Springfield Land Corporation (No 2) Pty Ltd & Anor v State of Queensland
[2010] HCATrans 291
[2010] HCATrans 291
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B39 of 2010
B e t w e e n -
SPRINGFIELD LAND CORPORATION (NO 2) PTY LTD
First Appellant
SPRINGFIELD LAND CORPORATION PTY LTD
Second Appellant
and
STATE OF QUEENSLAND
First Respondent
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF MAIN ROADS
Second Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 NOVEMBER 2010, AT 10.16 AM
Copyright in the High Court of Australia
_________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D. HINSON, SC, for the appellants. (instructed by Russell and Company Solicitors)
MR D.R. GORE, QC: If the Court pleases, I appear with my learned friend, MR J.M. HORTON, for both respondents. (instructed by Clayton Utz Lawyers)
FRENCH CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours will have seen that the matter turns fundamentally on the terms of the Acquisition of Land Act 1967, section 20. May I take your Honours to that immediately and then come back in a moment to the circumstances which applied to it. Your Honours will see that section 20(1) speaks of the assessment of ‑ ‑ ‑
GUMMOW J: We have a reprint as of 9 May 2003. Is that the right date?
MR JACKSON: Of 9 May 2003, your Honour.
GUMMOW J: Yes.
MR JACKSON: Yes. Your Honour, that should be satisfactory. I believe that is satisfactory, your Honour, yes. Section 20(1) speaks of regard being paid:
not only to the value of land taken –
but also to a number of matters, in paragraph (a), to the damage of any caused by severance, and -
the exercise of any statutory powers by the constructing authority . . . affecting such other land.
Your Honours, if one goes then to subsection (2), it speaks of:
Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
Your Honours will also see that in subsection (3), the provision of particular relevance, it says that:
In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
Your Honours will see the critical expression is:
taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
Then there is a requirement in subsection (4) that any set-off or abatement cannot have the result of a payment having to be made by the resuming authority.
Now, your Honours, one sees also in the Act that the scheme of proceedings is that there be a notice given in the first place of the intention to resume. That is dealt with in section 7 of the Act. It is to be served on every person who is entitled to compensation – see subsection (2) – and could I refer particularly to subsection (3) which says that:
A notice of intention to resume shall be in writing and shall––
(a)specify the particular purpose for which the land to be taken is required -
We point to that, your Honours, because it is a point that we made in our submissions, both in‑chief and in reply, that what is contemplated is that the purpose for which land is taken is to be stated with some particularity and exactness. Your Honours, could we say the stage which follows after that is the actual resumption, which is effected by notification in the Government Gazette.
The result of that, your Honours, can be seen in section 12 and you will see the “Effect of gazette resumption notice” in section 12(1) and could I invite your Honours to note also that, subject to section 11 – and I am referring in this regard to section 12(6), that publication of the gazette resumption notice is evidence and, in the absence of contrary evidence, conclusive that the provisions of section 15 and also 7, 8 and 9 have been complied with.
I will come back of course to subsection (3) but may I take your Honours as briefly as I can to the underlying circumstances of the matter. There were four pieces of land taken. We have referred to this in our written submissions in‑chief commencing, relevantly, at paragraph 12. The history of the matter goes through paragraphs 12 and following but could I endeavour to summarise it in this way.
Your Honours, we have engaged in a very substantial development in terms of scale of an area which is an area between Brisbane and Ipswich, but slightly off the then existing main highway. One of the roads that comes through the property is a major road that at present stops at a particular point in the property – when I say at present I mean at the time of the resumption – but we had made available and had dedicated and given in trust the local authority the land that was necessary to build a further road going through the west of our property continuing on - and I will take your Honours to a description of it in a moment – going further through our property to the boundary of it and continuing on west, meeting up in the end with the Cunningham Highway.
Now, your Honours can see what I am speaking about in that regard diagrammatically, if I may for the moment, and you will see if one goes to page 163 in the first case, a large piece of land in blue. You will see a yellow road progressing – a yellow resumption, I should say – a yellow piece of land shown. The piece of land shown, if one looks to the west of it, your Honours will see that in yellow and see that there has been part of the land which is hatched. Perhaps if I could just hold this up for a second, your Honours. In that part of the diagram you will see some land hatched above and below the yellow. You will also see, your Honours, if one goes to the middle of it, above the yellow there is another small piece in red at about the middle of the page which is part of the resumed land. The pieces of land that amount to the resumed land are four pieces that are hatched in red and there was land that was returned to us which is hatched in blue or green, above the yellow, because that land was no longer required.
The purpose of resumption of the pieces of land was a purpose to enable a realignment of the area that was to be land of the Road Authority, if I can use a neutral term for the moment, in order to realign where it had intended to build the road and otherwise on land that already was available to it to do so. Your Honours, one can see also at page 154 the pieces of land outlined and hatched in red also. As your Honours will have seen, what was agreed was that the matter would be arbitrated and the arbitrator was appointed to determine the matter as if there were a claim for compensation being made in the courts and at page 101 ‑ ‑ ‑
GUMMOW J: What we are concerned with, looking at page 154, is the sliver which is from Lot 7 and Lot 8, is that right, transferred?
MR JACKSON: Your Honour will see that on the left and in the middle in the top half of that page there are parts outlined with red hatching.
GUMMOW J: Yes.
MR JACKSON: Now, the part your Honour is referring to where it says “Area transferred from Lot 7”, “Area transferred from Lot 8” and then on the left‑hand side “Area transferred from Lot 11” and also “Area transferred from Lot 46”, those are the resumed areas.
GUMMOW J: I see, from four lots.
MR JACKSON: Yes, there are four lots and ‑ ‑ ‑
GUMMOW J: What were they adjoining, in terms of the section?
MR JACKSON: They are adjoining other land that we own, your Honour. Part of the Springfield estate, if I can use the term generally, is land that we have sold off to other people in the course of development of the land.
GUMMOW J: That is blue, is it?
MR JACKSON: I think that is so, your Honour, yes. If your Honour looks at the legend at the bottom of the page, that is the area which is nominated by the Department of Main Roads – yes, I am sorry, your Honour. If one goes to page 155, and I have to say I think it is, in effect, upside down, but page 155 shows the four areas in question. Your Honours will see the four pieces referred to at page 155.
