliament has amended the Act since, as we have indicated in exhibit B to our submissions, but this provision has not been amended.

In our respectful submission, the Court of Appeal was correct to hold that the state of the law may be altered only by the legislature.  Their Honours did that at page 110 of the appeal book at paragraph 34 and 36, and there is, in our respectful submission, no suggestion that Parliament may not achieve the result for which it plainly intended. 

Your Honours, as to the order which should be made if our submissions are rejected, we would remind your Honours that this matter comes to this Court as an appeal from a refusal of an application to adduce further evidence.  The rejection of the application to adduce further evidence occurred for reasons quite independent of the Edwards’ point.  Can we just give your Honours the references to the decision in the Land Appeal Court and the Court of Appeal for that proposition:  page 75, lines 50 to 51; 77, lines 20 to 30; 78, 5 to 15; 83, 20 to 50; and in the Court of Appeal, 102, paragraphs 5 and 6; 104, paragraphs 14 to 17; and 105, paragraphs 19 to 20, 23 and 24.

The appellant abandoned draft grounds of appeal challenging the exercise of the discretion by both those courts to refuse the admission of further evidence on the application for special leave.  If Edwards is wrong, if our primary submission is rejected, then the Land Court must find between the view of Mr Russell, that the damage was all caused by activity of the appellant on his own land, or the view of Mr Winders, that it was caused by the constructing authority.

If that is so, then that is so, but it does not give a basis for admitting the fresh evidence.  The case should be decided on the evidence that was adduced.  If our submission is correct, then cadit quaestio, but if we are ‑ ‑ ‑

CALLINAN J:   Mr Solicitor, do you say that if the appeal is allowed, there should not be orders of the kind that the appellant seeks at page 117?

MR KEANE:   Yes, your Honour.  As we have said in our written submissions, we submit that if the appeal is allowed, the matter should go back to the Land Court for the Land Court member to make findings which would then need to be made because the Edwards principle is wrong as to the cause of the damage and quantification of it, but not on the basis of new evidence.

GAUDRON J:   Are there not grounds of appeal outstanding though at the intermediate appellate court?

MR KEANE:   Actually, your Honour, that is quite right.  The appeal to the Land Appeal Court has not yet been heard.  This application was to adduce fresh evidence in the course of that appeal.  The situation, though, is that the findings of primary fact as to what is the cause, assuming that it is irrelevant that the cause is off the resumed land, those findings have not been made.  As our learned friend indicated at the outset, the member of the Land Court expressly did not make those findings because the Edwards principle made it unnecessary to do so.

GAUDRON J:   But does not the evidence go to that issue as well?

MR KEANE:   No, your Honour.  In our submission, it does not.

CALLINAN J:   But on one view of it, if Mr Jackson were to win, then it would simply be a question of assessing compensation for such injurious effect, I suppose, from the impact of what has been done.

MR KEANE:   That would be an issue and that, in our respectful submission, should be done in the first instance by the member, but he would also have to resolve the conflict of evidence as to the cause of the damage.

CALLINAN J:   But why should this Court make an order saying that there should not be any further evidence?

MR KEANE:   The Court would be sending it back to the member to make the findings.

CALLINAN J:   It would be a matter for the member to decide whether ‑ ‑ ‑

MR KEANE:   Whether he should or should not.

CALLINAN J:   Whether the parties should be allowed to reopen.

MR KEANE:   That may be so, but the Court certainly should not be ordering him to receive fresh evidence.

CALLINAN J:   No, I am not suggesting that.  Mr Solicitor, does it have to go back to the Land Court or should it go back to the Land Appeal Court?

MR KEANE:   Your Honour, the difficulty in sending it back to the Land Appeal Court is one wonders how will they resolve this disputed question of fact which was not resolved at the first instance.

CALLINAN J:   They could take the view, could they not, that having regard, I think, to section 44 of the Lands Act, and, assuming the appeal were to be upheld, the fact that the matter had proceeded upon a wrong basis, that it might be more efficient for them to, in effect, re‑hear the matter as they can and deal with it that way.  I am not suggesting that that is desirable but it might be better for them to make that decision whether they can and should do that.  There is no doubt they have jurisdiction to do it.

MR KEANE:   Your Honour, I think the new section 44, the text of which is set out in the reasons for ‑ ‑ ‑

CALLINAN J:   I am not advocating that, Mr Solicitor.  I am just trying to see which is the more efficient way to dispose of it, that is all.

MR KEANE:   With respect, I do not know that it would be open to the Court to do that under the new provisions of section 44(13) which your Honours will find at 102, and the discussion in paragraph 7. 

