State of Queensland v Townsville Prison Employees Sporting Club Incorporated
[2006] QSC 233
•31 May, 2006
SUPREME COURT OF QUEENSLAND
CITATION:
State of Queensland v Townsville Prison Employees Sporting Club Incorporated [2006] QSC 233
PARTIES:
STATE OF QUEENSLAND
(Plaintiff/Applicant)
And
TOWNSVILLE PRISON EMPLOYEES SPORTING CLUB INCORPORATED
(Defendant/Respondent)
FILE NO/S:
236/06
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Townsville Supreme Court
DELIVERED ON:
31 May, 2006
DELIVERED AT:
Townsville
HEARING DATE:
26 May, 2006
JUDGE:
Justice Cullinane
ORDER:
Give Judgment for the Applicant.
That the Respondent deliver up possession to the Applicant land described as Lot 57 on survey plan 1528AA County of Elphinstone, Parish of Beor.
The Respondent to pay the Applicant’s costs of and incidental to the application to be assessed.
CATCHWORDS:
LICENCE TO OCCUPY LAND where the Defendants were granted the use of the building on the land – whether licence to occupy land is revocable on reasonable notice.
SUMMARY JUDGMENT – whether arguable that licence is irrevocable.
Land Act 1962
Canadian Pacific Railway Co v The King [1930] AC 415 cited.
Cudgen Rutile (No.2) Pty Ltd v Chalk [1975] AC 520 cited.
Llanelly Railway and Docks Co v London and North Western Railway Co (1875) LR 7 HL 550 cited
Winter Garden Theatre (London) v Millennium Production Ltd [1948] AC 173 relied on.
COUNSEL:
Mr G. Sheahan for the Plaintiff / Applicant
Mr W. Elliott for the Defendant / Respondent
SOLICITORS:
Crown Law for the Plaintiff / Applicant
Connolly Suthers for the Defendant / Respondent
The Applicant/plaintiff seeks summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules in a claim for possession of certain land described as Lot 57on survey plan 152800 County of Elphinstone Parish of Beor.
The relevant land forms part of a prison reserve which is the subject of a deed of grant to the Queensland Corrective Services Commission.
A deed of grant issued on 14th March 1991 and subsequently a further deed has issued.
On part of these lands there stood premises (two buildings) which had been used for single officer accommodation. These apparently became surplus to requirements and discussions took place between the Respondent (described as the staff social club) and senior departmental officers with a view to the club using the quarters for their social club. The Respondent is an incorporated body but it is not clear exactly when it incorporated. These discussions took place in 1989.
In 1989 the status of the relevant land was as a reserve for public purposes (a prison) set aside by Order in Council years earlier. The Governor in Council acting pursuant to s.334 of the Land Act 1962 as amended had set the land aside as a prison.
It is clear that an agreement was reached at the time for the use by the Respondent of the quarters.
There is a letter (exhibit GP8 to the Affidavit of one Gordon Perrett filed on behalf of the Applicant) from the then general manager of the Townsville Correctional Centre to the Director General in Brisbane which contains the following:
“(2) Staff Social club Accommodation
Presently the staff social club has as their facility an old quarters which was utilised for single Officer accommodation.
Discussion with club executives – Correctional Officers T. RIORDAN, L. McGRATH and R. HODGES – during 23 January 1989 resulted in the following proposal –
Additional facility in the form of single Officer quarters (number twenty-eight (28) in close proximity to “The Creek” be made available for social club use and activities. Both buildings to remain in their present situation.
In relation to the use of both single quarters I attach a copy of written acceptance of proposals placed by Director-General during his visit on 20 January 1989 before the executive members of the Townsville Prison Employees Social Club.
Residence Twenty-seven (27) – Immediately next door to the building known as The Creek” and one of the houses previously marked for removal, be upgraded and repaired where necessary adequately furnished and converted to single Officer accommodation capable of housing three single staff.”
There is also an exhibit (GP9) from the secretary of the social club to the Director General referring to the agreement and to the fact that the buildings were offered to the club and accepted. It appears there was also an offer of some financial assistance as well.
Thereafter with the Applicant’s consent the Respondent effected significant structural improvements.
There matters seem to have rested with the Respondent using the premises without any complaint or demur until December 2003. At this time the Acting Director General of the Department of Corrective Services wrote to the Respondent to the effect that the department was currently examining the issue of licensed premises on departmental property in the light of increasing concerns arising from possible exposure to liability on the part of the Applicant. The letter related:
“Having regard to these matters I wish to foreshadow that I have formed the preliminary view that it is no longer appropriate that premises on departmental property be licensed to sell alcohol and that it will be necessary (within a yet to be determined time frame) for the Club to cease its operation on the prison reserve.”
The letter went on to relate that the department was willing for the Club to remove and relocate off the prison reserve to another location and asked for a proposal to be submitted addressing those matters.
In a reply the Respondent asserted that it had legal advice that it had what is described as a promissory estoppel and as such had certain rights to the land on which the buildings were affixed.
The Respondent sought a lease of the land on which the premises were situated.
The next correspondence which is before the court is a letter of 18th July 2005. In this the Acting Director General said that there was now a need to undertake a significant expansion of the Townsville Correctional Centre which would see non-essential buildings on the reserve removed to accommodate it.
It was also stated that a policy had been adopted of having buildings surplus to operational requirement on reserves sold and removed from the site. The letter went on to inform the Club that the Respondent wanted it to move from the site by 31st March 2006.
