Salia Property Pty Ltd v Commissioner of Highways - [2011] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
SALIA PROPERTY PTY LTD v COMMISSIONER OF HIGHWAYS
[2011] SASC 106
Judgment of The Honourable Justice Bleby
5 July 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - DELEGATION OF POWER
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION - WHAT MAY BE ACQUIRED
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - EXCEPTIONS TO INDEFEASIBILITY - IN PERSONAM EXCEPTION
Application to set aside purported acquisition of land by the defendant as invalid – Land acquired for the purpose of casting yard for South Road Superway Project – Consideration of the effect of the legislative scheme under the Land Acquisition Act 1969 – Consideration of interests that can be acquired under the Land Acquisition Act – Whether defendant complied with procedural requirements under Land Acquisition Act – Whether explanation for acquisition furnished by non-delegate officer invalidates acquisition – Consideration of circumstances under which acquiring authority must perform statutory obligation personally – Consideration of principle discussed in Project Blue Sky v Australian Broadcasting Authority – Whether response was inadequate as to reasons for acquisition – Whether response failed to provide adequate details of relevant statutory scheme – Whether non-compliance with s 11 of the Land Acquisition Act resulted in invalid acquisition – Whether decision to acquire was made by non-delegate officer – Whether defendant failed to take into account relevant considerations and/or took into account irrelevant considerations – Consideration of when acquisition authorised – Whether notice of intention to acquire required earlier – Whether acquisition unlawful due to defendant’s failure to consider objection made by plaintiff under s 12 of the Land Acquisition Act after acquisition – Consideration of the consequences of invalidity – Whether any equity or claim in personam justifying re-transfer of land to plaintiff.
Held: Defendant’s acquisition of the plaintiff’s land was lawful – Plaintiff’s application dismissed.
Land Acquisition Act 1969 (SA) s 3, s 6, s 7, s 10, s 11, s 12, s 12A, s 14, s 15, s 16, s 17, s 23, s 23A, s 23B, s 23C, s 25, s 28; Highways Act 1926 (SA) s 12A, s 20; Glenelg and Brighton Tramways Act 1877 (SA); Real Property Act 1886 (SA) s 71, 249, referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Love v State of Victoria [2009] VSC 215; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Watson v State of South Australia [2010] SASCFC 26; Attorney-General (NSW) v Quin (1990) 170 CLR 1, applied.
Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425, discussed.
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O’Reilly v Commissioner of the State Bank of Victoria (1983) 153 CLR 1; In re Whitley Partners Ltd (1886) 32 Ch D 337; CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365; Bloss v Brisbane Exposition and South Bank Development Authority (1984) 54 LGRA 403; Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"interest in land", "statutory scheme", "proposes to acquire land"

SALIA PROPERTY PTY LTD v COMMISSIONER OF HIGHWAYS
[2011] SASC 106
Land and Valuation Division
BLEBY J.
Introduction

The plaintiff seeks, by way of judicial review on a number of grounds, to set aside as invalid the purported acquisition of its land by the defendant.
The South Road Superway Project (“the Superway Project”) is intended to form part of a non-stop north-south road corridor for freight and passenger vehicles between the existing Port River Expressway at Wingfield and Southern Expressway at Darlington. The Superway Project includes approaches to and a significant length of elevated roadway of South Road between the Port River Expressway and Regency Road, Regency Park.
On 5 January 2010, in accordance with approval given by the Minister on 31 December 2009, the defendant’s delegate approved the acquisition of several privately owned properties for the purpose of the Superway Project, including 8.614 ha of land comprising Lot 201 South Road, Angle Park (“the land”). The plaintiff was then the registered proprietor of the land. The land was purportedly formally acquired by the defendant by notice of acquisition given on 13 May 2010.
On 6 July 2010, by a summons issued in this Court, the plaintiff applied for orders for judicial review and declarations that the explanation of reasons given by the defendant for the acquisition and the acquisition itself were void.
The relevant background
In around March 2009, notification of the proposed works was given to members of the public potentially affected by roadworks for the Superway Project, including those whose land may be acquired for the project.
Discussions with business owners in the vicinity of the proposed works area commenced in May 2009, in order to ascertain the likely business impacts of different options for the Superway Project in that area. A representative of the planning team for the Superway Project met with Mr Francesco Salandra, the director of the plaintiff, in late May and discussed the proposed roadworks along with how they might affect the land. At the meeting, Mr Salandra also informed the representative of his development proposals for the land, as well as putting forward an offer to lease the land to the defendant.
Mr Salandra met with another representative of the defendant, Ms Mary Ward, on or about 7 July 2009, where he discussed his intention to develop the land for warehousing and offices. About a week later, Mr Salandra sent a letter on behalf of the plaintiff to the defendant. The letter outlined the plaintiff’s concern about the uncertainty created by the proposed roadworks and the effect on the plaintiff’s ability to attract tenants and develop the site.
A planning assessment conducted within the Department for Transport Energy and Infrastructure (“DTEI”) identified that the plaintiff’s land was the most convenient location for the casting yard required for the proposed works. The casting yard would contain facilities for casting and storing large pre-cast concrete sections for use in the construction of the Superway. Ms Ward informed Mr Salandra at a subsequent meeting on 13 August 2009 that a lease or purchase of the land could be useful to the defendant for this purpose.
On 7 December 2009, Ms Ward met again with Mr Salandra to make an offer for the purchase of the land from the plaintiff and to express the defendant’s desire to enter into early occupation of the land from March 2010 under a short term lease. The offer was rejected, with Mr Salandra stating his preference for a long term lease of the land to the defendant.
Cabinet approved all land acquisitions for the Superway Project on 14 December 2009. On 23 December 2009, Mr Andrew Milazzo, the delegate of the Defendant[1] and the Defendant jointly recommended to the Minister for Transport that he approve the acquisition of all land necessary, together with such additional land as the defendant or his delegate deem expedient for the purposes of the Superway project. The relevant properties to be acquired were outlined in a schedule attached to the minute to the Minister containing the recommendation. The plaintiff’s property was included in the schedule. On 31 December 2009, the Minister for Transport gave his approval on those terms.
[1] The power of the Commissioner to delegate his or her functions, powers or duties is given by s 12A of the Highways Act 1926 (SA).
On 5 January 2010, Mr Milazzo, as the defendant’s delegate, approved the acquisition of the properties in the schedule including the plaintiff’s land. On 6 January 2010 notice of intention to acquire the land was given under the seal of the defendant in accordance with the provisions of s 10 of the Land Acquisition Act 1969 (SA). Further discussions and correspondence ensued between an officer of the defendant and Mr Salandra. Mr Salandra continued to press for a lease of the land to the defendant rather than its acquisition by the defendant.