FRENCH CJ: The land in white within the borders on 154 is land owned returned to Springfield. No, I am sorry, it is a slight ‑ ‑ ‑
MR JACKSON: No, it is not, your Honour. The land returned to us is the part hatched in blue.
FRENCH CJ: Yes, I see.
MR JACKSON: Because they did not want that. Your Honours, one then sees that when the matter was before the arbitrator, the views arrived at by the arbitrator on these questions appear, if I can take your Honours immediately to pages 142, 143 and 144. If your Honours look at about line 20 on page 142, the arbitrator said:
It is in my view beyond question that the NIRs were given solely for the purpose of DMR advising an intention to realign part of the existing Corridor “in the vicinity of Trust Lot 7”. The realignment resulted only in an intention by DMR to acquire small parcels of land to make adjustments to the boundary of what had already been designated and which in fact had been dedicated by agreement in the 1998 Springfield Infrastructure Agreement.
Your Honours, I will not read out the next couple of sentences, but your Honours will see what he said there. Then your Honours will see at page 143, commencing at about line 31, and he says at about line 33:
In short, the previous Regional Transport Corridor had been defined to coincide with Trust Lot 7 but later design work required a “slightly different corridor to that allowed for in the trust land”.
It was that which led the DMR to give the Notices of Intention to Resume the transfer land and thereby to provide for “a slightly different corridor”. That was the reason why the NIRs were given.
Then at page 145, your Honours, at the top of the page, you will see that he is suggesting that:
One can only arrive at such a result –
which was the result asserted by the respondents –
on the basis that to properly determine enhancement in this case, one has to take into consideration the enhancing effect of the total and longstanding proposal or scheme for the SWTC . . . because there was a belated “resumption” of a small area for the purpose of realigning a relatively minor part of the preferred corridor.
Your Honours, I should say, if one looks into the words in brackets there in respect of which there would be no need for a resumption of the Springfield land because, your Honours, the land was already held in trust for that purpose and had been held for some years, your Honours will see the remainder of what is set out in that paragraph. Your Honours, when one goes to what was said by the Supreme Court, and that is Justice McMurdo, could I preface it by saying, your Honours, the only appeal to the Supreme Court – I use the term appeal somewhat loosely, your Honours – but the only procedure by which the arbitrator’s award could be set aside was pursuant to section 38 of the Commercial Arbitration Act 1990. It is said in section 38(1) that:
(1)Without prejudice to the right of appeal conferred by subsection (2), the court –
meaning the Supreme Court –
shall not have jurisdiction to set aside or remit an award on the ground of error of fact or law on the face of the award.
(2)Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.
Your Honours, if I could just pause at that point for a moment. If one goes back to section 20(3), it requires that there are to be:
set‑off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
Your Honours, the land which is taken is inevitably the land which is the subject of the notice of intention to resume and, in the end, the gazette notice of resumption, which in this case are the four very small parcels of land. The purpose for which they were taken is, in our submission, entirely aptly – and I will come back to this in a moment – described by the way in which the arbitrator did so and that was to say that it was acquired in order to effect a slight alteration in the way in which the road might be constructed, in terms of the actual location, where the land was already available, and had been for some years, for construction of the road.
The question of enhancement of the value of the interest of the claimant in land adjoining, in our submission, inevitably tied up to the land acquired requires some consideration of the purpose of that acquisition. Now, your Honours, could I just say then – and, your Honours, that does seem to involve, in our submission, prima facie a question which is one of fact.
HEYDON J: How could it be argued otherwise?
MR JACKSON: I am sorry, your Honour?
HEYDON J: What is the argument against you on that?
MR JACKSON: Your Honour, I struggle a little, with respect, in answering that but it seems to be to say that what the Court of Appeal and the primary judge said in the matter was correct and that it was correct because that was the only conclusion open, presumably, on the facts and that must then be a question of law. The contention that is the only conclusion open on the facts seems to derive from a conception, if I may put it in that way, that there is some longstanding stream of authority including, it is said in the respondent’s submissions, in this Court which requires that when one comes to the purpose in terms of section 20(3), that the purpose is necessarily the whole purpose.
Your Honours, a wonderfully expansive concept. We have endeavoured, your Honours, to deal a little with that conception in our submissions in reply and to submit that the basis for it does not exist and that the question is fundamentally one of fact. I was going now, if I may, to take your Honours to the passages in the reasons of the courts below which seem to convert the issue into – convert incorrectly, if we may say so, with respect – one of law by taking the view that there had to be a wide conception given and that the view taken by the arbitrator was not available as a matter of law.
GUMMOW J: This phrase “or purpose” in section 20(3) is that linked back to section 7(3), “A notice of intention to resume” has to specify a purpose?
MR JACKSON: Your Honour, the notice of intention to resume specifies a purpose, but the question, in our submission, whether the purpose for which the land is taken is to be necessarily assumed to be to have the breadth of the purpose that is expressed in that document is itself a question of fact, in our submission. That was an issue with which the Court of Appeal of New South Wales dealt in Road and Traffic Authority (NSW) v Perry, a decision to which I will come – but it was held, on slightly different legislation, of course, but it was held that it was a question of fact what the actual purpose was.
Your Honours, there is nothing, with respect, in section 20(3) which says that the works or purpose for which the land to be taken is decided definitively by whatever the resuming authority chooses to identify as being the purpose, or says is the purpose, in the notice of intention to resume. I took your Honours to section 12(6) of the Act which means that once the notice of intention to resume having been given, what is made unchallengeable, in effect, is the fact of resumption once there has been the gazettal notice – it is subsection (6), your Honours ‑ but what is not made definitive or not subject to challenge or brought over to subsection (3) is whatever the notice of intention to resume happens to state.
HAYNE J: Why is that not so, given 12(6)(b) that the provisions of section 7 have been complied with, one of which is section 7(3), specification of particular purpose?
MR JACKSON: Your Honour, it specifies a purpose and your Honour will appreciate that, if I deal with the particular case first, this was one where there was an agreement as to the manner in which the taking would be dealt with. But leaving that aside, your Honour, as a matter of construction the notice of intention to resume has to state a purpose. It has to state, your Honours, a particular purpose. That is the point we sought to make before.
