Salia Property Pty Ltd v Commissioner of Highways - [2012] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SALIA PROPERTY PTY LTD v COMMISSIONER OF HIGHWAYS
[2012] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)
17 April 2012
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION - OTHER MATTERS
The respondent exercised powers under the Land Acquisition Act 1969 (SA) to compulsorily acquire land owned by the appellant – in the first instance, the appellant sought judicial review of the respondent’s exercise of power – a single Judge of the Supreme Court of South Australia held the acquisition to be valid and considered that even if the exercise of power was invalid, the Court had no power to require the Registrar-General to cancel the registration of the respondent as registered proprietor, in accordance with the Full Court decision in Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 – the single Judge dismissed the application for judicial review – the appellant now appeals against that decision.
Held: Appeal dismissed.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - DELEGATION OF POWER
Whether the explanation for the decision to acquire the land, required to be provided by the respondent under s 11 of the Land Acquisition Act 1969 (SA) in response to a requirement made by the appellant under s 11, was able to be exercised by an officer of the respondent – whether the s 11 explanation written by the officer did discharge the respondent’s obligation to provide an explanation under s 11;
Held: the explanation in response to the appellant’s requirement did not necessitate an assessment of the merits of the decision – it only called for an explanation of the reasons for the decision already made and details of the statutory scheme – the explanation was able to be provided to the appellant by an officer of the respondent; (2) the Judge at first instance erred in this respect – by implication, the officer was authorised to prepare and provide the s 11 response to the appellant.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
Whether the s 11 explanation was a precondition to the exercise of power to acquire the land – whether Parliament intended that a failure by the respondent to provide, or authorise the provision of, an explanation under s 11 should invalidate an acquisition of land;
Held: there is no indication in the Land Acquisition Act 1969 (SA) of a legislative intent that a failure to provide or authorise the provision of a response under s 11 should invalidate a later acquisition of the land.

REAL PROPERTY - TORRENS TITLE - AMENDMENT OR VARIATION OF TITLE RECORD - POWERS OF COURT
Whether the correctness of Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 should be considered by the Full Court constituted by five judges – whether the registration of the Commissioner was invalidated or liable to be set aside.
Held: there is not a sufficient doubt about the correctness of Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 to warrant the Court deciding the issue constituted as a Court of five judges.
Land Acquisition Act 1969 (SA) s 3, s 6(1), s 7(2), s 8, s 10, s 10(1), s 11, s 11(1), s 11(3), s 12(1), s 12(4), s 12A, s 12A(1) s 16, s 16(2)(a), s 16(5), s 17, s 17(1); Highways Act 1926 (SA) s 14, s 20(1)(a); Income Tax Assessment Act 1936 (Cth) s 264; Taxation Administration Act 1953 (Cth) s 8(1); Real Property Act 1886 (SA) s 69, s 70, referred to.
Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425; O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, discussed.
Frazer v Walker [1967] 1 AC 569 (HL); Breskvar v Wall (1971) 126 CLR 376; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Logue v Schoalhaven Shire Council (1979) 1 NSWLR 537; City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424; Williamson v Diab [1988] 1 Qd R 210; Re Reference Under Ombudsman Act, s. 11 (1979) 2 ALD 86; Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; In re Golden Chemical Products Ltd [1976] Ch 300; Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340; Ex parte Forster; Re University of Sydney [1963] SR NSW 723; Tasker v Fullwood [1978] 1 NSWLR 20, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"responsible officer", "designated person"

SALIA PROPERTY PTY LTD v COMMISSIONER OF HIGHWAYS
[2012] SASCFC 33
Full Court: Doyle CJ, Anderson and Stanley JJ

DOYLE CJ: The Commissioner of Highways (“the Commissioner”) has exercised powers under the Land Acquisition Act 1969 (SA) (the Act) to acquire compulsorily land previously owned by Salia Property Pty Ltd (“Salia”). The Commissioner is now the registered proprietor of the land.
Shortly after the Commissioner became the registered proprietor of the land, Salia applied for judicial review of the Commissioner’s decision to acquire the land, and for review of the acquisition of the land. Salia claimed a declaration that the notice of acquisition, by force of which the land vested in the Commissioner, was void. Although it is not spelt out in the grounds for relief, Salia also claims an order or orders that would cancel the registration of the Commissioner as registered proprietor of the land and restore Salia as the registered proprietor of the land.