On 5 February 2010 the plaintiff’s solicitor sent a notice pursuant to s 11 of the Land Acquisition Act requesting an explanation of the reasons for the acquisition and reasonable details of any statutory scheme in accordance with which the land was to be acquired.
On 24 February 2010 Mr Rossi, the Project Director for the Superway Project but not the formal delegate of the defendant, furnished an explanation by letter of the reasons for the acquisition. The plaintiff continued to press for a lease of the land to the defendant.
On 13 May 2010 the defendant published a notice of acquisition of the land in the Gazette. Further correspondence ensued between the plaintiff’s solicitors and the defendant challenging the validity of the explanation. By letter dated 16 August 2010 the Crown Solicitor forwarded a fresh notice dated 12 August 2010 signed by Mr Milazzo, the delegate of the defendant. While denying any defect in the explanation given by Mr Rossi on 24 February, he gave a fresh notice of explanation in almost identical terms. On 14 September 2010 the plaintiff purported to exercise its rights under s 12 of the Land Acquisition Act by requesting the defendant not to proceed with the acquisition. The defendant declined to entertain the request.
It will be necessary to consider the foregoing events and correspondence in more detail and to do so against the particular requirements of the Land Acquisition Act.
The legislative requirements
The general power of the defendant to acquire land for the purpose of roadworks such as those involved in constructing the Superway is provided for in s 20 of the Highways Act 1926 (SA):
(1)Subject to the provisions of this Act, the Commissioner in his corporate name may—
(a) subject to the approval of the Minister, acquire 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; ….
…
The expressions “land” and “interest in land” are not defined for the purpose of the Highways Act.
The procedure under which the acquisition is to take place is provided for by the Land Acquisition Act. The Land Acquisition Act applies by virtue of s 7:
(1)This Act applies to and in relation to every acquisition of land authorised by a special Act.
(1a)A special Act that authorises the compulsory acquisition of land will be taken to authorise the acquisition of land as defined by this Act.
(2)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.
…
“Land” is defined by s 6 of the Land Acquisition Act as including an “interest in land” which is defined further as:
(a) a legal or equitable estate or interest in the land; or
(b)an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or
(c) native title in the land;
“Special Act” is defined by s 6 as “the Act authorising the compulsory acquisition of land”. The Highways Act, by operation of s 20, meets the definition of such a “special Act”.
The Land Acquisition Act sets out various requirements and rights in relation to the acquisition of land by an Authority. Where land is intended to be acquired, a notice must be given to those persons with an interest in the land. Section 10 of the Land Acquisition Act relevantly provides:
(1)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.
…
(3)The notice of intention to acquire the land must comply with the following requirements:
(a) it must define the subject land with reasonable particularity; and
…
(4)If the Authority changes the boundaries of the land it proposes to acquire in any respect, the Authority must immediately serve a notice of amendment to the notice of intention to acquire the land on the same persons and in the same way as the notice of intention to acquire.
…
(6)A notice of intention to acquire land does not bind the Authority to acquire the subject land.
Once a notice of intention has been given, any recipient of such a notice has a right to the provision of an explanation of the acquisition scheme. Section 11 of the Land Acquisition Act relevantly provides:
(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.
Within 30 days of the notice of intention or within 30 days of receiving the explanation, the recipient may object to the proposed acquisition pursuant to s 12. So far is relevant that section provides:
(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 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.
…
(3)A request may be made under subsection (1)—
(aa)   on the ground that acquisition of the land or a particular part of the land is not necessary for the purposes of carrying out the undertaking to which the acquisition relates; or
(a)     on the ground that acquisition of the land or carrying out the purposes for which the acquisition is proposed would—
(i)seriously impair an area of scenic beauty; or
(ii)destroy, damage or interfere with an Aboriginal site within the meaning of the Aboriginal Heritage Act 1988; or
(iii)destroy or impair a site of architectural, historic or scientific interest; or
(iv)prejudice the conservation of flora or fauna that should be conserved in the public interest; or
(v)prejudice some other public interest; or
(b)     on some other ground stated in the request.
(4)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.
If a request under s 12 is unsuccessful, there is a further right to seek a review by the relevant Minister under s 12A of the Land Acquisition Act.
Section 14 of the Land Acquisition Act requires a copy of a notice of intention to acquire land to be served on the Registrar-General who is then required to make a caveat on the land forbidding all dealings with the land without the consent in writing of the Authority.
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 end,[2] the relevant Authority may publish a notice of acquisition in the Gazette pursuant to s 16, effecting the acquisition of the land. Upon publication of the notice of acquisition the land vests in the Authority to the extent of the interest specified in the notice, and any mortgage, charge, encumbrance, trust or other interest affecting the land, to the extent that it affects the land acquired, is discharged.[3] Section 16(3) of the Land Acquisition Act provides:
(3)The land acquired under this section may be an easement, right, power, or privilege that did not previously exist as such in, under, over, or in connection with, land.
[2] See Land Acquisition Act s 15(4) and (4a).
[3] Land Acquisition Act s 16.
Section 17 requires the Registrar-General to make any consequential endorsements on the Certificate of Title.
When an Authority gives notice of the acquisition of land it must make an offer to the person or persons whom it believes to be entitled to compensation for the acquisition, and within seven days after making the offer of compensation, pay the amount offered into court.[4] The Authority must negotiate in good faith with interested persons about the compensation payable for the acquisition.[5] If agreement is reached by the negotiating parties the Authority must file a copy of the agreement in the Court, and the Court may make orders to give effect to the agreement.[6] In the absence of agreement the Land Acquisition Act provides for a process of reference of disputed matters into court for determination,[7] and sets out the principles upon which compensation is to be determined.[8]
[4] Ibid s 23A.
[5] Ibid s 23.
[6] Ibid s 23B.
[7] Ibid s 23C.
[8] Ibid s 25.
The effect of the legislative scheme
On its face, s 7(1) of the Land Acquisition Act would apply the provisions of that Act to any acquisition of land or of an interest in land where the acquisition is authorised by a special Act, whether that acquisition is by agreement or by compulsory process. If that is so, it would follow, before any such acquisition can take place, that a notice of intention to acquire must be given under s 10. That notice requires both a description of the interest to be acquired and an adequate definition of the land or interest to be acquired.[9] However, the question that must be asked is what is the purpose of such a notice.
[9] Ibid s 10(3)(a).