But could I just say in relation to section 12(6), what it says is that publication of the resumption notice is conclusive evidence that the provisions of those sections have been complied with. But, your Honours, that means that one cannot attack the fact of resumption and say the resumption was not carried out validly. What it does not do is to say that when one is looking at section 20(3) one has to accept that the “purpose for which the land is taken” is necessarily that which is the subject of the notice in section 7(3) because if one is looking at section 20(3) it says what really is a factual question, what is the:
enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
GUMMOW J: This phrase is “the land is taken”, refers to some statutory process.
MR JACKSON: Your Honour, I accept that.
CRENNAN J: Are the section 7 notices in the appeal book?
MR JACKSON: I do not think so, your Honour. No, they are not, your Honour. I think they are recited in one of the reasons and I will endeavour to give your Honour ‑ ‑ ‑
CRENNAN J: Yes, I understand that.
HAYNE J: Are they accurately recited in your side’s pleading at page 1, paragraph 5, that is, is the recital of purpose found in paragraph 5 an accurate recital of what was said?
MR JACKSON: Yes, I think that is so, your Honour, yes. I think, in fact, the documents are quoted in terms and could I give your Honour a reference to the place, but, your Honours, the point I was seeking to go to now was to the reasons for judgment in the ‑ ‑ ‑
HAYNE J: Forgive me if I interrupt. Before you go to that point if I might just take you back to this purpose point a moment, Mr Jackson? Do you say, therefore, that in looking at what is the purpose for which the land is taken, when reference is made to that in section 20(3) the assessor of compensation is to identify that purpose, otherwise than by reference to the section 7(3) notice.
MR JACKSON: I would not dispute the possibility that one could take into account what is said in the notice, but the assessor is to determine, as a question of fact, what was the purpose for which this land was taken. When I say “this land”, your Honour, that is simply because that is the issue which is being considered. That, in our submission, is fundamentally a question of fact.
GUMMOW J: A question of fact resolved by attending to what evidence? What is the evidence relevant to the fact?
MR JACKSON: The evidence relevant to the fact, your Honour, is, first of all, one identifies the land. That gives rise to the question. Then one sees what communications have taken place and, as in the present case, the background circumstances which were very considerable and if one looked at those background circumstances, one can see, as the arbitrator did, that what the land was being acquired for was to vary part of an existing route that had been in existence for many years. The value of the land acquired was assessed and then the question was whether that additional acquisition had made any difference to the surrounding land, as it were, and the view at which he arrived was that it had not because it was simply a slight variation of land that was already dedicated for the purpose.
Your Honours, can I say in our written submissions in paragraph 41 we do make a point in respect of the statement of purpose in the notices of intention to resume was uninformative. They were not given in a vacuum and identification of the purpose requires evaluation of a factual context. Could we refer to what we have set out also, your Honours, in paragraph 47 of our written submissions in that regard.
Your Honours will see that we have referred to Roads and Traffic Authority v Perry (2001) 52 NSWLR 222 at 235 and, your Honours, in that decision at page 235, paragraph 63, your Honours will see set out there and following finding an attempt to arrive at what was the true purpose of a resumption of part of land. Also, your Honours, at paragraphs 99 to 100 your Honours will see in the reasons for judgment of Justice Hodgson he referred to the fact:
In a case such as the present, it is necessary to determine what is the public purpose for which the claimant’s land was acquired, including the appropriate level of generality at which the purpose should be identified.
Your Honours will see that elaborated upon in that paragraph and also in paragraph 100.
GUMMOW J: What is the statutory provision which is being explained?
MR JACKSON: Your Honour, the statutory provision there was a different one. You will see it set out in the start of the headnote. It was determining the market value of the land and one has to leave out of account:
any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.
Your Honour, that is a slightly different question. That was an attempt to apply the Pointe Gourde scheme and the case I think was referred to, at least in argument, in this Court in Walker Corporation.
GUMMOW J: Is there any equivalent of section 7(3) and section 12(6)?
MR JACKSON: Your Honour, not exactly, I do not think. Could I give your Honour an answer a little later but I think the answer is not exactly although there are some similarities. I do not think there is a reference to, for example, a particular purpose although I think there is a provision which preserves the validity of the resumption, notwithstanding any non‑compliance on the way.
I was going to, your Honours, if I may, to the reasons of the Supreme Court. Your Honours will see that we have given the relevant references to these in our written submissions in paragraph 34. Could I take your Honours to the primary judge at page 174, Justice McMurdo. Your Honours will see that in paragraph [19] he said:
the arbitrator was required to identify the works or purpose for which the land was taken . . . But the question is whether that could be regarded as the purpose which is relevant in the operation of s 20(3). As already noted, the purpose within s 20(3) would appear to correspond with the purpose for which there is a power of compulsory acquisition.
Then, your Honours, if one goes to his reasons at paragraph [28] on page 179 he said:
In my conclusion the error here was one of law. It was not open to the arbitrator to conclude that on the facts as found, the relevant works or purpose was as he described them.
FRENCH CJ: Did the interface or possible interaction between section 7(3) and section 12(6) play any part in his Honour’s reasons?
MR JACKSON: No, I do not think so, your Honour.
FRENCH CJ: Or in the Court of Appeal?
MR JACKSON: No. Your Honours will see in paragraph [28] that he said, “That involved a misinterpretation of s 20(3)”. Your Honours, if I could just pause at that point, it is clear that the arbitrator’s finding was one that on the evidence was a finding of fact as to the way in which section 20(3) was satisfied. Your Honours will also see that to set aside that finding required a view that he had applied the wrong test and the wrong test seems inevitably to have been that one necessarily had to say, in the circumstances, that the purpose was the construction of the roadway as a whole.
Now, whilst that is a possible view in terms of saying of course the land was acquired for construction of the roadway as a whole, the situation was not one where there was an acquisition of the whole of the road that was proposed to be built. That was already available. The situation was that the land being acquired was land being acquired for a limited and constrained purpose and that purpose was simply for an alteration in the direction or alteration in the boundaries of the road.
The Court of Appeal, your Honours, held that the decision of Justice McMurdo was correct and your Honours will see at pages 206 and 207 and commencing at paragraph [49] in the reasons for judgment of Justice Keane that – your Honours will see that it was said in paragraph [49] that:
it may be conceded immediately that there may be cases where the purpose of an acquisition of a small parcel of land is solely for realigning a short stretch of road.
