Salia Property Pty Ltd (ACN 120 108 581) and Commissioner Of Highways

[2012] HCATrans 211

[2012] HCATrans 211

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A13 of 2012

B e t w e e n -

SALIA PROPERTY PTY LTD (ACN 120 108 581)

Applicant

and

COMMISSIONER OF HIGHWAYS

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 7 SEPTEMBER 2012, AT 10.45 AM

Copyright in the High Court of Australia

MR B.R.M. HAYES, QC:   If the Court pleases, I appear with MR A.L. DAL CIN, for the applicant.  (instructed by Hunt & Hunt)

MR M.G. EVANS, QC,   May it please the Court, I appear with my learned friend, MR D.J. MACKINTOSH, for the respondent.  (instructed by Crown Solicitor (SA))

CRENNAN J:   Yes, Mr Hayes.

MR HAYES:   If the Court pleases, the Court will see from our application book there are four special leave questions that we have identified.  They can be grouped into two sets of two.  The first two questions arise out of a finding of the Full Court that the compulsory acquisition of land by the Commissioner of Highways was valid and effective, and the second two questions only arise if the purported acquisition was ineffective and relate to whether the Commissioner acquired an indefeasible title.  That gives rise to a challenge to a previous Full Court decision in this State of Palais Parking v The Commissioner.

CRENNAN J:   You have got concurrent findings about the relationship between section 11 and section 16 and, although there were some differences between the trial judge and Chief Justice Doyle, both of them looked at Project Blue Sky and looked at different paragraphs but picked up on the point that there are such conditions as procedural conditions and also picked up on the point about public inconvenience.  Why are those two points from Project Blue Sky not an answer to the argument in relation to the first two special leave points and your section 11 point?

MR HAYES:   If the Court pleases, in relation to the first point, and that is whether or not the Commissioner could respond ‑ ‑ ‑

CRENNAN J:   Delegate.

MR HAYES:   Delegate or act through an authorised agent; Justice Bleby considered that he could not.  The reason for that was because, looking at the English case of Carltona, which requires one to look at whether there is any practical or administrative necessity which would preclude the Minister from acting personally or through his delegate.  Both Justice Bleby and the Full Court decided that in this case there was no practical or administrative necessity which precluded him from acting in the circumstances.  Having made that finding, Justice Bleby then went on to consider whether, by acting through an agent, the effect of that was to invalidate the acquisition.

So that brings into play the second part of section 16.  But in relation to the Full Court, in our respectful submission, the error that the Full Court made was at that first step.  Having found that there was no practical or administrative necessity which precluded the Minister, the Commissioner or his delegate from acting, nevertheless, what the Full Court appears to have done was to elevate the principle in Carltona to some kind of presumption rather than discount it altogether as having no application in this case, as Justice Mason correctly did in the Peko‑Wallsend case.

KIEFEL J:   Speaking of Peko‑Wallsend, it is not just a question of necessity.  That is not the only approach one can have, is it?  The approach taken by Justice Mason in Peko‑Wallsend was to say that there might be an implied power arising from a presumed intention on the part of the Parliament, that it is unlikely to have been intended that a Minister was to undertake all of these functions.  That is an implied power that can be exercised through an agent.

MR HAYES:   Justice Mason said in Peko‑Wallsend that the Carltona principle was based on practical necessity and the Minister’s special relationship with the Parliament.  However, what he said was that there was nothing in the nature, scope and purpose of the power conferred by, in his case, section 11 or in the context in which it is to be found that makes his case susceptible to that presumption or that Carltona principle. We say that is precisely the same in this case, particularly where the Full Court and the single judge both concluded that there was no practical necessity – that is, what we say is the correct position is to look at the Act as a piece of statutory construction without the presumption which the Full Court overlaid before they got to that point.

That is where we say there is a fundamental error of statutory construction on the part of the Full Court.  Had the Full Court correctly applied Carltona, they would have found that it does not apply at all in the light of their finding.  Having dispensed with Carltona, what they should have done was to do what Justice Bleby did – that is, look at the Act itself, as indeed Peko‑Wallsend did and as indeed O’Reilly’s Case did.