A consideration of the Land Acquisition Act suggests that a notice of intention to acquire has a number of purposes:
(1)One of the purposes is to allow for a formal process of enquiry by persons affected as to reasons for the intended acquisition and as to any relevant statutory scheme.[10]
(2)Another purpose is to provide an opportunity for a person affected to request that the land not be acquired or that the acquisition proceed in a different manner.[11]
(3)Where there is no agreement on the matters referred to in item (2), it is a necessary preliminary to a process of application for review of the acquisition by the Minister.[12]
(4)Another purpose is to give notice to any person who might be contemplating dealing with the land that it may be the subject of compulsory acquisition by the authority,[13] with all the consequences that may follow concerning the determination and payment of compensation set forth in Part 4, Div 2 of the Land Acquisition Act.
(5)A further purpose evidenced from s 14 is to prevent any dealings with the land without the consent of the Authority.
(6)The giving of the notice is a necessary preliminary to acquisition by compulsory process under s 16.
[10] Ibid s 11(1).
[11] Ibid s 12.
[12] Ibid s 12A.
[13] Ibid s 14.

While embarking on such a process does not prevent subsequent acquisition by agreement[14] or require the Authority to proceed with the acquisition,[15] and while the process initiated by a notice of intention to acquire is necessary for the protection of land owners whose land is to be acquired compulsorily, it is not apparent that the process is necessary where usual negotiations take place between contracting parties for the sale and purchase of interests in land. The process initiated by a notice of intention to acquire and the purpose of the notice are directed to a person who may be unwilling to negotiate the sale of his interest in the land to the Authority.
[14] Ibid s 15(1).
[15] Ibid s 15(2).
There are other provisions in Part 5 of the Land Acquisition Act which enable a person to require an Authority to acquire their land on terms and conditions determined by the Court. Those provisions clearly have no application to acquisition by agreement.
It is also quite clear that the result of the processes initiated by notice of intention to acquire under s 10 of the Land Acquisition Act or under Part 5 is the negotiation or settlement of compensation for the acquisition,[16] which compensation is to be determined in accordance with s 25 of the Land Acquisition Act. Those principles will not necessarily be relevant to the determination of consideration for a sale of the land. Compensation fixed under the Land Acquisition Act is not in the nature of consideration for an agreement to acquire.
[16] Ibid Part 4, Div 2 and s 28.
The other provisions of the Land Acquisition Act only provide for processes which are necessary where land is intended to be acquired by compulsion and to protect the interests of persons who are unable or unwilling to enter into an agreement with the Authority for the acquisition of the land by the Authority.
If that is so, it would follow that s 7(1) of the Land Acquisition Act needs to be read down to exclude from its scope, and from the scope of s 10(1), any acquisition of an interest in land by agreement, other than an agreement reached in consequence of a notice of intention to acquire. Such a conclusion is supported by the practical difficulties that would apply if it were not to be so read down.
Acquisition by agreement would include acquisition consequent upon a public auction. If s 7(1) applied to such an acquisition, it would require the Authority to give notice of intention to acquire before commencement of the auction, effectively preventing any dealings with the land without the consent of the Authority.[17] That can hardly have been the intention of Parliament with the obvious adverse consequences that such a course would have on the vendor.
[17] Ibid s 14.
A lease is an interest in land the value and definition of which depends on the content of many and varied covenants usually the subject of an agreement between the lessor and lessee. But the nature and extent of that interest can only be defined by the content of those covenants. If an Authority wished to negotiate a lease of land or a building and s 7(1) of the Land Acquisition Act were to apply, the notice of intention required by s 10 would need to include all the covenants proposed by the Authority in order to determine the nature and extent, to say nothing of the value, of the interest to be acquired. Every time a variation was suggested, a fresh notice would be required because the nature of the interest to be acquired would thereby be affected. That can hardly have been the intention of Parliament.
For all these reasons, I conclude that s 7(1) of the Land Acquisition Act, and hence the other provisions of that Act, only apply where there is an intention on the part of the Authority to acquire land by compulsion.
The next question to be asked is what is the nature of the interest that may be acquired by compulsory process under the Land Acquisition Act. It is not merely “land” in its undefined meaning but “land as defined by [the] Act”.[18] It can mean no greater interest than an estate of fee simple in the land, being the most comprehensive interest known to the law that can be held in a piece of land. However, it can include something less. As mentioned above, “an interest in land”, which can be the subject of acquisition under the Land Acquisition Act, is defined as:
(a) a legal or equitable estate or interest in the land; or
(b)an easement, right, power or privilege in, under, over, affecting, or in connection with, the land; or
(c) native title in the land.[19]
[18] Ibid s 7(1a).
[19] Ibid s 6(1).
The inclusion of para (b) is significant. Its terms reappear in s 16(3), which allows the acquisition of such an interest that does not exist as such. The clear implication is that the acquisition of other interests in land is restricted to interests which already exist at the time that notice of intention is given. It may include an existing interest as lessee, but not a lease yet to be created. To do so would encounter problems of the type mentioned above and render the process impracticable. It might include an existing interest as mortgagee. It is difficult to envisage how it could include, by compulsory process, an interest as mortgagee in a mortgage yet to be created.
The process requires the acquisition of something that can be valued and which results in the payment of compensation,[20] including the payment into court of the amount of compensation offered by the Authority.[21] Acquisition of a lease yet to be created does not result in payment of compensation but in payment of rent.
[20] Ibid Part 4, Div 2.
[21] Ibid s 23A.
Everything therefore points to the fact that what is the subject of acquisition under the Land Acquisition Act is an existing interest in land, not an interest yet to be created, unless it is an interest which comes within para (b) of the definition of “interest” in land.
The plaintiff’s grounds for judicial review
Some of the plaintiff’s original grounds were abandoned at the hearing and some were amended. What follows is a summary of the grounds relied on.
The plaintiff’s first three grounds of review submit essentially that the defendant, as the relevant acquiring Authority, did not comply with its obligations under s 11 of the Land Acquisition Act. The first of these grounds of review is based upon the assertion that Mr Rossi was not a delegate of the defendant and could not therefore fulfil the requirements of s 11. The second and third grounds of review assert that the substance of the notice itself was inadequate in that it failed to provide adequate reasons for acquisition of the land and details of the relevant statutory scheme, respectively.
The remaining grounds of review relate to an assertion by the plaintiff that the acquisition itself was unlawful. In its fourth ground, the plaintiff contends that the defects attending the response to the s 11 notice rendered the whole acquisition invalid. Fifthly, the plaintiff contends that the decision to acquire the land was made by Mr Rossi and not by the defendant or the defendant’s delegate. Sixthly, the plaintiff alleges that the defendant, in making the decision to acquire the plaintiff’s land, took into account irrelevant considerations and failed to take into account relevant considerations. Seventhly, it is contended that for a number of reasons the acquisition of the plaintiff’s land was not authorised by s 16 of the Land Acquisition Act. Finally, it is alleged that the defendant has not complied with the obligations imposed by s 12 of the Land Acquisition Act, thereby denying the plaintiff rights under s 12A and rendering the acquisition invalid.
