Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016

Case •

[2023] NSWLEC 62

•

09 June 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 [2023] NSWLEC 62
Hearing dates: 17 May 2023
Date of orders: 9 June 2023
Decision date: 09 June 2023
Jurisdiction:Class 4
Before: Preston CJ
Decision:

The Court orders:

(1) The proceedings are dismissed.

(2) The applicant is to pay the respondents’ costs of the proceedings.

Catchwords:

Judicial review – Aboriginal land claim – Minister’s decision to grant claim - claimable Crown lands - whether land claimed was lawfully used or occupied – land leased and subleased – whether sublessee’s use of land lawful – whether Minister misconstrued statutory provision or lease in deciding use not lawful – lessee’s submissions objecting to land claim – whether Minister owed lessee procedural fairness to consider submissions – whether Minister shown to have failed to do so

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW) ss 36(1), 36(5)

Cases Cited:

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7

City of Ryde Council v State of New South Wales (2019) 242 LGERA 211; [2019] NSWLEC 47

Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Plaintiff M1/2021 v Minister of Home Affairs (2022) 96 ALJR 497; [2022] HCA 17

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Ryde Municipal Council v Macquarie University (1978) 139 CLR 633; [1978] HCA 58

Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43

Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category:Principal judgment
Parties: Quarry Street Pty Ltd (Applicant)
Minister Administering the Crown Land Management Act 2016 (First Respondent)
La Perouse Local Aboriginal Land Council (Second Respondent)
New South Wales Aboriginal Land Council (Third Respondent)
Representation:

Counsel:
Mr C Lenehen SC and Ms R Graycar (Applicant)
Ms Z Heger and Ms C Akthar (First Respondent)
Mr M Wright SC (Second and Third Respondents)

Solicitors:
Sekel Grinberg Judd (Applicant)
Department of Planning and Environment (First Respondent)
Chalk & Behrendt (Second and third Respondents)
File Number(s): 2022/00135561

JUDGMENT

The nature of the proceedings and outcome

  1. The Minister for Planning and Public Spaces (Minister), with responsibility for administering the Aboriginal Land Rights Act 1983 (NSW) (ALR Act), determined on 10 December 2021 to approve in part Aboriginal Land Claim 42494 (the claim) in relation to Crown land in Lot 5 of Deposited Plan 1156846, known as Paddington Bowling Club (the land).

  2. The claim had been lodged by the New South Wales Aboriginal Land Council (NSWALC) in relation to Crown land in the La Perouse Local Aboriginal Land Council (LPLALC) area on 19 December 2016 under the ALR Act. At the date of the claim, the land was subject to Reserve 1024528 for community and sporting club facilities, and tourist facilities and services, as notified in Government Gazette dated 11 December 2009. There was no reserve trust or manager in place at the date of the claim.

  3. The land had been the subject of a Special Lease 1960/249 for recreation (bowling greens) and erection of buildings (club house), granted to Paddington Bowling Club Ltd, from 19 May 1962 until its expiry on 1 December 2010. The Special Lease was replaced by a new registered lease (Lease 431606) to Paddington Bowling Club Ltd from 1 December 2010 for a term of 50 years (Lease).

  4. On 30 December 2011, the Lease was assigned by Paddington Bowling Club Ltd to CSKS Holdings Pty Ltd (CSKS) pursuant to registered dealing number AG752604. The assignment of the Lease to CSKS was registered on title on 23 April 2012.

  5. Quarry Street Pty Ltd (Quarry Street) was incorporated under the Corporations Act2001 (Cth) on 29 November 2016, a few weeks before the claim was lodged. About 14 months later, the Lease was assigned by CSKS to Quarry Street, with the consent of the Crown by a Deed of Consent to Assignment of Lease dated 1 February 2018. The assignment of the Lease was registered on 24 April 2018.

  6. On 10 December 2021, the Minister determined that he was satisfied that the land was claimable Crown lands within the meaning of that term in s 36(1) of the ALR Act and accordingly, by dint of s 36(5) of the ALR Act, was required to grant the claim by transferring the land claimed to the claimant Aboriginal Land Council.

