Merrick Tyler Pty Ltd v Commissioner of Main Roads
[2015] WASCA 82
•1 MAY 2015
MERRICK TYLER PTY LTD -v- COMMISSIONER OF MAIN ROADS [2015] WASCA 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 82 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:61/2014 | 3 FEBRUARY 2015 | |
| Coram: | NEWNES JA MURPHY JA BEECH J | 1/05/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MERRICK TYLER PTY LTD COMMISSIONER OF MAIN ROADS |
Catchwords: | Statutory construction Land Administration Act 1997 (WA) s 241(7) Compulsory acquisition of land owned in fee simple Claim for compensation Meaning of 'adjoining' Whether Taken Land was 'adjoining' land separated by Crown Land Ordinary meaning of the word Judicial decisions in other jurisdictions involving similar or identical legislation |
Legislation: | Land Acquisition and Public Works Act 1902 (WA), s 63(b) Land Administration Act 1997 (WA), s 3(1), s 161, s 177, s 178, s 179, s 202, s 241 Lands Clauses Consolidation Act 1845 (UK) Public Authorities' Land Acquisition Act 1949 (TAS), s 19(1)(b) |
Case References: | Battista Della-Vedova v The State Planning Commission (Unreported, WASC, Library No 7451.2, 22 December 1988) Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744 City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 Cowper v The Local Board for the District of Acton in the County of Middlesex (1889) 14 App Cas 153 Crisp & Gunn Co-operative Ltd v Hobart Corporation [1962] Tas SR 77 Crisp & Gunn Co-operative Ltd v Hobart Corporation [1963] HCA 55; (1963) 110 CLR 538 Gold Coast City Council v Halcyon Waters Community Pty Ltd [2011] QLAC 3; (2011) 188 LGERA 193 Harding v Board of Land and Works (1882) 8 VLR (L) 402 Holt v The Gas Light & Coke Company (1872) LR 7 QB 728 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 207 ALR 1 Marshall v Director-General, Department of Transport [2002] HCA 7; (2001) 205 CLR 603 Merrick Tyler Pty Ltd v Commissioner of Main Roads [2014] WASC 166 Minister of Works v Antonio [1966] SASR 54 New Plymouth Borough Council v Taranaki Electric-Power Board [1933] AC 680 Polo/Lauren Co LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; (2008) 173 FCR 266 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 R v Hodges (1829) M & M 341; (1829) 173 ER 1182 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MERRICK TYLER PTY LTD -v- COMMISSIONER OF MAIN ROADS [2015] WASCA 82 CORAM : NEWNES JA
- MURPHY JA
BEECH J
- Appellant
AND
COMMISSIONER OF MAIN ROADS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : MERRICK TYLER PTY LTD -v- COMMISSIONER OF MAIN ROADS [2014] WASC 166
File No : CIV 1830 of 2008
Catchwords:
Statutory construction - Land Administration Act 1997 (WA) s 241(7) - Compulsory acquisition of land owned in fee simple - Claim for compensation - Meaning of 'adjoining' - Whether Taken Land was 'adjoining' land separated by Crown Land - Ordinary meaning of the word - Judicial decisions in other jurisdictions involving similar or identical legislation
Legislation:
Land Acquisition and Public Works Act 1902 (WA), s 63(b)
Land Administration Act 1997 (WA), s 3(1), s 161, s 177, s 178, s 179, s 202, s 241
Lands Clauses Consolidation Act 1845 (UK)
Public Authorities' Land Acquisition Act 1949 (TAS), s 19(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P G McGowan
Respondent : Mr K M Pettit SC & Mr J M Misso
Solicitors:
Appellant : Cornerstone Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Battista Della-Vedova v The State Planning Commission (Unreported, WASC, Library No 7451.2, 22 December 1988)
Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
Cowper v The Local Board for the District of Acton in the County of Middlesex (1889) 14 App Cas 153
Crisp & Gunn Co-operative Ltd v Hobart Corporation [1962] Tas SR 77
Crisp & Gunn Co-operative Ltd v Hobart Corporation [1963] HCA 55; (1963) 110 CLR 538
Gold Coast City Council v Halcyon Waters Community Pty Ltd [2011] QLAC 3; (2011) 188 LGERA 193
Harding v Board of Land and Works (1882) 8 VLR (L) 402
Holt v The Gas Light & Coke Company (1872) LR 7 QB 728
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 207 ALR 1
