Pajares v State of Queensland
[2004] QLAC 60
•20 July 2004
LAND APPEAL COURT OF QUEENSLAND
CITATION: Pajares v State of Queensland [2004] QLAC 0060 PARTIES: Luis James Pajares
(applicant)v. The State
(respondent)FILE NO: LAC2003/0473 DIVISION: Land Appeal Court of Queensland PROCEEDING: An appeal against the failure to award interest on compensation and to grant extensions of time for the making of claims for compensation regarding Interim Conservation Orders made under the Nature Conservation Act 1992 ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 20 July 2004 DELIVERED AT: Brisbane HEARD AT: Cairns JUDGE:
MEMBERS:Justice Jones
Mr RE Wenck
Mr RP ScottORDERS: 1. The appeal against the refusal of the Land Court to grant extensions of time for the making of claims for compensation regarding Interim Conservation Orders made on 17 December 1997 and 3 September 1999 is dismissed.
2. The appeal against the failure of the Land Court to award interest on compensation is allowed.
3. The respondent is to pay to the applicant with respect to the Interim Conservation Order made on 9 November 1998 interest at the rate of 5.75% per annum on compensation to be calculated from 23 January 1999 up to and including the day before the date of payment of compensation but in any event not beyond the date of this judgment.
4. The respondent is to pay to the applicant with respect to Interim Conservation Order made on 9 April 1999 interest at the rate of 5.75% per annum on compensation to be calculated from 23 June 1999 up to and including the day before the date of payment of compensation but in any event not beyond the date of this judgment.
CATCHWORDS: Nature Conservation Act - Interim Conservation Orders - Late lodgement of claims for compensation - Extension of time if special circumstances demonstrated - Extension not allowed
Interest - No provision for in Nature Conservation Act or Land Court Act - Provided for in s.47(1) Supreme Court Act - Interest ordered
APPEARANCES: Mr C Hughes SC with him Mr RM Needham, for the applicant
Mr D Gore QC with him Mr RS Jones, for the respondentSOLICITORS: Suthers Taylor for the applicant
Crown Solicitor for the respondent
In reasons published on 23 June 2003 the learned President of the Land Court determined both compensation with respect to each of two Interim Conservation Orders (IC0s) made over the applicant's land and refused applications to extend the time for making claim for compensation with respect to two other ICOs. The applicant has appealed to this Court against those decisions.
Part 6 of the Nature Conservation Act 1992 (the Act) deals with ICOs. Section 102 provides for the issue of an ICO in circumstances where the Minister is of the opinion that rare or threatened wildlife, or the critical habitat of protected wildlife or an area of major interest or a protected area is subject to a threatening process that is likely to have significant effect on the wildlife, habitat or area.
An ICO provides for the conservation or protection of wildlife or an area. This may be effected by the ICO providing for the prohibition or control of a specified threatening process (s.103).
An ICO may be made with respect to land, even though the wildlife or habitat is not within the land or the land is not within an area of major interest or a protected area (s.103).
Section 104 provides that a notice of an ICO must be given to all landholders of land to which the order relates, amongst others. The notice must advise that the ICO has been made and the terms of the order.
Pursuant to s.105(1) an ICO has effect from the time it is made and for a period not more than 60 days from that time unless under s.105(2) the ICO has been extended by a period of not more than 90 days by the Governor in Council
Compensation is payable to a landholder in accordance with s.108:
"Compensation
108.(1) A land-holder of land subject to an interim conservation order is entitled to be paid by the State such reasonable compensation because of the making of the order as is agreed between the State and the land-holder or, failing agreement, as is determined by the Land Court.
(2) A claim for compensation must -
(a) be made in a form approved by the chief executive; and
(b)be made to the chief executive within 6 months after the making of the order or the longer period the chief executive or the Land Court in special circumstances allows."
A total of five ICOs were made against land owned by the applicant, only four of which are presently of relevance: the third and fourth in respect to the matter of compensation and the second and the fifth with respect to the extension of time to claim compensation.
One ICO was made on 17 December 1997 (the second ICO) and a claim for compensation was lodged on 4 May 1999, that is more than 16 months outside the time limit provided for in s.108(2)(b). Another ICO was made on 3 September 1999 (the fifth ICO) and was the subject of a claim for compensation made on 14 November 2001, that is greater than 26 months after the conclusion of the statutory time period.