KIEFEL J:   Justice Mason in Peko‑Wallsend, at the foot of page 37 and the top of page 38, talks about an implied power to delegate or, more correctly, to act through the agency of others and refers to Carltona as support for that proposition.  So we are not just talking about some sort of strict test of necessity; we are talking about an implied power to act arising from the nature of the function being undertaken.  That is the question, the nature of the function being undertaken, and it was this aspect of Peko‑Wallsend that the Full Court referred to at paragraph 31 of the judgment.

MR HAYES:   If your Honour pleases, looking at Justice Mason’s judgment at page 37 that your Honour referred me to, at the bottom of that page his Honour is referring to section 76 which authorises the Minister by an instrument of delegation to delegate.  He states:

A power, when so delegated and exercised by the delegate, shall, for the purposes of the Act, be deemed to have been exercised . . . The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others.

Then he goes on to say:

By way of illustration there are cases which establish –

Then he refers to Carltona ‑ ‑ ‑

KIEFEL J:   Carltona and In re Golden Chemicals.

MR HAYES: Yes. The point that we make in this case is that this case was simply a question of looking at the Act to see if, on a proper construction of the Act, there could be said to be the ability of someone other than the Commissioner or his authorised delegate to give this notice. Justice Bleby did just that. The Full Court, with respect, did not do that. If I can take you to the judgment of the Full Court.

CRENNAN J:   Just before you do that, the function of giving the notice under section 11 is to provide the reason for the proposed acquisition.  In this case it was road works; is that right?

MR HAYES:   Yes, it was an acquisition of the land for the purpose of road works.

CRENNAN J:   Just considering that purely from the point of view of what sort of function we are speaking of here, it is a relatively routine function, I would have thought, on the facts of this particular case.

MR HAYES:   No.  With respect, it is not, because the facts of the case indicated that the Commissioner of Highways in this case first of all entered into a lease with the owner of the land to use his land whilst this process was going through.  The argument of the owner was:  I do not want you to acquire the land, but I am happy for you to lease it.  Those were the issues which were litigated in the court below.  In this case the section 11 process would enable the Commissioner to provide reasons why and an explanation, but it would then give rise to the landowner being able to act under section 12 to require the Minister not to proceed.  He has been deprived of that right.

CRENNAN J:   Why is a notice under section 11 a necessary prerequisite for making application under section 12?

MR HAYES:   It is not a necessary prerequisite.  It is a critical step, as both Justice Bleby and the Full Court found, in the process which ultimately leads to the acquisition.  Can I take you to page 51 of the appeal book.

CRENNAN J:   Yes.  In the mid‑point of the very first paragraph in the Chief Justice’s decision his Honour says:

The making of a requirement under s 11(1) of the Act is not a precondition to the exercise, by the relevant person, of the entitlements conferred by s 12 and s 12A.

MR HAYES:   What his Honour has never dealt with and does not deal with in this case is:  if there is an invalid or no response to the section 11 request, the subsequent steps of which the applicant has been deprived, he has 30 days after the response is received to ask the Minister not to proceed or vary it.  He has not had that opportunity.

CRENNAN J:   Is your point the time did not start to run because of this?

MR HAYES: It never does run, because the Act requires him to respond. Section 11 requires the Minister to respond to the request, and the time for the making of an application or a request under section 12 is 30 days after he gets his response. He has never had that.

KIEFEL J:   Putting this application in context, Mr Hayes, this is all about creating an invalidity in relation to notice to overcome the fact that the applicant did not take steps that he could have taken in any kind of timely way.  That is really what it is about.

MR HAYES:   With respect, it is not. If he has a right ‑ he has got a right under section 11 – to ask for an explanation, if he has a right under the Act to receive a response, a proper response, that is his right.

KIEFEL J: Let us have a look at the question of substance, the proper response. Section 11(1) requires the authority:

(a)to give an explanation of the reasons for acquisition of the land –

the reasons are it is required for roadworks, and:

(b)to provide reasonable details of any statutory scheme.

Now, are you saying that he did not receive proper notification, in substance?  Putting aside who signed the letter, as a matter of substance, are you saying that the notice was deficient?

MR HAYES:   No.  With respect to the Court, that is not really, in our respectful submission, the approach that one needs to take when construing this Act.

KIEFEL J:   But it might go to the question of discretion about this application for special leave.