Marshall v Director-General, Department of Transport [2002] HCA 7; (2001) 205 CLR 603
Merrick Tyler Pty Ltd v Commissioner of Main Roads [2014] WASC 166
Minister of Works v Antonio [1966] SASR 54
New Plymouth Borough Council v Taranaki Electric-Power Board [1933] AC 680
Polo/Lauren Co LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; (2008) 173 FCR 266
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541
Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58
R v Hodges (1829) M & M 341; (1829) 173 ER 1182
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
- REASONS OF THE COURT:
Introduction
1 This appeal concerns, principally, the proper construction of the term 'adjoining land' in s 241(7)(b) of the Land Administration Act 1997 (WA) (the Act), in determining the amount of compensation to be awarded for an interest in land taken from a person under the Act. Section 241(7) of the Act provides:
If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant -
(a) due to the severing of the land taken from that adjoining land; or
(b) due to a reduction of the value of that adjoining land,
however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).
2 In broad terms, the appellant owned two parcels of land within the one lot and one certificate of title in the Shire of Waroona. One parcel was on the west of Old Coast Road (Western Land) and the other was on the east of Old Coast Road (Eastern Land). The Western Land and the Eastern Land did not share a common boundary or have any other point of connection between the two. Rather, the two areas of land were separated by a minimum of 60.4 m of Crown owned land comprising the Old Coast Road.
3 On 26 July 2006, the respondent compulsorily acquired, pursuant to pt 9 of the Act, part of the Eastern Land. As a result of the acquisition of part of the Eastern Land, the appellant claimed compensation for, among other things, a reduction in value of the Western Land. The primary judge (Le Miere J) ordered that the issue of whether the Western Land is 'adjoining land' to the Eastern Land for the purposes of s 241(7) of the Act, be determined as a preliminary issue. The preliminary question for determination was:
Is the [appellant] entitled to claim compensation under section 241(7)(b) of the Act in respect of that part of the appellant's land which is west of Old Coast Road?
4 The primary judge found that the Western Land was not 'adjoining land' to the Eastern Land: Merrick Tyler Pty Ltd v Commissioner of Main Roads [2014] WASC 166 [29].
5 The appellant appeals against that decision.
6 (All references to paragraph numbers below are references to paragraph numbers in the trial judge's reasons unless otherwise indicated.)
The primary decision
7 His Honour noted that in the proceedings below, the appellant submitted that 'adjoining' means neighbouring 'in the sense of being located or nearby or being separated by some small distance' [8]. His Honour also noted that the appellant advanced two principal contentions as to why 'adjoining land' should be interpreted to include land nearby, but not touching the land taken. The first was that such a meaning, according to the appellant, effectuated the purpose of the Act. The second was that the statutory history supported such a meaning [14].
8 The primary judge observed that the Macquarie Online Dictionary defined 'adjoining' to mean bordering or contiguous, whilst the Online Oxford English Dictionary defined 'adjoining' to mean adjacent, contiguous, neighbouring [10].
9 The primary judge identified a number of textual matters within s 241(7) indicating (in his view) that 'adjoining land' in s 241(7) means contiguous land [11]. First, his Honour said that the term is used three times and it 'is to be expected that it has the same meaning each time it is used'. Secondly, the words 'that adjoining land' in s 241(7)(b) is a reference to 'that adjoining land' in s 241(7)(a) and in the chapeau or opening paragraph of s 241(7). Thirdly, the term 'adjoining land' in (b) is to be contrasted with 'any land' in the final paragraph of s 241(7).