Well, your Honours, that was a finding that already had been made. His Honour then went on to say that –
Whether or not the need for the realignment, considered alone, sufficiently identifies the “works or purpose for which the land is taken” will, no doubt, depend on the facts of the particular case.
Well, your Honours, that appears to be language which is apposite to findings of fact and to appeals on questions of fact rather than on questions of law. His Honour went on then to seek in paragraph [50] to say:
It would, for example, be easier sensibly to conclude that a realignment is a purpose in itself if the road of which it was an adjunct had been constructed many years earlier or if the realignment was a response to the exigencies of transport functions –
Well, your Honours, this was a road, the land for which had been available for some years. We are speaking after all of enhancement of the value of nearby land. That land already was land that was adjacent to land that was made available for the purposes of the road and was available for that purpose. Your Honours, the land that was acquired in the particular case was land the only purpose of acquisition of which was to have additional land in order to effect a realignment of that land. Your Honours will see that in paragraph [50] his Honour then went on to say that:
To say this, however, is to recognise that the arbitrator in this case acted upon a view of s 20(3) of the Act which was apt to make such differences in the facts of the case immaterial because of the narrow focus of his approach.
Which his Honour went on to say in the next paragraph –
It is, in my respectful opinion, a compelling demonstration that the arbitrator’s error was indeed an error of law that the arbitrator held that it was the “test” of the correctness of the appellants’ submission as to the scope of s 20(3) of the Act “that the purpose of the resumption was the late decision to realign the boundaries of the corridor in minor respects by noting that, had the NIRs not been given, the road infrastructure would have been built within Trust Lot 7”.
Your Honours will see that then there is set out a passage from the arbitrator’s reasons, but your Honours will see that the observation they made about it, in paragraph [52], was that it was a:
narrow approach to the interpretation of s 20(3) of the Act involved an error of law –
May we say, with respect, your Honours, that one does not see in the reasons for judgment, at least in the passages to which I have referred, any statement of an exact reason why the arbitrator was in error in what he had done. Your Honours will see that the Court of Appeal is apparently taking the view that a wider purpose was open. Well, so it may have been, but, your Honours, so too, as paragraph [49] seems to recognise, was the view of a narrower purpose which the arbitrator had held reflected the reality of the resumption, and circumstances of that kind, in our submission, where there was a limited avenue of challenge to the decision of the arbitrator, there was no basis, we would submit, for the courts in the Supreme Court to have arrived at a different conclusion in setting aside his Honour’s reasons.
GUMMOW J: The problem in a way is that at paragraph [52] there is a disagreement as to the approach to the interpretation of section 20(3). The differing interpretations are not, at the moment, to my mind, very clearly laid out.
MR JACKSON: Your Honour, that is a point which I was seeking to make a moment ago, with respect. It really is perfectly clear what the ‑ ‑ ‑
GUMMOW J: But that may partly be because both sides were urging on the Supreme Court and the Court of Appeal at paragraphs 99 and 100 in Perry, where Justice Hodgson said:
I do not think there are any clear rules determining how the relevant purpose or the appropriate level of generality is to be determined. Factors to be taken into account would . . . include –
They are not very specific, and then he comes to the case immediately before him. What is not disclosed in section 100 is how one distils this finding of fact as to the relevant purpose. I am puzzled.
MR JACKSON: Your Honour, could I just say this, that our submission about it is that, speaking in general terms for the moment, that Justice Hodgson was correct in taking the view that there are often ways in which one can describe, at differing levels of generality, what the purpose might be, but one ‑ ‑ ‑
GUMMOW J: But the pitching of the level of generality in some way has to reflect the statutory policy.
MR JACKSON: Yes, your Honour, and I accept that, but the statutory policy is, in the end, one that has to be tied back to the particular piece of land that is being acquired and inevitably that does involve something that occurs instance by instance, case by case. If you had a situation where as, generally speaking, in Perry, you had a large piece of land being acquired through the land of A, B, C and D to build a road then one might well say in relation to that, the purpose of it is to build this road.
If, on the other hand, you have a situation where the land to build the road has been acquired, the proposal to build the road is one that is in being and going to be activated and then one sees that there is an acquisition of an additional parcel to effect a realignment, then in one sense it is perfectly true to say that that is an acquisition for the purpose of building the road.
But if one is looking at it a little more closely and asks what is the purpose of this acquisition, and looking at it from the point of view of enhancement by reference to the acquisition of a particular parcel of land, then the question is one which relates back to the particular piece of land and then, as the Court of Appeal said in the first sentence in paragraph [49] of its reasons, it may be conceded that there are cases where the purpose of an acquisition of a small parcel of land is solely for realigning a short stretch of road or a stretch of road.
HAYNE J: May there not be some difficulty in the propositions you are advancing presented by an uncertainty which lies within the expression “the road”? By that I mean this. One, there was no road existing at the time of the notice of intention to resume, I think, is that right?
MR JACKSON: No constructive road.
HAYNE J: No constructive road. Two, there was a corridor along which a road might be but had not then been built?
MR JACKSON: Had not then been built, yes, your Honour.
HAYNE J: Three, the acquisition of the particular parcels of land was for the purpose of building a road on a different alignment from that provided by the corridor mentioned in point two, is that right?
MR JACKSON: Yes, your Honour, that is so, a different ‑ ‑ ‑
HAYNE J: The carrying out of the purpose of building the road on a new alignment is said to benefit the land, is that right?
MR JACKSON: Your Honour, I would cavil with that, if I may, with respect, in a sense of saying that the purpose of it is said to be to build the road.
HAYNE J: The road or a road is the point to which I draw attention. Does one need to define the road in question as a road according to a particular alignment or is it simply enough to say there will be a road which joints point A and point B travelling more or less along this line?
MR JACKSON: One needs to be more specific, your Honour, and could I see to explain what I mean by that?
HAYNE J: Please.
MR JACKSON: This is a situation where there is an acquisition of private land for a public reason. In dealing with that, one has a situation where there is land which is already held in trust by public authorities – when I say “held in trust by public”, it was our land, we put it in trust, it is land now available over which we have no control and no ownership except a right to get it back if they do not use it for the purpose. So, in relation to that, you see land that is the subject of a proposal, indeed an intention, to construct a road over land that is, in effect, in public ownership.
