Noosa Shire Council v T M Burke Estates Pty Ltd
[1998] QCA 350
•3/11/1998
IN THE COURT OF APPEAL [1998] QCA 350 SUPREME COURT OF QUEENSLAND
Appeal No. 11623 of 1997
Brisbane
[Noosa S.C. v. T M Burke Estates P/L & Anor]
BETWEEN:
COUNCIL OF THE SHIRE OF NOOSA
(Plaintiff) Appellant
AND:
T M BURKE ESTATES PTY LTD
(ACN 004 130 732)
(First Defendant) First Respondent
AND:
STATE OF QUEENSLAND
(Second Defendant) Second Respondent Pincus J.A.
McPherson J.A.
Byrne J.
Judgment delivered 3 November 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPEAL DISMISSED WITH COSTS
CATCHWORDS: PRACTICE AND PROCEDURE - developer granted 20 year special lease of land - planning scheme provisions gazetted which affected developer’s interest in the land - developer claimed compensation from Council - developer appealed to Planning and Environment Court because Council had not decided the claim - Council later issued a Supreme Court writ against the developer and delivered a statement of claim alleging the developer’s special lease conferred no interest on it because statutory conditions requisite to the grant of a lease had not been satisfied - developer applied for Council’s statement of claim to be struck out and action dismissed - Council applied for State of Queensland to be joined as defendant and for leave to amend statement of claim - appeal against refusal to allow Council’s statement of claim amendment to plead a certain declaration - amendment to provide special lease had become frustrated by gazettal of new provisions in the planning scheme - amendment would involve Supreme Court in looking into issues which the Planning and Environment Court would have to consider - whether Supreme Court’s declaratory jurisdiction ousted - whether Supreme Court should not as a matter of discretion entertain the Council’s claim.
Foster v. Dododex Australia Pty Ltd (1972) 127 C.L.R. 421
Dalgety Wine Estates Pty Ltd v. Rizzon (1979) 141 C.L.R. 552.Counsel: Mr L Harrison Q.C., with him Mr L Carrigan for the appellant.
Mr D R Gore Q.C., with him Mr M Rackemann for the first respondent.
Mrs D A Mullins for the second respondent.Solicitors: Wakefield Sykes for the appellant.
O’Shea Corser and Wadley for the first respondent.
Crown Solicitor for the second respondent.Hearing Date: 7 September 1998. IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11623 of 1997
Brisbane
Before Pincus J.A.
McPherson J.A.
Byrne J.[Noosa S.C. v. T M Burke Estates P/L & Anor]
BETWEEN:
COUNCIL OF THE SHIRE OF NOOSA
(Plaintiff) Appellant
AND:
T M BURKE ESTATES PTY LTD
(ACN 004 130 732)
(First Defendant) First Respondent
AND:
STATE OF QUEENSLAND
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 3 November 1998
This is an appeal from an order made in the Supreme Court, refusing to allow an amendment
to a statement of claim, the effect of which would have been to include in the appellant’s pleading
a claim for a certain declaration. In 1980 the first respondent ("the developer") was granted by the
Crown a 20 year special lease of land. On 5 May 1995 there were gazetted provisions forming
part of the Planning Scheme for the Shire of Noosa. The developer, on the basis that those
provisions injuriously affected its interest in the land to which I have referred, made a claim for
compensation in respect of that injurious affection, under s. 3.5(1) of the Local Government (Planning and Environment) Act 1990 ("the Act"), which creates an entitlement to obtain such
compensation. The claim was made, as the Act contemplates, against the appellant ("the Council").
An appeal to the Planning and Environment Court was later launched, in reliance on s. 7.1(2A) of
the Act; that provision allowed an appeal to be instituted by the developers because the Council
had not decided the claim within the period specified by the Act.
The grounds of appeal in the Planning and Environment Court said that the developer had
proposed to use the land for the purposes of residential development and that the new provisions
of the Planning Scheme had injuriously affected the appellant’s interest in three ways, which the
notice of appeal specified. Correspondence between the parties to the appeal explained the
contentions which each intended to make; it appeared from a letter dated 30 July 1996, written on
behalf of the Council, that it proposed to argue that no compensation whatever was payable.