Consideration of each of these grounds follows.
Non-compliance with s 11 of the Land Acquisition Act
Ground 1 – The response was not furnished by the defendant or his delegate
The plaintiff’s first ground of review postulates that the requirement that the Authority provide a response under s 11 of the Land Acquisition Act can only be met if it is the defendant or his delegate who furnishes the response. Consequently, the plaintiff argues, the response provided by Mr Rossi, the Project Director of the Superway Project, did not meet this requirement and was therefore invalid.
Section 11(1) provides that a person who has an interest in the land to be acquired may require the Authority to provide an explanation of the acquisition scheme. Section 11(3) provides that “[t]he Authority” may furnish the explanation by various means. Section 6(1) of the Land Acquisition Act defines “Authority” as the person authorised by the special Act to acquire land. By reference to ss 20 and 12A of the Highways Act, this would be the defendant and any delegate of the defendant.
It is not disputed that Mr Rossi was not a delegate of the defendant. However, the defendant submits that the interpretation of “Authority” for the purposes of s 11 of the Land Acquisition Act is subject to whether there appears a contrary intention. According to the defendant, such a contrary intention appears in that s 11 allows for the explanation and details to be furnished “by letter, or by making available models, plans, specifications or other relevant materials relating to the statutory land acquisition scheme”. The defendant submits that this indicates that the “routine administrative task” of furnishing an explanation and details may be performed by an “appropriately qualified officer” in the defendant’s office. In my opinion, the mode by which the explanation may be provided set out in s 11(3) does not constitute a contrary intention. That would be too broad an interpretation of the words of the provision.
The defendant also relies on the principle established in Carltona Ltd v Commissioner of Works[22] and discussed in O’Reilly v Commissioner of the State Bank of Victoria.[23] In the latter case Gibbs CJ said of the Carltona principle:[24]
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. … 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.
[22] [1943] 2 All ER 560.
[23] (1983) 153 CLR 1.
[24] Ibid 11-12.
In O’Reilly itself the question was whether the Commissioner of Taxation or his delegate should personally sign a notice requiring a person to attend and give evidence before him or an authorised officer and to produce documents. Gibbs CJ cited with approval a passage from the judgment of Bowen LJ in In re Whitley Partners Ltd[25] and continued:[26]
There can be no doubt that as a general proposition at common law a person sufficiently “signs” a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person: see London County Council v. Agricultural Food Products Ltd. Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.
[Footnote omitted]
[25] (1886) 32 Ch D 337, 340-341.
[26] (1983) 153 CLR 1, 11.
The explanation required by s 11 is not equivalent to reasons for an administrative act which may become the subject of scrutiny on judicial review of a decision to acquire land. It may determine the time within which an objection may be made under s 12, but it is not directly relevant to the making of a decision by the Authority under s 12(4) or by the Minister under s 12A. It is, nevertheless, part of a statutory procedure which may become necessary as part of the process leading to formal acquisition. It is not a mere clerical function that can be performed by a member of the Authority’s staff. It is something which the Land Acquisition Act contemplates that the acquiring Authority will own and on which the land owner can rely in deciding whether or not to oppose the acquisition or to suggest an alterative means. The Commissioner of Highways almost certainly conducts more compulsory acquisitions in this State than any other Authority. It is not as though his task would become unduly burdensome or impracticable if the explanation were required to be given by the Commissioner or his delegate. In practice it would appear that few such explanations are required, particularly in respect of acquisitions for a major project of public infrastructure, where the practice of the Commissioner is to consult widely before the process even begins.
I therefore conclude that the explanation required by s 11 was required to be given by the Commissioner or his delegate, and that the response given by Mr Rossi did not comply with the requirements of s 11.
However, in Project Blue Sky Inc v Australian Broadcasting Authority,[27] McHugh, Gummow, Kirby and Hayne JJ explained that an act done in breach of a condition regulating the exercise of a statutory power was not necessarily invalid and of no effect. In their joint judgment, their Honours said:[28]
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.
[27] [1998] HCA 28; (1998) 194 CLR 355.
[28] Ibid [91]; 389.
Their Honours also noted the lack of guidance given in discerning whether such a legislative purpose exists:[29]
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.
[Footnote omitted]
[29] Ibid [91]; 389.
In the course of their reasons, McHugh, Gummow, Kirby and Hayne JJ also criticised the traditional approach of the courts to the question of distinguishing 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 so-called procedural condition for the exercise of a statutory power or authority. They noted that cases falling within the first category would require compliance and failure to comply would result in invalidity, and that those falling within the second would not result in invalidity, as the relevant clause would be directory rather than mandatory. Their Honours concluded:[30]
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.
[Footnote omitted]
[30] Ibid [93]; 390.
The test for determining the issue of validity was enunciated by their Honours as follows:[31]
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 the courts in this country in recent years … 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”.
[Footnote omitted]
[31] Ibid [93]; 390-1.
It follows then, that in determining whether or not Mr Rossi’s response was invalid, consideration is required of the both the language of s 11 as well as the scope and object of the Land Acquisition Act, read in conjunction with the Highways Act, in order to determine the question of whether it was a purpose of the acquisition legislation that an act done in breach of s 11 should be held invalid.
Section 11 of the Land Acquisition Act provides a means by which a person holding an interest in land to be acquired by a relevant Authority may be given by that Authority “an explanation of the reasons for the acquisition” and “reasonable details of any statutory scheme in accordance with which the land is to be acquired”. Section 11(3) provides the mode by which an explanation may be furnished, namely, by letter “or by making available models, plans, specifications or other relevant materials relating to the statutory land acquisition scheme”. The provision also prescribes that an interested person must require such an explanation within 30 days of receiving the notice of intention to acquire land. By the time s 11 comes into play, the decision to acquire, subject to possible modification or abandonment,[32] has already been made with s 11 merely regulating the exercise of the Authority’s acquisition powers in regards to furnishing an explanation to interested persons before the notice of acquisition is issued. It can be seen that the language of the provision focuses on the regulation of the content and mode of the written notice, as well as its timing. The language of the provision does not impose any essential preliminaries to the exercise of an Authority’s acquisition powers. Compliance with s 11 is not a necessary prerequisite to an objection under s 12 or to a right of review under s 12A. A response under s 11 is not a determination of rights. At most it sets a time limit for making an objection under s 12.[33] This makes it highly unlikely that it was a purpose of the Land Acquisition Act that a breach of s 11 would necessarily invalidate a response furnished under that section and, consequently, would itself invalidate an acquisition.