The application was heard by a Judge of this Court. The Judge held that neither the notice of acquisition nor the acquisition of the land was invalid. The Judge held that even if the notice of acquisition, was invalid, Salia was not entitled to orders restoring it as the registered proprietor of the land. The Judge considered that the decision of the Full Court in Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 had decided that even if the notice of acquisition given by the Commissioner was invalid or void, the Court was not empowered to require the Registrar-General to cancel the registration of the Commissioner as registered proprietor, nor was the Commissioner under any duty to re-transfer the land to Salia.
Quite rightly, the Judge considered that he was bound by that decision.
The Judge dismissed the application for judicial review: Salia Property Pty Ltd v Commissioner of Highways [2011] SASC 106.
Salia now appeals. It challenges the Judge’s decision at each step. It submits that the notice of acquisition is invalid. It also submits that the Court should reverse the decision in Palais Parking, and should restore Salia as registered proprietor of the land. The Court indicated that it would hear the argument on each side, and reconvene as a court of five judges if it thought that it was necessary to consider whether Palais Parking was wrongly decided.
Facts and legislation
There was a good deal of discussion and negotiation between the parties about the acquisition while the acquisition was in progress. That can now be put to one side.
On 31 December 2009 the Minister of Transport approved the acquisition of the land for the purposes of a major road construction called the Superway Project (“the Project”). That approval was given pursuant to s 20(1)(a) of the Highways Act 1926 (SA). On 5 January 2010 the Commissioner, by his delegate, also approved the acquisition of the land and directed the implementation of “all necessary procedures”. This decision also was made pursuant to s 20(1)(a) of the Highways Act. Having obtained the Minister’s approval, it was then open to the Commissioner to acquire the land, as he proceeded to do.
The authorisation to acquire the land brought into play the provisions of the Act. The Act regulates the process for the compulsory acquisition of land. Section 7(2) provides:
This Act is hereby incorporated with every special Act authorising the acquisition of land, and shall be read with any such Act as one Act.
For the purposes of this litigation, the Highways Act is the “special Act”.
A number of provisions of the Act refer to “the Authority”. Section 6(1) of the Act provides:
Authority means the person authorised by the special Act to acquire land.
In the present case, the Commissioner is the Authority.
The Act requires the Authority to give notice of its intention to acquire land under the Act. Section 10(1) of the Act provides:
If the Authority proposes to acquire land (other than native title), the Authority must give a notice of intention to acquire the land to each person whose interest in the land is subject to acquisition, or such of those persons as, after diligent inquiry, become known to the Authority.
The Commissioner gave notice pursuant to s 10(1) by letter on 12 January 2010, although the letter enclosing the relevant notice is dated 6 January 2010. There is no issue in relation to the notice under s 10.
Salia then exercised its right to require the Commissioner to explain his decision to acquire the land, and to provide details of the statutory scheme. Section 11 of the Act provides:
11(1)A person who has an interest in the subject land may, within 30 days after notice of intention to acquire the land is given, require the Authority, by written notice—
(a) to give an explanation of the reasons for acquisition of the land; and
(b) to provide reasonable details of any statutory scheme in accordance with which the land is to be acquired.
…
(3)The Authority may furnish the explanation and details by letter, or by making available models, plans, specifications or other relevant materials relating to the statutory land acquisition scheme.
Salia’s solicitors wrote to the Commissioner on 5 February 2010 enclosing a notice of the same date requesting the explanation and details contemplated by s 11(1). There is no issue in relation to this notice.
By letter dated 24 February 2010 Mr Rossi provided a reply to the request. No complaint is now made about the information that he provided. But Salia submits that the letter did not discharge the Commissioner’s duty under s 11(1), and that subsequent steps which are outlined below are invalid because of that. The point, in a nutshell, is that Mr Rossi was neither the delegate nor the authorised agent of the Commissioner.
Mr Rossi signed the letter in his own name. Under his name appeared the title or description: “Project Director, South Road Superway”. At the outset the letter makes it clear that it purports to be the Commissioner’s reasons for the acquisition and details of the statutory scheme.
In an affidavit received at the hearing before the Judge, Mr Rossi says that he is employed as a Project Director in “the Department for Transport, Energy and Infrastructure”. He has been employed in that Department for a good number of years. He says that at the time of swearing the affidavit he was employed on a five year contract between himself and the Chief Executive of the Department.