  7. On 8 March 2022, Quarry Street, being dissatisfied with the Minister’s determination that the land was claimable Crown land, commenced proceedings for judicial review of the Minister’s decision. The Minister Administering the Crown Land Management Act 2016 was the first respondent and LPLALC and NSWALC were the second and the third respondents respectively (collectively referred to as the Land Councils).

  8. Quarry Street sought and was granted by the Court leave to rely on a further amended summons dated 17 May 2023. In that summons, Quarry Street raised three grounds of review. The first ground concerned the part of the land on which two tennis courts and an associated shed and fencing are erected. CSKS had permitted the Wentworth Tennis Club to exclusively use and occupy the tennis courts. An issue was whether the Wentworth Tennis Club’s use and occupation of the tennis courts were lawful. The Minister decided that the use and occupation were not lawful. The first ground of review was whether the Minister, in making that decision, misconstrued or misapplied the phrase “are not lawfully used or occupied” in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act (the misconstruction ground).

  9. The second and third grounds of review concerned the balance of the land other than the tennis courts. While the claim was being investigated, Quarry Street made two submissions to the Minister objecting to the grant of the claim. One argument Quarry Street made in the second submission was that the Crown itself was lawfully using the claimed land for the purpose of leasing the land to CSKS and later to Quarry Street. The second ground was that, if the Minister did consider this argument but rejected it, he erred in law in finding that the Crown could never use the land for the purpose of leasing it (the use for leasing ground). The third ground was that, if the Minister did fail to consider this argument, he denied Quarry Street procedural fairness (the procedural fairness ground).

  10. I find that Quarry Street has not established any of these grounds of review and that the proceedings should be dismissed with costs.

The misconstruction ground

  1. Under s 36(5)(a) of the ALR Act, the Minister is required to grant a claim by transferring the land claimed if the Minister is satisfied that the land claimed is “claimable Crown lands”. That term is defined in s 36(1) of the ALR Act to mean Crown lands that have or do not have certain attributes when the claim is made:

“claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division—

(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,

(b) are not lawfully used or occupied,

(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,

(c) are not needed, nor likely to be needed, for an essential public purpose, and

(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and

(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).”

  1. The Minister determined that the land claimed had or did not have, as the case may be, each of these attributes, so that the land was claimable Crown land. Quarry Street did not challenge the Minister’s decision as to the attributes in the definition of “claimable Crown lands” except for that in paragraph (b), that the land is “not lawfully used or occupied”. Quarry Street contended that the Minister misconstrued the statutory phrase in deciding that the land was not lawfully used or occupied at the date of the claim.

  2. In making his decision on 10 December 2021, the Minister approved the recommendations in a Brief from the Aboriginal Land Claim Investigation Unit of the Department of Planning, Industry and Environment. Attachment B to the Brief contained an analysis of the facts relevant to the claimed land against the criteria in the definition of “claimable Crown lands” in s 36(1) of the ALR Act.

  3. In relation to the criterion in paragraph (b) of the definition of “claimable Crown lands”, that the land was not lawfully used or occupied, Attachment B stated that the evidence demonstrated that the land, excluding the tennis courts, was unoccupied at the date of the claim. The bowling greens and club house had not been used by Paddington Bowling Club after it had assigned the Lease to CSKS or by CSKS or Quarry Street after the respective assignments of the lease to them for recreation (bowling green) or club house. The only part of the land that was used was the rear of the land where the tennis courts are located. Attachment B referred to and tagged as Tag 12 evidence from the Wentworth Tennis Club that CSKS had rented the tennis courts to the Wentworth Tennis Club on or about 8 June 2015 and that the Wentworth Tennis Club had used the tennis courts since that time and paid rent to CSKS and, after the assignment of the lease of the land to Quarry Street, to Quarry Street. Attachment B summarised this evidence as follows:

“WTC advised that they have been using the Courts since June 2015 paying monthly rental of $3700+ GST to CSKS which continues with the current lessee. WTC had verbal agreements to ‘lease’ the land and assume all management responsibility of the area. The area is excluded from the bowling club and greens. WTC enjoyed exclusively use and management of the area and maintain the courts, undertake repairs, have the area insured, and occupy the land 7 days per week for tennis activities.” (at pg 15).