MR HAYES:   The point here, if your Honour pleases, is that both the single judge and the Full Court recognise that when you get to section 16 – section 16, which gives the Commissioner the power to acquire the land, is subject to the Act. You cannot, as his Honour the Chief Justice said at the page that I was about to take the Court to at page 51 – his Honour at the end of the first paragraph:

Those words should not be treated –

that is, subject to the Act –

as making each provision of the Act an essential preliminary to the exercise –

Those words do no more than reflect the fact that there are various provisions of the Act that bear in one way or another on the procedure by which the authority may put itself in a position to utilise section 16. Now, his Honour recognises – and the only provisions that are the critical provisions are sections 11, 12 and 12A, as well as 10, which is the notice of intention to acquire.

If it is necessary for the authority to put itself into the position to utilise section 16, it must mean, with respect, that provisions 10, 11 and 12 have been complied with; otherwise it means that the authority can ignore making a response in reply to a request under section 11 and nevertheless go ahead and acquire the land under section 16.  With respect, that flies in the face of the scheme of the legislation and it is recognised by the Full Court in that paragraph.  It was recognised by the single judge when he said section 11 is a critical section as a matter of the procedure.

CRENNAN J:   You really have to come to grips, do you not, with what his Honour then said on the same page at paragraph 49:

I find no . . . legislative intent that a failure –

even if you put your case at its highest –

to provide, or authorise the provision of, a response under s 11, should invalidate a later acquisition –

That gets back to the public inconvenience point in Project Blue Sky.

MR HAYES:   There is no public inconvenience that the court was able to identify here.  What his Honour said in relation to ‑ ‑ ‑

CRENNAN J:   Well, do you not think declarations that no title to land has been acquired as recorded in the certificate of title register book?  That is the relief you are seeking.

MR HAYES:   Yes, but the public inconvenience here that was put is there has been an acquisition of land.  It has occurred and the works have been carried out, et cetera.  This land was not acquired.  There is not a road over the land.  The land was acquired essentially to provide – part of the land has a bit of a road, but the land was acquired essentially to put a batching plant in order to construct the road.  Hence, the applicant’s desire with the Minister was to try and get an agreement whereby he would lease the land rather than acquire it, and that was his whole case.  So the public inconvenience that is referred to in Peko-Wallsend is not immediately apparent here, and even the Full Court deals with the issue of public convenience.  If I can just take the Court to that.

CRENNAN J:   I think you will find the Full Court, at pages 49 and 51 of the application book, or Chief Justice Doyle, concentrated more on procedural conditions than a distinction between procedural conditions and other conditions.

MR HAYES:   That is right, it did; and public convenience, in our respectful submission, did not play a big part and could not play a big part for the reasons that I have mentioned.  Even his Honour Justice Bleby simply said there is a potential for public inconvenience and nothing more.  That was only speaking generally because it was an acquisition of the land and nothing else.  But the fact of the matter is that, as we try to point out, there would at the end of the day need be no public inconvenience, because this land had been leased by the Commissioner, the applicant had always been prepared to lease it to the Commissioner and if there was a reversal of the acquisition, that would remain.  That was the evidence before the single

judge; he would continue to lease it to the Commissioner.  So there would be no public inconvenience in that regard.

The real issue, with respect, here is on a proper construction of the Act it would mean, if the Full Court is right, that the Commissioner, or any Act acquiring authority, could proceed with its acquisition under section 16, notwithstanding that it has totally refused or, for some reason, not responded to a request under section 11 and nevertheless goes ahead and acquires the land. That, in our respectful submission, is manifestly not intended by the legislation and it is a very undesirable position for the authority to be in.

CRENNAN J:   Thank you, Mr Hayes.  We do not need to trouble you, Mr Evans.

This application concerns the interpretation of provisions of the Land Acquisition Act 1969 (SA) (“the Act”), and the effect that a failure to comply with certain of those provisions will have on the validity of an acquisition of land under the Act. The Full Court of the Supreme Court of South Australia (Doyle CJ and Anderson and Stanley JJ) dismissed the applicant’s appeal from a decision of a single judge of the Supreme Court of South Australia (Bleby J) that the acquisition by the respondent under the Act of certain land owned by the applicant was not invalid. There is no reason to doubt the correctness of the decision of the Full Court. Special leave to appeal is refused with costs.

AT 11.05 AM THE MATTER WAS CONCLUDED