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…

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: [2002] WASCA 295
Decision Date: 1 NOVEMBER 2002

CaseChat Overview and Summary

The case involved the former owners of land who were disputing the resumption of their property by the Commission under the Metropolitan Region Town Planning Scheme Act 1959. The owners argued that they were entitled to an option under sections 29 and 29B of the Public Works Act 1902, now section 190 of the Land Administration Act 1997, or whether their rights were governed by section 37 of the Metropolitan Region Town Planning Scheme Act 1959. The meaning of section 37(6) was also at issue, particularly whether the word "or" in sections 37(5) and 37(6) was used in a strictly disjunctive sense.

The court had to determine whether the Commission was required to offer the land back to the former owners at a reasonable price determined by the Minister, as per section 37(6) of the Scheme Act, or whether the former owners had an option to repurchase the land under sections 29 and 29B of the Public Works Act. The court also had to interpret the meaning of section 37(6) and whether the word "or" in sections 37(5) and 37(6) was used in a strictly disjunctive sense.

The court held that the Commission was required 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. The court found that the language of section 37(6) did not bind the Commission to a formula in the way that sections 29 and 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. The court held that an acquisition effected pursuant to section 37(1) was, in the statutory sense, an acquisition under the Scheme Act or the Town Planning and Development Act.

The court ordered that the former owners were not entitled to an option to repurchase the land under sections 29 and 29B of the Public Works Act, but that the Commission was required 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. The court also held that the meaning of section 37(6) was that the Commission was required 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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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.