  1. Attachment B considered the use of the tennis courts was not “lawful” use or occupation of the land for the purpose of paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act. The reason given was that “CSKS had no lawful authority to enter into the arrangements to permit WTC use and occupation rights.” Clause 39(a) of the Lease from the Crown to CSKS provided:

“The Holder will not assign transfer demise sublease mortgage charge or otherwise deal with the Holders’ interest in this Lease or demise sublease or part with the possession of the Premises or by any act or deed procure any of the foregoing except with the consent in writing of the Lessor”.

  1. Attachment B stated that the arrangement granting the Wentworth Tennis Club exclusive use and management of the tennis courts constituted a parting with possession of the tennis courts. Under cl 39(a) of the Lease, this could only be done with the consent in writing of the Crown as lessor, which was not obtained. Attachment B stated:

“Whilst no evidence of a written arrangement [with WTC] was provided, it is arguable the parting of possession had occurred given the evidence provided by the Wentworth Tennis Club (WTC) (Tag 12).”

  1. Attachment B continued:

“Their [WTC’s] use and occupation is evidenced, however it is not considered ‘lawful’ as CSKS had no lawful authority to enter into the arrangement to permit WTC use and occupation rights”.

  1. Attachment B found that all the land except for the tennis courts “was not being used”, so as to satisfy the criterion in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act for that part of the land, and the part of the land comprising the tennis courts was being used, but such use “was not lawful”, so as also to satisfy the criterion in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act for that part of the land.

  2. Quarry Street challenged the finding that the Wentworth Tennis Club’s use and occupation of the tennis courts was not lawful in two ways. First, Quarry Street submitted that the finding in Attachment B that “CSKS had no lawful authority to enter into the arrangement to permit WTC use and occupation rights”, because of a failure to obtain consent in writing from the Crown as lessor contrary to cl 39(a) of the Lease, was inconsistent with a term of a later deed consenting to the transfer of the Lease from CSKS to Quarry Street. The Deed of Consent to Assignment of Lease (Deed) between the Minister administering the Crown Lands Act 1989 on behalf of the State of New South Wales (the Landlord), CSKS (the Tenant) and Quarry Street (the Assignor), dated 1 February 2018, contained a term, cl 2.2(c), in which “the Landlord covenants and agrees the Tenant was compliant with all its leaseholder obligations on and about 19 December 2016.”

  3. The date of 19 December 2016 was the date of the claim. Quarry Street contended that one of the Tenant’s leaseholder obligations was that under cl 39(a) of the Lease not to “demise sublease or part with possession of the Premises” except with the consent in writing of the Crown as lessor (Landlord). Quarry Street submitted that by cl 2.2(c) of the Deed, the Landlord had agreed that the Tenant was compliant with this leaseholder obligation in cl 39(a) of the Lease. Accordingly, Quarry Street argued, there is a “manifest inconsistency” between the Landlord’s agreement in cl 2.2(c) of the Deed and the finding in Attachment B.

  4. Quarry Street contended that the Minister, in approving the Brief on 10 December 2021, should be inferred to have adopted the finding in Attachment B that the Wentworth Tennis Club’s use and occupation of the tennis courts was not lawful, thus resulting in the alleged inconsistency between this finding and the Deed.

  5. Quarry Street’s first argument can be dismissed on the facts. Under s 36(1) and (5) of the ALR Act, the Minister’s satisfaction that land was claimable Crown land is to be at the time the claim was made. Here, this date is 19 December 2016. The Minister’s satisfaction must be formed on the evidence concerning the use and occupation of the land that existed at that date. That evidence was principally provided by the Wentworth Tennis Club. It was one way. CSKS had given the Wentworth Tennis Club exclusive use and management of the tennis courts since 8 June 2015 in consideration of which the Wentworth Tennis Club paid rent of $3,700.00 + GST per month to CSKS. This was the arrangement that applied at the date of the claim on 19 December 2016.

  6. It matters not that some fourteen months after this date, on 1 February 2018, the Crown might have agreed in the Deed of Consent to Assignment of Lease that CSKS had complied with all its obligations under the Lease. That was the Crown’s opinion at the time but it did not change the facts of what had occurred on and from 8 June 2015 and relevantly at the date of the claim of 19 December 2016.