[32] Land Acquisition Act ss 12(4), 15(1) and (2).
[33] Ibid s 12(1).
It was also noted in Project Blue Sky in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ that:[34]
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
[Footnote omitted]
[34] [1998] HCA 28; (1998) 194 CLR 355, [97]; 392.
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”.[35] 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.
[35] Highways Act s 20.
The purpose of the conferral of the power to acquire upon the defendant is also relevant to an analysis of the broader scope and object of the relevant statute. This is to be read in conjunction with s 3 of the Land Acquisition Act, which provides:
The object of this Act is to provide for the acquisition of land on just terms.

Given that the scope and object of the legislative scheme is to provide for the acquisition of land on just terms for the purposes of present or future roadwork, it seems extremely unlikely that it would have been a purpose of the legislature that the acquisition of land would be invalid simply because an explanation for that decision was not furnished exactly in accordance with the requirements of s 11.
While s 11 requires that an explanation of the reasons for the acquisition be given by the Authority or his delegate, the explanation given by the Superway Project Director, Mr Rossi, was not invalid on that account and did not therefore invalidate the acquisition itself.
Ground 2 – The response was inadequate as to reasons for acquisition
The plaintiff also contends that Mr Rossi’s letter of 24 February 2010 did not comply with s 11 of the Land Acquisition Act as it did not give an “explanation” as required by s 11(1)(a). According to the plaintiff, the response made “an assertion of a number of matters”, but “did not give an explanation of the reasons for acquisition” of the plaintiff’s land.
The particular complaint of the plaintiff is that whilst the response addresses the use to be made of the land, it apparently did not give an explanation of the reasons for the acquisition of an estate in fee simple rather than the acquisition of a leasehold interest.
I have already expressed the view that the Land Acquisition Act does not enable the compulsory acquisition of a non-existent leasehold interest in land. That is not to say that an authority is incapable of negotiating a lease of another’s land. That would be a process not governed or controlled by the provisions of the Land Acquisition Act. It would be entirely dependent on the willingness and ability of two parties to negotiate and agree upon the terms of a lease.
Negotiating a lease of a large strategic area of land for a specialised purpose of the type described below would be fraught with difficulty from the point of view of an acquiring authority, with no certainty of satisfactory agreement being reached in a timely manner. There was no obligation on the Commissioner in this case to pursue such an option.
Nevertheless, although it was not necessary, reasons were given by Mr Rossi in his letter of 24 February 2010 as to why the Commissioner considered that such a lease was undesirable, together with an explanation of the reasons for the acquisition of the land. It is necessary to describe the essential terms of his response.
First, the plaintiff through its solicitors was informed that portion of the land was required to accommodate the construction of the Superway Project. Copies of information that the DTEI had provided to the public and to affected parties on the nature of the project were enclosed. The plaintiff was then informed that if further information regarding the project was required, Mr Rossi would be pleased to arrange an appointment for further demonstration of the nature of the project. Mr Rossi said in the letter that the project would be constructed primarily along the current South Road alignment between Regency Road, Regency Park and the Port River Expressway as a part of the non-stop north-south transport corridor between the Southern Expressway at Darlington and the Port River Expressway.
The letter then continued:
·In addition to the area that is required to accommodate the Superway itself, the Commissioner requires the whole of the remainder of your client’s property to allow DTEI to construct a concrete casting yard, concrete batching plant and lay down area that will be essential for the fabrication, casting and curing of concrete piers and bridge deck structural members for the proposed viaduct that will form an integral part of that project.
oThe proposed casting yard complex requires very large and highly specialised plant, which, in turn, will occupy a substantial area of land.
oThe Commissioner will need to construct a large area of specialised land standing on the subject land that must be capable of withstanding 100 tonne loads.
oA major casting facility will be built utilising special purpose cranes, a batching plant, lay down area and curing sheds with overhead cranes.
oIn addition to the cost of the land, the Commissioner is anticipating than an overall investment cost of between $10 m and $15 m will be required to enable DTEI to build the proposed plant.
oIt is inappropriate for DTEI to undertake an investment of that magnitude to construct a plant of this nature on land that it does not own.
·The proposed facility will be suitable for other works that will be required along the North-South Corridor over the next 10–15 years. Those proposals include the Northern Connector, which has been announced as proposed link from the northern end of the South Road Superway and the Port River Expressway to the Northern Expressway.
·The subject site is ideally located to accommodate construction of the facility in connection with the South Road Superway Project. Use of this site will assist in minimising the impacts on road users and the broader community from the construction and longer distance transportation of substantial structural units.
·A one off purchase cost will have significant benefit to the Commissioner and government over many years.
The plaintiff’s solicitors were informed that if further information was required it would be provided, and an invitation was extended to discuss any aspect of the matter in more detail with named offices of the Commissioner’s staff.
The plaintiff submits that the above explanation would give the reader no understanding of why acquiring the land by way of leasehold was considered to be inappropriate by the defendant. However, it was not for the defendant to justify the long term economics of a possible lease where no terms had been agreed and might never be agreed. Mr Rossi made it very clear that the nature and scale of the investment in the plant to be constructed as well as the expected duration of the usage of the proposed facility would make a one-off purchase the more viable option for the defendant, rather than by a leasehold agreement. The plaintiff may not have liked or agreed with the explanation. That does not mean that it was an inadequate explanation. The adequacy of the explanation is also to be judged by what considerations the Authority is required to take into account in deciding to acquire the land. That is discussed in my consideration of ground 6 below. The conclusion I reach on that ground did not require any further explanation than was given by Mr Rossi.
The submission that the response was an inadequate explanation, in my opinion, must fail.
Even if it were an inadequate response, for reasons given in considering ground 1 based on the principles expressed in Project Blue Sky Inc v Australian Broadcasting Authority,[36] I do not consider that that would render the acquisition invalid.
[36] [1998] HCA 28; (1998) 194 CLR 355.
Ground 3 – the response did not provide adequate details of any relevant statutory scheme
The next ground of review advanced by the plaintiff is that the defendant failed to provide reasonable details of any statutory scheme “in accordance with which the land is to be acquired” pursuant to s 11(1)(b). The plaintiff points out that the response given by Mr Rossi of 24 February 2010 does not make any mention of the statutory scheme under which the plaintiff’s land was to be acquired, namely, the Land Acquisition Act and the Highways Act.