Sections 44(13) and s 44(14) provide that the Land Appeal Court “may” hear or take evidence and that for the purposes of the appeal, the Land Appeal Court has the same powers as the Land Court –

The Land Appeal Court has already rejected the application to deal with the matter on the basis of fresh evidence.

CALLINAN J:   I just wonder whether that ‑ ‑ ‑

MR KEANE:   One can understand why, though, your Honour, because if it is a matter of determining which of the two experts should be accepted, one can understand, perhaps, an embarrassment about that and the case having been fully litigated as is apparent, fully litigated over weeks before the Land Court member, it would certainly be inefficient to do it again rather than simply going back to ‑ ‑ ‑

CALLINAN J:   Yes, quite.  We will see what Mr Jackson says, but that sounds persuasive to me.

KIRBY J:   Could I just ask, just before you sit down, Solicitor - my imagination does not run to such extremes.  If the principle that the appellant has urged on the court is accepted, in actual operation of this branch of law and confining it for the moment to Queensland, are there many types of cases, apart from road construction where this would create, in terms of public acquisition of property, a significant difference in the administration of the Act and, therefore, in the compensation that would have to be paid?  Can you think of other type cases?  Mention was made yesterday of power lines, but are there are other type cases where, apart from road building, this would create a shift?

CALLINAN J:   Railways?

MR KEANE:   Railways.

KIRBY J:   Are they still building railways.

CALLINAN J:   Yes.  In fact, there is one under construction to the airport at the moment.

GLEESON CJ:   And to service mines.

MR KEANE:   And apart from the railway, construction of the airport.

McHUGH J:   The Chief Justice says servicing mines, opening new mines.

MR KEANE:   Quite.

McHUGH J:   Sometimes in large areas.

MR KEANE:   Which happens in a large State which is decentralised.

CALLINAN J:   Any rate, there is no reason why, having escaped their obligations so far, if they have them, they should continue to escape them in the future.

MR KEANE:   That is a view, your Honour, which those who do not have to balance budgets and face electors can take.

CALLINAN J:   Well, you might feel differently if they put a railway beside your place, Mr Solicitor.

MR KEANE:   Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I turn first to the question of the meaning of “injurious affection” and may I say two things about it?  The first, your Honours, is that if one goes to the passage from Hyam’s book on injurious affection, to which your Honours were taken by my learned friend, at page 242 what your Honours will see is the quotation from Justice Olsson speaking for the Full Court of South Australia in McInnes v Commissioner of Highways and, your Honours will see that what he says is:

“The expression ‘injurious affection’ is not defined in the statute.  Its meaning is to be derived with the aid of a number of published authorities which bear upon such an expression.  However, the published authorities should be read with considerable care, because all of them are necessarily the direct product of the particular legislation to which they refer – the content of which is by no means universally common.”

Your Honours, that that proposition is correct can be seen from that case itself.  If I could take your Honours to that, McGinnes v Commissioner of Highways (1992) 78 LGERA 410 and your Honours can see in the headnote to it the provision that was relevant in that case and what one sees there, your Honours, is section 25 saying that:

The compensation payable…..shall be determined according to the following principles –

(a) the compensation payable…..shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land –

Then the injurious affection provision is in (b) and your Honours will see that set out in (b)(ii) but the opening words of (b) are:

in assessing the amount referred to in paragraph (a) of this section –

Your Honours, that that was significant was adverted to by the court in that case at page 414 and your Honours will see there in the first new paragraph on the page, after referring to “the contention” that should be given a broad meaning his Honour went on to say, about halfway through the paragraph:

the fact remains that, taking the provisions of both s 18 and s 25(a) together, the expression “by reason of the acquisition of the land” necessarily connotes a cause and effect situation.  It logically limits consideration to the impact of the acquisition of a specific parcel of land ‑

Your Honours, that is the first point we would seek to make, that it does very much depend on the terms of the particular statute.  The second thing is in relation to what is the ambit of the concept of injurious affection, what types of things are covered by it.  Perhaps if I could just give your Honours three references without taking your Honours to detail of it.  You can see it referred to in the decision of Barns 16 QLCR, that I referred to yesterday, at pages 77 to 78 ‑ that was, of course, the case where it extended to the death of stock because of the algae that had been brought about by the construction works ‑ and also in the article by Knetsch, to which we have referred in our written submissions, at pages 150 and 151 to 152, and to the article by Professor Todd at page 127.

