Re the Minister for Works - [2002] WASCA 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE THE MINISTER FOR WORKS; EX PARTE DUFFY & ORS [2002] WASCA 295

CORAM: MURRAY J
ANDERSON J
BURCHETT AUJ

HEARD: 13 SEPTEMBER 2002

DELIVERED : 1 NOVEMBER 2002

FILE NO/S: CIV 2619 of 2001

MATTER :Application for a Writ of Mandamus

EX PARTE
BERNARD JAMES DUFFY
C E DUFFY NOMINEES PTY LTD
BERNARD JAMES DUFFY and RAYMOND ALLEN DUFFY as Executors of the Will of Noel Edward Duffy (DEC)
RAYMOND ALLEN DUFFY
KATHLEEN ELIZABETH OKELY
Applicants
AND
THE MINISTER FOR WORKS
Respondent

Catchwords:

Resumption - Town planning - Metropolitan Region Town Planning Scheme - Land no longer required - Whether former owners entitled to option under s 29 and s 29B of the Public Works Act 1902 (now s 190 of the Land Administration Act 1997), or whether their rights were governed by s 37 of the Metropolitan Region Town Planning Scheme Act 1959 - Meaning of s 37(6) - Whether in s 37(5) and s 37(6) the word "or" is used in a strictly disjunctive sense - Effect of context

Legislation:

Land Administration Act 1997, s 190

Metropolitan Region Town Planning Scheme Act 1959, s 3, s 37
Public Works Act 1902, s 17, s 18, s 29, s 29B

Town Planning and Development Act 1928, s 2, s 13

Result:

Order absolute for mandamus refused

Category: A

Representation:

Counsel:

Applicants: Mr R K F Davis
Respondent: Mr G T W Tannin

Solicitors:

Applicants: Mossensons
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Aspro‑Nicholas Ltd's Design Application [1974] RPC 645
Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334
Charles v S Smith & Sons (England) Ld [1954] 1 WLR 451
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633
The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Wentworth v New South Wales Bar Association (1992) 176 CLR 239

Case(s) also cited:

Nil

MURRAY J: I have had the advantage of reading in draft the reasons for judgment published by Burchett AUJ. I am in entire agreement with them. I too consider that the order nisi should be discharged with costs.
ANDERSON J: I have read the judgment of Burchett AUJ and agree entirely with it. There is nothing I can usefully add. I, too, would discharge the order nisi.
BURCHETT AUJ: This is an application to make absolute an order nisi for the issue of a writ of mandamus against the Minister for Works compelling him to offer to the applicants a particular parcel of land at a price calculated in accordance with s 29B(2)(b) of the Land Acquisition and Public Works Act 1902 (as it stood at 8 August 1997). In order to understand the issues raised by the application, it is necessary to travel back in time to the compulsory acquisition of the land, as a small part of a much larger parcel, for the purpose of the establishment of a park or recreation area.
On 7 May 1982, there was published in the Government Gazette of Western Australia a notification in the following terms:
" PW 3838/81
Metropolitan Region Town Planning Scheme Act 1959 (as amended) Town Planning and Development Act 1928 (as amended) Public Works Act 1902 (as amended)
LAND ACQUISITION
Parks and Recreation - Lake Joondalup
NOTICE is hereby given, and it is hereby declared, that the several pieces or parcels of land described in the Schedule hereto being all in the Perthshire District have, in pursuance of the written consent to under the Town Planning and Development Act 1928 (as amended) Metropolitan Region Town Planning Scheme Act 1959 (as amended) and approval of under Public Works Act 1902 (as amended) of His Excellency the Governor, acting by and with the advice of the Executive Council, dated the 20th day of April 1982, been compulsorily taken and set apart for the purposes of the following public work, namely:-

Parks and Recreation - Lake Joondalup.
And further notice is hereby given that the said pieces or parcels of land so taken and set apart are shown marked off on on [sic] Plan P.W.D., W.A. 53553, which may be inspected at the Office of the Minister for Works, Perth. The additional information contained in the Schedule after the land descriptions is to define locality only and in no way derogates from the Transfer of Land Act description.
And it is hereby directed that the said lands shall vest in Metropolitan Region Planning Authority for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights‑of‑way, or other easements whatsoever."