The expression “statutory scheme” is not defined in the Land Acquisition Act. In my opinion the “statutory scheme” referred to in s 11(1)(b) means a particular scheme referred to in an enabling statute which authorises a particular undertaking of works. There are many such Acts of which the Glenelg and Brighton Tramways Act 1877 (SA) is an example. The paragraph does not refer to an acquisition for the general purposes authorised by the Highways Act. Accordingly, s 11(1)(b) had no application to this acquisition.
However, to the extent that it may be said that the statutory scheme comprised the Highways Act and the Land Acquisition Act, the fact that the plaintiff expressly made an application under s 11 of the Land Acquisition Act and received a response referring to its application would of itself point to the application of the Land Acquisition Act to a particular acquisition. The fact that the notice of intention to acquire was given by the Commissioner of Highways indicated that he could only have been acting under powers conferred on him by the Highways Act. To have referred expressly in the explanation to the Highways Act and the Land Acquisition Act would have added nothing to the explanation. Accordingly, the submission that the defendant did not give “reasonable details” of the relevant statutory scheme must also fail.
As is the case with grounds 1 and 2, the principles enunciated in Project Blue Sky[37] would prevent any finding of invalidity of the subsequent acquisition based on an allegation of any failure to provide reasonable details of any statutory scheme.
[37] Ibid.
Invalidity of the acquisition
The plaintiff’s next grounds of review centre on the proposition that the acquisition itself was unlawful.
Ground 4 – The defendant had no authority under s 16 the Land Acquisition Act to give notice of acquisition if there was non-compliance with s 11
By this ground of review the plaintiff argues that non-compliance with s 11 of the Land Acquisition Act necessarily results in the defendant not having authority to issue a notice of acquisition under s 16 of the Land Acquisition Act.
For reasons already given in relation to grounds 1-3, I do not consider that any defect in the defendant’s s 11 response would render invalid the subsequent notice of acquisition given under s 16 of the Land Acquisition Act on 13 May 2010. Nor do I consider that such defects (if any) collectively would render the acquisition invalid. Although the plaintiff now alleges that the defects rendered the acquisition invalid, there was no suggestion until after the acquisition had occurred that such defects existed, nor was there any attempt, as could have been done, to invoke the right to object under s 12 and thereafter to exercise the right of review under s 12A. If necessary I would exercise my discretion to refuse relief on this ground on the footing that having had the opportunity to do so, the plaintiff declined to take such steps as were then available to it to have the decision modified or reversed, but chose not to do so.
Relief on this ground must be refused.
Ground 5 – The decision to acquire was made by Mr Rossi and not by the defendant or his delegate
The plaintiff contends that the decision to acquire the land was made by Mr Rossi and not by the defendant or his delegate.
The plaintiff asserts that this involved a “curious” sequence of events but does not, at any stage, make it clear how it was Mr Rossi who made the decision. It argues that the Senior Project Review Group (“the SPRG”), an advisory body within DTEI, recommended that land be acquired for the purposes of a casting yard in a meeting on 1 September 2009. Mr Milazzo, the defendant’s delegate, attended the meeting as part of the SPRG. In his affidavit sworn on 24 February 2011 Mr Rossi says “the decision that it was necessary to acquire the land was made in September 2009”. There is an observation in the affidavit of Ms Ward of 24 February 2011 that by mid-September 2009 a lease of the land was considered inappropriate within DTEI. The minutes of the meeting on 1 September 2009 indicate that Mr Rossi attended as a “guest” and, as Project Manager at the time, likely formed part of the project team who gave the SPRG a presentation regarding the various options for the Superway Project. The presentation recommended what was described as the “N4” option as the preferred option, which required land for a casting yard, which recommendation the SPRG adopted. There was a file note made by Mr Rossi on 11 November 2009, in which he considered the benefits of acquisition over the lease of the land and favoured acquisition. The plaintiff also notes that on 31 December 2009, the Minister approved the acquisition of the land without apparently being given an explanation of issues arising in respect of acquisition of the land. From all this the plaintiff seeks to have the Court infer that Mr Rossi made the decision to acquire the plaintiff’s land and not the defendant or his delegate.
There is nothing in that evidence to suggest that that was so. Mr Rossi recommended in September the adoption of the “N4” option which included the use of the land as a casting yard. The SPRG, as an advisory group only, agreed with the recommendation. However, the relevant evidence is the unchallenged evidence of Mr Milazzo. Mr Milazzo, in his affidavit sworn on 28 February 2011, specifically deposed to the fact that he turned his mind to the question of whether he should exercise his discretion to acquire the land compulsorily before making that decision.
A recommendation that a particular option for the construction of a major project which is eventually adopted by a Department will not itself constitute the decision to acquire the land. The decision to give approval to the defendant to acquire land and the decision itself to acquire the land cannot be made by the defendant in a vacuum. A prudent Authority would not recommend and a responsible government would not invest significant resources and millions of dollars in a project without going through a thorough and careful analysis of options and costs for a particular project. Recommendations will necessarily form a part of this process and it cannot be said that the putting forward of a particular recommendation represents a decision to acquire land compulsorily for that project. That is all that happened in the months preceding December 2009. This ground must therefore be rejected.
Ground 6 – The defendant failed to take into account relevant considerations and took into account irrelevant considerations in making the decision to acquire the land
The plaintiff contends that the defendant failed to take into account relevant considerations and took into account irrelevant considerations in making the decision to acquire the plaintiff’s land. While it is well established that a court may set aside a decision if the decision maker failed to consider a matter which they are bound to take into account in making that decision, or if they take into account an irrelevant consideration, the question of what is relevant and what is irrelevant is not always easy to resolve.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[38] Mason J (with whom Gibbs CJ and Dawson J agreed) explained how those factors were to be determined:[39]
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
[38] (1986) 162 CLR 24.
[39] Ibid 39-40.
In essence the plaintiff alleges that the decision was made without due consideration being given to acquiring an interest in the land by way of a leasehold agreement rather than by purchase of the land, and that the defendant or his delegate were bound to do so.
Neither the Land Acquisition Act nor the Highways Act expressly stipulates factors to be taken into account in making a decision to acquire land compulsorily in exercise of the powers contained in s 20 of the Highways Act. The defendant is given a broad discretion to acquire land compulsorily for the purposes of the Highways Act. By necessary implication from the provisions of the Highways Act it can be said that the following matters must be taken into account:
·Whether the Project for which the land is acquired is one which achieves the objects of the Highways Act, namely “to make further and better provision for the construction and maintenance of roads and works”;[40]
·Whether the land acquired is required to achieve those objects in the particular case;
·Which existing estate or interest in the subject land must be acquired in order to achieve those objects and purposes; and
·Whether the Minister has approved the acquisition.