Other evidence before the Judge established that Mr Hallion was at the relevant time the Chief Executive of the Department, and at the relevant time was also the Commissioner of Highways. Section 14 of the Highways Act provides:
14—Staff
The Commissioner may—
(a)with the approval of the Minister administering an administrative unit of the Public Service of the State, on terms mutually arranged, make use of the services of an employee or use any facilities of the administrative unit;
(b)make use of the services of any other employees engaged for the purposes of this Act.
I proceed on the basis that Mr Rossi was, for present purposes, an employee in an administrative unit, namely, the Department referred to above, providing his services to the Commissioner, along with other employees, in connection with the compulsory acquisition of the land.
Mr Rossi goes on to say in his affidavit that his duties “include the management and delivery of the Superway Project …”, that he has “authority for procurement, financial, contractual and human resources purposes …”, and that he has “delegations” to approve progress payments in connection with the Project. But he does not assert that he has a delegation from the Commissioner to exercise the Commissioner’s powers or discharge his responsibilities under s 11 of the Act. Nor does Mr Rossi assert any specific authority from the Commissioner to furnish explanations and details on behalf of the Commissioner pursuant to s 11(3) of the Act.
The Judge also received an affidavit from Mr Milazzo, another senior employee of the Department. He states that Mr Rossi reports to him, but that Mr Rossi “has considerable responsibility and authority in respect of the operational decision making process”. Mr Milazzo says that Mr Milazzo is “… the delegate of the defendant [the Commissioner] in respect of all and any functions, powers and duties of the defendant under the Highways Act 1926 ...” subject to an irrelevant exception.
Mr Rossi did not have a delegation from the Commissioner under s 12A of the Highways Act for the purposes of s 11 of the Act. Nor does Mr Rossi claim any specific authority to act for the Commissioner under s 11. There remains the question of whether, in the light of the material in the affidavits, the Court should conclude that he had authority to do so based upon his position, his functions and his responsibilities. I will return to that topic later.
The Act gave Salia the right to request the Commissioner not to proceed, or to alter his proposal. Section 12(1) of the Act provides:
A person who has an interest in the subject land may within 30 days after notice of intention to acquire the land is given or, if an explanation of the reasons for the acquisition is required, within 30 days after the explanation was provided, by written notice—
(a)request the Authority not to proceed with the acquisition of the subject land; or
(b)request an alteration in the boundaries of the subject land; or
(c)request that a particular part of the subject land be not acquired, or that further land be acquired.
Section 12(4) provides:
The Authority must consider any request made to it under this section and must, within 14 days after receipt of the request, serve notice in writing on the person by whom the request was made, indicating whether it accedes to, or refuses, the request.
Salia did not exercise its rights under s 12.
Nor did Salia exercise the right conferred by s 12A, which relevantly provides:
(1)A person who makes a request under section 12 in relation to a proposed acquisition may, within 7 days of being served with a notice indicating that the Authority has refused the request, or within such longer period as the Minister may in his or her absolute discretion allow in any particular case, apply in writing to the Minister for a review of the decision.
It is not necessary to set out the balance of this provision.
The next relevant step was the publication by the Commissioner of a “Notice of Acquisition” relating to the land. That Notice is dated 11 May 2010 and appeared in the Government Gazette on 13 May 2010. That notice was given pursuant to s 16 of the Act, which relevantly provides:
16(1)Subject to this Act¹, the Authority may, at least three months after the last occasion on which a notice of intention to acquire was given but before the period for acquisition of the land comes to an end², publish a notice of acquisition in the Gazette.
(2)On publication of the notice of acquisition—
(a)     the land vests in the Authority to the extent of the interest specified in the notice; and
(b)     a mortgage, charge, encumbrance, trust or other interest affecting the land (except native title) is, to the extent it affects the land subject to the acquisition, discharged; and
(c)     if a residual interest remains after the acquisition, the interest is modified to the extent required by the acquisition.³
Salia argued before the Judge, and argues on appeal, that having regard to the failure of the Commissioner to discharge his obligations under s 11 of the Act, the Notice of Acquisition was ineffective to vest the land in the Commissioner.