In a schedule to this notice, an area of 78.285 hectares was described, and the owners or reputed owners were identified as the applicants and Noel Edward Duffy (who subsequently died, and of whose will two of the applicants are executors). At the foot of the notification, there was reproduced a certificate of the Minister for Urban Development and Town Planning, June Craig, certifying it to be correct, and it was shown as having been signed by R Trowbridge as Governor in Executive Council.

It will be observed that the notification in the Government Gazette uses language which is reflective of the terms of s 17(1) (as it stood in 1982) of the Public Works Act 1902 (which, by an amendment made by s 5 of the Acts Amendment and Repeal (Native Title) Act 1995, was renamed the Land Acquisition and Public Works Act 1902, and by a further amendment made by s 39 of the Acts Amendment (Land Administration) Act 1997, regained its original name). Section 17(1) was in the following terms:
"Whenever any land is required for any public work, the Governor may, subject to the provisions of subsection (2), by notice published in the Government Gazette, declare that the land has been set apart, taken, or resumed under this Act for the public purpose therein expressed, and that a plan and more particular description of such land may be inspected at a convenient place to be stated in such notice."
The final paragraph of the notification is reflective of another section (as it then stood) of the same Act, s 18, which provided (in part):
"Upon the publication of the notice referred to in section 17(1) in the Government Gazette -
(1)as the Governor may direct and the case require the land referred to in such notice shall, by force of this Act, be vested in the Crown, or the local authority, for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights‑of‑way, or other easements whatsoever; ..."
In s 18, the expression "local authority" was to be understood in accordance with the interpretation section, s 2, as meaning "any local government or any other persons or body, however designated, having authority under any statute to undertake the construction of any public work", and "public work", also by virtue of s 2, meant or included "[p]arks or gardens or grounds for public recreation".
The correspondences in the respects I have mentioned between the notification in the Government Gazette and the terms of the Public Works Act lie at the heart of the applicants' case in this matter. That is because, to anticipate somewhat, it was decided in due course that the relatively small part of the land resumed with which this case is concerned was surplus to requirements, and might be disposed of. Had the resumption been entirely governed by the provisions of the Public Works Act, there is no question, the applicants say, that s 29 and s 29B of the Public Works Act (as they then stood) would apply to the disposal of the land upon which, in actual fact, the Government of Western Australia determined in August 1997. Section 29 relevantly provided:
"(1)Subject to section 29B, where any land compulsorily taken or resumed under this or any other Act, for any public work, is in the opinion of the Governor not required for that work, the land may, subject to the provisions of subsections (2) to (6), be sold by public auction or private contract or used by the Minister or the local authority in which it is vested for any other public work.
(2)Before land referred to in subsection (1) is so sold or used the Minister shall cause a notice to be published in the Gazette to the effect that the land is no longer required for the work ... .
(3)(a) A person who, immediately prior to the taking or resumption, as the case may be, had an estate in fee simple in the land may, subject to paragraph (f), within 3 months after the publication in the Gazette of the notice referred to in subsection (2), apply to the Minister for an option to purchase the land.
...
(c)Where the Minister is satisfied that a person qualified to apply under paragraph (a) has applied for an option within the prescribed period, he shall, subject to paragraph (d), grant an option to that person.
...
(d)The Minister shall grant the option on such terms and conditions ... and, subject to subsection (6), on payment of such purchase price, as in his opinion are reasonable having regard to all the circumstances prevailing at the time of the taking or resumption, as the case may be, and to the merits of each application ... .
...
(4)(a) Where the land is vested in a local authority the Minister shall, as soon as possible after granting the option or options, as the case may be, under subsection (3), furnish the local authority with particulars of all options granted in respect of that land and shall not thereafter grant any option in respect thereof.
...