  7. Quarry Street did not argue, and properly so, that the Minister was estopped by what had been agreed in the Deed dated 1 February 2018 from finding that the Wentworth Tennis Club’s use and occupation of the tennis courts as at 19 December 2016 were not lawful because the Crown had not consented in writing to CSKS parting with possession of the tennis courts to the Wentworth Tennis Club. That lack of consent to the parting with possession was the fact and the Minister could not be estopped from finding that fact by any statement potentially to the contrary in the Deed.

  8. Quarry Street’s second argument challenged the finding that the Wentworth Tennis Club’s use and occupation of the tennis courts were not lawful on the basis that the finding was affected by a misconstruction of cl 39(a) of the Lease. Quarry Street contended that the mere fact that CSKS had permitted the Wentworth Tennis Club to use and occupy the tennis courts did not establish that CSKS parted with possession of the part of the land on which the tennis courts were located when it permitted the Wentworth Tennis Club to use and occupy the tennis courts. Quarry Street argued that as possession is a legal concept, it should be inferred that the Minister, in adopting the reasoning in Attachment B, must have misconstrued that legal concept.

  9. I reject that second argument also on the facts. The question of whether there was a parting of possession by CSKS permitting the Wentworth Tennis Club to have exclusive use and management of the tennis courts is first and foremost a question of fact. True, there are legal criteria to determine whether a person is in possession of land in law. But the first question is whether a person is in possession of land in fact. Possession in fact involves a relationship between the person and the land. Possession in fact can be evidenced by physical control, including actual use or occupation of the land, and being able to exclude others from using or occupying the land.

  10. Here, the evidence of the Wentworth Tennis Club is that CSKS, as lessor, permitted the Wentworth Tennis Club to have exclusive use and management of the tennis courts in return for payment of an agreed amount of rent. The Wentworth Tennis Club described this as a form of “lease”, but it is more aptly described as a sublease. Quarry Street, in its first submission dated 7 March 2019 to the Minister, stated that its understanding of the arrangement between CSKS and Wentworth Tennis Club was that “as at 19 December 2016… part of lot 5 was sublet and in use as tennis courts”. The Wentworth Tennis Club in fact used and occupied the tennis courts from the date of the sublease of 8 June 2015 and continued to do so at the date of the claim of 19 December 2016 and in return paid the agreed rent. The Wentworth Tennis Club’s use and occupation was exclusive in that no other person could use or occupy the tennis courts, and the evidence was that in fact no other person, including CSKS, did use or occupy the tennis courts.

  11. Quarry Street submitted that CSKS, although it gave exclusive use and management of the tennis courts to the Wentworth Tennis Club, nevertheless would have retained power to inspect the tennis courts to ascertain the state of repair of the tennis courts and associated structures. Quarry Street did not point to any evidence of actual inspections by CSKS of the tennis courts, but it may be accepted that such inspections could potentially have been carried out from time to time.

  12. Attachment B to the Brief to the Minister considered this potentiality for inspections to be undertaken by CSKS but found that that any such inspections would be insufficient to establish occupation by CSKS (and hence possession). Attachment B stated:

“Whilst the lease [to CSKS] is legal possession, overall the occupation by the lessee is considered notional. Mere acts of proprietorship, the holding of the land in a static state for sale of the Lease with some transitory visits, and maintenance – which were reactive in nature to non-compliance actions by the Crown Lands – are insufficient to show lawful occupation”. (Attachment B footnoted as authority the Court of Appeal’s decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106).

  1. That was a finding of fact open on the evidence. On that factual finding, CSKS did not retain any possession of the tennis courts as at the date of the claim.

  2. Even if, however, CSKS could be seen still to be in possession in fact, that would not preclude the Wentworth Tennis Club also being in possession in fact - it would simply mean both are in possession in fact. CSKS would still have parted with possession by permitting the Wentworth Tennis Club to use and occupy the tennis courts, and hence also be in possession of the land. That would be sufficient to trigger the obligation in cl 39(a) of the Lease to obtain the consent in writing of the Crown to this parting of possession to the Wentworth Tennis Club.