In May 1997, the developer’s appeal to the Planning and Environment Court not having
come on for hearing, the Council issued a writ against the developer in the Supreme Court of
Queensland and delivered with it a statement of claim alleging that the developer’s special lease
conferred no interest on it, because statutory conditions requisite to the grant of a valid lease had
not been satisfied. After some further correspondence, the content of which requires no discussion,
two summonses were issued, one by each party to the action. The developer applied, by its
summons, for orders that the statement of claim be struck out and the action dismissed. The
Council applied, by its summons, for orders that the State of Queensland be joined as a defendant
and that it have leave to amend its statement of claim. The orders made after the hearing of these summonses included refusal of the Council’s application to amend, allowance of its application to
join the State of Queensland and adjournment sine die of the developer’s application.
The appeal to this Court is, as I have said, against the judge’s refusal to give the Council
leave to amend. The primary judge had before him a proposed amended statement of claim
prepared on behalf of the Council which alleged (as had the first statement of claim) that the
statutory conditions precedent to grant of the special lease had not been fulfilled. The proposed
amendment would have set up a new case, that the special lease had become frustrated by reason
of the gazettal of the new provisions in the Planning Scheme. The additional declaration which it
was sought to claim, by amendment, was that further performance of the purpose of the special
lease had become impossible by reason of the gazettal and that the State of Queensland and the
developer had become discharged from the special lease.
The primary judge held that the argument based on frustration "should not be permitted to
proceed"; his Honour said, ". . . that part of the action will be struck out". The order sheet which
is on the Court file notes that one order made was: "The claim and the statement of claim relating
to the second ground will be struck out". But the sealed order does not mention the striking out of
any claim. There is perhaps some doubt as to the state in which the action stands, having regard
to the apparent discrepancy between the orders made by the learned primary judge and the sealed
order. It does not, however, appear necessary to resolve any difficulty relating to that topic.
| 6 | The arguments put on behalf of the Council complained of the primary judge having been unwilling to let the action include a claim for a declaration with respect to the question of frustration. |
It was contended that it was relevant for the Council to know whether the special lease, if one was
validly granted, had been frustrated, for a number of reasons, such as that the Council had to
determine whether or not the land was rateable; therefore, it was said, the Council has locus standi.
It is plain enough, however, that the only live issue to which the declaration sought is likely to be
immediately relevant is the claim for compensation; it is equally plain that it is the pendency of that
claim which has prompted the Council to seek the declaration under discussion.
The Council has argued in this Court that, because of certain provisions in the lease, the only
injurious affection on which the developer could rely, in its claim for compensation, is a right to
acquire a freehold title to certain subdivided lots. But the Council says that in order to determine
the claim for a declaration with respect to the alleged frustration, it would not be necessary for the
Court finally to determine the issue of injurious affection; that issue, it appears, has relevance merely
to the question of the Council’s standing.
Enough has been said to demonstrate that the proposed claim for a declaration based on
the doctrine of frustration would involve the Supreme Court, if the action goes to trial, in looking
into issues which the Planning and Environment Court would have to consider in the appeal before
it. The same applies to the allegation that the purported lease was not validly granted; the Planning
and Environment Court could not grant compensation based on the existence of a void lease. The
primary judge said in effect that the decision of the Supreme Court with respect to the existence of
the lease would be "extremely useful" in the appeal pending before the Planning and Environment Court. As to the question of frustration, his Honour held in effect that the Council’s claim was
unacceptable and should therefore not be allowed to proceed.
During the course of the hearing before us, there was discussion as to the extent to which
the Planning and Environment Court being seized of the appeal against refusal of compensation ousts
the Supreme Court’s declaratory jurisdiction. The principal provision of the Act relevant to that
question is s. 7.4(2), which makes the jurisdiction of the Planning and Environment Court under the
Act exclusive; that court’s jurisdiction to determine the appeal here in question is conferred by
ss. 3.5(13) and 7.4(1).
Whether or not s. 7.4(2) ousts this Court’s jurisdiction to determine this action is not a
matter which it is necessary finally to determine, although some observations are made about it,
below. For, in any event, the claim for a declaration with respect to the alleged frustration of the
lease is not one which this Court should, in the exercise of its discretion, entertain.
The circumstances in which a Supreme Court should decline to make a declaration with
respect to an issue within the jurisdiction of a specialist court or tribunal are, with respect, usefully
discussed by Mr Justice Young in the 2nd (1984) edition of his book, "Declaratory Orders" at pp.