10 As to the third matter, his Honour recorded that the appellant had conceded that 'any land' was apt to describe land which was held in fee simple by the person whose land had been taken which was in close proximity to or connected in some way with the land taken [11]. The primary judge said that, as a general principle, words are not to be considered as superfluous or insignificant. Accordingly 'adjoining land' in s 241(7)(b) should be considered to be more limited than 'any land' in the final paragraph, and that 'adjoining land' means land that is contiguous with the land taken, and not merely in close proximity to it [11].
11 His Honour also referred to s 3(1) of the Act which provides that, unless the contrary intention appears, in the Act the word 'adjoining' in relation to parcels of Crown Land, includes 'only separated by',
a) roads; or
b) railways; or
c) water courses or other natural features of such a character as to be insufficient to prevent the passage of stock; or
d) reserves or unallocated Crown Land.
12 His Honour said, again with reference to the general principle that words or definitions are not to be considered superfluous or insignificant, that:
If 'adjoining land' when used in the Act extends to land that is in close proximity to but not contiguous then it would not have been necessary to include the definition of 'adjoining' in relation to parcels of Crown land in s 3 [13].
13 In relation to the appellant's submissions as to statutory purpose, his Honour said that the Act does not contain any 'express statement of the purpose or objects of the compulsory acquisition and compensation provisions in pt 9 and pt 10' [17], and that the 'search for the purpose of the compensation provisions in s 241(7) of the Act' led the reader back to the text understood in its context [18].
14 Before the primary judge, the appellant sought to support its construction of s 241(7) of the Act by reference to s 63(b) of the Land Acquisition and Public Works Act 1902 (WA) (Public Works Act 1902), arguing that under the latter provision:
[C]ompensation was awarded for the damage sustained by the claimant by reason of the severance of any land injuriously affected by the taking of not just land contiguous with the land taken [20].
15 The primary judge rejected the appellant's construction of s 63(b) of the Public Works Act 1902, and said that the 'better view' was that on its proper construction, s 63(b) provided for compensation to be payable for damage sustained by reason of the land 'contiguous with the land taken being injuriously affected by the taking' [21]. His Honour also added that, in any event, construing s 241(7) of the Act by reference to the predecessor provision was 'not a sound approach to [its] construction' [21] - [22].
16 With respect to the case law cited by the parties, his Honour whilst recognising the limitations inherent in any recourse to judicial decisions in relation to other legislation, nevertheless noted that other cases may, in appropriate circumstances, provide some guidance [23]. He observed that in an analogous context in Queensland, the court had found that the word 'adjoining' in its natural meaning describes land which touches other land, in the sense that it either has a common boundary, or at least a common boundary point [24] - [27].
17 The primary judge concluded:
The words 'adjoining land' in s 241(7)(b) of the Act should be given their primary meaning, that is it should be construed as referring to land which is contiguous with the land taken. That meaning is indicated by the difference in terminology between 'adjoining land' and 'other land' in s 241(7) and by the extended definition of 'adjoining land' in relation to Crown Land in s 3(1) of the Act. On that basis the western portion of the remaining land does not adjoin the Taken Land within the meaning of s 241(7)(b) of the Act because the two portions of land are separated by Crown owned land comprising Old Coast Road. The preliminary question should be answered as follows:
Question: Is the plaintiff entitled to claim compensation under s 241(7)(b) of the Act in respect of that part of the plaintiff's land which is west of Old Coast Road?
Answer: No [29].
The ground of appeal
18 There is one ground of appeal:
The learned trial judge erred in law in construing the words 'adjoining land' in section 241(7)(b) of the Land Administration Act 1997 as referring only to land which is contiguous with land taken under part 9 of that Act.
The parties' arguments
The appellant's submissions
19 The appellant referred to Marshall v Director-General, Department of Transport [2002] HCA 7; (2001) 205 CLR 603 [48], where McHugh J said that legislation dealing with the compensation to be awarded in respect of the compulsory acquisition of land should be construed with the 'presumption that the legislature intended the claimant to be liberally compensated'.
20 The appellant submitted that the primary judge found that the word 'adjoining' is, as a matter of definition, susceptible to more than one meaning, and may mean either 'contiguous' or 'nearby'.