The only compulsory acquisition is compulsory acquisition of small pieces of land and the acquisition of small pieces of land is so that the area on which they wish to build a road can be changed. Now, your Honour, so far as that is concerned, the question then arises whether that is an enhancement of the value of the land by virtue of the carrying out of the purpose for which it was resumed. Now, your Honours, if one identifies the purpose for which it is resumed as being to change the location on which a road may be built to effect a realignment of that, then, in our submission, that is the purpose of it, because it is to add to land that the Authority already has available to build the road, small pieces of land.
If one takes that view of the matter, then the result, we would say, is that the enhancement, if it is to be measured, is to be an enhancement of the land measured by that small acquisition and an acquisition for a particular narrow purpose. It is not as if one has the successive acquisition of pieces of land along the course of a highway. Your Honour, that is, I think, how we would put it in response to your Honour.
Your Honours, if one took, for example, a parcel of land that adjoined Crown land – to use perhaps a somewhat dated term now – but if one took a parcel of land that adjoined say an area that had been used as a military training area, but a road was to be put through that along the boundary of the land with the private land, but it was found that a small piece of the private land was required because a realignment of the road was effected, or to make a better corner or something along those lines, we would submit that the small piece of land that was acquired for that corner would not be – or the acquisition of that would not give rise to an enhancement of the whole of the value of the – sorry, one would not take into account as being the purpose, the construction of the road as a whole, but rather the narrower purpose of acquisition of a part of the land to build a corner.
Your Honours will see, of course, it can effect significant difficulties to an owner of land when a small piece of land is acquired which has a considerable value, but at the same time the enhancement of the value of the land overall is taken into account by the building or by the construction or proposal to construct something for which the proposal exists already.
Could we go on to say this. We would submit that so far as the issue of the words of the notice of intention to resume are concerned, your Honours would see that the – as we have said, I think, in paragraph 48 of our written submissions, that the purpose of the taking was not adequately or appropriately described by the bland words in the notice of intention to resume because, your Honours, it is dealing with a broad purpose. We would say one has to look at the particular purpose and particular does not just mean identifying a purpose.
Could I come then to the second matter that we seek to address and that is essentially the matter to which we have referred in paragraphs 54 and following of our written submissions and that is ‑ ‑ ‑
FRENCH CJ: Sorry, just before you do, Mr Jackson, can I just go back for a moment to section 12(6)(b) and its interaction with section 7(3)? What publications made conclusive evidence of is that the provisions of section 7 have been complied with. How would non‑compliance with section 7 operate or what would its consequences be?
MR JACKSON: Absent section 12(6)?
FRENCH CJ: Yes.
MR JACKSON: Your Honour, what would occur would be - if your Honour goes to the terms of section 7 your Honour will see that there is a procedure set out in subsection (1) that the constructing authority has to serve a notice of intention to resume. You will see the persons upon whom it has to be served in subsection (2), its contents in subsection (3) and there would be, your Honour, absent there being a provision – and your Honours will see that there is an ability to object. Then section 8 deals with dealing with the objections.
Your Honour, the question would be whether failure to comply with the notice provisions of section 7, both in giving it and in the terms of it, was something that invalidated the notice of intention to resume and that being so no further step could be taken.
FRENCH CJ: I suppose what I am directing the question to is the hypothesis that section 12(6)(b) does not have the effect of, as it were, rendering unchallengeable, for the purposes of section 20, the purpose specified in the notice of intention to resume. So I am looking to see what work it does in relation to the notice and its specification of the particular purpose, if it does not have that effect.
MR JACKSON: Your Honour, what it is doing is to prevent there be a challenge to the validity of the resumption if there has been non‑compliance with section 7. It seems to be that. If your Honours look at the terms of subsection (6), it is conclusive evidence, of course, in the absence of rebuttal, that the provisions have been complied with and the purpose of doing that is to mean that one cannot then thereafter challenge the resumption itself, the acquisition, on the basis that there had not been non‑compliance with the steps leading to it. It does not touch, in our submission, section 20(3). It does not deal with that issue at all.
GUMMOW J: Do you have the text yet of the notices or some reference to them?
MR JACKSON: Page 111, your Honours. It is the middle paragraph on the page there, the notice of intention document. It says it is:
the intention to take the land “for future transport purposes including the facilitation of transport infrastructure . . . for the South‑West Transport Corridor.
Your Honour, that is expressed in very broad terms, road, rail, the lot, as it were. What we would say about it is that the arbitrator was perfectly correct in looking to see what was the land actually acquired for as distinct from purposes expressed with that level of generality.
GUMMOW J: Where does the arbitrator do that?
MR JACKSON: I took your Honours before, I think, to page 142 through to page 143. Your Honours will see particularly page 142 at about line 20 and then at the bottom of page 141, line 40, your Honours will see that he said they “have to be read in their proper context.” He referred to the time they were issued, the location of the transport corridor had been defined, the need had been confirmed, the land dedicated on trust since 1999. Your Honours will see him referring to that in greater detail, and at about line 12 on page 142:
All that remained was the execution of the final works to Ripley and finally to the Cunningham Highway. By that time, there had not been any resumption of any Springfield land nor apparently any need for resumption.
Your Honours will see in the next paragraph on page 142 he referred to:
The content of the NIRs has therefore to be assessed against such matters and the whole of the factual background briefly summarised above.
Then your Honours will see the passage to which I referred a moment ago. Also, your Honours, about line 28 on page 142 the sentence commencing, “In short”.
GUMMOW J: That, in a way, is an approach which gives a particular interpretation to section 7(3). What the arbitrator is saying, I think, is in asking yourself, looking at the notice, what is the particular purpose specified, do you look at this context as well?
MR JACKSON: Your Honour, that is one way, although I think it is right to say that he did not refer to section 7(3) specifically. But your Honour, the conclusive nature given by section 12(6) does not relate to section 20(3), in our submission. It is perfectly appropriate, we would say, if one is looking to see what is the purpose that is referred to in section 20(3) to identify, if one is thinking in terms of section 7(3), what is the particular purpose, which is the language of the statute, for which the land has resumed? One would think that the statute, in dealing with the rights of individuals, does contemplate that there be some specificity, some particularity rather than generality in the purpose which land is resumed.