The next step was taken pursuant to s 17(1) of the Act. That provides:
The Authority shall forthwith after publication of a notice of acquisition cause a copy of the notice to be served on the Registrar and the Registrar shall withdraw any caveat entered pursuant to this Act and cause such alterations to, or endorsements upon, any instrument of title to the land in his possession or power (whether or not the land has been brought under the provisions of the Real Property Act 1886) to be made as may be required in consequence of the acquisition of the land.
On 26 May 2010 the Crown Solicitor lodged a copy of the Notice of Acquisition with the Registrar. On 5 July 2010 the Registrar-General issued a new Certificate of Title in respect of the land, showing the Commissioner of Highways as the registered proprietor.
An issue before the Judge, and again on appeal, was whether the registration of the Commissioner as registered proprietor was invalidated or liable to be set aside by the failure of the Commissioner to discharge his obligations under s 11 of the Act, or whether Salia had a right to require the Commissioner to transfer the land to it.
Consideration of submissions
The first issue is whether Mr Rossi’s letter in response to Salia’s notice under s 11(1) of the Act discharged the obligation of the Commissioner (as the Authority) to provide the explanation and details (the information) required by Salia.
Salia does not argue that the Commissioner himself had to sign the document containing the information. Salia accepts that the Commissioner’s delegate could do so. It argues that the Act does not permit or contemplate the provision of the information by an authorised officer or agent, if Mr Rossi could be so described. The Judge accepted Salia’s submission: reasons at [52].
It is well established that a statutory power can be exercised, and a statutory obligation can be discharged, by a person other than the person on whom the power is conferred or the obligation is imposed. I will refer to this person as the designated person. Generally, a statutory function can be exercised by a designated person or by an authorised agent of that person, subject to the requirements of the particular statute. In the end, how the statutory function may be performed is a question of statutory construction, calling for a consideration of the terms of the statute, the nature of the function and other relevant circumstances. This is the approach that the Judge took: reasons at [48]‑[52].
Underlying the decided cases on this topic is a recognition that decision making by Ministers and statutory authorities and persons designated by statute is usually a process involving officers and employees subordinate to the designated person. Sometimes those officers or employees will merely gather together information and advice to assist the designated person. On other occasions they will make a variety of decisions leading up to the decision to be made by the designated person. On other occasions they will exercise a power conferred on the designated person.
In O’Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 the Court was concerned with notices under s 264 of the Income Tax Assessment Act 1936 (Cth) requiring named persons to attend before a named officer of the Commissioner of Taxation to give evidence and to produce documents. The Commissioner had delegated his power to give notices under s 264 to Deputy Commissioners, by written delegation. The notices in question bore a facsimile signature of a Deputy Commissioner. That facsimile was stamped on the notices by an officer in the Taxation Department, who had been authorised in writing to issue notices and to imprint a facsimile of the Deputy Commissioner’s signature on the notice. The Deputy Commissioner in whose name the notice was issued had no knowledge of the particular notices in question. The High Court held that the notices were validly issued.

Gibbs CJ summarised the relevant principles at 11-12, where he said:
The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: cf. Re Reference under Ombudsman Act, s. 11 (1979) 2 A.L.D. 86, at p 93, per Brennan J. However, I should mention the line of authorities which commenced with Carltona Ltd. v. Commissioners of Works [1943] 2 All ER 560 and which are discussed in In re Golden Chemical Products Ltd. [1976] Ch. 300. Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognized. In Commissioners of Customs and Excise v. Cure & Deeley Ltd. [1962] 1 Q.B. 340, at p. 371, it was said that the Commissioners in that case were in a position parallel to that of Ministers, and in Ex parte Forster; Re University of Sydney [1963] S.R. N.S.W. 723, at p 733, the Senate of a University was regarded as being in a similar situation. I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.
Turning to the circumstances of the particular case, he said at 12-13:
The existence of a power to delegate is of course an important consideration in deciding whether the designated authority may act through an authorized agent. However, the fact that the Act itself contemplates that the delegation will be to a Deputy Commissioner only (notwithstanding that s. 8(1) of the Taxation Administration Act confers a wider power of delegation) suggests that it was not intended that there should be a wholesale delegation of powers to comparatively minor officials. But in any case it would hardly be practicable to make a delegation of that kind, and it seems to me that there exists, as the Parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorized agents. On the whole I have reached the conclusion that the powers conferred by s. 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorized officer.