21 The appellant also submitted that the Act, 'as it relates to compulsory acquisition of land and compensation' did not significantly depart from the purpose and effect of the Public Works Act 1902. Section 63(b) of the Public Works Act 1902 provided:
In determining the amount of compensation (if any) to be offered, paid, or awarded for land taken or resumed, regard shall be had solely to the following matters: -
…
(b) The damage, if any, sustained by the claimant by reason of the severance of such land from the other adjoining land of such claimant or by reason of such other lands being injuriously affected by the taking, but where the value of other land of the claimant is enhanced by reason of the carrying out of, or the proposal to carry out, the public work for which the land was taken or resumed, the enhancement shall be set off against the amount of compensation that would otherwise be payable by reason of such other land being injuriously affected by the taking.
22 The appellant referred in this context to the observations of Pidgeon J in Battista Della-Vedova v The State Planning Commission (Unreported, WASC, Library No 7451.2, 22 December 1988) (Pidgeon J, G Gauntlett & K Meyer). In that case, Pidgeon J referred to Lord Atkinson's statement in Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744, 752, to the effect that an intention to take away the property of a subject without giving to the subject a legal right to compensation for the loss is not to be imputed to the legislature unless that intention is expressed in unequivocal terms. Pidgeon J continued:
The Public Works Act does not detract from these common law principles. On the contrary it aims to give effect to them in their widest sense and I would interpret this as the policy and intention of the [Public Works Act]. … Section 63 sets out how the compensation is to be ascertained and it is expressed in the widest of terms and in my view should be given the widest possible meaning to ensure that a person is justly compensated (6).
23 The appellant accordingly submitted that Parliament intended that s 241(7) should be given its 'widest possible meaning' to ensure that a person in the position of the appellant is justly compensated.
24 In written submissions the appellant emphasised the following matters:
• if 'adjoining land' were construed to mean 'contiguous land', the appellant would 'lose forever the opportunity to receive compensation' for any proved loss or damage to the Western Land, and this would not further the statutory purpose of the compensation regime under pt 10 of the Act;
• confining 'adjoining' land to land which is 'physically contiguous' does not give s 241(7)(b) of the Act the 'widest possible meaning' as required by the dicta of Pidgeon J in Della-Vedova;
• the land in question is 'only' divided by the width of Old Coast Road, being 60.4 m;
• the land is comprised in a single lot in a single certificate of title; and
• the appellant's construction of the term 'adjoins' is grammatically open: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, 434 (Kirby P).
25 The appellant also submitted that the definition of 'adjoining land' for the purposes of Crown Land in s 3 of the Act does not affect the proper construction of s 241(7)(b) of the Act. The definition in s 3 only applies to Crown Land, and it is 'evident from the framework of the Act, and the second reading speech of the Land Administration Bill that the [Act] is an amalgam of two Acts with different objects'.
26 In oral submissions the appellant summarised the effect of its construction in the following way:
[A]djoining means neighbouring [land], namely, when land is not separated by any other privately owned land (ts 6, 03/02/15).
27 The respondent, in effect, submitted that:
• The question of construction is governed by the words of the Act.
• Section 241(7) is 'replete with more-or-less arbitrary distinctions or balances', of which 'adjoining' is merely one. Reference in this regard was made to the primary judge's reasons at [17] - [18].
• The word to be construed has a precise meaning, and it cannot be 'interpreted' to mean 'nearby', which is 'hopelessly imprecise', and would cause 'greater uncertainty and consequent inconsistency'.
• The construction contended for by the appellant would not necessarily increase just compensation. For example, those landholders who are neighbours to the appellant's Western Land would not receive compensation. Thus, if the appellant received compensation, this would 'not generally assist "just" compensation'.
28 The respondent also submitted that the observations of Pidgeon J in Della-Vedova were not relevant because:
• Della-Vedova concerned a different point of interpretation and its outcome has no relevance to this case;
• the observations by Pidgeon J about 'just' compensation are inapplicable when the words of the statute are clear (Marshall [62] (McHugh J)); and
• Pidgeon J erroneously approached the task of construing s 63 of the Public Works Act 1902 by referring to a background of common law principles. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259, the majority said that no common law principle is engaged in resumption cases, 'because compulsory acquisition and compensation for it are entirely creations of statute' [29].