Your Honours will see, if one goes to the Act in the particular case, that the way in which it is expressed is, first of all, in terms of section 12(5) that what a person is entitled to is not expressed to be compensation for the land but rather the words used are “compensation under this Act”.  That takes one to the terms of section 20 and when one goes to the terms of section 20 what one finds is that it says, specifically, that:

regard shall in every case be had not only to the value of the land taken but also to –

the other items there referred to.  Your Honours, we referred in our written submissions, also, and I think in the written submissions in reply, to an article by Mr West and in relation to injurious affection.  Your Honours, I mention it simply because one of your Honours asked what is the position in relation to injurious affection in other legislative contexts, and he discusses the position in relation to town planning legislation with particular reference to Queensland legislation.  I mention that, your Honours, by way of a background observation, but in the course of that article he adverts to what he describes as a questionable principle, that is, the Edwards issue with which the Court has been concerned.

May I turn next, your Honours, to one matter that your Honours asked about:  what is the position with the laws in other parts of Australia?  I am not in a position to give your Honours all copies of the relevant provisions at the moment but could I give your Honours perhaps one copy in which we have endeavoured to highlight the various provisions and that sets them out.  It was a document that was used on the special leave application.

GLEESON CJ:   All right.  If Mr Connolly could take that then get seven copies made they could be distributed to us in due course.

MR JACKSON:   Thank you, your Honours.

KIRBY J:   Is your proposition that this is fairly standard in Australian legislation?

MR JACKSON:   No, it is rather the opposite, your Honour, that one sees sometimes the results may well be the same but one sees different phrases used and it is impossible to say the legislation is all the same and, of course, the South Australian provision to which I referred is distinctly more restrictive.

KIRBY J:   Were you urging it on the special leave application as the distinctiveness of the Queensland Act, or were you trying to show some common ground between them all to get into this Court?

MR JACKSON:   Well, your Honour, I do not wish to fall into ‑ ‑ ‑

KIRBY J:   I will have a look at the transcript.

CALLINAN J:   Did you appear on the application?

MR JACKSON:   I did, yes.

McHUGH J:   You were not called on, were you?

MR JACKSON:   I think I was, your Honour; I am not sure, I think I may have done little more than announced my appearance, the inherent merit of the application appearing readily to the court.

McHUGH J:   That may be, but it is not my recollection.

KIRBY J:   You did not go far; it is page 8, you got two questions.  I think you were asking for costs ‑ ‑ ‑

McHUGH J:   Yes, you said, “This application invites the consideration of a short” – and I interrupted you.

MR JACKSON:   Your Honour, for once I was right, and the inherent merit of the application soon showed through.

McHUGH J:   However, you still got a few words in.

KIRBY J:   But you cannot really escape the fact that if you take into account what Mr Solicitor said at the end of his submissions, the implications of this change of doctrine, which has lasted for a very long time and in the specialist area has been applied many times, is going to have consequences in millions of dollars, millions.

MR JACKSON:   Well, I expect so, your Honour, but one must bear in mind ‑ ‑ ‑

KIRBY J:   Why is that not a matter for Parliaments to change?

MR JACKSON:   Well, your Honour, could I respond to that by saying this.  One is not really in the situation where there is, what is being sought to be achieved by us, dramatic change.  I say that, inviting your Honours to bear in mind two considerations.  One consideration, your Honours, is this, that is that many of the cases to which reference has been made are ones where one would expect the operation of the approach taken in Morison, Beaver Dredging and Treston - Morison, of course now being a case nearly 30-years old, there is nothing very new about that – would be applicable in any event.  Your Honours, in circumstances of that kind, if one speaks about roads, railways, pipelines, powerlines, anything which has a continuous aspect, it is very likely that principles of that kind will, in any event, be applicable.  That is the first thing, your Honour.

The second thing is that in cases where there has been some negligence in the application of the statutory powers, there would be an obligation to pay damages in any event, under the general law.  So, your Honour, certainly it is right to say, as so often happens in relation to any alteration of what may be is perceived to be the general law, that it may have some financial consequence, but, your Honours, accepting that that is so, the true position, in our submission, is that in the present case it is not very likely they have a very significant one.  Your Honours, that is what we seek to say about that.

Your Honours, could I go for just a moment to say something about Morison?

McHUGH J:   Just before you do, one provision in the Act which seems to support your argument that injurious affection does not have the meaning in the cases, is the terms of section 12(5) dealing with easements.  It says:

if an easement only is taken –

then:

every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.