42-46. The principal Australian authority relevant to this problem was at that time, and still is,
Forster v. Jododex Australia Pty Limited (1972) 127 C.L.R. 421. There, the High Court upheld
the grant of a declaration by the Supreme Court of New South Wales with respect to an issue which
was relevant to a then pending inquiry before a mining warden; that issue was whether the respondent company held certain rights under the New South Wales Mining Act 1906. As to the
exercise of the discretion whether to grant or refuse the declaration, Gibbs J. referred to a number
of considerations favouring the former course, including that the questions involved were difficult and
were "pure questions of construction" and also referred to matters having a countervailing tendency
such as delay, cost and inconvenience (439). The other members of the Court, except Walsh J.,
expressed themselves in terms which amounted to agreement with these observations. Walsh J.
remarked:
"In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute".(427)
What was said by Gibbs J. about the exercise of discretion was not inconsistent with the view of
Walsh J., which has considerable importance in assessing the proper course to take in such a case
as this. In Dalgety Wine Estates Pty Ltd v. Rizzon (1979) 141 C.L.R. 552, a question arose
whether the South Australian Supreme Court acted properly in declining, in the exercise of its
discretion, to grant an injunction to restrain an applicant before the South Australian Licensing Court
from pursuing his application to that court. Mason J. with whom the other members of the majority
agreed said:
"First, a superior court should hesitate before granting an injunction restraining a party from commencing or maintaining proceedings in a court or tribunal which has been specially constituted by statute with a jurisdiction to entertain and determine proceedings of that kind, the more so when the proceedings relate to rights or privileges which depend for their existence on the statute . . . " (574).
In agreeing with Mason J. that the discretion was rightly exercised, Stephen J. said:
"The South Australian legislature has, after express advertence to the question, clearly entrusted the question of breach of covenant, as it may affect the transfer of a licence to the Licensing Court, whereas the relevant jurisdiction of the Supreme Court has not, of course, been the subject of any such express legislative advertence" (568).
Gibbs J., who dissented, referred to what Walsh J. had said in Forster and expressed the view that
the Dalgety case was not one of the kind to which Walsh J. referred (563). Walsh J.’s dictum has
also been treated as authoritative on a number of occasions in Supreme Court decisions. An
example is Slattery v. Public Service Board [1983] 3 N.S.W.L.R. 41 at 46, dealing with an
application for a declaration touching on a matter which the legislature had committed to the New
South Wales Industrial Commission. Another is Concord Council v. Optus Networks Pty Ltd
(1996) 90 L.G.E.R.A. 232 at 267. But I think it is important to note that what Walsh J. said was
not intended to express an absolute rule, circumstances will no doubt arise in which it will be right
for the Supreme Court to grant declaratory or injunctive relief in relation to a matter which is within
the jurisdiction of a specialist tribunal.
Here, in contrast to the Forster case, the specialist tribunal is constituted by a judge, being
a member of the District Court; the civil jurisdiction of that court has been expanded, so as to cover
matters of considerable substance and complexity. It does not appear to me that it would be
proper, or indeed sensible, for the Supreme Court to give declaratory relief in respect of an issue
arising in proceedings pending before the Planning and Environment Court on the supposition that
such a judge would not be able competently to decide it. As for the questions of delay, cost and
convenience, they all appear, in the present case, to tend against the appellant. Pursuit of the
appellant’s action in this Court to a conclusion, with or without any subsequent appeal, might take
a considerable period of time; the case has not progressed far towards finality since the writ was issued in May 1997. And resolution of the appellant’s claims in the Supreme Court would not
necessarily put an end to the dispute between the parties, which might well have to await final
determination in the Planning and Environment Court. From there an appeal would lie, on the
ground of error in law or lack of jurisdiction, to the Court of Appeal: s. 7.4(3) of the Act.
What the appellant wishes to defend is an interruption of the ordinary course of disposition
of disputes of this sort, in the forum which the legislature has chosen, by a, perhaps expensive and
protracted, determination of some of the issues in the Supreme Court. A reason which goes in
favour of allowing the amendment which the primary judge refused is that the Planning and
Environment Court proceedings might in any event be held up, because his Honour let the
appellant’s initial claim in that court stand. But that circumstance, although in my view unfortunate,
is not enough to justify further entertaining issues which would otherwise fall for decision in the
Planning and Environment Court. At the hearing before us, there was some discussion about the
possibility of the developer applying for leave to appeal out of time, with the purpose of achieving
the result that the action in this Court is simply dismissed; but no such application was made. If the
developer is concerned about the possibility of the Supreme Court case continuing, it could bring
on the application to strike out which was adjourned sine die; but it is likely that, having regard to
these reasons, the Supreme Court action will not be actively pursued. I see no reason why the
Planning and Environment Court proceedings should not now go ahead.