(c)A local authority shall not sell any land so taken or resumed and vested in it for any public work without the consent of the Governor to the sale and shall not apply for the Governor's consent except through the Minister ... .
...
(6)Where the total amount of compensation has been paid by the Minister or the local authority for the land which is to be sold under this section, the purchase price payable by an option holder is not to exceed the aggregate amount of the compensation and the value of improvements, if any, made on the land by the Minister or authority subsequent to the taking or resumption as the case may be."
Section 29 is qualified by s 29A, and also by s 29B, which relevantly provides:
"(1)Where any land compulsorily taken or resumed under this Act for a public work -
(a)has been used for that public work for a period of 10 years or more since it was last so taken or resumed, if at any time after that period, the land is no longer required for that public work, sections 29 and 29A do not apply to the land and with the approval of the Governor, it may be -
(i)sold by public auction or private contract; or
(ii)used by the Minister or local authority in which it is vested for any other public work;
(b)is not required for that work, at any time after a period of 10 years since it was last so taken or resumed, sections 29 and 29A apply to the land but the purchase price thereof payable by the person, if any, to whom an option to purchase the land is granted under the first‑mentioned section, shall be such reasonable price as the Minister determines.
(2)The reasonable price determined by the Minister under subsection (1)(b) shall not be -
(a)less than the aggregate amount of the compensation and the value of improvements, if any, made on the land by the Minister or authority subsequent to the date on which the land was last compulsorily taken or resumed under this Act for a public work; or
(b)more than that aggregate amount plus 1/10 of that amount for each year or part of a year since the date on which the land was last so taken or resumed."
There is a difficulty in applying these provisions to the present case. Before attempting to explore that difficulty, I should recount briefly what has occurred. Following the compulsory acquisition notified by the Gazette on 7 May 1982, a claim for compensation was made pursuant to the provisions of s 41 of the Public Works Act. Agreement was not reached on this claim, so a compensation proceeding was brought in the Supreme Court against the Minister. This proceeding was ultimately settled for the sum of $990,000, which was duly paid.
Much later, in 1997, the Western Australian Planning Commission decided that a small part of the land resumed, separated by a major road from the balance of the land, was no longer required. This small part, which has been referred to as Lot 200, comprises an area of 2.9066 hectares. It was, as I have said, the Western Australian Planning Commission which made the decision, the land in the meantime having become vested in it, as a result of a succession of legislative changes. The Metropolitan Region Planning Authority was constituted by s 7 of the Metropolitan Region Town Planning Scheme Act 1959, but that section was repealed by s 15 of the Acts Amendment (State Planning Commission) Act 1985, and by s 4 of the State Planning Commission Act 1985, assented to on the same day, the State Planning Commission ("the Commission") was established as a body corporate and an agent of the Crown in right of the State. By operation of s 63, read with s 60, of the State Planning Commission Act, "all rights, obligations and liabilities" of The Metropolitan Region Planning Authority were "vested in or imposed on the Commission". Then, by s 19 and s 23 of the Planning Legislation Amendment Act (No. 2) 1994, the title of the State Planning Commission Act 1985 was altered to the Western Australian Planning Commission Act 1985, and the name of the State Planning Commission was altered to the Western Australian Planning Commission. The applicants' argument was presented on the footing that the substitution of the Western Australian Planning Commission for The Metropolitan Region Planning Authority had no substantial effect upon their rights, and the respondent did not dispute this view.
As a result of the decision in respect of Lot 200, on 8 August 1997, the following notice appeared in the Government Gazette of Western Australia:
"PD402
METROPOLITAN REGION TOWN PLANNING SCHEME ACT 1959
DISPOSAL OF LAND
Notice is hereby given that His Excellency the Governor has consented under the provisions of section 37(6)(b) of the Metropolitan Region Town Planning Scheme Act 1959 to the disposal of the property described in the First Schedule below, which is now surplus to requirements.
First Schedule
Portion of Perthshire Location 110 and being Lot 200 on Diagram 92083 being the whole of the land contained in Certificate of Title 2097/155 Ocean Reef Road, Woodvale.
Dated this 4th day of August 1997.
PAUL FREWER, A/Chief Executive.