Mason J applied the same principles, but dissented in the result. Murphy J agreed with Gibbs CJ at 27. Wilson J took the same approach as Gibbs CJ at 30-32. With reference to the facts of the case, he said at 32:
The question is whether the existence of the power of delegation requires that the Commissioner or his delegate must direct his mind personally to the exercise of every power or function vested in him. Stated in that way, in my opinion, the question admits only of one answer. The practical administrative necessity to allow a Deputy Commissioner to exercise the powers delegated to him by the actions of officers authorized by him is evident.
The relevant principles are summarised by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 37-38 where His Honour said:
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. By way of illustration there are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his Department: Carltona Ltd. v. Commissioners of Works. [1943] 2 All E.R. 560, at p. 563; In re Golden Chemical Products Ltd. [1976] Ch. 300. This principle partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally: O’Reilly v. State Bank of Victoria Commissioners (1983) 153 C.L.R. 1, at p. 11.. The principle was applied in that case to the power given to the Commissioner of Taxation by s. 264 of the Income Tax Assessment Act 1936 (Cth) to issue a notice requiring a person to furnish information, attend and give evidence, and produce documents, notwithstanding that the Commissioner had an express statutory power of delegation which he did not exercise in favour of the person who in fact issued the notice. The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.
I turn now to the application of these principles to this case. The reference to the Authority in s 11(1) and s 11(3) does not point strongly either way on the question of whether the Commissioner could act through Mr Rossi, on the basis that Mr Rossi was authorised to provide a response under s 11 or on the basis that Mr Rossi was responsible to the Commissioner for the discharge of the obligation under s 11. In some provisions of the Act a reference to “the Authority” is made in relation to an act that could be carried out by any authorised or responsible officer. For example, service of a notice of acquisition under s 17(1) (set out above) could be carried out by any appropriate official, without reference to the Commissioner or a delegate of the Commissioner. Section 16(5) of the Act requires the authority to cause a notice of acquisition to be published in a newspaper circulating generally throughout the State. Any responsible officer could arrange for that to be done. On the other hand, in a provision such as s 10(1) (set out above) dealing with a proposal to acquire land, the reference to “the Authority” is probably to the Commissioner or a delegate of the Commissioner, bearing in mind the significance of the decision to acquire land.
The response to Salia’s notice did not require an assessment of the merits of the decision to acquire the land. That decision had already been made. Salia’s notice called for an explanation of the reasons for the decision already made, and reasonable details of the statutory scheme. I would expect this material to be drawn from earlier documents recommending to the Commissioner or his delegate that the land be acquired. On the other hand, I agree with the Judge at [51] that the response was “not a mere clerical function”. The giving of the response was a significant step in the process of acquisition. The response is intended to provide a basis for a reasoned request by the land owner under s 12(1) of the Act. But in this case there is no complaint about the content of the response. The giving of the response also affects the timetable for a request under s 12(1) (set out above).
The nature of the obligation imposed by s 11(1) and s 11(3) suggests that the Authority’s response would be prepared by officers or officials. The response would require the assembling of details, and supporting material, at a level of detail to which one would not expect the Commissioner, or even his delegate, to go. The fact that s 11(3) specifically contemplates the response being by letter suggests that the function is one that might be performed by any responsible officer. More than one letter might be written and the information might come from several sources. Similarly, one would not expect the Commissioner or his delegate to be involved in “making available models, plans, specifications or other relevant materials …”. It is relevant that s 11(3) appears to contemplate oral information and discussion as part of the process of responding to a requirement under s 11. These are all factors that, to my mind, support a conclusion that a response under s 11 may be provided by a duly authorised officer or officers, or by an officer or officers with appropriate responsibilities.
On the other hand I agree with the Judge that, having regard to the frequency with which compulsory acquisitions occur, and the frequency with which requirements are made under s 11 of the Act, that it would not be impractical to require that a response be by the Commissioner or his delegate.
Taking all these matters into account, I conclude that when one considers the nature, scope and purpose of the response under s 11, Parliament did not intend to displace the general principle that administrative acts of this kind can be performed not only by the Authority or his delegate, but also by officers who are authorised to that end (as in O’Reilly) or by officers responsible to the Authority. To that extent, I respectfully differ from the Judge.