And, since by hypothesis, your land is not taken, but only an easement is concerned, it may be that it supports you.  I suppose Mr Keane would probably say that works have got to be done on the easement, but there is no reference there to any.  Does one read that right of compensation in respect of an easement on its own?  It seems to be quite independent of section 20, is it not?

MR JACKSON:   Well, your Honour, it says:

every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.

Then, to see what is contemplated by “compensation”, one really has to go to section 20.

McHUGH J:   So you still have to go back to section 20.

MR JACKSON:   You have to go to section 20.  Your Honour, what I was simply seeking to say about it was, if one looks at Beaver Dredging, of course that was an easement case, where what was taken was an easement for powerline – I just mention that in passing. 

McHUGH J:   Maybe it is of no - it does not advance the matter, I do not think.

MR JACKSON:   Well, in a sense, it does not take it one way or the other, I suspect.  What I was going to say was simply in relation to Morison, without taking your Honours to the case itself.  It was not necessary in that case to determine the correctness of Edwards.  One sees, for example, at page 61, Justice Gibbs referring to looking at the ordinary and grammatical meaning - that is 137 CLR - one sees at page 46 in the paragraph commencing in the middle of the page, Justice Walsh saying:

If the matter be considered without regard to authority, I think that the conclusion of the learned judge should be held to be correct.

That is Justice Stephen at first instance in the Supreme Court of Victoria.  Then your Honours will see at the bottom of the page, a reference to the argument:

But it was argued that there are authorities which the Court should follow and by which it is required to take a different view.

It is in that context that one sees the consideration of the English cases, without there ever being a need to decide on their correctness.  Then, at page 45, one has Justice Menzies saying, in the penultimate paragraph of his reasons:

The construction of s. 23(1)(c), unencumbered by authorities upon different statutes, is not, I think, in doubt.

Your Honours, could I say just a couple of other things.  One is in relation to the Re Stockport Case.  The foundation of the Re Stockport Case is section 6 of the Railway Clauses Consolidation Act.  That is a case where - of course, that is the underlying feature of that case.  Could I refer also to Cowper Essex 14 App Cas 153, and to passages in our submission at pages 165, 178 and 169, which suggest, in our submission, that a broader view should be taken. Your Honours, those are, I think, our submissions.

GLEESON CJ:   Yes, thank you ‑ ‑ ‑

GAUDRON J:   Could I ask:  do you dissent from what was said by the Solicitor about the orders that should ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour, I should have said something about that.  What your Honours will see is, at page 78 of the appeal book, set out the provision of section 44(13)(a) of the Land Act, which deal with the power of the Land Appeal Court in relation to the admission of further evidence.

Now, your Honours, the position is, as my learned friend correctly says, that the appeal to the Court of Appeal from the Land Appeal Court was in proceedings in which the Land Appeal Court had declined to accept further evidence.  When the matter came before the Court of Appeal, the Court dealt with the issue on two basis:  one, the correctness of that decision, purely as a matter of accepting the evidence, but underlying that – I am sorry, purely as a matter of compliance with the terms of section 44(13)(a).

Now, your Honours, in addition, the Court dealt with the underlying question which was the correctness of Edwards’ Case.  Our submission would be that if the Court were in our favour on the Edwards issue, it is right to say that the appeal to the Court of Appeal should succeed and the better course would be for the matter to be remitted to that Court to deal with in accordance with this Court’s reasons.

If, however, the Court were minded to go further and say what the Court of Appeal should do, then the appropriate course, in our submission, would be for the Court of Appeal – I am sorry, your Honour, the appropriate course would be for the Court of Appeal itself to remit the matter to the Land Appeal Court in order for it to deal with the matter according to law.

Now, your Honours, the position which would then obtain would be that we would have the opportunity, if we chose, to seek to adduce further evidence before the Land Appeal Court, seeking to rely upon the change in the law that had occurred.  We may, or may not, be successful in relation to that.  However, there remains an appeal in the Land Appeal Court which has to be dealt with by that court.  Now, it might well be, your Honours, that when the matter - and I do not wish to complicate it – go to the Land Appeal Court, that court itself would take the view that the appeal to it should be allowed in order that the matter might be dealt with by the Land Court according to law, the Land Court not having decided the case in the first instance.  But, your Honours, that is what we would seek to say about it.

GLEESON CJ:   Thank you.  Yes, Mr Keane.

MR KEANE:   Your Honours, we promised a comparative table.  May we have seven days to do that?

GLEESON CJ:   Yes.  We will reserve our decision in this matter.

AT 11.44 AM THE MATTER WAS ADJOURNED