Ministry for Planning."
Promptly after the gazettal of 8 August 1997, C E Duffy Nominees Pty Ltd, either alone or on behalf of itself and others of the applicants, having previously sought the return of Lot 200 on the basis that it was not being used and would not be used as a park, made an application to be granted an option to purchase the land under the provisions of the Public Works Act to which I have referred. That application was made to the Minister for Works, but was referred by him to the Minister for Planning who, on 22 October 1997, responded that he had consented to "an offer being made to the former owners under section 37(6)(c) of the Metropolitan Region Town Planning Scheme Act at a figure of $760,000 based on private sector valuation advice". As that offer had not been accepted, "alternative disposal options" would now be considered. Subsequently, the Minister indicated by a further letter that, as his offer appeared to have been wrongly addressed, "the Ministry would be prepared to re‑present the offer for Duffy Nominees' further consideration". The Minister's offer, of course, greatly exceeded the figure that would be yielded by a pro rata application, according to the areas involved, of any calculation that might be made under s 29, s 29A and s 29B of the Public Works Act, assuming the land had not been used for a period of 10 years for the public work for which it was resumed within the meaning of s 29B(1)(a). On that assumption, and on the basis of such a pro rata apportionment, the applicants say they should have been granted an option for $36,757.12, with 10 per cent interest for 15 years, yielding a total of $91,892.79.
If it can be accepted that the provisions in question may be applied to an identifiable part of a larger area resumed, there must remain a question whether it is appropriate, for that purpose, to calculate a proportion of the compensation simply by dividing the area involved into the total area resumed. The compensation may not have been calculated on an assumption that every hectare had the same value as every other hectare. Land close to a road may well have contributed much more to the total value than land remote from any road, or alternatively, agriculturally desirable land may have contributed more to the total value than comparatively arid land. However, these are questions which may be set to one side.
Another question raised by the applicants' case is whether the land has been used for the public work in question. The applicants' evidence is that the land has not been used at all since its resumption, being, as I have said, separated by a major road from the balance of the land resumed for the purpose of a park. On behalf of the Western Australian Planning Commission, the Manager of Planning and Development in the Properties and Parks Branch of the Department for Planning and Infrastructure has given evidence that the land was "reserved under the Metropolitan Region Scheme ... for the purposes of parks and recreation". It was, on 15 November 1995, included in an area zoned "Urban" under the scheme, "and as a consequence became surplus to the requirements ... in respect of the [Scheme]". Disposal of the land was consented to by the Governor at a meeting of the Executive Council under s 37(6)(b) of the Metropolitan Region Town Planning Scheme Act 1959, as a result of which the Gazette notice of 8 August 1997 was published. The witness drew attention to the fact that under the Metropolitan Region Planning Authority (Reserved Land) Regulations, reserved land throughout the metropolitan region owned by the Western Australian Planning Commission "is available for use by the public except where access by the public is prohibited". He said that "the public were never prohibited from accessing the land" in question, and he added that the management of the land by the Western Australian Planning Commission "included maintaining firebreaks and slashing and mowing grass as required". In my opinion, if it is material to determine whether the land was used for the public purpose for which it was resumed, this minimal evidence provides no reason not to accept the explicit evidence tendered on behalf of the applicants that the land was not so used.
But the real question in the case is whether s 29 and s 29B of the Public Works Act (or s 190 of the Land Administration Act 1997, in which their substance was subsequently re‑enacted) could have any application. It will be recalled that the notification of acquisition in the Government Gazette of 7 May 1982, although framed in the language of s 17 and s 18 of the Public Works Act, also makes reference to the Metropolitan Region Town Planning Scheme Act and the Town Planning and Development Act 1928; to "the written consent" of the Governor under the Town Planning and Development Act and, as I read it, although the syntax is more than a little tortured, also under the Metropolitan Region Town Planning Scheme Act; and to the setting apart of the land for the purposes of Parks and Recreation - Lake Joondalup - and its vesting in the Metropolitan Region Planning Authority. These aspects of the notification require reference to be made to the Metropolitan Region Town Planning Scheme Act and the Town Planning and Development Act.