  3. Either way, on the evidence, it was reasonably open to find, as Attachment B found, that CSKS had parted with possession of the land by granting the Wentworth Tennis Club exclusive use and management of the tennis courts. There was no error of law in making this finding of fact.

  4. As I have noted, Quarry Street submitted that the Minister should be inferred to have misconstrued the concept of possession in cl 39(a) of the Lease merely by reason of the fact that the Minister had approved the recommendations in the Brief that the land was not lawfully used or occupied and hence was claimable Crown land. Why that inference should be drawn from that fact was not explained. Quarry Street has not proven on the evidence what understanding, if any, the Minister had of the concepts of “possession” or “to part with the possession” of land, as these terms are used in cl 39(a) of the Lease, so as to establish that the Minister misconstrued those terms.

  5. Attachment B did not construe, let alone misconstrue, those terms in cl 39(a) of the Lease, merely finding as a fact on the evidence that the Wentworth Tennis Club had been given by CSKS, and had exercised, exclusive use and management of the tennis courts. On that evidence, Attachment B found “it is arguable that the parting of possession had occurred”. Thus, Attachment B provides no evidence to support drawing an inference that the author of that attachment misconstrued the terms in cl 39(a) of the Lease. The Minister’s adoption of Attachment B, if that occurred, therefore cannot be affected by a misconstruction in Attachment B. There is no other evidence establishing that the Minister misconstrued the terms used in cl 39(a) of the Lease.

  6. Quarry Street did not maintain at the hearing the submission it had made in its written submission that the Minister has misconstrued the concept of “lawful” use and occupation in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act. The only submission Quarry Street made was that the Minister’s finding that the land was not lawfully used or occupied was affected by his misconstruction of cl 39(a) of the Lease. That submission is not made out for the reasons I have given.

  7. This finding that Quarry Street has not established that the Minister misconstrued cl 39(a) of the Lease, and hence the concept of lawful use and occupation of land in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act, makes it unnecessary to address the Minister’s submission that, even if the Minister had misconstrued cl 39(a) of the Lease, such an error would not be a jurisdictional error. The Minister relied on the High Court’s decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 (Probuild). The Minister submitted that any error in construction of cl 39(a) of the Lease would be a non-jurisdictional error. Similar to the situation in Probuild, the Minister submitted that the Minister had authority under s 36(1) and (5)(a) of the ALR Act to make a determination of whether the land was claimable Crown land based on the Minister’s interpretation of the Lease, irrespective of whether that interpretation be right or wrong in law: see Probuild at [81]. As I have found that Quarry Street has not established that the Minister did err in interpreting cl 39(a) of the Lease or paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act, there is no need to determine whether any error, if error be established, was jurisdictional or non-jurisdictional.

The use for leasing ground

  1. As part of the investigation of the claim, the Department’s Aboriginal Land Claim Investigation Unit requested, by letter dated 28 November 2018, Quarry Street to provide any information it wished to provide about the use and occupation of the land. Quarry Street, by letter dated 7 March 2019 from its then lawyers, Matthews Solicitors, addressed the use and occupation of the land by CSKS and the Wentworth Tennis Club. This was the first submission Quarry Street made to the Minister. The letter stated that “part of Lot 5 was sublet and in use as tennis courts, and the remainder of Lot 5 was being maintained and prepared for sale by CSKS”. The letter concluded by saying that the sole director and secretary of CSKS, Mr Christian Sanchez, had made inquiries when Quarry Street acquired its interest in the land by the assignment of the Lease from CSKS on 1 February 2018 about CSKS’s use and occupation of the land in 2016. Mr Sanchez confirmed his understanding that the land “was indeed lawfully used and occupied at all material times and that CSKS had complied with all of the conditions of the 2010 Lease.”