Your Honours, could we move then to the matters to which we have referred in relation to the second issue to which we refer in paragraph 36(b) of our written submissions, whether the arbitrator erred in finding that any enhancement could not be taken into account for the purpose of s 20(3). Your Honours, our submission simply is this, if I could just put it in a very short form really. One did have a situation where, whilst the road had not been constructed at the time of the then resumption in the present case, at the same time the contention on behalf of the respondents was that any enhancement which occurred in the period up to the time of resumption had to be brought into account. That enhancement was necessarily an enhancement that had occurred by reference to events preceding the resumption in the present case.
In our submission, that submission is one that the arbitrator was correct in not accepting and it was correct in not accepting because the enhancement has to be an enhancement, on any view, due to the acquisition in question. It does not take into account any enhancement that had occurred before or any enhancement, we would submit, for which the activities of the resuming authority, or activities of persons other than the resuming authority, are to be taken into account. Your Honours, could I move then to say a couple of things in relation to our learned friend’s contentions set out in their written submissions. Your Honours will have seen that the respondent’s submissions seek to say in paragraph 14 that:
It is settled by authority that, for the purposes of determining enhancement or injurious affection . . . a wide rather than a narrow view of the purpose for which an individual parcel may be resumed is to be taken. That authority includes decisions of this Court.
Your Honours will see that there is a reference to the decision of Justice Powers sitting as an arbitrator in In re Smith & Minister for Home and Territories. We have referred to this, your Honours, in our submissions in reply in paragraph 2. He found, hardly surprisingly, that “the public purpose for which the land was acquired” was for the purpose of the Kalgoorlie‑Port Augusta railway. That, we would submit, was hardly surprising. It was the purpose which the parties had agreed in the submission to arbitration, which your Honours will see we have given the reference.
Your Honours will see that referred to in the decision itself, which is 28 CLR 513 at 528 and, in particular, your Honours will see towards the bottom of that page and the top of page 529 to about point 4 and, your Honours, to regard that case as setting out the broad proposition for which our learned friends contend, in our submission, is just incorrect. Nor, we would submit, does the decision in The Adelaide Fruit and Produce Exchange Company Case 106 CLR 85 have the same effect. That was a decision where a new road was constructed – was to be constructed. Your Honours will see that at page 92, about point 2 on the page, the betterment provisions are referred to and then at page 93, about point 4 on the page, it is said:
As his Honour points out, this is not a case where the land must always be used for a market; the Company and any purchaser from the Company could use it for other purposes and its value with the prospect of a frontage to a new street cannot be estimated as though it were nothing but a site for a market.
Your Honours, that is a lot to build the general proposition on. We have referred also, your Honours, in our submissions in reply, to Commonwealth v Morison and to the Court’s decision in Marshall v Director General, Department of Transport. May I go to that, your Honours, because considerable reliance is placed upon it. The decision in Marshall 205 CLR 603, your Honours, that was a case which was not concerned with section 20(3) at all.
It was a case which was concerned, as your Honours will see, with the provisions of section 20(1)(a) – or the provision which is now section 20(1)(a)(i) – there were no references to section 20(3) in Marshall at all, except at paragraph 19 at page 615 and at paragraph 42 at page 624 where section 20 was set out in full. The only other reference to section 20(3) is found at page 621 and at page 621 in paragraph 31 your Honours will see that it really says nothing about section 20(3) in any detail apart from, in effect, mentioning it.
Your Honours, what one does see from the decision in Marshall is that one does have to look at the terms of the statute. We referred in paragraph 8 of our submissions in reply to the various references to that passage. Your Honours, we would also seek to say that our learned friend’s submissions seem to say, in one way or another, that enhancement on the one hand and the concepts referred to in section 20(1) are opposite sides of the same coin.
Your Honours, the true situation, in our submission, is that they are quite different things. If one goes to section 20(1)(a) what is contained in 20(1)(a)(ii) and also 20(1)(a)(i) are things which are quite different from section 20(3). In particular, 20(1)(a)(ii) deals with the exercise of statutory powers which, as Marshall demonstrates, need not be the resumption itself at all, but the exercise of other powers:
otherwise injuriously affecting the claimant’s other land –
whereas section 20(3) is concerned with enhancement arising from –
the carrying out of the works or purpose for which the land –
was itself acquired. Your Honours, we rely on our written submissions, both in‑chief and in reply and those are the submissions we wish to make orally.
FRENCH CJ: Thank you, Mr Jackson. Yes, Mr Gore.
MR GORE: Your Honours, may we begin with some further brief treatment of the facts which are relevant to section 20(3). Your Honours will have noted from the reasons for judgment of Justice McMurdo and the Court of Appeal that a live issue before those courts, but not before this Court, was the extent of the adjoining land for the purposes of section 20(3). So that your Honours can appreciate that debate, which was resolved in favour of the respondents, if your Honours go back to the appeal book at page 154 ‑ ‑ ‑
HAYNE J: Sorry, what page?
MR GORE: Page 154, your Honour. Unfortunately, the colouring has not come through particularly well, but what your Honour the Chief Justice referred to as land shaded in white was in fact land shaded in pink. That was the land which the appellants conceded was land adjoining for the purposes of section 20(3). The land shown in blue at page 154 was the additional land that the respondents contended was also adjoining land to be taken into account for the purposes of enhancement.
Although the plan at page 154 is a little difficult to read, your Honours can see from a mere visual comparison of the land that was ultimately held by the courts below to be the adjoining land that it was materially larger than the resumed land. The blue land, if one does an exercise with the areas in hectares that are shown, your Honours, in very rough terms you can see that there is a very large parcel in the pink, Lot 746 on SP189043 which was itself 311.5 hectares. Then there were large areas to the north. Lot 7 on – and it is difficult to read – but SP189025 and Lot 8 to the north‑east of that.
If one adds those various areas, which the appellants conceded were adjoining land, one arrives at a figure of the order of 450 hectares and if one carries out the same exercise for the blue land, which is the additional land, it is a similar figure, so about 900 hectares of adjoining land compared with the 6‑odd hectares which were taken for the purposes of the so‑called realignment.