The Metropolitan Region Town Planning Scheme Act (which I shall call the Scheme Act) is required (by its s 3) to be "construed in conjunction with the Town Planning Act [by which the interpretation provision in s 6 reveals it means the Town Planning and Development Act 1928], as if the provisions of this Act were incorporated with and formed part of that Act, but where the provisions of this Act are in conflict or are inconsistent with the provisions of that Act, the provisions of this Act prevail to the extent to which they are so in conflict or inconsistent". Section 37 of the Scheme Act then provides, so far as is relevant:
"(1)For the purposes of this Act and the Town Planning Act in relation to a Scheme [this word and 'Metropolitan Region Scheme' both mean, by section 6, 'a town planning scheme for the metropolitan region or any part thereof, including the provisions therein for regulating and controlling the use of the land the subject of the Scheme and the purposes for which the land may be used' and include the inclusions referred to in section 6], the Commission [ie the Western Australian Planning Commission, but originally, of course, the section referred to The Metropolitan Region Planning Authority] shall be deemed to be the responsible authority and has all the powers, rights, duties and authority conferred or imposed on a responsible authority.
...
(3)If before the Scheme, or an amendment to the Scheme, has the force of law the Commission is satisfied that any land is or is likely to be comprised in the Scheme, it may purchase the land.
...
(5)(a)     Notwithstanding anything contained in the Public Works Act 1902, the value of any land or improvements thereon which is compulsorily acquired by the Commission under this section or section 13 of the Town Planning Act shall for the purpose of assessing the amount of compensation to be paid for the land and improvements, be assessed without regard to any increase or decrease in value attributed wholly or in part to any of the provisions contained in, or to the operation or effect of, the Scheme ... .
...
(6)(a)     The Commission shall hold for the purposes of the Scheme any land acquired by it under this Act or the Town Planning Act, including land purchased under section 36A or subsection (3), and may, subject to paragraphs (b) and (c), dispose of or alienate that land -
(i)for or in furtherance of the provisions or likely provisions of the Scheme; or
(ii)if that land is no longer required by the Commission.
(b)Subject to paragraph (c), the Commission shall not except with the consent of the Governor dispose of or alienate any land compulsorily acquired by it other than for or in furtherance of the provisions or likely provisions of the Scheme.
(c)In exercising a power to dispose of or alienate land conferred by this subsection, the Commission shall have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is practicable and appropriate to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that land was so acquired.
(7)(a)     Where any land held, taken, resumed or otherwise acquired under the Public Works Act 1902 or any other Act, for any public work, is in the opinion of the Governor not required for that work and is required for the purposes or likely purposes of the Scheme, the Governor notwithstanding the provisions of section 29 of the first‑mentioned Act, may declare by notice published in the Gazette, that the land shall be held and may be used for the purposes of the Scheme.
(b)From the date of the publication of the notice the land described therein, by force of this subsection, vests in the Commission for the purposes of the Scheme."
In order to understand the effect of s 37(1), it is necessary to turn to the Town Planning and Development Act, by s 2 of which meaning is given to the expression "responsible authority". That expression "means the local government responsible for the enforcement of the observance of a scheme, or for the execution of any works which under a scheme, or this Act, are to be executed by a local government". By s 13 of the Town Planning and Development Act, it is provided, so far as is relevant:
"(1)The responsible authority may, for the purpose of a town planning scheme, in the name and on behalf of such authority -
(a)purchase any land comprised in such scheme from any person who may be willing to sell the same; or
(b)with the consent of the Governor, take compulsorily, under and subject to the Public Works Act 1902, (but subject to subsection (2)), any land comprised in such scheme, and whether situate within or without the boundaries of the district of such responsible authority."