  2. Quarry Street’s second submission, in a letter dated 4 August 2020 from Quarry Street’s then lawyers, Murdoch Clarke, responded to the email of the Department’s Aboriginal Land Claims Investigation Unit dated 11 March 2020 requesting further information. The second submission advanced a different argument about who was using and occupying the land. The first submission had argued that the land was being used and occupied by CSKS and that the tennis courts were sublet and used by the Wentworth Tennis Club. The second submission argued instead that the Crown was lawfully using the land for the purpose of leasing it to CSKS. The second submission noted that at the date of the claim of 19 December 2016 the Crown had leased the land to CSKS. The submission argued that the Crown “was therefore, lawfully using the Claimed Land for the purpose of leasing it, at that time, to CSKS pursuant to the 2010 Lease.” The submission relied upon the dicta of Gibbs ACJ in Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 at 638; [1978] HCA 58:

“A person who owns land may be said to use it for his own purposes notwithstanding that he permits someone else to occupy it, even under a lease. That it almost beyond argument when the owner’s purpose is to acquire income. In the ordinarily accepted meaning of the word a building is “used” for the purpose of acquiring income if rents are derived from it, and an owner of premises who leases them is making use of those premises by employing or applying them for the purpose of letting.”

  1. The submission noted that as at the date of the claim, the Crown had leased the claimed land to CSKS in return for rental income of almost $90,000.00 per annum. It followed, the submission argued, that the claimed land was lawfully used by the Crown for the purpose of leasing it to CSKS.

  2. The submission stated that this was now the argument of Quarry Street as to who was using the land. Nevertheless, the submission advanced, in the alternative, the argument that it had made in the first submission, that the claimed land was being occupied by each of CSKS and the Wentworth Tennis Club as at the date of the claim.

  3. Quarry Street contended that Attachment B to the Brief to the Minister only dealt with the argument in the first submission that the land was being used and occupied by CSKS and Wentworth Tennis Club and not the argument in the second submission that the land was being used by the Crown for the purpose of leasing it to CSKS. Quarry Street argued that, in so far as the Minister adopted Attachment B as his reasons for his decision that the land was not lawfully used or occupied at the date of the claim, he also failed to consider the argument in the second submission that the Crown was lawfully using the land for the purpose of leasing it to CSKS.

  4. Quarry Street offered two explanations for the Minister’s failure to consider the second submission. First, “the Minister may have proceeded on the basis that acts, facts and circumstances surrounding the lease of land by the Crown could not constitute a relevant “use” for the purposes of s 36(1)(b) of the ALR Act” (paragraph 17.1 of the applicant’s written submissions). This was Quarry Street’s second ground of review. Alternatively, “it may be that the Minister simply overlooked that aspect of the applicant’s submission” (paragraph 17.2 of the applicant’s written submissions). This was Quarry Street’s third ground of review.

  5. The second ground of review only arises if, as matter of fact, the Minister is proven to have considered, but rejected, the submission that the Crown, by leasing the land to CSKS in return for rent, was using the land for the purpose of leasing it. If that fact be established, Quarry Street’s second ground was that the Minister erred in law in rejecting that argument. Quarry Street sought to establish that the concept of lawful use in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act could extend to a use of Crown land by the Crown as a lessor of that land for the purpose of leasing the land. Quarry Street relied not only on the dicta of Gibbs ACJ in Ryde Municipal Council v Macquarie University, but also on the decision of the High Court in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15.

  6. To establish the second ground, Quarry Street must establish not only that the Minister did consider the argument advanced in Quarry Street’s second submission but also that the Minister rejected that argument as a matter of law and not just on the facts. I find that the Quarry Street has not established either proposition.

  7. As to the first proposition, both of Quarry Street’s submissions were expressly referred to and attached to the Brief to the Minister. The Minister approved the recommendations on, and signed and dated, page 2 of the Brief. The Minister initialled page 3 of the Brief listing the attachments, including not only Attachment B, but also attachment “Tag 8”, “Lessee response via Matthews Solicitors” (Quarry Street’s first submission) and attachment “Tag 9”, “Additional lessee response via Murdoch Clarke Lawyers” (Quarry Street’s second submission). Attachment B expressly referred to Quarry Street’s two submissions: “The subsequent assigned lessee, Quarry Street Pty Ltd, assert the land was lawfully used and occupied at the date of claim (Tags 8 and 9). Tags 8 and 9 are Quarry Street’s first and second submissions respectively.