Your Honours were also taken to page 163 and your Honours should appreciate the significance of the different colours. Your Honours will see in the legend that the dark blue is described in the second column of information as “Town Centre” – the colours have come through a bit better here - the pink to the west of that is described as “Community Residential”. You will also see from the last entry in the first legend the boundary of the “Enhancement Area” is shown.
The boundary that is shown at page 163, your Honours, coincides with the boundary which you can see a little more clearly back on page 154 but you can pick it up, for example, in the region – if your Honours perhaps go back to page 154. If your Honours go south of the corridor which runs east‑west and to the eastern side of the sheet your Honours will see Lot 728 looking something like a giraffe looking to the west. Do your Honours see that?
You can pick up that same giraffe shape when you go back to page 163. It is in the green, or partly in the green, but the body of the giraffe, as it were, is in the blue. The effect of the evidence that is referred to in the award that I will take the Court to in a moment is that obviously the blue land in the town centre was valuable land and it was enhanced in value by the transport corridor project.
The arbitrator dealt with those aspects in the award at page 129 of the record and following. The Court is aware that the arbitrator determined that the value of the resumed land was something a little less than $1.5 million. What was not contradicted was the respondents’ valuer’s assessment of the enhancement at about $6 million, the figure that the Court can see at page 129 at about line 28.
The arbitrator set out the summary of the derivation of that figure from line 35 and following. In the summary you can see it refers first to “Town Centre land south of the highway”, “$2,000,000”. That is the giraffe, or the body of the giraffe, as it were. Then the summary refers to “Development Area 5” with a before and after value and a net enhancement figure of “$856,000” and “Development Area 6B”, the same before and after exercise with an enhancement figure of “$2,820,000”.
If your Honours go back to page 163, Development Area 5, it can be ascertained from other parts of the arbitration, is the blue area north of the corridor which adjoins the sliver of land to the east, so the area transferred from Lot 7 and the area transferred from Lot 8 that were resumed are adjacent to Development Area 5 which is that large area in blue which the respondent’s valuer said was thereby enhanced in value.
Area 6B, your Honours, is the area to the west of that. The returned land, as you have been informed, is the land that is hatched on this page in green and Area 6B, insofar as the town centre designation is concerned is the blue area to the north of the eastern part of the returned land. It is difficult for me to read but it is “Lot 4 on SP172792” - it appears to be on the plan. The returned land itself was included in the valuer’s assessment of enhancement back at page 130 of the record at line 12.
If the Court would go back to that page, your Honours will see from about line 25 that the arbitrator set out a few short passages from the valuer’s report and those passages tend to emphasise the town centre land so the first bullet point:
“The Town Centre lands shown in Annexure I ( to his report) will each benefit from the SWTC” –
and that is the annexure at page 163 of the record that we have been looking at your Honours. Then another point:
With reference to the “commercial” land in Table 16 and its alleged enhancement, he continues – “Particularly when one considers the fact that if not for the SWTC project much of the land would be limited in potential to long term residential.”
and with Development Area 5:
had it not been for the SWTC, it is probably unlikely that non‑residential development of this area would occur.”
If I could take your Honours forward to page 131 between lines 20 and 30, at about line 21 the arbitrator recorded that:
Having stated positively (page 15) that the value of the lands identified by him with commercial designations and potential will benefit, he continues: “quantification of the benefit is difficult and in fact it is unrealistic to do so with any confidence in the accuracy of the outcome.” Therefore “for the purpose of the exercise” he took a notional area of 100ha of “enhanced land” (the enhanced area in his Table 16 is 146ha) and asserted that if that 100hm was enhanced only to the extent of $2.00 per m2 “the works” would add substantially more than $2m to that land.
The $2 million, of course, on that simple exercise did exceed the compensation awarded of less than $1.5 million and it was referable only to this theoretical exercise for 100 hectares which was itself less than the 146 hectares referred to in the valuer’s table 16 which was, in turn, less than the 900 hectares or so of adjoining land.
Your Honours, might we observe at this point that this case, therefore, presents very differently from the Military Road example that our learned friends gave this morning. We did not get all of the postulated facts in the Military Road example, but presumably the private land adjacent to the Crown land from which a small parcel was taken on the example given to enable the construction of the Military Road already had access of its own to some public road and this was some rear part of its land that it was taken by the Crown to enable the Military Road through Crown land to occur. Very different from the South West Transport Corridor where it was not simply a case of enhancement for some of this land. Without the South West Transport Corridor, the land could not be developed for commercial purposes at all. It would have no access to a public road corridor.
Your Honours, some understanding of the scale of what is involved is going from the plan at page 153. Your Honours might recall from the arbitrator’s award he referred to a plan which had blue colouring and red colouring. This is the exhibit to which he was referring and the arbitrator referred to the designations which are on this particular exhibit. The blue had been open to traffic in December 1998, the red in June 2000 and it is the initial part of the black that is the South West Transport Corridor that was material, ultimately, to the determination of these proceedings. For your Honours to get some orientation, your Honours will see reference to Augusta Parkway running roughly north-south at the junction of the red part of the corridor and the black part of the corridor.
If your Honours go forward to page 154, Augusta Parkway, although it is not labelled on that annexure, is the road intended between the blue land that is a triangular shape to the north of the annexure and the pink land to the right of that, Lots 7 and 8, with the part of the resumed land to the south of that. Indeed, one can work that out, your Honours, from other material in the appeal book. If you go back, for example, to page 87 of the appeal book ‑ ‑ ‑
FRENCH CJ: I think that alignment is clear enough, is it not?
MR GORE: As long as your Honours are comfortable with that, thank you. Now, your Honours, if we could first deal with the purpose issue, as we have termed it in our submissions, and we have tried to be comprehensive in our submissions about the cases on this aspect and in oral submissions this morning we will tend to reply to the appellant’s reply. It is really only in the appellant’s reply that they first confronted the cases that we submit are relevant. Two of those cases, Re Smith and Adelaide Fruit, were discussed orally this morning as well.
GUMMOW J: How about the legislation? Why do we always in these planning cases rush into cases on other statutes? I have never understood it.
MR GORE: Well, your Honour, the legislation does favour the outcome from the courts below.
GUMMOW J: Good, why do you not tell us?
FRENCH CJ: You have to support an error of law, a finding of an error of law on the part of the arbitrator by reference, I suppose, to the statute.