The applicant sought an extension of time under s.108(2)(b) for the lodgement of claims for compensation with respect to these two ICOs, however that application was refused by the learned President. The applicant appeals against that refusal.
The remaining two ICOs were made on 9 November 1998 and 9 April 1999, respectively and were the subject of claims for compensation made within the prescribed six-month timeframe. The learned President determined compensation in the amount of $10,000 for each of these ICOs, but did not make any award for interest.
Before us the applicant did not challenge the appropriateness of the decision at first instance with respect to the quantum of compensation for each claim, but submitted that interest ought to be awarded on compensation not yet paid. The applicant also submits that if an extension of time is granted with respect to the time for the making of claims concerning the second and fifth ICOs then $10,000 compensation in respect of each ought to be allowed, together with interest.
The grounds of appeal originally numbered seven, however five of these only were pursued before us:
"1. The Learned President erred in failing to extend the time for the making of the claim for compensation in respect of the second interim conservation order (hereinafter 'ICO') dated on 17 December 1997 as special circumstances plainly existed, namely:
(a)negotiations had taken place between the claimant and relevant officers of the respondent prior to the issue of this second ICO;
(b)an agreement was negotiated with the then responsible Minister for the Environment, Mr Brian Littleproud, which was signed by both the claimant and that Minister and dated 3 March 1998 ie well within the 6 month period;
(c)the respondent acted reprehensively in failing to honour the agreement reached between the claimant and the then responsible Minister in circumstances where there was clear evidence that such an agreement had been reached and where an officer of the respondent (Mr Peter Morrison) had acted upon the agreement by entering into the claimant's land and 'pegging out' the agreed area of resumption;
(d)the claimant had no reason to believe (and none was advanced) that the respondent would not ultimately honour his agreement with the then Minister;
(e)as the Learned President found, the ICO had severe consequences upon the claimant's livelihood as it stopped him clearing land for his farming purposes; and
(f)the claimant had, at relevant times, engaged solicitors whose failure to attend to the timely lodgement of the claim for compensation and its consequences should not be visited upon the claimant.
2. The Learned President erred in failing to assess appropriate compensation in respect of the second ICO dated 17 December 1997 notwithstanding his failure to grant an extension of time for the claim;
3. The Learned President erred in failing to extend the time for the making of a claim for compensation in respect of the fifth ICO dated 3 September 1999 where special circumstances existed, namely:
(a)those circumstances particularised in paragraph 1 above; and
(b)that fact that this ICO was overtaken by a more dramatic event, namely the resumption of the land, which occurred well within the 6 month period.
4. The Learned President erred in failing to assess compensation in respect of the fifth ICO dated 3 September 1999 notwithstanding his failure to grant an extension of the period in which the claim could be made.
6. The Learned President erred in failing to allow interest on the reasonable compensation granted, when interest necessarily forms part of such reasonable compensation.
Extension of Time
The agreement mentioned in Ground 1(b) above was for the acquisition by the State of approximately 650 ha of the applicant's land. Notwithstanding that agreement, a Notice of Intention to Resume an area of about 1,240.7 ha of the applicant's land was issued by the State on 28 May 1999 under the provisions of the Acquisition of Land Act 1967. That area was later adjusted to 1,248 ha which was taken for National Park purposes by a notice published in the Government Gazette on 19 November 1999.
The applicant contends that the creation of the agreement between him and the Minister on 3 March 1998 during the six-month period following the making of the second ICO amounts to a "special circumstance" under s.108(2)(b) of the Act. With respect to the fifth ICO the applicant's submission is that the resumption constitutes a "special circumstance", though it appears from para [21] of the learned President's reasons that the applicant offered no explanation for the delay in making that claim.
The only issue for our consideration with respect to grounds of appeal 1 and 3 is whether the facts relied upon by the applicant amount to "special circumstances" in terms of s.108(2)(b) of the Act.
In Crabtree v Hinchcliffe [1971] AC 707, a case concerning capital gains tax, special circumstances were held to be those that were "unusual or uncommon - perhaps the nearest word to it in this context is 'abnormal'" (per Lord Justice Reid at p.731). Viscount Dilhorne at p.739 said, "For circumstances to be special must be exceptional, abnormal or unusual …".
In United Mexican States v Cabal (2001) 209 CLR 165 at p.191 [61] (a bail case) the High Court employed the word "extraordinary" as a synonym to "special". Special was accepted as being the equivalent of unusual, uncommon, exceptional or out of the ordinary by Todd DP in Re Hoskin (1990) 22 ALD 510 at p.511.