In view of the conclusion I have reached, that as a matter of discretion the Supreme Court
should not in the present circumstances entertain the Council’s claim for declaratory relief; there
is as I have said no necessity finally to determine the question whether s. 7.4(2) ousts the jurisdiction
of the Court to grant the relevant declarations; but some observations may be usefully made.
Section 7.4(2) makes the jurisdiction of the Planning and Environment Court under the Act
exclusive. There are authorities suggesting that where a specialist court or tribunal is given exclusive
jurisdiction to determine cases of a particular kind, that ousts the Supreme Court’s jurisdiction to
grant a declaration relating to an issue in such a case: examples are re The Proprietors Portman
Place Building Units Plan No. 4313 [1995] 1 Qd.R. 525, Taylor v. The Minister [1973] 1
N.S.W.L.R. 352. Cases in this category tend to rely upon Barraclough v. Brown [1897] A.C. 615,
which was decided at a time when a more restrictive attitude was taken, in relation to the jurisdiction
to grant declaratory relief than is evidenced by more modern authorities such as Pyx Granite Co.
Ltd v. Ministry of Housing and Local Government [1960] A.C. 260, and the High Court decision
in Forster (above). The decision in this Court in Cairns City Council v. Fairview Farming Co. Pty
Ltd (Appeal Nos. 3244 and 3245 of 1997, 10 February 1998) is plainly inconsistent with the
proposition that a grant of exclusive jurisdiction to the Planning and Environment Court, to hear
appeals of a particular kind, excludes the Supreme Court’s jurisdiction to determine issues which
might have been raised by an appeal to the Planning and Environment Court. Here, there is an
appeal pending before the Planning and Environment Court, as there was not in the Cairns City
Council case.
| 15 | In view of my conclusion that the Supreme Court should not, as a matter of discretion, decide the issues which are sought to be raised before it in the present case, but should rather leave |
those issues to be determined in the Planning and Environment Court, I do not think it appropriate
to express any more than a provisional view on the jurisdictional point; my view is that the grant of
exclusive jurisdiction by s. 74(2) of the Act does not appear, on its proper construction, to take
away the Supreme Court’s power to grant the declaratory relief which has been sought.
I would dismiss the appeal with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11623 of 1997
Brisbane
Before Pincus J.A.
McPherson J.A.
Byrne J.[Noosa S.C. v. T.M. Burke P/L & Anor.]
BETWEEN:
COUNCIL OF THE SHIRE OF NOOSA
(Plaintiff) Appellant
AND:
T.M. BURKE ESTATES PTY. LTD.
ACN 004 130 732
(First Defendant) First Respondent
AND:
STATE OF QUEENSLAND
(Second Defendant) Second Respondent REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 3 November 1998
1 I agree with the reasons of Pincus J.A. that this appeal should be dismissed with
costs; but I do so subject to the qualification or preference referred to in the reasons of
Byrne J., with which I also agree.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 11623 of 1997
Brisbane
Before Pincus JA
McPherson JA
Byrne J[Noosa S.C. v. T.M. Burke Estates P/L & Anor]
BETWEEN:
COUNCIL OF THE SHIRE OF NOOSA
(Plaintiff) Appellant
AND:
T.M. BURKE ESTATES PTY LTD
(ACN 004 130 732)
(First Defendant) First Respondent
AND:
STATE OF QUEENSLAND
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered 3 November 1998
There are, in my opinion, compelling reasons for the Supreme Court to have declined to
entertain the claims for declaratory relief.
The issues to be agitated necessarily fell for consideration in the determination of the
compensation litigation in the Planning and Environment Court. No consideration of cost or
convenience favoured the resolution of those points in the Supreme Court. If those isolated issues
should be separately determined in a preliminary way, that can be done just as easily in the Planning and Environment Court, and in that Court there is every prospect that the points would be
determined with less expense. Further, there is no reason to suppose that a judge of the Planning
and Environment Court could not competently determine the issues. In this case, there is no
satisfactory basis for the Supreme Court’s intervention: cf R.P. Meagher, W.M.C. Gummow &
J.R.F. Lehane, Equity Doctrines and Remedies, 3rd ed (1992) p.476. On the contrary, this
contest should be resolved in the court which the Parliament has specially invested with the
jurisdiction to decide the compensation claim.
Otherwise I substantially agree with what Pincus JA has said concerning the discretion to
decline to adjudicate upon the issues by declaration.
It is unnecessary to, and I prefer not to, express an opinion on the question whether s.7.4
of the Local Government (Planning and Environment) Act 1990 ousts the Supreme Court’s
ordinary jurisdiction to grant declaratory relief in a case such as the present.
The appeal should be dismissed with costs.
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