MR GORE: That is so, your Honour. Reference has been made this morning to section 7(3) and section 12(6). Those provisions do have a role to play in the determination of this appeal before your Honours because if your Honours go back to subsection (6), it does provide unequivocally that in the absence of evidence in rebuttal publication of the resumption notice is conclusive evidence that relevantly the provisions of section 7 have been complied with and again, more particularly, that part of section 7(3) that required the notice of intention to specify the particular purpose for which the land to be taken was required.
HEYDON J: That makes it conclusive that a purpose was specified, but does it make it conclusive that the specified purpose was the actual purpose?
MR GORE: Your Honour, it is probably overstating it to say that it makes it conclusive to that secondary aspect, but it is certainly conclusive that the land has not been taken for some purpose quite different, such as drainage or for dams or whatever, and the purpose here specified was generically for transport purposes and that is a sufficient particularity of ‑ ‑ ‑
GUMMOW J: Where do we see that?
MR GORE: Your Honours were taken to the record of the notification in the award, which is at ‑ ‑ ‑
FRENCH CJ: I think it was page 111, was it not.
MR GORE: Page 111, thank you, your Honour. The notice of intentions to resume spoke of:
for future transport purposes including the facilitation of transport infrastructure (namely road and busway, rail or light rail) for the South‑West Transport Corridor.
That language reflected the language of the Transport Planning and Coordination Act 1994 ‑ ‑ ‑
FRENCH CJ: It actually does not specify exhaustively the purposes, does it? It makes an inclusive statement and one queries whether in fact that meets the requirements of section 7(3)(a), which is to “specify the particular purpose”. In any event, on what you accept to be the operation of section 12(6) it does not help you with the exploration – that conclusive evidence provision does not help you with the determination of the purpose that you have to look at under section 20(3).
MR GORE: Yes, your Honour, I cannot say that it concludes the matter.
FRENCH CJ: It was never run that way below.
MR GORE: No, your Honour, but is yet another indicator of the importance of the language used in the notice of intention to resume, and we have touched on this in our written submissions. In the Transport Planning and Coordination Act ‑ ‑ ‑
GUMMOW J: Just a minute. So 20(3) assumes only one purpose? There can be many purposes of doing various things.
MR GORE: That is correct, your Honour.
GUMMOW J: Section 20(3) seems to require some crystallisation of one purpose.
MR GORE: In an individual case like the present one, it does. That is, I accept, common ground.
GUMMOW J: How does one then identify it?
MR GORE: One starts with the notice of intention to resume. That was the effect of passages from the judgment of this Court in Marshall’s Case consistently with the language of the House of Lords in the Waters v Welsh Development Agency Case. So you start with the notice of intention to resume and these notices of intention to resume point clearly to the conclusion that a wide purpose was involved, not just the narrow purpose of some realignment, as the arbitrator described it, but the wider purpose of transport purposes for the purpose of the South West Transport Corridor.
FRENCH CJ: It is probably relatively self‑explanatory. It seems to be rather peripheral to the main issue.
MR JACKSON: Your Honour, may we have, for example, seven days within which to do that?
FRENCH CJ: Yes, and Mr Gore can have a similar time thereafter.
MR JACKSON: Thank you. Your Honours, I said I would give to your Honour Justice Gummow references to the provisions of the New South Wales enactment at the time of Perry, the Land Acquisition (Just Terms Compensation) Act 1991. The position in relation to what was to be included in the proposed acquisition notice is set out in section 15. It is not in terms of section 73 of the Act and does not require there to be a specific or a particular purpose, if I can use that expression, there referred to in it. The matters are that a proposed acquisition notice has to be in a form prescribed by the regulations. The regulations do not relevantly say anything:
(b)specify the authority of the State proposing to acquire the land, and
(c)contain a description sufficient to identify the land proposed to be acquired, and
(d)specify the period within which the land will be compulsorily acquired, and
(e)request any owner who wishes to claim compensation –
to give notice and then be accompanied by the relevant form. Your Honours, when one goes to section 20 of the Act it sets out the effect of that Act. It sets out the effect of an acquisition notice, which is to vest the the land in the authority of the State acquiring the land freed from all other interests. Then, your Honours, if one goes to section 33 it is a provision that says:
Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by:
(a)a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or
(b)a subsequent failure to comply with a requirement of this Act relating to the acquisition.
Your Honours, those are the provisions. Your Honours, if I could just go to page 114. Your Honours will see that in the paragraph commencing number 6, just about line 11, he said:
It is necessary to say something about the “scheme” of acquisition which was the subject of persistent reference in the evidence and submissions.
You will see, your Honours, that he discusses that and then says in the next paragraph:
What the term means in a particular case and what is its relevance will depend essentially upon the facts of the particular case. It is the fact that nowhere in section 20 . . . does the term appear.
Then one goes over to the next page and you will see that about line 22 he says the Pointe Gourde issue is not relevant and he then emphasises the terms of section 20(3), and then if one goes on to page 132, at the bottom of the page he says:
In the context of considering enhancement to other lands for the purposes of Section 20(3), the Pointe Gourde principle has no place.
Could I conclude, your Honours, by saying this. Our learned friends have made a submission about the course which the Court should follow if it takes a particular view of the matter. In our submission, the case is one where there case was conducted at first instance before the arbitrator on a particular basis as to the way in which enhancement should be calculated.
The view of the arbitrator on the issue was one which was adverse to that method of calculation of it in the sense that he said, without, it is true, forming a view as to the number of dollars. He said it was an inappropriate method that had been adopted. Your Honours, if the views adopted by the Court are ones that are to similar effect then there would seem to be little reason to send the matter back to the, or an, arbitrator in order to essentially allow the respondent to have what would be a second go on the matter.
GUMMOW J: Mr Jackson, in the material you are to send in to us will you be able to indicate to us, looking at the date of 26 September 2006 which seems to be the transfer date, what was then the state of implementation of this large project for the Regional Transport Corridor. Is that disclosed in the materials?
MR JACKSON: Yes, your Honour, we will do our best from the materials. Your Honours, subject to that, those are our submissions.
FRENCH CJ: Thank you, Mr Jackson. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning.
AT 3.57 PM THE MATTER WAS ADJOURNED
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