Netstar Pty Ltd as trustee of the Palmer Motel Unit Trust v Caloundra City Council

[2005] HCATrans 173

[2005] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B50 of 2004

B e t w e e n -

NETSTAR PTY LTD AS TRUSTEE FOR THE PALMER MOTEL UNIT TRUST

Applicant

and

CALOUNDRA CITY COUNCIL

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 10.16 AM

Copyright in the High Court of Australia

MR P.G. BICKFORD:   Good morning, your Honours.  I appear for the applicant.  (instructed by Blake Dawson Waldron)

MR D.R. GORE, QC:   Good morning, your Honours.  May it please the Court, I appear with my learned friend, MR R.S. LITSTER, for the respondent.  (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Bickford.

MR BICKFORD:   Your Honours, this application concerns the proper construction of a number of provisions of the Integrated Planning Act 1997 (Qld) and, in particular, section 4.1.21(1) and (5), and section 4.1.2(1) and (2). Your Honours ‑ ‑ ‑

GUMMOW J:   They are made out in pages 22 and 23, are they not?

MR BICKFORD:   Yes, they are, your Honour.  The judge at first instance ‑ ‑ ‑

GUMMOW J:   Well, how do you say the Court of Appeal was wrong?

MR BICKFORD:   Well ‑ ‑ ‑

GUMMOW J:   Looking at the words.

MR BICKFORD:   Your Honour, the president seems to have developed a novel notion as to the meaning of the words “exclusive jurisdiction” where they appear in section 4.1.2(2).  All of the earlier decisions which were referred to – in the Planning and Environment Act that preceded this particular legislation, similar sorts of provisions existed and the courts considered the question of exclusive jurisdiction of the Planning and Environment Court and clearly recognised that the question was whether or not the provisions of that Act ousted the jurisdiction of the Supreme Court to grant declaratory relief in relation to the subject matter contained therein. 

The same question was the question that had to be considered by the Court of Appeal here and the president seems to have adopted a view that the jurisdiction of the Planning and Environment Court was exclusive, but only if somebody applied for relief in that court.  Now, that, if it was right, is an extremely novel proposition and, if it was right, would have very peculiar results because the Supreme Court would have jurisdiction to grant that very same relief.  The matter could proceed to a hearing.  The judge could reserve the decision.  Anyone can apply for the same relief in the Planning and Environment Court, and all of a sudden the Supreme Court’s jurisdiction evaporates.  It is likely to lead to some ‑ ‑ ‑

GUMMOW J:   Well, maybe the Queensland legislature should do its job and clear up the problem, if there is a problem.

MR BICKFORD:   Yes, well, certainly, there is a problem, your Honours, not only for that reason, but also because of the use that the court made of the explanatory notes.

GUMMOW J:   These phrases like “exclusive jurisdiction” get bandied about in the States ‑ ‑ ‑

MR BICKFORD:   Yes.

GUMMOW J:   …..use, I am afraid.  That does not mean that this is a special leave case.

MR BICKFORD:   Well, your Honours, I cannot say to your Honours that the other States have identical provisions.  There is exclusive jurisdiction in Planning and Environment Courts in other States, but the provisions differ, and I cannot say that the explanatory notes that go with that legislation in other States had this same sort of result.  However, there are a lot of litigants in this State who are likely to be affected by this decision.

GUMMOW J:   What is the appeal structure from the Environment Court to the Court of Appeal?

MR BICKFORD:   With leave, your Honour.

GUMMOW J:   Not just a question of law?

MR BICKFORD:   No.  You have to apply for leave to appeal and that section does not ‑ ‑ ‑

GUMMOW J:   So this is not legislation which has the effect of excluding this Court by excluding the Supreme Court?

MR BICKFORD:   No, your Honour. Appeals to the Court of Appeal are dealt with in Division 13 of the Integrated Planning Act and section 4.1.57(1) provides that a party intending to seek leave to the Court of Appeal to appeal against a decision of the court must do certain things and appeals are only by leave of that court.  That, of course, presents my client with some practical difficulties, because he wishes to pursue an action in the Supreme Court for damages.  There was a rezoning agreement signed by the council in 1984 prior to the Orders in Council.  If the council is right, that the development that he wishes to pursue in respect of his land can no longer happen, then he wishes to pursue a claim for damages, and, of course, the Planning and Environment Court has no jurisdiction to deal with that. 

GUMMOW J:   Sorry, claim for damages, what cause of action?

MR BICKFORD:   Breach of the pre‑zoning agreement.

GUMMOW J:   And contract is the answer, is it?

MR BICKFORD:   Yes.  Now, the complicated argument that your Honours need not concern yourselves with is as to whether or not he has in fact lost his right to pursue the development which he wishes to pursue on that land, as a result of the multiplicity of planning provisions and enactments that have occurred since 1984.  The important point, and the special leave point, in our respectful submission, is, really, does the Planning and Environment Court have exclusive jurisdiction in relation to the subject matter dealt with in section 4.1.21(1) or not? 

GUMMOW J:   Well, lurking in all of this is some notion of whether there are any independent claims that are excluded.

MR BICKFORD:   Yes.

GUMMOW J:   If you think of a contract in that way.  It is easy enough in federal jurisdiction, because you have the concept of matter, but you do not have that in the State ‑ ‑ ‑

MR BICKFORD:   No.

GUMMOW J:    ‑ ‑ ‑ and it gives rise to this sort of problem.

MR BICKFORD:   Yes, that is so, your Honour.  Your Honours will have read the decision of the Court of Appeal.  At application book page 22, paragraph 9 of the reasons of the Court of Appeal, her Honour the president sets out the relevant extract from the explanatory notes and your Honours will see that it is the second paragraph that is important from the point of view of the applicant ‑ ‑ ‑

GUMMOW J:   I am sorry, Mr Bickford.  Page 22?