That leads to the question of whether Mr Rossi was authorised to provide a response under s 11 of the Act, or whether he can be regarded as an official responsible to the Commissioner or his delegate in this respect. There is no suggestion that Mr Rossi had a written authorisation to provide the response. In this respect the present case differs from the circumstances in O’Reilly. However, he was a senior officer in the Department that was providing services to the Commissioner pursuant to s 14 of the Highways Act. Mr Rossi reported directly to Mr Milazzo, who was the delegate of the Commissioner in respect of all of the Commissioner’s functions under the Highways Act, subject to an irrelevant exception. Mr Rossi states in his affidavit that:
It is office practice that responses under s 11 will ordinarily be signed by the Project Director for the relevant roadworks. The Project Director is usually the person in the Department most intimately involved with all aspects of a project.
In the light of that, none of that which was challenged before the Judge, I conclude that Mr Rossi was authorised to prepare and provide a response to a requirement under s 11 of the Act. It was the practice for him to do so, and this must have been known to Mr Milazzo. In my opinion there cannot be any real doubt that Mr Rossi’s reply would have bound the Commissioner, should that become relevant.
For those reasons the letter signed by Mr Rossi discharged the Commissioner’s obligation under s 11 of the Act to provide “an explanation” and “reasonable details”. The Judge came to a contrary conclusion: reasons at [52]. But the Judge held that the explanation was not invalid on that account: reasons at [63]. Salia attacks that conclusion. It is desirable to deal with this aspect of the Judge’s reasons.
The provisions central to this aspect of the case are s 16 and s 17 of the Act. The former provision enables the Authority, by publication of a notice of acquisition, and subject to certain time limits, to cause the land to vest in itself: s 16(2)(a). The latter provision enables the Authority, as a consequence of the exercise of the power under s 16, to require the Registrar to register the Authority as the registered proprietor of the land, as was done in this case.
A condition of the exercise of a power under s 16 by the Authority is the giving of a notice of intention to acquire land under s 10 of the Act.
The provision of an “explanation” and of “reasonable details” under s 11 is not a condition of the exercise of the power conferred on the Authority by s 16. It is merely something that may be required of the Authority in a particular case. The same comment applies to the Authority’s consideration under s 12(4) of a request under s 12(1), and to a review by the Minister under s 12A(1).
What is the consequence of the failure of the Commissioner in this case to discharge his obligation under s 11(1) as a result of the “explanation” and “reasonable details” not being provided by the Commissioner, by his delegate or (as I would hold) by an authorised or responsible officer?
The Judge considered and answered this question (on his approach the reference to an authorised or responsible officer was unnecessary) in the light of the reasons of the majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The approach outlined in that case has been applied by the High Court in numerous later cases. In a well known passage the majority (McHugh, Gummow, Kirby and Hayne JJ) said at [91]-[92]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory.
(Footnotes omitted)
In the present case I consider that s 11 can be regarded, in the words used by their Honours, as “a procedural condition for the exercise of a statutory power or authority”. Their Honours went on to say at [93]:
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
(Footnotes omitted)
This is the approach that the Judge took.
I agree with the Judge’s assessment. Section 11 is a significant provision. It entitles a person with an interest in the land in question to acquire information that might help the person express a requirement that the Authority reconsider its decision as a result of a request under s 12(1) of the Act. However, the entitlement to make that request does not depend upon the relevant person making a requirement under s 11 of the Act, although doing so will extend the time for making a request under s 12(1) of the Act. If the request under s 12 does not result in any change by the Authority, the relevant person can then require the Minister to review the decision, by application in writing under s 12A. The entitlement to make that request does not depend upon the making of a requirement under s 11(1) of the Act. Accordingly, while the discharge of the Authority’s obligation under s 11 may assist a person who wishes to make a request under s 12(1), that is as far as it goes. 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. This conclusion is not undermined by the opening words of s 16(1): “Subject to this Act the Authority may …”. Those words should not be treated as making each provision of the Act an essential preliminary to the exercise of the power under s 16. These 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 s 16.
The Judge also considered the purpose of the Act. The focus of the Act is on the acquisition of land on just terms: s 3. A person with an interest in the relevant land has no right to challenge the decision to acquire the land. Such a person can do no more than require the Authority to reconsider its decision, and require the Minister to review the decision. Information provided under s 11 does not provide a basis for a challenge to the decision to acquire land.
In the light of the considerations referred to so far, in my opinion there is no apparent reason for treating a failure to comply with s 11 as invalidating all that follows.