In a letter from a legal representative the Respondent acknowledged that it may be necessary for the Club to relocate and for the existing buildings to be removed from the prison reserve. Some alternative lands were sought on what is described as “the edge of the prison reserve” on a 99 year lease basis.
It seems that at some time after this an incident occurred at the club which caused senior officers of the Commission some concern and it purported to suspend the Club’s use of the premises immediately. Sometime thereafter the Respondent asserted a right to conduct operations at the club and reasserted its claim of a promissory estoppel arising in relation to the club premises and the land upon which they stand. Both in that letter (13th March 2006) and an earlier letter (23rd February 2006) the Respondent has acknowledged the need to relocate the premises.
In an Affidavit by one Lyle Winton McGrath formerly an employee of the Applicant he says that he was present at the meeting on 20th January 1989 at which the then General Manager of the Correctional Centre “informed us that the single men’s quarters would be given to the Club for the use as club premises.”
It goes on to relate:
“My understanding of the offer was that the Club was able to occupy the Single Mens Quarters forever provided that the Club paid for any improvements, repairs and maintenance, electricity (and on the basis that the Corrective Service Commission was not required to expend any moneys). On this basis the Club accepted the offer that was made. Over time the Club made substantial improvements to the Single Mens Quarters and attended to repairs and maintenance and paid the electricity and otherwise performed the agreement that had been reached. The letters refer to possible financial assistance being received from the Corrective Services Commission but this never occurred.
By accepting the offer the Club considered the single Mens Quarters became the property of the club and the club could remain in occupation for an indefinite period of time. The Club would not have effected the substantial improvements if the agreement had been otherwise.”
As will be seen these paragraphs are in the nature of opinions and assertions
In argument counsel for the Respondent contended that there was on the material arguably a case that the Respondent had been granted a right in perpetuity to occupy the land upon which the premises stood. He relied upon the Affidavit of Mr McGrath and the statement in the passage that I have set out above to the effect that: “Both buildings to remain in their present situation.”
Section 334 of the Land Act 1962 as amended provided for the means by which Crown Land could be set aside by way of reserve for public purposes. This was the position at the time in 1989 that the meeting that I have referred to took place.
Subsections (1) and (4) of Section 334 provided respectively as follows:
“(1) The governor in Council may from time to time grant in trust, or by Order in Council reserve and set apart, any Crown land which, in the opinion of the Governor in council, is or may be required for any public purpose.
(4)The Governor in Council may from time to time by Order in Council, rescind in whole or in part or amend, alter, vary or otherwise modify an Order in Council reserving and setting apart any Crown land for any public purpose of any prior Order in Council made under this subsection.”
Counsel for the Respondent conceded that it would not be possible to assert a claim of title to or an interest in the land given the provisions of the Land Act as to the means by which crown land can be set aside for public purposes and the means by which any Order in Council setting aside such land might be amended, altered, varied or otherwise modified.
This is the only way in which title to or an interest in such lands could be disposed of. See Cudgen Rutile (No 2) Pty Ltd v Chalk (1975) AC 520. Nor can there be any estoppel against the Statute so as to create an interest in such land.
It was contended however that the Respondent had a right which was not determinable to occupy the lands upon which the premises were situated, such right it would seem, being in the nature of a licence.
Rule 292 provides as follows:-
“(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against a Defendant.
(2) If the court is satisfied –
(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”
The enhanced power of the court to grant summary judgment under the new rules compared with its powers under the previous rules has been referred to in a number of cases.
It seems to me that what I have to consider is whether there arises on the material before me, an arguable case that there is a right to occupy the land and that such right is irrevocable. I am satisfied there is at least an arguable case that the Respondent has been granted a licence to occupy the land.
A licence will usually be terminable upon giving a reasonable notice: See Winter Garden Theatre (London) Ltd v Millennium Production Ltd [1948] AC 173 per Lord Porter at p195:
“The rule of law applicable to the licence granted to the respondents in the present case is, I think, that prima facie licences are revocable.”
See also Canadian Pacific Railway Co v The King (1931) AC 415.
There have however been cases in which a licence has been held to be irrevocable. See Llanell Railway and Docks Co v London and North Western Railway Co (1875) L.R. 7 HL550.
There are in my view here potent considerations supporting the conclusion that any licence or right to occupy would be determinable on reasonable notice.
The first of these is that the right to use the land at the highest for the Respondent must be limited to the presence of the premises given by the Applicant to the Respondent on the land. Whilst there may have been an understanding at the outset that the premises will remain in situ, the correspondence makes it clear that both parties now accept that the premises can be moved elsewhere and indeed that this will, at some time, have to happen. The Respondent in those circumstances would retain the value of the significant expenditures it has made on the premises.
A further important consideration is that any right to use the land was conferred gratuitously. The Respondent was not required to make any payment in respect of any such right. The structures were already on the lands having been constructed some considerable time before by the prison authorities.
Finally an important consideration is the public nature of the land and the possibility which must have been apparent to both parties from the outset that, with time, this land might have been required for that public purpose as has apparently now occurred.
In these circumstances I think that the conclusion that any right to use the land was terminable on reasonable notice is compelling. There is, in my view, nothing pointing towards irrevocability.
It was not argued that a period of more than eight months which was the time given to vacate the land in this case would be arguably unreasonable.
I give judgment for the Applicant against the Respondent.
I order that the Respondent deliver up possession to the Applicant land described as Lot 57 on survey plan 1528AA County of Elphinstone, Parish of Beor.
I order the Respondent to pay the Applicant’s costs of and incidental to the application to be assessed.
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