Sargent v Powerlink & SEQEB

[1998] QCA 104

IN THE COURT OF APPEAL	[1998] QCA 104
SUPREME COURT OF QUEENSLAND

Appeal No. 8119 of 1997

Brisbane

Before: Fitzgerald P

Davies JA

White J

[Sargent v Powerlink and SEQEB]

BETWEEN:

JOHN GARY SARGENT

Appellant

AND:

POWERLINK AND SEQEB

Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26 May 1998

The appellant, Mr Sargent, has appealed against the dismissal of his appeal by the Land Appeal

Court from a decision of the President of the Land Court dismissing his claim for compensation on

jurisdictional grounds. He has, throughout, appeared on his own behalf.

Mr Sargent sought compensation from the respondents pursuant to the Acquisition of Land Act

1967 by notice dated 10 October 1996 in respect of damage alleged to have been done to his land in

the Lockyer Valley by erosion caused by the respondents’ electricity poles which were placed and

replaced on his property and filed a claim in the Land Court. The Land Court on a preliminary

application decided that it had no jurisdiction to entertain Mr Sargent’s claim and dismissed it with costs ordered against him. Although Mr Sargent complains of procedural unfairness before the Land Court,

it is the question of jurisdiction which is central to this appeal.

After he had filed his claim, in due course Mr Sargent was notified by the deputy registrar of

the Land Court on what appears to be a standard form of callover notice that his matter would be

brought before the court on 5 December with a view to determining a date for hearing. The

respondents filed an application on 28 November 1996 to be heard on 5 December that Mr Sargent’s

application for compensation be dismissed on the ground that the Land Court had no jurisdiction to

hear the matter as the claimant had no right to compensation under the Acquisition of Land Act and for

costs. Mr Sargent received notice of the application on Friday 29 November which was contrary to

the Rules of Court which required seven days notice for ancillary applications.

On 5 December the President of the Land Court heard submissions on the respondents’

application concerning jurisdiction after Mr Sargent declined an adjournment. After giving reasons for

finding that the Land Court had no jurisdiction to entertain Mr Sargent’s claim for compensation the

President heard submissions on costs and ordered Mr Sargent to pay the respondents’ costs fixed in

the sum of $500.00. Mr Sargent appealed unsuccessfully to the Land Appeal Court in respect of both

orders and it is from that judgment given on 1 August 1997 that he now appeals.

Mr Sargent is the registered owner of Lot 3 on RP229165 County of Churchill Parish of

Rosewood. He purchased the property in July 1994. By a proclamation in the Government Gazette

of 16 October 1975 an easement for powerline purposes was taken over an area of 2.836 hectares

of that land. The then land owner, Mrs Iris May Pagel, was paid compensation “in full satisfaction and

discharge of all claims for compensation in respect of the resumption” of the easement “exclusive of

damage to property”. A title search as at 26 November 1996 showed the easement burdening the land
to Queensland Electricity Commission and the South East Queensland Electricity Board.

Mr Sargent is not claiming compensation for the resumption of the land for an easement. He

readily accepts that this had been made to a previous owner. He asserts that erosion damage has been

caused to his property both within and beyond the easement area as depicted in the photographs

(exhibit 1) in consequence of SEQEB erecting two timber poles for the support of electricity

transmission lines on the easement in 1987 and removing the pole between them on the top of a hill.

That erosion damage is alleged to have extended over several acres of land which continues and

increases when it rains.

Mr Sargent conceded before the court that the central issue for determination is whether the

Land Court has jurisdiction to hear and determine his claim for compensation for that damage and that

even if his complaints of procedural irregularity were successful it would not be useful to send the matter

back to the Land Court on that ground for rehearing if it be the case that it has no jurisdiction to hear

his claim. Mr Sargent relies upon ss. 36 and 37 of the Acquisition of Land Act as the basis of his claim

for compensation. Section 36(1) provides:

“For the purposes of this Act any member, officer, employee, contractor or agent of
the constructing authority . . . may

(a)         enter upon any land, for the purpose of making any inspection, valuation, survey or taking levels;

(b)        affix or set up thereon trigonometrical stations, survey pegs, marks, or poles, and from time to time alter, remove, inspect, reinstate and repair the same;

(c)         dig and bore into the land so as to ascertain the nature of the soil, and set out the lines of any works thereon;

(d)        do all things necessary for the purposes aforesaid.”