[40] Highways Act, long title.
It is for the plaintiff to point to a relevant matter which the defendant has failed to consider in making the decision to acquire. The plaintiff contends that, upon a proper reading of ss 10 to 16 of the Land Acquisition Act and s 20(1)(a) of the Highways Act the defendant took into account the following irrelevant considerations:
(a)whether, if the Commissioner leased the Land, it would be cost effective for the Commissioner to return the Land to its clear and unencumbered state following the end of the lease period in circumstances where the plaintiff, by letter dated 28 January 2010, expressed a willingness to negotiate terms on which the construction of structures required by the Commissioner on the Land could be undertaken by the Plaintiff as lessor and incorporated into the lease terms; and
(b)that the Land would not be available to the Commissioner for a period of 10 to 15 years if a lease was entered into in circumstances where the plaintiff, by letter from its solicitors Mellor Olsson dated 4 March 2010, expressed a willingness to negotiate terms which would result in the Commissioner having the benefit of a 10 year lease with a 10 year right of renewal.
It also alleges that the defendant failed to take into account the following relevant considerations:
(a)the fact that the plaintiff’s preferred course was the lease of the Land to the Commissioner;
(b)the fact that the plaintiff wished to negotiate a long term lease of the Land to the Commissioner;
(c)the fact that the Commissioner could attain all the use and convenience he sought from the Land by way of a long term lease;
(d)the fact that the Commissioner does not require the Land in perpetuity and did not intend to own the Land in perpetuity and accordingly a lease arrangement would provide sufficient rights of possession to enable the Commissioner’s intended use of the Land;
(e)the financial benefit to the Commissioner of entering into a long term lease for the Land rather than incurring the cost of purchasing the Land;
(f)the fact that the present value of a commercial rental of the Land for a period of 10 years and 20 years less than the cost of acquisition of the Land;
(g)the fact that the plaintiff had by email communication of 22 September 2009 indicated an intention to retain the Land as an investment property for 50 years;
(h)the fact that the Land, by reason of its size and location was irreplaceable for the plaintiff as a site for its development plans;
(i)the fact that the plaintiff was willing to lease the Land to the Commissioner on terms including a 10 year lease with a 10 year right of renewal;
(j)the fact that the plaintiff was willing to negotiate a lease which provided for the plaintiff to construct some or all of the structures required by the Commissioner on the Land; and
(k)the fact that the Commissioner could negotiate terms with the plaintiff as to matters such as the condition in which the Land would be required to be in at the conclusion of a long term lease.

I have already expressed the view that the defendant cannot acquire by compulsory process a non-existent leasehold interest in land. Of necessity the acquisition of a lease involves negotiation and the reaching of an agreement. There will be many good and substantial reasons why one party may be unwilling to reach such agreement based on economic, practical and other sound considerations. There is nothing in the legislation which requires expressly or by implication that the Commissioner not take into account the matters complained of or that he take into account the matters allegedly ignored. It is doubtful that the Commissioner need consider whether he should entertain the possibility of taking a yet to be created lease at all. At its very highest it might be said that he should consider the possibility before embarking on acquisition. That is what Mr Milazzo did, based on what he had heard through reports presented to the SPRG as to the nature of the preferred Superway Project, the land required for its implementation and the cost and convenience of a casting yard on the land. He also based his decision on his awareness of proposals by the plaintiff to officers of DTEI both to sell and to lease the land to the Commissioner and the cost and convenience of owning against leasing the land for the purposes of the casting yard. That was all he could be required to do. It is not for this Court to pass judgment on the merits or otherwise of the Commissioner leasing the land.
I turn to the specific allegations that the defendant took into account irrelevant considerations. If it were necessary to consider the possibility of leasing the land at all, the economic benefits and disadvantages of acquiring the freehold as against leasing were clearly relevant considerations. That includes the cost effectiveness of acquisition. The fact that the plaintiff may disagree with the conclusion of the defendant’s officers in this regard is neither here nor there. The fact of the plaintiff’s willingness to negotiate a lease, and that the plaintiff might otherwise sustain some economic loss as a result of the acquisition is not a relevant consideration. There is a comprehensive scheme in place under the Land Acquisition Act for compensation for a variety of heads of possible loss and damage. That is not a consideration that the defendant was bound to take into account.[41]
[41] Love v State of Victoria [2009] VSC 215, [274].
While I hesitate to rely on cases based on an allegation of acquisition for an improper purpose, such cases suggest that, provided that the acquisition is made in good faith, it is not for the Court to enquire whether the same object could have been achieved either by different statutory[42] or other[43] means.
[42] CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365.
[43] Bloss v Brisbane Exposition and South Bank Development Authority (1984) 54 LGRA 403, where the plaintiff’s willingness to enter into a lease was considered not to be a relevant consideration.
As for the matters which it is said the defendant failed to take into account, they are all matters which the defendant or his delegate was entitled but not obliged to take into account. As Deane J said in Sean Investments Pty Ltd v MacKellar:[44]
In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
[44] (1981) 38 ALR 363, 375. See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 per Mason J.
Each of the matters allegedly not taken into account goes to the merits of one course of conduct over another. They are not matters which this Court can or should take into account.
In dealing with a case of an administrative decision which was alleged to be unreasonable or irrational, and so invalid, the Chief Justice, with whom Anderson J agreed, observed in Watson v State of South Australia[45] that the Court is concerned with the legality of the decision, not the merits, and that the Court is not concerned with whether the decision is right or wrong on the facts or sound or unsound. His Honour referred to an oft-cited passage from the judgment of Brennan J (as he then was) in Attorney-General (NSW) v Quin:[46]
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[45] [2010] SASCFC 26, [98].
[46] (1990) 170 CLR 1, 35-36.
Those remarks are equally relevant to this ground of appeal. The matters allegedly omitted from consideration by the defendant all go to the merits of the defendant’s decision. As I have said, it was sufficient that the defendant considered and rejected, for whatever reason, the possibility of leasing the plaintiff’s land.
For these reasons this ground of review must be rejected.
Ground 7 – The acquisition was unauthorised by s 16 of the Land Acquisition Act
This ground of review alleges that the acquisition was not authorised by s 16 for a variety of reasons which come down to two allegations. The first is that the process prescribed by the Land Acquisition Act was not complied with. The second is that Mr Thomas in signing the notice of acquisition, was not making a decision at all but “implementing a policy dictated by others”. Counsel for the plaintiff, Mr Hayes QC, argued that in December 2009 the Authority had at least, before recommending to the Minister by way of minute on 23 December 2009, reached the point of proposing to acquire an interest in the land. According to Mr Hayes, this is particularly so as an offer had been made to the plaintiff on 7 December 2009 for the purchase of the land which was rejected by the plaintiff, who preferred a lease of the land. Counsel argued that it was at this time that the requirement to issue a notice of intention to acquire under s 10 had been enlivened, as this was the point where the defendant “proposed to acquire the land” as contemplated by s 10.