MR BICKFORD:   Page 22, paragraph 9 of the Court of Appeal’s reasons.

GUMMOW J:   Yes, I can see that.

MR BICKFORD:   His Honour below, Justice Chesterman, and on appeal the Court of Appeal considered that the requirements of Section 14B of the Acts Interpretation Act were not met in this case, so that they were not at liberty to look at the explanatory notes.  That, of course, is the wrong approach, as this Court has said on a number of occasions.  At common law, as an aid to statutory construction, it is permissible to look at extrinsic material, including explanatory notes, and the history of the legislation in order to ascertain the meaning of the words. So, on any view of the matter, the explanatory notes had to be taken into consideration. 

The words of the explanatory notes seem to make it clear, beyond argument, that it was not the intention of the draftsperson to make the jurisdiction of the Planning and Environment Court to grant declaratory relief exclusive of the jurisdiction of other courts, and, in particular, in this case, the Supreme Court.

GUMMOW J:   Well, what about your damages?

MR BICKFORD:   Well, the Planning and Environment Court is not given any jurisdiction to decide damages claims.  It would only be if it had accrued jurisdiction to deal with that claim by reason of having ‑ ‑ ‑

GUMMOW J:   How would the action in contract be lost to the Supreme Court?

MR BICKFORD:   Well, it could be run in the Supreme Court, but then my client runs the risk of falling between two stools, because some of the questions that would have to be considered in relation to that claim at trial would also be the subject of consideration by the Planning and Environment Court, and, of course, there is the possibility of two different results, two appeals – a highly undesirable situation.  It is much better that the ‑ ‑ ‑

GUMMOW J:   There may be questions of issue estoppel?

MR BICKFORD:   Possibly, your Honour but I am thinking more of the inconvenience of having to run two – the inconvenience and expense, and the injustice that arises from that – of having to run two actions in two separate courts and risk two different results.  Not a matter that the court took into account in the exercise of its discretion, because – and we realise, your Honours, that there is a problem there, that this is seeking leave in relation to a judgment which includes an exercise of discretion – I am familiar with the problem – however, that exercise of discretion, we say, is vitiated by the view that the court took as to the nature of the exclusive jurisdiction…..in the Planning and Environment Court.  Given the court’s findings and conclusions in that regard, it could not very well exercise its jurisdiction in my client’s favour.

GUMMOW J:   But the proceeding in the Supreme Court was for declaratory relief, was it not?

MR BICKFORD:   That is correct.  We foreshadowed affidavit material before the primary judge, and I think we attached to the outline of argument in reply a draft statement of claim indicating that we also intended to pursue damages.  The court was alive to that fact and, indeed, the president notes it at paragraph – I think it is at paragraph 21, application book 25 ‑ ‑ ‑

GUMMOW J:   What would be the utility of the Supreme Court going ahead and making a declaration when there was this pending proceeding in the specialist court?

MR BICKFORD:   Well, my client had applied for an order in the Supreme Court restraining the Planning and Environment Court from proceeding with that application, which was filed later in time than his application in the Supreme Court proceedings.  So that had he been successful, had the applicant been successful in obtaining that order, then the whole matter would have been disposed of in the Supreme Court.  The primary judge declined to grant that order; the Court of Appeal dismissed the appeal from that decision.  Now, again, there is an exercise of discretion involved, but the discretion has been exercised on an erroneous basis, as is demonstrable from the reasons for judgment.  The primary judge erred ‑ ‑ ‑

GUMMOW J:   Well, what I am putting to you is, it could have been exercised perhaps on a correct basis.

MR BICKFORD:   That you could have reached the same result, applying the right tests.  That is a difficulty that I have to face as well, your Honour.  However, there were very good reasons why ‑ ‑ ‑

GUMMOW J:   No declaration because there is another proceeding on foot in the specialist court.

MR BICKFORD:   Yes, and her Honour took that into account in the exercise of her discretion, but, of course, that ignores the fact that the specialist court does…..have jurisdiction to grant damages or consider my client’s damages claim. 

GUMMOW J:   It was not an action for damages, was it?

MR BICKFORD:   He had not commenced that action at that stage, but he had foreshadowed that he was going to – again, a difficulty that I have in relation to the way the matter proceeded below.  But the real problem also, of course, your Honours, with leaving the judgment of the Court of Appeal as it stands is that the law is not as declared by Justice Chesterman, that the

Planning and Environment Court has exclusive jurisdiction in these matters and that is the end of it.  The law is as declared by the president of the Court of Appeal, in whose reasons Justices Williams and Atkinson concurred, effectively, that the exclusive nature of the jurisdiction of the Planning and Environment Court depends upon whether any person applies for similar relief in the Planning and Environment Court.  Until they do, the Supreme Court does have jurisdiction. 

Matters might progress in the Supreme Court for some years, only to be thwarted by somebody applying for relief in the Planning and Environment Court, a result that is most unlikely to be correct, but will stand as the law of Queensland in relation to this topic unless this Court interferes.  Unless I can be of any further assistance, those are my submissions.

McHUGH J:   Thank you, Mr Bickford.  Yes, the Court need not hear you, Mr Gore. 

We are of the view that, given the facts of the case, this is not an appropriate case to determine the questions of construction that Mr Bickford has sought to raise.  Accordingly, the application must be dismissed with costs. 

The Court will now adjourn to reconstitute. 

AT 10.28 AM THE MATTER WAS CONCLUDED