It may be useful to contrast a discretion of the type found in s.108(2)(b) with a broader discretion not qualified by the need to find special circumstances. In Jackamarra v Krakouer [1998] 195 CLR 516 Kirby J provided such a contrast in his reasons at pp.539-540:
"The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that 'special reasons' or 'special circumstances' be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application." (footnote deleted)
An example of a discretion conferred in unlimited terms may be found in s.878(3) of the Water Act 2000:
"878 Starting an appeal
(1) An appeal is started by -
(a) filing a notice of appeal with the court; and
(b) complying with rules of court applicable to the appeal.(2) The notice of appeal must be filed within 30 business days after the day the appellant receives notice of the decision or the decision is taken to have been made.
(3) The court may extend the period for filing the notice of appeal."
We note that s.108(2)(b) is not confined to the identification of circumstances that are special and that must be the cause or a substantial cause of the delay in making the claim for compensation. That may be contrasted with such a provision as s.57(1) of the Valuation of Land Act 1944 which provides:
"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated.
Example of reasonable excuse —
The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post."
The discretion given to the Court under s.108(2)(b) is therefore a discretion that is not as restricted as that provided in s.57(1) of the Valuation of Land Act but not as broad as one "conferred in unlimited terms" such as is found in s.878(3) of the Water Act 2000. The discretion may be exercised in our view, however, only where the special circumstances have such nexus with the relevant ICO or the claim for compensation that an extension of time is warranted.
In Beadle v Director-General of Social Security (1985) 60 ALR 225 the Full Court of the Federal Court was concerned with appeals from the Administrative Appeals Tribunal under the Social Security Act 1947. The issue before the Court was concerned with the proper construction of s.102 of that Act which provides:
"102.(1) Subject to sub-section (2), a family allowance granted to a person (other than an institution) shall be payable -
(a)if a claim is lodged within 6 months after the date on which the special circumstances, within such longer period as the Director-General allows - from the commencement of the next family allowance period after that date; or
(b)in any other case- from the commencement of the next family allowance period after the date on which the claim for family allowance is lodged."
The question arose firstly as to what was meant by "special circumstances" and secondly if special circumstances did exist did the Director-General have a residual discretion to allow or refuse the extension.
At 228 Their Honours said:
"The legislature has indicated that six months latitude is sufficient in the normal case. The Director-General has power to fix a longer period in special circumstances. Presumably in this context special circumstances must include events which would render the six months unfair or inappropriate. For example, where the delay beyond six months was due to the claimant's being misled by a departmental officer or was due to the negligence of a third party it might be thought the normal six months would be inappropriate; that special circumstances had been shown which warranted a longer period. More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules."
One significant aspect in determining whether "special circumstances" exist is the length of the delay. In Beadle the Court observed that "in the case of lengthy delay weighty facts would be required to establish special circumstances". Here (as in Beadle) the legislature has indicated six months latitude is the norm.
The second question goes to the nature of the discretion. In Beadle, the Full Court expressed its opinion in the following terms:-
"The next question is whether the Director-General, where special circumstances are shown to exist, has a residual discretion to allow or to refuse to allow the longer period to bring the claim within time so that s 102(1)(a) applies. In our opinion s 102(2)(a) confers the power upon the Director-General to fix a longer period than six months “in special circumstances”. The existence of special circumstances is a precondition to the power arising. But once special circumstances are found to exist the power must, not may, be exercised. [emphasis added]…
Indeed, in our view, [Director-General] has no residual discretion in relation to the exercise of the power once the pre-condition for its exercise laid down by the section has been fulfilled."
This approach has been considered with approval in the later of decisions of the Full Court of the Federal Court and in particular in Haidar v Secretary, Department of Social Security;Groth Charity v Secretary, Department of Social Security; and Secretary, Department of Social Security v Smith (1998) 157 ALR 359/367; (1995) 40 ALD 541/545; (1991) 30 FCR 56. We think that this reasoning applies equally to s.108(2)(b) of the Nature Conservation Act.
There can be little doubt that the agreement with the Minister of 3 March 1998 and the resumption of the applicant's land were unusual events. The delays however are lengthy – 17 months and 26 months respectively. There is no suggestion, however, in submissions or in the evidence that either of the events was instrumental in the delay in making the claims for compensation in the case of the two relevant ICOs, nor that either of these events otherwise render enforcement of the normal six months' period as being unfair or inappropriate.
