Redland City Council v Kozik

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD AND JAGOT JJ

REDLAND CITY COUNCIL  APPELLANT

AND

JOHN MICHAEL KOZIK & ORS  RESPONDENTS

Redland City Council v Kozik

[2024] HCA 7

Date of Hearing: 13 & 14 September 2023

Date of Judgment: 13 March 2024

B17/2023

ORDER

1.Appeal dismissed with costs.

2. Special leave is granted to the respondents to cross-appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland given on 26 August 2022.

3. Cross-appeal dismissed with costs.

On appeal from the Supreme Court of Queensland

Representation

J M Horton KC with E Hoiberg for the appellant (instructed by Gadens Lawyers)

J T Gleeson SC and A M Hochroth for the respondents (instructed by Shine Lawyers)

R C A Higgins SC with J G Wherrett for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

G J D del Villar KC, Solicitor-General of the State of Queensland, with F J Nagorcka and M J Hafeez-Baig for the Attorney General of the State of Queensland, intervening (instructed by Crown Law (QLD))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GAGELER CJ AND JAGOT J.   In the Preface to the second edition of Mason and Carter's Restitution Law in Australia, the authors referred metaphorically to the "restitution common of the law" being "tended by judges". They encouraged preparedness on the part of judges to "tear out weeds, however ancient".[1] In the factual circumstances giving rise to the present case, Redland City Council ("the Council") tore out actual weeds from part of the actual common – in the form of waterways – within its local government area. The Council also dredged and removed silt, rubbish, and debris from the waterways, repaired revetment walls protecting the banks of the waterways from erosion and preventing subsidence, and improved the quality of the water in the waterways ("the works").

   [1]Mason, Carter and Tolhurst, Mason and Carter's Restitution Law in Australia, 2nd ed (2008) at xvi.

2. The Council was required to undertake the works in the discharge of its statutory functions as a local government authority under the Local Government Act 2009 (Qld) ("the Local Government Act") and the Coastal Protection and Management Act 1995 (Qld) ("the Coastal Protection and Management Act"). The Council also had a statutory entitlement to fund the works by levying "special charges" under the Local Government Act on land in its local government area which specially benefited from the works.

3. The Council in fact funded part of the overall cost of the works by purporting to levy special charges on land which adjoined the land on and waters in which the works were carried out. The Council funded the balance of the costs of the works from its general revenue.

4. After the Council had completed the works, it discovered that it had failed to comply with a condition of the prescribed process for the…