The Judge referred to the “public inconvenience” that could flow from a decision, after a purported acquisition has taken place, invalidating a response under s 11. The Judge said:
[60]In the present case, the defendant’s powers are conferred for the purposes of acquiring “by agreement or compulsory process any land or interest in land for the purposes of present or future roadwork or any other purposes connected with this Act”. There is the potential for significant public inconvenience where an acquisition has occurred, substantial road works are carried out on the land and the acquisition is subsequently held invalid because of a defect in form or substance of an explanation given under s 11. If it were legally possible to do so, it might be extremely difficult if not impossible to restore the parties to their original positions and highly inconvenient and costly to commence the acquisition process again.
Footnote omitted
Taking all these matters into account, I find no indication in the Act of a legislative intent that a failure by the Authority to provide, or authorise the provision of, a response under s 11, should invalidate a later acquisition under s 16 and s 17 of the Act.
It follows that the correctness of Palais Parking does not arise. But as the matter may go further it is desirable that I express my opinion, although I will do so relatively briefly.

Mr Hayes QC, counsel for Salia, submits that Palais Parking was wrongly decided. In light of my conclusions so far, the correctness of the decision in that case does not need to be decided. It is not appropriate for the Court to sit as a Court of five, with a view to deciding on the correctness of the decision in Palais Parking.
Nevertheless, as the case may go further, I consider that I should indicate why I am not persuaded that this Court should depart from that decision. But I accept that should it be necessary to consider the correctness of the decision in Palais Parking, a bench of five should be convened for that purpose.
Palais Parking arose under the Act. A number of amendments have been made to the Act since then, including amendments to sections now under consideration. But the essential scheme of the Act is the same now as it was then.
In Palais Parking land was acquired compulsorily under the Act. It was acquired in the name of the Director-General of Medical Services. The Director‑General was registered as the registered proprietor of the land. In fact, as a result of administrative actions, the Director-General was no longer an Authority for the purposes of the Act, and had no power to acquire the land. The relevant Authority was the Minister of Works. The dispossessed owner claimed that the land should be restored to him.
The reasons of King CJ, with whom Williams J agreed, proceeded on the basis that the Director-General lacked any legal authority to acquire the land, and that the purported notice of acquisition under s 16 was “void and ineffectual to vest the land in the Director-General”: at 426. The issue was the effect of the registration of the land in the name of the Director-General: at 426. King CJ then referred to the principle of indefeasibility of title, citing passages from the decisions in Frazer v Walker [1967] 1 AC 569 (HL) at 580-581, and in Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376 at 385-386. In particular, he referred to the well known statement that the Torrens system is not a system of registration of title but a system of title by registration. He went on to say at 428:
Upon registration, then, the Director-General became the registered proprietor of the land, notwithstanding that the Notice of Acquisition was void, and, in my opinion, acquired as immunity against adverse claims (other than claims in personam) except so far as they might be specifically admitted by the Act [referring here to the Real Property Act 1886 (SA)]. There is no question of fraud. Subject to what will shortly be said about equities, none of the qualifications to indefeasibility specified in the Act has any application to the facts of the present case.
At 429 he said:
It seems to me that there is no conceivable claim at law against an officer of State in personam by reason of his having become registered in good faith as the proprietor of land by reason of a void instrument of acquisition, and none has been suggested by counsel. It was, however, strenuously argued before us that the owner has a right in equity enforceable against the Director-General in personam to have the land retransferred to it. This argument must now be considered.
He then went on to consider the possibility of a claim in personam against the Director-General. He denied that there was any such claim in equity and denied that it was unconscionable for the Director-General to retain the land: at 430. There was no question of “fraud, oppression or bad faith of any kind” (at 433), nor was there any relevant negligence or breach of duty by the Director‑General. He concluded at 434:
When the arguments are analysed, it appears that the case for the plaintiff can be put no higher than the proposition that in utilizing the machinery of the Land Acquisition Act and in procuring himself to be registered as the proprietor, the Director-General has incurred an obligation in equity enforceable in personam to restore the land to the dispossessed owner, or, to put the matter another way, holds the land as constructive trustee for the dispossessed owner. In my opinion, this proposition stands in plain contradiction of the principle of indefeasibility of the Torrens system title as authoritatively expounded by the cases to which I have referred. It is really an assertion of a claim in equity based upon nothing more than the previous ownership. The basis of such a claim is destroyed by the indefeasibility provisions in ss 69 and 70 of the Act.
