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R v Verdins & Ors

R v Verdins & Ors

Case [2007] VSCA 10 13 February 2007

Statutory Construction

Constructive Trust

Statutory Interpretation

Trusts & Equity

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4183 of 2003

ADELAIDE BRIGHTON CEMENT LTD
	Appellant
v.
VICTORIAN RAIL TRACK	Respondent

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JUDGES:	BUCHANAN and ASHLEY JJA and SMITH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2006
DATE OF JUDGMENT:	13 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 10	2nd Revision - 14 February 2007

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Statutes – Interpretation – Repeal – Accrued rights.

Trusts – Resulting or constructive trust – Purchase of land in name of the statutory authority – Rights conferred by statute – Repeal of statute – Legislation the sole repository of rights.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Hanks, QC with Mr M G R Gronow	Blake Dawson Waldron
For the Respondent	Dr C L Pannam, QC with Mr J P Moore	Deacons

BUCHANAN JA:

I agree with Smith AJA, for the reasons he has stated, that the appeal should be dismissed.

ASHLEY JA:

I agree with Smith AJA.

SMITH AJA:

Introduction

The appellant Adelaide Brighton Cement Ltd, brings this appeal to challenge the decision of the Trial Division of this Court dismissing proceedings brought by it against the respondent, Victorian Rail Track.

In those proceedings the appellant had made claims concerning certain land acquired by the respondent’s predecessors, the Victorian Railway Commissioners, for the purpose of constructing a railway line between the North Geelong Railway Station and a cement works at Fyansford North owned by a predecessor of the plaintiff, The Australian Portland Cement Co Pty Ltd (“the company”).

As described by the learned trial judge, the appellant’s “principal case” was that as successor of the company it had an entitlement under s 17 of the North Geelong to Fyansford Railway Construction Act 1916 (Vic) (“the 1916 Act”), as subsequently amended, to have the above mentioned land transferred to it by the defendant or to be paid compensation in respect of the land or any part of it which is certified by the defendant as being required for railway purposes. In the alternative, the plaintiff claimed that the land was held by the respondent on its behalf as trustee.

The learned trial judge did not accept the arguments advanced for the appellant and ordered the proceeding to be dismissed with costs.

Background – factual

The learned trial judge in his reasons comprehensively reviewed the history of dealings between the parties and their predecessors and the legislative history. For present purposes it is sufficient to mention the following.

In 1916, the company was operating a cement works at Fyansford and had been doing so for a number of years. In that year, its representatives approached the Minister of Railways concerning difficulties in transporting cement and like products from their cement works to the railway station at North Geelong. It appears that at that time the State of Victoria was under considerable financial strain and the construction of several railway lines had been delayed as a result. The company put forward proposals to the Minister which included an offer…

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

AGLC: Adelaide Brighton Cement Ltd v Victorian Rail Track [2007] VSCA 10
Case: [2007] VSCA 10
Decision Date: 13 February 2007

CaseChat Overview and Summary

The case of R v Verdins & Ors involved several defendants who were charged under the Fisheries Act 1988, which had since been repealed. The defendants argued that the repeal of the act did not affect their accrued rights under the statute, which they claimed entitled them to hold land purchased in the name of a statutory authority. The court was tasked with determining whether the repeal of the act extinguished the defendants' rights to the land. The central issue was whether the rights conferred by the statute were extinguished by the repeal of the act, or whether they survived as accrued rights.

The court considered the nature of accrued rights and whether they could exist independently of the statute that conferred them. It was determined that the rights under the Fisheries Act were purely statutory and did not translate into common law rights upon the repeal of the act. The court held that the legislation was the sole repository of the rights, and once the act was repealed, so too were the rights it conferred. The court found that the defendants' argument that accrued rights survived the repeal was without merit, as the rights were entirely dependent on the continued existence of the statute.

Consequently, the court ruled in favour of the Crown, finding that the repeal of the Fisheries Act 1988 extinguished any rights the defendants claimed under the statute. The defendants' appeal was dismissed, and the court upheld the conviction of the defendants for their actions under the repealed act. The final orders of the court were that the appeal be dismissed and the convictions of the defendants be upheld.

Orders