The scheme of the Act
29 Part 9 of the Act concerns compulsory acquisition of interests in land. Part 10 concerns compensation.
30 The following words are defined for the purposes of pts 9 and 10 of the Act. An 'acquiring authority', in relation to land, means a person or body having the statutory authorisation referred to in s 161 of the Act to undertake, construct or provide any public work. A 'claimant' means a person entitled to claim compensation under pt 10 of the Act. An 'interest' means any legal or equitable estate or interest in land, including, relevantly, interests or rights created under any written law.
31 Section 161(a) provides that:
Whenever the Crown, the Governor, the Government, any Minister of the Crown, any State instrumentality or any local government is authorised, by this Act, the Public Works Act 1902 or any other Act, to undertake, construct or provide any public work, and the use of any land or any interest in land is required for the purposes of the work, then, unless specifically provided -
(a) any interest in the land held by a person other than the Crown may be taken;
…
in accordance with [pt 9].
32 Division 3 of pt 9 of the Act is headed ' Procedure for taking interests in land and designating for a public work'. Subdivision 1 concerns the procedure for taking interests in land by agreement. Subdivision 2 concerns the procedure for taking interests in land without agreement.
33 Section 177 deals with 'taking orders'. A taking order, once registered, has effect according to its terms: s 179 of the Act. If the order provides that the land is 'taken', then every registered and unregistered interest in the land is extinguished (unless preserved under s 178(2)(a)), and each person who formerly held such an interest 'has that holding converted into a claim for compensation under pt 10': s 179 of the Act.
34 Every person having any interest in land which is taken under pt 9 is entitled, subject to pt 10, to compensation for the interest from the acquiring authority: s 202(1) of the Act. Part 10 div 2 of the Act concerns the making of a claim for compensation. Part 10 div 3 is headed 'Dealing with the claim'.
35 Part 10 div 5 of the Act concerns the assessment of compensation. Section 241(7) has been set out earlier, however it is convenient to set out some of the other provisions in s 241 in full:
241. How compensation to be determined
(1) In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.
(2) Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on -
(a) in the case of an interest taken for a railway or other work authorised by a special Act - the first day of the session of Parliament in which the Act was introduced; or
(b) in the case of an interest taken by agreement under section 168 - the date of the execution of the agreement, unless the agreement provides otherwise; or
(c) in the case of an interest to which paragraphs (a) and (b) do not apply - the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
(3) If a notice of intention was registered in relation to the interest on a date before the date referred to in subsection (2), and a transaction relating to the land made between those dates affected the value of the interest, regard may be had to the value of the interest assessed as at the date referred to in subsection (2) and discounting the effect of the transaction.
(4) No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of a notice of intention.
(5) Subject to subsection (4), in the case of a railway or other work authorised by a special Act, the value of any improvements made after the first day of the session of Parliament in which the Act was introduced but before the registration of the taking order are to be allowed, not exceeding their actual cost.
(6) Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of -
(a) removal expenses; or
(b) disruption and reinstatement of a business; or
(c) the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or
(d) architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or
(e) any other facts which the acquiring authority, the Court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.
…
(8) If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9) The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.
36 For present purposes, the following principles are relevant to the question of construction.
37 In City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334, the court said [47]:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
38 In Marshall, Gaudron J (with whom Hayne J agreed) observed:
Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute [38].
39 Gaudron J's observations were referred to with evident approval in the unanimous judgment of the High Court in Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 207 ALR 1 [31] - [32].