  8. In these circumstances, it is appropriate to infer that the Minister read and considered both the Brief and all the attachments to the Brief. Such an inference is consistent with the purpose and practice of briefing notes. As Mortimer J (as she then was) stated in Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43 at [74]:

“As a general principle, I consider it reliable and appropriate to infer, consistently with the purpose and practice of ministerial Briefing notes, that a Minister reads a Briefing note with which she or he is provided, where that Briefing note is intended to provide the Minister with sufficient information to make a decision about whether or how to exercise a statutory power. Sometimes there may be evidence which assists the drawing of such an inference, such as handwriting, or marks such as circles or underlining, by the Minister on the contents of a Briefing note itself. Such evidence is not necessary for the inference to be available and drawn, but it may be persuasive.” See also City of Ryde Council v State of New South Wales (2019) 242 LGERA 211; [2019] NSWLEC 47 at [107].

  1. Here, there is evidence supporting drawing that inference. The Minister circled the word “Approved” and signed and dated the Brief on page 2 as well as initialled page 3 containing the list of attachments. The attachments were physically attached to the Brief and tagged. For this reason, I reject Quarry Street’s argument that it should be inferred that the Minister did not consider the attachments to the Brief, including Quarry Street’s second submission that was attachment Tag 9.

  2. As to the second proposition, Quarry Street did not adduce any evidence of what was the Minister’s view of the argument in Quarry Street’s second submission. Quarry Street submitted that the Minister must be inferred, from the decision he made, to have rejected that argument. That is one possibility but it is not the only inference that can be drawn from the Minister’s decision.

  3. But even if the Minister were to be taken to have not accepted the argument in the second submission, that fact is not informative of any reason why the Minister did not accept the argument. The Minister may not have accepted the argument simply as a matter of fact. Quarry Street had argued in both of its submissions that the Crown had inspected the land, on at least two occasions, one in October 2015 and another in May 2016, in regard to CSKS’s obligations under the Lease to maintain the grounds. CSKS also had conducted some inspections in response to the Crown’s allegations that it was breaching the Lease’s conditions. Attachment B addressed CSKS’s inspections of the land, describing them as “some transitory visits”, which were “insufficient to show lawful occupation”. It is unknown whether the Minister likewise viewed the two inspections of the land by the Crown to be insufficient to show lawful occupation by the Crown. Or the Minister could have made some other factual finding. The point is that Quarry Street has not shown that the Minister’s decision that the land was not lawfully used or occupied was not simply a factual one.

  4. Certainly, however, it cannot be said that the only available inference that should be drawn from the Minister’s decision is that the Minister found as matter of law that the action of the Crown in leasing the land to CSKS could never constitute a relevant use for the purpose of paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act. Put another way, it cannot be said that the decision the Minister reached, after a full consideration of the material that was before him, is capable of explanation only on the ground of misconception or misconstruction of what can constitute lawful use of land for the purpose of paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; [1949] HCA 26.

  5. In these circumstances, it is unnecessary to decide whether Quarry Street’s argument that the Crown was using the land for the purpose of leasing it to CSKS could be a lawful use for the purpose of paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act. That issue does not arise.

The procedural fairness ground

  1. Quarry Street contended in the alternative that if the Minister did not consider Quarry Street’s second submission, that non-consideration denied Quarry Street procedural fairness. Quarry Street argued that in the circumstances, the Minister owed Quarry Street a duty of procedural fairness for two reasons.

  2. First, the powers of the Minister under s 36(1) and (5) of the ALR Act to decide whether the land is claimable Crown land, in which event the Minster would be obliged to grant the claim by transferring the claimed land, are apt to “destroy, defeat or prejudice” Quarry Street’s leasehold interest in the land. In this circumstance, the rules of procedural fairness regulate the exercise of these powers unless they are excluded by plain words of necessary intendment: Annetts v McCann (1990) 170 CLR 596 at [598]; [1990] HCA 57. Quarry Street submitted that there are no plain words of necessary intendment in s 36 or any other section of the ALR Act to indicate that the powers in s 36 can be exercised by the Minister without according procedural fairness to a person in Quarry Street’s position.

  3. Second, Quarry Street noted that the Crown had invited Quarry Street to make submissions providing information on the use and occupation of the land. In responding to these invitations, Quarry Street made two submissions. The Minister was under a duty to consider the submissions in making his decisions under s 36(1) and (5) of the ALR Act.