Mr Hayes submits that the Act creates a statutory exception to indefeasibility of title under the Real Property Act 1886 (SA) (RPA). He submits that the land vested in the Commissioner by s 16(2)(a) of the Act, and that the consequential registration of the Commissioner as registered proprietor occurred by operation of s 17 of the Act. He argues that the crucial or relevant vesting of land is that which occurred under s 16(2)(a) of the Act, and that the registration of the Commissioner under s 17 was merely consequential. He submits that no legal title vested in the Commissioner upon registration under the RPA. He submits that in Palais Parking King CJ overlooked this argument that an indefeasible title could not be gained in these circumstances. In fact, on his submission, the Commissioner gained no title at all.
It is evident from the reasons of King CJ that he did not overlook this approach, although he might not have dealt with it in terms. He treated the relevant steps taken under the Act as void. Mr Hayes’ submission is really a denial of the conclusion in Palais Parking that the provisions of the RPA apply to the registered title that the Commissioner acquired. Like King CJ, I cannot find anything in the Act to suggest that a registered interest under the RPA, acquired by act of the Registrar under s 17 of the Act, is subject to qualifications to which other registered titles are not subject. The submission by Mr Hayes is, in effect, just another way of arguing that Palais Parking is wrongly decided. I do not consider that s 8 of the Act is to the contrary. That section provides:
8—Real Property Act does not derogate from application of Act
The provisions of this Act apply notwithstanding the provisions of the Real Property Act 1886.
It was appropriate to make that provision because under the Act a person with an interest in land that is compulsorily acquired will be deprived of a registered interest under the RPA. This provision does not suggest to my mind that it was intended to affect the nature of an interest acquired under the Act and registered under the RPA. I note that this provision was in the Act when Palais Parking was decided.
Mr Hayes correctly submits that the land vested in the Commissioner under s 16 of the Act, and that the registration under s 17 of the Commissioner as registered proprietor was consequential on that. But that is not to the point. Once the Commissioner became the registered proprietor he gained the benefit of indefeasibility subject to available claims and applicable exceptions that would ordinarily apply. His title was no less sound than that of any other registered proprietor.
As to the possibility of a claim in personam against the Commissioner at law, or in equity, I am not persuaded that King CJ was wrong in deciding that no such claim was available. Since Palais Parking was decided the High Court decided in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 that a mistake of law or a mistake of fact could give rise to an entitlement to recover monies paid under the effect of such a mistake, and possibly to a claim in respect of property transferred under such a mistake. The scope of such a claim was not fully explored in submissions. But there was no relevant mistake of law by Salia in this case. Nor can Salia be said to have transferred property to the Commissioner under a mistake of law. The Commissioner compulsorily acquired the land. It is open to argument whether a claim for the recovery of property transferred under a mistake (if otherwise available) could apply at all to a compulsory acquisition of land under the Act, having regard to the statutory scheme generally, and to the provisions for the payment of compensation. Nor I am persuaded that there is any obvious basis for the imposition of a constructive trust on the Commissioner, requiring him to transfer the land to Salia.
There is another relevant consideration. A similar approach was taken by the Court of Appeal of the Supreme Court of New South Wales in Logue v Schoalhaven Shire Council (1979) 1 NSWLR 537. The decision in Palais Parking was referred to with apparent approval by the Court of Appeal in City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424 at [57]-[64]. Palais Parking was followed by a Judge of the Supreme Court of Queensland in Williamson v Diab [1988] 1 Qd R 210 at 213.
It is for those reasons that, without considering in full detail all of the submissions, I was not persuaded that there was sufficient doubt about the correctness of the decision in Palais Parking to warrant the Court deciding the present case constituted as a Court of five Judges.
Finally, there is the question of whether the Court should exercise its discretion to refuse relief to Salia, having regard to the passage of time and to the passage of events. If that were the only obstacle to Salia succeeding, I would hear further submissions from the parties. There is a considerable amount of material before the Court bearing on this question, but it was not the subject of detailed submissions before us. The convenience of the acquiring Authority, and the cost to it if the decision were to be set aside, are not the only matters for consideration. The importance of the proper application of the provisions of the Act is also to be considered. Be that as it may, as I have already said, this is a matter on which I would wish to hear the parties further, were it to be the only remaining obstacle to Salia succeeding.
Conclusion
I would dismiss the appeal.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Doyle CJ.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. I have nothing to add.