The power to enter on the land given by sub-section (2) includes a power to re-enter from time to time and remain for such time as is necessary to achieve the purpose of the entry and to take whatever

persons, vehicles, materials, equipment or things as are necessary to achieve the purpose of the entry.

By sub-section (5) the constructing authority is liable for compensation for the actual damage, if any,

done to the land by reason of the exercise of any power conferred by the section. Sub-section (7)

provides that compensation may be claimed and agreed upon or determined as prescribed by s. 37(3)

and (5).

Section 37 provides that

“(1) The constructing authority may temporarily occupy and use any land for the

purpose of constructing, maintaining or repairing any works, ....”

and sets out the kinds of activity which may be engaged in on the land. Sub-section (3), which

is the provision upon which Mr Sargent principally relies, provides:

“The owner of the land . . . may, at any time during such occupation or within 3 months thereafter, give notice in writing to the constructing authority that the owner claims compensation, and, subject to giving such notice, if the land is not taken the owner . . . may recover under this Act compensation for all damage done . . .”

Mr Sargent submits that the expression “occupation” where it appears in s. 37(3) is apt to apply

to the respondents because they remain in occupation of the land in the sense that they continue to

exercise rights under the easement which was granted to them in 1975. On that reading of the section

there is no limitation as to when the owner of the land for the time being might bring a claim for

compensation. In effect, this would be for the duration of the easement. Mr Sargent submitted

that assistance could be obtained in ascertaining the meaning of “occupation” in s. 37(3) by reference

to ss. 15(2A) and 21(1). Both of those sub-sections refer to a right of occupation by a claimant for

compensation in respect of land which the constructing authority has taken or proposes to take. They

do not, in our view, assist in the construction of that expression in s. 37(3).

The expression “such occupation” in s. 37(3) clearly refers back to s. 37(1) which speaks of

“temporarily” occupying the land and not an occupation arising solely from having an easement over the

land. This is reinforced by sub-section (2) which requires the constructing authority to give the

occupier/owner of the land notice in writing stating the use proposed to be made of the land and “an

approximate period during which use is expected to continue”.

Accordingly it is only as a consequence of entry of the kind envisaged in s. 36, and any

subsidiary activity on the land as described in s. 37, if the constructing authority causes any damage to

the land that it is liable for compensation pursuant to the statutory scheme.

The Land Appeal Court found against Mr Sargent’s submission that the reference to “poles”

in s. 36(1)(b) extends to electricity poles of the kind which have been erected on his land. We are not

persuaded that it is necessary to take as narrow a view of the expression in that section as did the Land

Appeal Court but a wider view could have no effect on the construction of s. 37(3). The Land Appeal

Court also considered that s. 37(5) which provides that the parties to a claim for compensation “may

agree” that the amount shall be determined by the Land Court and upon the reference of either of them

the Court shall determine the compensation, also precluded jurisdiction. Mr Gibson QC for the

respondents did not seek to hold this construction of s. 37(5) and it seems clear that the provision

should be read as enabling either party to refer the question of compensation to the Land Court in the

absence of agreement.

Whatever other rights at law Mr Sargent might have, the Land Court, deriving its jurisdiction

to hear claims for compensation relating to land from statute, does not have jurisdiction to entertain this

claim.

Mr Sargent also appeals against the order for costs made in the Land Court and upheld by the
Land Appeal Court. The Land Appeal Court, correctly in our view, held that the Land Court had

jurisdiction to award costs on the respondents’ application even though it found that it did not have

jurisdiction to entertain the substantive application. The Land Court derives its power to award costs

in a matter such as the present from s. 41(9) of the Land Act 1962 as preserved by s. 521 of the Land

Act. Mr Sargent was afforded an opportunity by the President of the Land Court to seek an

adjournment to take advice on the jurisdictional point but did not do so. He could have taken legal

advice prior to 5 December on the question of the respondents’ application to strike out for want of

jurisdiction but did not do so. In exercising its discretion to award costs against him the Land Court did

not fall into appellable error.

In our view the appeal should be dismissed with costs.