  4. Quarry Street contended that, by failing to consider Quarry Street’s second submission, the Minister failed to give Quarry Street procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24], [95] and Plaintiff M1/2021 v Minister of Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [24]-[27].

  5. This third ground encounters the same factual obstacle as the second ground. Let it be assumed (without deciding) that the Minister owed Quarry Street a duty of procedural fairness to consider the submissions it had made in response to the Crown’s invitation to provide information on the use and occupation of the land, in the exercise of the Minister’s powers under s 36(1) and (5) of the ALR Act. Quarry Street needs to establish that the Minister failed to consider its second submission. It has not done so.

  6. As I have previously found, the Brief to the Minister listed the attachments to the Brief and these attachments were tagged. Attachment Tag 8 was Quarry Street’s first submission and attachment Tag 9 was Quarry Street’s second submission. Both of Quarry Street’s submissions were therefore physically before the Minister when he exercised his powers under s 36(1) and (5) of the ALR Act. In approving the recommendations in the Brief, the Minister signed and dated his approval on page 2 of the Brief as well as initialled the subsequent page that listed the attachments, including both of Quarry Street’s submissions, which were attachments Tag 8 and Tag 9. In addition, Attachment B expressly referred to attachment Tag 8, Quarry Street’s first submission, and attachment Tag 9, Quarry Street’s second submission. As I have found earlier, it is appropriate to infer, there being no evidence to the contrary, that the Minister not only considered the Brief but also all the attachments to the Brief, including Attachment B and attachments Tag 8 and Tag 9, which were Quarry Street’s submissions.

  7. In this circumstance, the fact that Attachment B did not discuss the content of the second submission as it did for the first submission is equivocal. Attachment B cannot be considered to record any of the Minister’s reasons, let alone the whole of his reasoning, for making the decision that the land was not lawfully used or occupied. There is neither a statutory requirement for the Minister to provide reasons for his decision under s 36(1) or (5) of the ALR Act nor a requirement at common law to give reasons for administrative decisions: Board of New South Wales v Osmond (1986) 159 CLR 656 at 662, 670, 671, 675, 677, 678, and Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43]. Even if the Minister considered Attachment B and made a decision to approve the recommendations in the Brief that was consistent with what was discussed in Attachment B, that does not transmute Attachment B to be a statement of the Minister’s reasons.

  8. The Minister is to be inferred to have read Attachment B, but it is unknown what his view was as to what was said in Attachment B. He may have agreed with what was said there, but he may also have taken into consideration what was said in the other attachments to the Brief to which he was referred, including Quarry Street’s second submission. It cannot be inferred from the fact that Attachment B merely referred to, but it did not discuss in detail, Quarry Street’s second submission that the Minister did not consider that submission. What view the Minister took on any argument in that submission is unknown.

  1. In these circumstances, the third ground of challenge fails because Quarry Street has not established that the Minister, as a matter of fact, failed to consider Quarry Street’s second submission and hence that the Minister denied Quarry Street procedural fairness.

  2. In light of this finding, it is unnecessary to consider the Land Councils’ submission that any denial of procedural fairness by failing to consider the argument in Quarry’s Street second submission was not material and would not justify setting aside the Minister’s decision. The Land Councils submitted, consistent with the Minister’s submission, that the argument advanced in Quarry Street’s second submission that the Crown was lawfully using the land for the purpose of leasing it was contrary to established principle and the meaning of the terms in paragraph (b) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act. In light of the above, it is not necessary to decide this submission.

Conclusion and orders

  1. Quarry Street has not established any of its three grounds of review. The proceedings should be dismissed.

  2. The usual order for costs in judicial review proceedings is that costs follow the event. Quarry Street did not submit that any other costs order should be made if it were to be unsuccessful.

  3. The Court orders:

  1. The proceedings are dismissed.

  2. The applicant is to pay the respondents’ costs of the proceedings.

**********

Decision last updated: 09 June 2023

Most Recent Citation
Cases Cited

19

Statutory Material Cited

1

Annetts v McCann [1990] HCA 57
Italiano v Carbone [2005] NSWCA 177
Annetts v McCann [1990] HCA 57