40 Further, in a case such as this, where each party took refuge in various dictionary definitions, the observations of the Full Court of the Federal Court of Australia in Polo/Lauren Co LP v Ziliani Holdings Pty Ltd [2008] FCAFC 195; (2008) 173 FCR 266 [24] - [25] are also pertinent:
It is convenient to pause to consider the assistance that dictionary definitions, if any, provide to such questions of statutory interpretation. The common law has long approved of dictionary definitions to assist in statutory interpretation (see eg R v Peters (1886) 16 QBD 636 at 641 per Lord Coleridge CJ), but while this is a useful reference point, and indeed the approach taken by the learned first instance judge and by counsel, a dictionary definition is not conclusive and must be used with caution. As Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 noted at [28]:
'A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.'
See also Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560.
The present case provides a good example of this difficulty. The Court has been referred to several definitions … and, unsurprisingly, from this selection counsel for each of the parties has been able to find a definition supporting their opposing arguments.
41 In Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541, Mahoney JA said that the 'ordinary or natural meaning' of the words used is the 'ordinary usage of society', and that is taken from the judge's understanding of the sense in which the words are used (560).
Disposition
42 The word 'adjoining' when used to describe two parcels of land in relation to each other primarily denotes, in its ordinary signification, that the two parcels are contiguous in the sense of sharing at least some point of contact with each other. The word 'adjoining' would not ordinarily be the first choice of word if the intention were to describe the connection between two parcels of land which are nearby to each other or neighbouring, but which are separated by a third parcel of land.
43 The appellant submits that the word 'adjoining' nevertheless aptly describes two parcels of land nearby to each other separated only by a third parcel, where the third parcel is not in privately owned hands. However, the language of 'adjoining', when used with respect to land, would not ordinarily be read as bearing a meaning which calls for a distinction to be drawn between parcels of land separated by public land, and parcels of land separated by privately held land, unless context required otherwise.
44 The view that s 241(7) uses the word 'adjoining' in its primary ordinary meaning identified above is confirmed by a consideration of the definition of 'adjoining' in s 3(1) of the Act. The word 'adjoining' is defined, in relation to parcels of Crown land, to include land only separated by roads, railways, water courses or reserves of unallocated Crown land. The inference to be drawn is that except in relation to Crown land, the word 'adjoining' when it is used elsewhere in the Act (including s 241(7)) is not intended to be read as including parcels of neighbouring land separated from each other by roads or the other types of land specified in that definition.
45 Although, as the primary judge observed, the Online Oxford English Dictionary defines 'adjoining' to include 'neighbouring', the above considerations indicate that Parliament did not use the word 'adjoining' in that sense in s 241(7) of the Act. The broader meaning of 'adjoining' is not one which, in context, the language 'permits' in this case: cf Marshall [38] (Gaudron J).
46 Whilst other judicial decisions involving similar or identical legislation in other jurisdictions cannot control the meaning of, or be used as substitutes for the text of, the relevant legislation under consideration, they may nevertheless in appropriate circumstances provide some guidance: Marshall [62]. It is of some additional significance that the Land Appeal Court of Queensland, in an analogous context, observed that 'the natural meaning of the expression "adjoining" in respect of land is that it describes land which touches other land, in the sense that it either has a common boundary, or at least a common boundary point. Usually the adoption of a natural meaning of a term used, without definition, in [a] statute is to be preferred': Gold Coast City Council v Halcyon Waters Community Pty Ltd [2011] QLAC 3; (2011) 188 LGERA 193 [26].
47 The same or a similar conclusion had been reached in a number of earlier decisions in relation to 'adjoining', including: R v Hodges (1829) M & M 341; (1829) 173 ER 1182; Harding v Board of Land and Works (1882) 8 VLR (L) 402, 411 - 412; New Plymouth Borough Council v Taranaki Electric-Power Board [1933] AC 680, 682; Minister of Works v Antonio [1966] SASR 54, 62.
