Opalinski v Coordinator-General
[2013] QLC 61
•6 November 2013
LAND COURT OF QUEENSLAND
CITATION:Opalinski v Coordinator-General;
Opalinski v Chief Executive, Department of Transport and Main Roads (No. 2) [2013] QLC 61
PARTIES:Zdzislaw Joe Opalinski
(applicant)
v.
Coordinator-General
Chief Executive, Department of Transport and Main Roads
(respondents)
FILE NO:AQL338-10
AQL033-12
DIVISION:General Division
PROCEEDING: General applications
DELIVERED ON: 6 November 2013
DELIVERED AT: Brisbane
HEARD ON: Heard on the Papers
Final submissions filed on 9 October 2013
HEARD AT:Brisbane
MEMBER:WA Isdale
ORDERS:1. The application seeking orders for disclosure by the Coordinator-General is dismissed.
2. The application seeking orders for disclosure by the Chief Executive, Department of Transport and Main Roads is allowed.
3. An order is made as follows:
That within 28 days of the date hereof, the Director General of the Department of Transport and Main Roads disclose all documents in his possession or power regarding:-
i.The status of Lots 2, 3 and 4 on RP96409 County of Stanley Parish of Goodna (48 Brisbane Road) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1989 and the means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to that property.
ii.The status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties.
iii.Details of any changes to the status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and the means of access since that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties including but not limited to:-
a.All plans, documents and memoranda relevant to such changes since 1989.
b.All Government Gazettes which publish details of or incidental to such changes since 1989.
c.All notices provided to the Applicant since 1989 with respect to such changes.
4. Costs are reserved.
CATCHWORDS: Application for disclosures ― relevance ― Acquisition of Land Act 1967 ― scheme of acquisition ― San Sebastian principle ― Pointe Gourde principle
Hope v Brisbane City Council (2012) 33 QLCR 332
Opalinski v Coordinator-General; Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57
APPEARANCES: Mr D Gardiner, instructed by Bradley Munt & Co solicitors for the applicant
Mr D O’Brien, instructed by Corrs Chambers Westgarth lawyers for both respondents
Background
The Coordinator-General’s resumption
Under the Acquisition of Land Act 1967 (the Act) the Coordinator-General acquired easements over the applicant’s land for part of the Western Corridor Recycled Water Scheme. This took place on 14 December 2007 and the applicant referred his claim for compensation to the Court on 24 August 2010.
The Department of Transport and Main Roads’ resumption
The Department of Transport and Main Roads acquired some land from the applicant, also using the Act, on 12 June 2009. The applicant referred his claim in respect of this acquisition to the Court on 17 January 2012.
The present applications
On 22 April 2013 the applicant filed General Applications in both matters. The applications were identical. The parts of the applications seeking to have both matters heard together have been dealt with already.[1] That part of the applications was unsuccessful. At the time of the hearing of the applications the applicant was not ready to proceed with the balance of its applications so orders were made for the exchange of submissions on the remaining content of the applications. The relevant orders sought at present are, in each case:
“2. Directions to advance the two applications to hearing and to facilitate the just and expeditious resolution of the issues at a minimum of expense, including:
(a)...
(b)disclosure of DTMR documents relevant to the status of Brisbane Road/Ipswich Motorway as a limited access road and the removal and/or restriction of access from he (sic) applicant’s land to Brisbane Road/Ipswich Motorway.
3. Such further or other orders and directions as the Court may consider appropriate.”
[1] Opalinski v Coordinator-General; Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57.
The applicant’s submissions, filed on 13 September 2013 along with a draft of the Order sought by the applicant, made clear that although the names of both respondents appear on identical applications what is being sought is the production of documents said to be in the possession of the Department of Transport and Main Roads only. It is not asserted that the documents are held by the Coordinator-General and there is no mention of anything being sought that is said to be in the possession of the Coordinator-General.
Order in respect of the application relating to the Coordinator-General
The reply submissions filed on 23 September 2013 on behalf of the Coordinator-General specifically point to this absence of a request for disclosure by the Coordintor-General. For the reasons just given, the application relating to the Coordinator-General is dismissed.
Disclosure sought from the Department of Transport and Main Roads
The applicant states the particulars of what is sought and the reasons why such disclosure would be relevant:
“The Applicant seeks the production of documents in the possession of the Department of Transport & Main Roads relating to the access available to the subject properties at various points of time and the change of status of such properties and the means by which such change of status took place and the notification provided to the Applicant with respect to such changes.
A perusal of departmental records presently in the Applicant’s possession indicates that the Department maintains two file references with respect to the property namely 144/17A/126.4 which is primarily used and a second reference number 148/17A/126.4 dated 14 August 1995 which appears as document no. 18 on the Schedule contained in this document.
It is also apparent from correspondence dated 04.01.1993 (document no. 7 in the Schedule), 23.03.1993 (document no. 9 in the Schedule) and 15.06.1993 (document no. 10 in the Schedule) that Contractors engaged by the Department of Transport & Main Roads carried out work adjacent to the Applicant’s properties as described in such correspondence in pursuance of a scheme to upgrade Brisbane Road/Ipswich Motorway. That scheme started in about 1993 with planning details changing over time without derogating from the objects of the scheme itself (eg. See document dated 27.06.2005 being document no. 23 in the Schedule).
To date no disclosure of DTMR documents relating to the work carried out by Contractors which effected (sic) existing means of access from the subject property has occurred nor has there been disclosure of any DTMR file with the prefix or reference 148/17A apart from the document no. 18 of the schedule dated 14 August 1995.
The Applicant’s position has been and remains that without disclosure of this information the Applicant is not in a position to obtain appropriate advice from his Experts in this matter or to properly prepare for a hearing in respect of either The DTMR or The Coordinator-General matter.”[2]
[2] Applicant’s submissions filed on 13 September 2013.