It is possible, in the light of these provisions, to see how the resumption effected by the notification in the Government Gazette of 7 May 1982 was intended to have effect. Its reference to "consent" of the Governor was intended to implement s 13(1)(b) of the Town Planning and Development Act which empowers the responsible authority, with such consent, to take compulsorily, but subject to the Public Works Act 1902, any land comprised in a town planning scheme. Pursuant to s 37(1) of the Scheme Act, to which Act the notification also refers, the Commission (or, at the time, The Metropolitan Region Planning Authority) "shall be deemed to be the responsible authority" with "all the powers ... conferred ... on a responsible authority". It was in The Metropolitan Region Planning Authority that the Governor directed the lands should vest. Accordingly, it is clear that the resumption was intended to take effect by the exercise of the Authority's powers as responsible authority under s 13 of the Town Planning and Development Act, which itself authorises a compulsory taking "under and subject to the Public Works Act 1902", but freed (this is the effect of the reference to subs (2) in s 13(1)(b)) of the application of subsections (2) to (7) inclusive of section 17 of the Public Works Act.
The respondent's answer to the applicants' reliance on s 29 and s 29B of the Public Works Act may now be stated. Although, the respondent says, the compulsory acquisition utilised s 17 and s 18 of the Public Works Act, it was authorised by s 37(1) of the Scheme Act, operating through s 13 of the Town Planning and Development Act the application of which s 37(1) attracted. On the basis that this was an acquisition to which s 37 of the Scheme Act applied, the respondent says that s 37(6) directs that any land acquired by the Commission (or previously by The Metropolitan Region Planning Authority) "under this Act [ie the Scheme Act] or the Town Planning Act [ie the Town Planning and Development Act]" may be disposed of pursuant to the special regime provided for in subs (6).
Where the Commission exercises the power to dispose of land conferred on it by s 37(6) of the Scheme Act, it is required by par (c) to "have regard to the general principle that in such cases land acquired by the Commission should, if in the opinion of the Minister it is practicable and appropriate to do so, be first offered for sale at a reasonable price determined by the Minister to the person from whom that land was so acquired". This provision does not bind the Commission to a formula in the way that s 29 and s 29B of the Public Works Act would do if they were applicable. However, an obligation in a statute to have regard to a matter may have the effect of requiring it to be taken into account and given weight as a fundamental element in the making of a determination: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194; The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327. In Ex parte Meneling Station Pty Ltd, Gibbs CJ said (at 333) that language of this kind required an official, who had to consider the making of a recommendation, "to give weight to [the matters specified] as a fundamental element in making his recommendation", and Mason J said (at 338) that the requirement "to have regard to" a factor in making a report "ensures that this factor will become a central element" in the report. It did not, however, exclude other matters being taken into account.
It is plain, and the applicants' argument appeared to accept this, that the resumption in the present case was effected in reliance upon s 37(1) of the Scheme Act in conjunction with s 13 of the Town Planning and Development Act and s 17 and s 18 of the Public Works Act. But the applicants dispute the proposition that s 37(6), as a provision of the same section dealing with the same general subject matter, must also operate in such a case. They draw attention to the fact that, whereas subs (5) and subs (7) make specific reference to the Public Works Act, which is expressly excluded from impinging on the operation of subs (5), subs (6) makes no reference to the Public Works Act. Emphasis is placed on the proposition that subs (6) applies where the Commission holds land "acquired by it under this Act [ie the Scheme Act] or the Town Planning Act". The argument is that this language is not apt to refer to land acquired, through s 13 of the Town Planning and Development Act indeed, but pursuant, by the terms of that very section, to the provisions of the Public Works Act. However, language in any statute must be interpreted in accordance with the context. In the context of s 37, it is very hard to deny that an acquisition effected pursuant to s 37(1) is, in the statutory sense, an acquisition under the Scheme Act or the Town Planning and Development Act. For subs (5) refers to "land ... compulsorily acquired by the Commission under this section or section 13 of the Town Planning Act", and that subsection must have in mind subs (1) of the section, for there is no other provision of "this section" under which land could be compulsorily acquired. Subsection (3) provides for the "purchase" of land but, apart from subs (1), no other provision in s 37 enables the Commission to acquire land compulsorily.