I have already observed that the Land Acquisition Act has no application to acquisition of land by agreement, unless the agreement follows service of a notice of intention to acquire. At the time when the offer was made on 7 December 2009 it was not possible for the Commissioner to reach an agreement for the purchase of the land. He could make an offer, subject to approval of the Minister, but at that time the Minister had not granted any approval for the acquisition, whether by agreement or compulsory process, of the plaintiff’s land. Without that approval the Commissioner could not properly give notice of intention to acquire under s 10. That would also have required the placing forthwith of a caveat on the land preventing any further dealings in the land,[47] and would have opened the door to a requirement that he give an explanation of the reasons for the acquisition which at that point he had not and might never have power to make.[48]
[47] Land Acquisition Act, s 14.
[48] Ibid s 11.
It follows that an Authority such as the Commissioner cannot propose to acquire land within the meaning of s 10(1) of the Land Acquisition Act unless and until he obtains the approval of the Minister under s 20 of the Highways Act. That was not obtained until 31 December 2009. That approval was not a decision to acquire. Before anything else could happen the decision of the Commissioner or his delegate to acquire the land was required. That occurred on 5 January 2010. I therefore reject the argument that notice of intention to acquire should have been given earlier than it was in order to effect a valid acquisition under s 16, or that notice of intention to acquire could ever be given before a decision to acquire, by compulsory acquisition if necessary, has been made.
The next part of this ground of review is that Mr Thomas, in signing the notice of acquisition, did not make a decision but merely implemented a policy dictated by others. If the “others” concerned were members of the SPRG or Mr Rossi, the argument must be rejected for reasons mentioned above. If the “others” were Mr Milazzo the argument goes nowhere, as Mr Milazzo made the decision and authorised the acquisition on 5 January 2010. It is evident that Mr Thomas was merely performing the procedural steps required to allow the acquisition to occur.
It seems to have been overlooked that, as in the case of the notice of intention to acquire, the notice of acquisition was given under the seal of the defendant affixed in the presence of Mr Thomas, “with the authority” of the defendant in the case of the notice of intention to acquire, and “by direction” of the defendant in the case of the notice of acquisition. On the face of the notices they were the acts of the defendant. The presumption of regularity[49] has not been rebutted, and in this case proof of regularity is assisted by s 67A of the Evidence Act 1929 (SA).
[49] Omnia praesumuntur rite esse acta.
This ground must therefore fail.
Ground 8 – The defendant failed to comply with the obligations in s 12 of the Land Acquisition Act
The final ground of review put forward on behalf of the plaintiff is that the defendant’s refusal to consider an objection made by the plaintiff under s 12 of the Land Acquisition Act had the consequence of the acquisition being unlawful.
On 12 August 2010, Mr Milazzo signed a fresh response to the plaintiff for the purpose of demonstrating that if he had provided a response himself under s 11 of the Land Acquisition Act it would have been identical in all material respects to that furnished by Mr Rossi on 24 February 2010. Mr Milazzo deposes that the response was not intended to remedy any alleged non-compliance with s 11, nor was it an acknowledgment that Mr Rossi’s response was in any way defective.
By way of letter dated 14 September 2010, the plaintiff purported to exercise its right to object pursuant to s 12 of the Land Acquisition Act.
I have already concluded that, whilst Mr Rossi’s response under s 11 of the Land Acquisition Act was not compliant, it was not an invalid response or one which invalidated the acquisition. As a consequence, the 30 days within which the plaintiff had to lodge such an objection under s 12 expired 30 days after that response was given on 24 February 2010. By the time the plaintiff purported to exercise its rights under s 12, they were well out of time. Furthermore, the notice of acquisition had already been issued and published on 13 May 2010. The consequence of this is that the defendant was no longer under an obligation to consider the purported s 12 request, as not only was it out of time but the land had already been compulsorily acquired by the defendant. Accordingly, this ground of review fails.
The consequences of invalidity
None of the plaintiff’s grounds of judicial review succeed. However, if I am wrong and the acquisition was invalid, it is necessary to consider the consequences and the effect of the decision of the Full Court in Palais Parking Station Pty Ltd v Shea.[50] It was held there by a majority of the Full Court that, although the purported acquisition of the land in that case was void and ineffectual to vest the land in the respondent, the principle of indefeasibility of title required that the endorsement entered on the certificate of title constituted the defendant the lawful registered proprietor of the land. Consequently, the State of South Australia, on whose behalf the respondent was acting, held an indefeasible title to that land, free of any adverse claim by the previous owner of the land. It was further held that the defendant in that case was not under any duty to re-transfer the land to the previous owner. King CJ (with whom Williams J agreed), noted that the concept of indefeasibility under the Real Property Act 1886 (SA) did not affect equities or protect transactions based on actual fraud,[51] nor did it deny a plaintiff the right to bring a claim in personam.[52]
[50] (1980) 24 SASR 425.
[51] (1980) 24 SASR 425, 428. See also Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376.
[52] Real Property Act ss 71, 249.
The majority also held that mere retention of the land after it becomes known that the instrument leading to registration is void does not found a claim in personam for the retransfer of the land.[53] There was nothing in that case in the conduct of the respondent capable of giving rise to an equity in the dispossessed owner enforceable in personam against the respondent.
[53] (1980) 24 SASR 425, 431; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537.
Assuming the invalidity of the acquisition on one or more grounds alleged by the plaintiff, despite Mr Hayes’ strenuous argument to the contrary, I would be unable to find any equity in the plaintiff or any claim in personam against the defendant which would justify an order transferring the land back to the plaintiff.
There is no question of fraud, oppression or bad faith. Mr Rossi genuinely believed that he had power to give the explanation required by s 11 of Land Acquisition Act. That is no different from the Director-General of Medical Services in Palais Parking mistakenly believing that he had power to acquire the land in that case. In my judgment, none of the other alleged defects, if established, would give rise to any such right. The process was carried out in the belief by those concerned that it complied with the requirements of the Land Acquisition Act. If any of the grounds were established I consider that I would be constrained by the decision in Palais Parking to reject the consequential relief claimed by the plaintiff.
Conclusion
It follows, for the reasons I have given, that the plaintiff’s application for judicial review must be dismissed.