The order sought by the applicant
The applicant seeks an order in the following terms:
“1. That within twenty-eight (28) days of the date hereof, the Director General of the Department of Transport & Main Roads disclose all documents in his possession or power regarding:-
i.The status of Lots 2, 3 and 4 on RP96409 County of Stanley Parish of Goodna (48 Brisbane Road) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1989 and the means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to that property.
ii.The status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties.
iii.Details of any changes to the status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and the means of access since that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties including but not limited to:-
a. All plans, documents and memorandum relevant to such changes since 1989.
b. All Government Gazettes which publish details of or incidental to such changes since 1989.
c. All notices provided to the Applicant since 1989 with respect to such changes.”
The respondent’s reply
The respondent’s reply, filed on 23 September 2013 is as succinct as it is compendious and relevantly states:
“4 The Respondent has reviewed the Applicant’s proposed draft Order and Reasons and does not understand how the requested documents are directly relevant to this Application.
5 The Applicant has not articulated in its Reasons why the documents it seeks in its proposed draft Order are directly relevant.
6 A review of the pleadings in this Application reveal that the only documents directly relevant are documents:
(i)that go to the status of the Ipswich Motorway at the date of the resumption; and
(ii)which reveal the likely circumstances in which access to the land subject to the resumption, Lot 2 on RP96409 and Lot 5 on RP178620, would be approved by the Department of Transport and Main Roads,
as far as the documents relate to the before and after concept plans.
7 The Applicant’s application for disclosure of documents sought in paragraph 2(b) of its general application dated 22 April 2013 should be dismissed.”
Comparing the submissions, it is apparent that the relevant difference between them is that the applicant seeks information concerning the status of the Ipswich Motorway in 1989 and thereafter while the respondent asserts that the status of the Ipswich Motorway would only be relevant at the date of the resumption, 12 June 2009.
The applicant’s response
To the respondent’s reply, the applicant made a response, filed on 9 October 2013. Quoting from this Court’s decision in Hope v Brisbane City Council,[3] the applicant directs attention to the question of determining the extent of the scheme underlying an acquisition and the ‘Pointe Gourde/San Sebastian “principle”’ discussed in that case. The effect being that the applicant asserts that the respondent has been acting, over time, in a way that has affected the value of the land. Accordingly, the historic conduct of the respondent is relevant.
[3] (2012) 33 QLCR 32 at 331-333.
In the applicant’s response it is stated that:
“At this stage, the Applicant, apart from documents sent by him to, or to him by, the Department of Transport and Main Roads (or its predecessors), cannot establish the parameters of steps taken by the Department of Transport and Main Roads (or its predecessors) which have affected, or are likely to affect, the value of his properties.
Consequently, the Applicant should be given the opportunity to inspect for himself the records of the Department of Transport and Main Roads (or its predecessors) and to take copies thereof as he determines and pay reasonable photocopying costs thereto.”
This relates to the initial part of the response where it was said that:
“Since at least 22 April 2013, the Applicant, in attachment ‘A’ to his application filed on that date, clearly articulated in paragraphs 1-12 inclusive steps taken by the then Queensland Department of Transport to terminate vehicular access from the properties of the Applicant to Brisbane Road as it was then described. Annexed hereto and marked with the letters ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’ are true copies of gazettes numbered 16 (1 February 1992), 100 (28 July 1995), a letter dated 17 June 1992 from Bradley Munt & Co. to the then Minister for Transport and letters dated 25 February 1993 and 14 August 1995 by the then Queensland Department of Transport to the Applicant which, when read collectively demonstrate a direct connection between steps taken by the Department of Transport and Main Roads over time which have affected the value of the land.
Since at least 1990, information regarding a scheme to upgrade the Brisbane - Ipswich road has been in the public domain and widely disseminated. With respect to the Applicant’s properties, the scheme has evolved over time culminating in the construction of the Ipswich Motorway as it is today with the actions of the Department of Transport and Main Roads as referred to above affecting the value of the Applicant’s properties.”
Conclusion
The applicant states that there is a basis upon which the material sought may be relevant. If it was not clear previously it is now plain that a claim is being made of a nature that the material sought, depending on the outcome of the disclosure sought, could potentially be relevant to the case being made on behalf of the applicant. Accordingly, the disclosure sought is ordered in terms of the draft order set out at [7] above.
Costs
The costs of this matter are reserved.
Orders
1.The application seeking orders for disclosure by the Coordinator-General is dismissed.
2.The application seeking orders for disclosure by the Chief Executive, Department of Transport and Main Roads is allowed.
3.An order is made as follows:
That within 28 days of the date hereof, the Director General of the Department of Transport and Main Roads disclose all documents in his possession or power regarding:-
i. The status of Lots 2, 3 and 4 on RP96409 County of Stanley Parish of Goodna (48 Brisbane Road) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1989 and the means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to that property.
ii. The status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and means of access at that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties.
iii. Details of any changes to the status of Lots 2, 3 and 4 on RP96409 and Lot 5 on RP178620 County of Stanley Parish of Goodna (48 and 46 Brisbane Road respectively) and the status of Brisbane Road/Ipswich Motorway as a limited access road in 1991 and the means of access since that time to and from Brisbane Road/Ipswich Motorway with respect to each of these properties including but not limited to:-
a.All plans, documents and memoranda relevant to such changes since 1989.
b.All Government Gazettes which publish details of or incidental to such changes since 1989.
c.All notices provided to the Applicant since 1989 with respect to such changes.
4.Costs are reserved.
WA ISDALE
MEMBER OF THE LAND COURT
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