It follows that the applicant has not convinced us that there are special circumstances that should lead us to grant an extension of time under s.108(2)(b) in the case of the two relevant ICOs.
Interest
Interest on compensation was not awarded at first instance, nor were we taken to any part of the record in which the applicant sought such an award. Nevertheless, the applicant bases its appeal on the proposition that "reasonable compensation" under s.108(1) would inevitably include interest on unpaid compensation moneys.
No express provision can be found in the Nature Conservation Act authorising the payment of interest, nor is there a general provision as to interest in the Land Court Act 2000. The Supreme Court Act 1995 provides, however, in s.47(1):
" 47(1) In any proceedings in respect of a cause of action that arises after the commencement of the Common Law Practice Act Amendment Act 1972 in a court of record for recovery of money (including proceedings for debt, damages or the value of goods) the court may order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgment."
The Land Court is a court of record (s.4(2)) Land Court Act). In Lubrano v Brisbane City Council [1995] QPELR 81 Quirk DCJ had to consider whether s.72(1) of the Common Law Practice Act, expressed in similar terms to s.47(1) of the Supreme Court Act, applied to an application for compensation for injurious affection under s.23 of the City of Brisbane Town Planning Act. His Honour, whose reasoning is at pp.85-86, found that it did apply. We need not detail that reasoning here. We simply say that it applies equally to the situation before us in that these proceedings comprise the prosecution of a cause of action for the recovery of money.
We notice that Rule 159 of the Uniform Civil Procedure Rules 1999 provides for the provision of particulars where a party intends to apply for an award of interest whether under s.47 or otherwise. Rule 4(1) of the Land Court Rules 2000 provides:
" 4.(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the 'uniform rules' would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2) For subrule (1), an originating application under these rules is to be treated as if it were a claim under the uniform rules."
However, Rule 6 says:
" 6. The court may waive compliance with a rule, or excuse non-compliance with a rule, if the court considers compliance would be likely to cause injustice or unreasonable expense or inconvenience."
We think that the award of interest in this Court is so much a part of the determination of just compensation that complete compliance with Rule 159 of the Uniform Civil Procedure Rules is not required. Certainly, the respondent did not complain about any failure in the provision of particulars.
Whilst s.47(1) provides for a terminating date for the payment of interest being the date of judgment, it allows the adoption of the date when the cause of action arose or some later date as the commencement point. Our reading of s.108(2)(b) of the Nature Conservation Act is that the cause of action arises on the making of the ICO.
The applicant submitted that interest should run from the midpoint of the period of each ICO. We understand that submission to have been based on the fact that the learned President determined nominal compensation as he found (at [39]) that he did not have details of the monetary loss suffered by the applicant resulting from the making of the ICOs.
We accept that submission, though in so doing point out that there may be cases in which interest ought to run from some other date.
The third ICO issued on 9 November 1998 for a period of 60 days. It was extended for a further 90 days. The midpoint we calculate as being 23 January 1999. The fourth ICO issued on 9 April 1999 for a period of 60 days, however was extended for a further 90 days. We calculate the midpoint as falling on 23 June 1999.
The rate of interest ought, in our view, be based on the level that would be awarded in the case of a resumption of land at the same relevant dates. That rate for each of the ICOs under consideration is 5.75% per annum.
In order to give effect to the above conclusions, we make the following orders:
1.The appeal against the refusal of the Land Court to grant extensions of time for the making of claims for compensation regarding Interim Conservation Orders made on 17 December 1997 and 3 September 1999 is dismissed.
2.The appeal against the failure of the Land Court to award interest on compensation is allowed.
3.The respondent is to pay to the applicant with respect to the Interim Conservation Order made on 9 November 1998 interest at the rate of 5.75% per annum on compensation to be calculated from 23 January 1999 up to and including the day before the date of payment of compensation but in any event not beyond the date of this judgment.
4.The respondent is to pay to the applicant with respect to Interim Conservation Order made on 9 April 1999 interest at the rate of 5.75% per annum on compensation to be calculated from 23 June 1999 up to and including the day before the date of payment of compensation but in any event not beyond the date of this judgment.
JUSTICE OF THE SUPREME COURT
MEMBER OF THE LAND COURT
MEMBER OF THE LAND COURT
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