It is true that there is some infelicity in applying to land acquired by the Commission, by virtue of the powers conferred by s 37(1), the description contained in subs (6), "land acquired by it under this Act or the Town Planning Act". It might be thought that a more apt use of language would describe the land as acquired "under this Act and the Town Planning Act", or might even add a reference to the Public Works Act as well. However, the very same manner of formulation of the description is involved in subs (5), where land is described as "compulsorily acquired by the Commission under this section or section 13 of the Town Planning Act", and, as has been said, those words must there refer to the joint operation of s 37(1) of the Scheme Act and s 13 of the Town Planning and Development Act.
The word "or" is not always used precisely in a disjunctive sense. In R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633 at 639, Atkin LJ (as Lord Atkin then was) said:
"I disagree with the learned Judge in his view that the word 'or' can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use."
This statement and a number of other authorities were cited in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194 ‑ 195 in support of the proposition that "the word 'or' should not be read as strictly disjunctive, but as a kind of hybrid of disjunctive and conjunctive, equivalent to 'or, or as well', conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to" (the case was concerned with the taking of a decision having regard to a particular type of conduct or another type of conduct).
Similarly, in Charles v S Smith & Sons (England) Ld [1954] 1 WLR 451 at 456 Hilbery J construed a provision in a statute which used the expression "wilfully interfere with or misuse", not as indicating a disjunctive distinction, "but to indicate that the wilful interference is intended to be something which is also in the nature of a misuse". In Aspro‑Nicholas Ltd's Design Application [1974] RPC 645 at 651, Graham J, construing the words "new or original" in s 1(2) of the Registered Designs Act 1949, despite the fact that those words represented a legislative change from the expression "new and original" in the Designs Act 1842, said:
"The word 'or' is, in my judgment, not here used in the disjunctive sense as denoting that the characteristic of being either new or original, as the case may be, is an alternative qualification for registration, but is used so as to connect the words 'new' and 'original', which are intended in their context to denote the same or very similar qualifications."
And in Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505, the majority of the House of Lords (Lord Wilberforce, Lord Simon of Glaisdale and Lord Salmon) treated the expression "the owner or master of the ship" as referring both to the owner and the master. Lord Salmon said (at 523):
"My Lords, I do not suppose that any two words in the English language have more often been used interchangeably than 'and' and 'or'. However unfortunate or incorrect this practice may be, many examples of it are to be found in all manner of documents and statutes."
In my opinion, subs (6), when it refers to "land acquired ... under this Act or the Town Planning Act", includes land acquired by virtue of s 37(1) - the acquisition of which also involves the operation of s 13 of the Town Planning and Development Act and s 17 of the Public Works Act - just as, I am satisfied, subs (5) does also. I think the context strongly requires this understanding of s 37: see Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320 ‑ 321. I do not regard the failure of the legislature to make express reference to the Public Works Act in subs (6), although it does refer to that Act in subs (5) and subs (7), as sufficient to overturn the clear intention evidenced by s 37, construed as a whole, to make fairly comprehensive provision for acquisitions by the Commission. The failure to mention the Public Works Act in subs (6) allows the applicants to make appeal to the maxim expressio unius est exclusio alterius, but in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 348, the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ describes this maxim as being "not a rule of universal application", an observation for which their Honours cite numerous authorities including Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575, where the maxim was referred to in conjunction with the similar maxim expressum facit cessare tacitum, and it was said:
"However, those principles are to be applied with caution. They are not to be applied if they would bring about a result which the legislature is unlikely to have intended."
See also the strong statement in Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250.
For these reasons, the applicants are not entitled to have s 29 and s 29B of the Public Works Act applied to this case, and the Court should refuse to make the order nisi absolute. The applicants must pay the respondent's costs.