Opalinski v Coordinator-General - [2013] QLC 61

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Opalinski v Coordinator-General

Details

AGLC: Opalinski v Coordinator-General [2013] QLC 61
Case: [2013] QLC 61
Decision Date: 6 November 2013

CaseChat Overview and Summary

In the Land Court of Queensland, Zdzislaw Joe Opalinski filed a General Application against the Coordinator-General and the Chief Executive, Department of Transport and Main Roads, seeking disclosure of documents. The dispute stems from the acquisition of easements and land by the Coordinator-General and the Department of Transport and Main Roads, respectively, under the Acquisition of Land Act 1967 for the Western Corridor Recycled Water Scheme. The applicant referred his compensation claims to the Court on 24 August 2010 and 17 January 2012, respectively. Opalinski sought disclosure of documents held by both respondents, but the application only specifically sought documents from the Department of Transport and Main Roads.

The legal issues before the court were whether the applicant was entitled to the disclosure of documents from the Coordinator-General and the Chief Executive, Department of Transport and Main Roads. The applicant argued that the disclosure of documents was necessary to obtain expert advice and to prepare for the hearing of the compensation claims. The respondents argued that the documents were not relevant to the compensation claims, as the status of the Ipswich Motorway and access to the land were only relevant at the date of the resumption.

The court found that the application seeking disclosure from the Coordinator-General was dismissed, as there was no request for disclosure from this respondent. The court granted the application seeking disclosure from the Chief Executive, Department of Transport and Main Roads. The court considered that the material sought could potentially be relevant to the applicant's case and ordered the disclosure of documents within 28 days. The court reserved the decision on costs.

The final orders of the court were as follows: 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 for the disclosure of specific documents within 28 days, and 4) costs are reserved.

Orders