R v Lewis - [2006] QCA 426

SUPREME COURT OF QUEENSLAND

CITATION:

Module2 P/L v Brisbane CC [2006] QCA 226

PARTIES:

MODULE2 PTY LTD ACN 010 936 553
(applicant/appellant)
v
BRISBANE CITY COUNCIL
(respondent/respondent)

FILE NO/S:

Appeal No 3732 of 2006
SC No 10851 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

19 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2006

JUDGES:

Williams JA, Keane JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed with costs

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the appellant is the registered owner of land currently used for sport and recreation purposes – the respondent gave notice to the appellant pursuant to s 7 of the Acquisition of Land Act 1967 (Qld) of its intention to resume the land – whether an error in the notices of intention to resume invalidated those notices – whether the land was being resumed for an improper purpose

Acquisition of Land Act 1967 (Qld), s 5(1)(b), s 7, s 10(1)
Judicial Review Act 1991 (Qld), s 20

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied

COUNSEL:

K S Howe for the applicant/appellant
R G Bain QC, with M A Williamson, for the respondent

SOLICITORS:

Colwell Wright for the applicant/appellant
Brisbane City Council Legal Practice for the respondent

WILLIAMS JA:

(1)At first instance the appellant sought a statutory order of review pursuant to section 20 of the Judicial Review Act 1991 of the decision made by the respondent on 29 November 2005 under section 10(1) of the Acquisition of Land Act 1967, ("the Act"). The Court is concerned with the provisions of the Act as they applied as at 29 November 2005. The application was dismissed and the appellant now appeals to this Court.

(2)Section 5(1)(b) of the Act provides that a local government may take land under the Act for any purpose set out in the Schedule which the local government may lawfully carry out. The Schedule to the Act sets out numerous purposes for which land may be taken under and subject to the Act. Included in those purposes are "parks" and "recreation grounds". It is clear from a reading of the Schedule that each stated purpose is not mutually exclusive and a proposed user of the land may well fall under a number of the purposes stated therein. It is clear, however, that before a local government can lawfully take land under the Act, the proposed use of the land would have to be covered by at least one of the purposes stated in the Schedule. It should also be noted that section 5(2) provides that the power to take land for a purpose stated in the Schedule includes power to take land "for any purpose incidental to the carrying out" of that purpose.

(3)Section 7 then…

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.

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Details

Case: [2006] QCA 426
Decision Date: 19 July 2006

CaseChat Overview and Summary

The case of R v Lewis involved the appellant, who was the registered owner of land used for sport and recreation, and the respondent, who notified the appellant of an intention to resume the land under section 7 of the Acquisition of Land Act 1967 (Qld). The appellant challenged the resumption, arguing that errors in the notices of intention to resume invalidated those notices and that the land was being resumed for an improper purpose. The court was required to determine whether these grounds provided a basis for judicial review of the respondent's decision.

The court examined whether the notices of intention to resume were invalid due to errors and if the resumption was for an improper purpose. The appellant argued that the notices did not comply with statutory requirements, which, if true, would invalidate the notices. Additionally, the appellant contended that the land was not being resumed for a proper purpose, as required by the Act. The court considered whether these arguments provided sufficient grounds for the appellant to seek judicial review of the respondent's decision.

The court found that the errors in the notices did not invalidate them, as the essential information required by the statute was still present. Furthermore, the court determined that the land was being resumed for a proper purpose, as defined by the Act. Therefore, the court held that the appellant's grounds for review were not substantiated, and the appeal was dismissed. The court ordered that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

1. Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Module2 P/L v Brisbane CC [2006] QCA 226
PARTIES:	MODULE2 PTY LTD ACN 010 936 553 (applicant/appellant) v BRISBANE CITY COUNCIL (respondent/respondent)
FILE NO/S:	Appeal No 3732 of 2006 SC No 10851 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	19 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2006
JUDGES:	Williams JA, Keane JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed with costs
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the appellant is the registered owner of land currently used for sport and recreation purposes – the respondent gave notice to the appellant pursuant to s 7 of the Acquisition of Land Act 1967 (Qld) of its intention to resume the land – whether an error in the notices of intention to resume invalidated those notices – whether the land was being resumed for an improper purpose Acquisition of Land Act 1967 (Qld), s 5(1)(b), s 7, s 10(1) Judicial Review Act 1991 (Qld), s 20 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied
COUNSEL:	K S Howe for the applicant/appellant R G Bain QC, with M A Williamson, for the respondent
SOLICITORS:	Colwell Wright for the applicant/appellant Brisbane City Council Legal Practice for the respondent