48 The cases in the preceding paragraph may be compared with the line of authority dealing with the expression 'lands held therewith' and the related expression 'severing of the lands taken from the other lands' in the Lands Clauses Consolidation Act 1845 (UK): see, for example, Holt v The Gas Light & Coke Company (1872) LR 7 QB 728; Cowper v The Local Board for the District of Acton in the County of Middlesex (1889) 14 App Cas 153. In the latter case Lord Watson observed that under the 1845 Act, the 'other lands' in respect of which an owner may claim compensation if they are injuriously affected 'are indifferently described in the Act of 1845 as "severed" from the land which is the subject of sale, or as "held therewith"' (166 - 167). His Lordship also said that the 'fact that lands are held under the same title is not enough to establish that they are held "with" each other, in the sense of the Act; and the fact that a line of railway runs through them is, in our opinion, as little conclusive that they are not' (167). Similarly, in Australia, it has been held that the word 'severing' in the expression 'severance of the land acquired from other land of the owner' does not necessarily denote physical contiguity: Crisp & Gunn Co-operative Ltd v Hobart Corporation [1963] HCA 55; (1963) 110 CLR 538, 548, affirming Crisp & Gunn Co-operative Ltd v Hobart Corporation [1962] Tas SR 77, 85, with reference to s 19(1)(b) of the Public Authorities' Land Acquisition Act 1949 (Tas). Crisp & Gunn was followed in Minister of Works v Antonio (62).
49 Returning to the use of the word 'adjoining', it is true that in some cases, judges have acknowledged that in common usage that word, or a cognate term such as 'adjoins', may mean nearby or neighbouring, and have given it that meaning in the statutes then under consideration. See, for example, Higginbotham J (in dissent) in Harding (408); and Hornsby (434) (Kirby P), (443) (Glass JA with whom Mahoney JA agreed). In the latter case, the meaning of the word 'adjoins' arose in a planning context in connection with zoning. Certain land was proposed to be developed for housing for the aged and disabled. Amongst other things, the relevant planning instrument provided that the council could only consent to such a development where the land to be developed 'adjoin[ed] land zoned for urban uses' (Hornsby (432)). Next to the land to be developed was a road, and on the other side of the road was land zoned for urban uses. Glass JA (with whom Mahoney JA agreed) said:
The trial judge ruled that the word 'adjoins' in the statutory phrase 'adjoins land zoned for urban purposes' is used in its loose sense of 'is near to' and 'is neighbouring on' rather than its exact meaning 'is conterminous with'. So construed the subject land which is separated from urban land zoned for urban uses by no more than a public road adjoined such land. … In my opinion the word 'adjoins' is currently used in both senses and must take its colour from the context in which it appears. I do not find in the language of State Environmental Planning Policy No 5 any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not. I see no error of law in the construction of the provisions of cl 11(2) which the trial judge adopted (443).
50 The decision in Hornsby arose in a different and distinguishable statutory context. It provides no real assistance in determining the meaning of 'adjoining' where it appears in s 241(7) of the Act read in the context of the Act as a whole, and in particular the definition of 'adjoining' in s 3(1).
51 Further, Pidgeon J's observations in Della-Vedova do not assist the appellant for a number of reasons. First, Pidgeon J was not purporting to ascribe a meaning to the word 'adjoining' in s 63(b) of the Public Works Act 1902. Secondly, the appellant has not confronted the primary judge's finding that even under s 63(b) of the Public Works Act 1902, the word 'adjoining' does not mean neighbouring in the sense advanced by the appellant in this case. Thirdly, Pidgeon J's observations provide no substitute for an examination of the language used in s 241(7) of the Act considered within the context of the Act as a whole. In any event, Pidgeon J's observations about giving the words their 'widest possible meaning' should not be understood as identifying any different approach to construction from that referred to by Gaudron J in Marshall. For the reasons given earlier, the words 'adjoining land' in s 241(7), read in the context of the Act, do not permit the broader construction advanced by the appellant.
52 Nor does the appellant's suggestion, that the court should prefer its construction to ensure that a person in the appellant's position is 'justly' compensated, assist in fixing the meaning for which it contends in this appeal. The Parliament has specified the limits within which compensation is payable. It is not to the point that this court might think it more 'just' if the limits were adjusted or set differently: cf Gold Coast City Council [25]. Further, in Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58, 79 - 80, five members of the High Court in a joint judgment said that if a State statute provides for the resumption of land on terms which are thought not to be just, 'that is of no consequence legally'.
Conclusion
53 The appeal should be dismissed.
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