Suncode Pty Ltd and The N.T. of Australia
[2000] NTSC 10
•10 March 2000
Suncode Pty Ltd and The N.T. of Australia [2000] NTSC 10
PARTIES:SUNCODE PTY LIMITED
and
THE NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:LA18 OF 1999 (9929375)
DELIVERED: 10 March 2000
HEARING DATES: 3 MARCH 2000
JUDGMENT OF: MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:Mr Jobson
Respondent: Mr Grant
Solicitors:
Appellant:Rob Jobson
Respondent: De Silva Hebron
Judgment category classification: C
Judgment ID Number:
Number of pages: 7
IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSuncode Pty Ltd and The N.T. of Australia [2000] NTSC 10
No. LA18 of 1999 (9929375)
BETWEEN:
SUNCODE PTY LIMITED
Appellant
AND:
THE NORTHERN TERRITORY OF AUSTRALIA
Respondent
CORAM: MILDREN J
REASONS FOR RULING
(Delivered 10 March 2000)
MILDREN J:
The appellant is the owner of certain land in the Northern Territory. On 16 May 1998, a notice of compulsory acquisition was served upon the appellant in respect of portion of the land, pursuant to the provisions of the Lands Acquisition Act (NT). The appellant having rejected the offer of compensation made by the Minister, the matter was referred to the Lands Acquisition Tribunal to determine the amount of compensation payable. In July 1998, a preliminary hearing before the Chairman of the Tribunal took place in accordance with ss77 and 78 of the Act. The proceeding was heard before the Tribunal between 8-19 February 1999 and 11-22 October 1999. On l December 1999, the Tribunal delivered its decision. On 23 December 1999, the appellant lodged an appeal to this Court from the Tribunal.
The Lands Acquisition Act was amended in significant respect by the Lands Acquisition Amendment Act (No 2) 1998, (the amending Act), which came into force on 1 October 1998. At the same time, a cognate Act, the Lands and Mining Tribunal Act came into force. As a result, the Lands Acquisition Tribunal was abolished (by the repeal of Part II of the Lands Acquisition Act) and applications for compensation were instead to be determined by a new tribunal, the Lands and Mining Tribunal. Section 50(4) of the amending Act provided that the "former Act" (i.e. the Lands Acquisition Act as in force immediately before 1 October 1998) continued to apply in relation to existing claims for compensation, in respect of which a date for a preliminary hearing has been fixed under s77 of the former Act, until the Minister, by notice in the Gazette, declares that the former Act no longer applies in relation to those claims. Hence, although the Lands Acquisition Tribunal had been abolished, because in this case a date for a preliminary hearing had been fixed under s77 of the former Act, and no notice in the Gazette as contemplated by s50(4) of the amending Act has since been published, the former Tribunal continued to exist for the purpose of determining the claim to compensation in this case, as well as, possibly, in others.
Prior to the amending Act coming into force, an appeal lay from a decision of the former Tribunal to this Court vide s84 of the former Act. It has been held that appeals under s84 of the former Act were appeals de novo: see Meyering v N.T. of Australia (1987) 47 NTR 21 and Deckana Pty. Ltd. v Northern Territory of Australia (unreported, Gray AJ, 8 May 1998). It is not now sought to challenge the correctness of those decisions by either party. As a consequence of the amending Act, s84 of the Lands Acquisition Act now provides:
84. APPEALS
(1)A person aggrieved by a determination of the Tribunal under section 81 or section 81A may appeal to the Supreme Court.
(2)An appeal under this Part is an appeal in the strict sense.
However, the definition of "Tribunal" in s4 of the Act was also changed by the amending Act to mean the Lands and Mining Tribunal. There is no specific provision in the Act as it is presently drafted for appeals from the former Tribunal.
Neither Mr Jobson, who appeared for the appellant, nor Mr Grant, who appeared for the respondent, sought to argue that no appeal presently lies to this Court. Mr Grant submitted that s50(4) continues to apply to proceedings determined by the former Tribunal, with the consequence that s84 in its previous form, still applies with the result that an appeal de novo still lies to this Court. Mr Jobson submitted likewise, but relied instead on an argument based upon the proposition that the amending Act should not be interpreted so as to operate retrospectively and in such a way as to affect existing rights.
The question to be asked, in the first place, is what is the intention of the legislature? In Worrall and Another v The Commercial Banking Company of Sydney Limited (1917) 24 CLR 28 at 31-32, the High Court (Barton, Isaacs and Rich JJ) said:
The distinction between "rights" and "procedure" is only an aid to interpretation, and not the test. The test is: What did the Legislature mean when its words are read, after giving due weight to every relevant consideration? In Irving's Case the Judicial Committee only entered into consideration of the distinction between "rights" and "procedure" after stating that "the Judiciary Act is not retrospective by express enactment or by necessary intendment." If it had been, inquiry as to the nature of appeal would have been useless. This was the method of approach which the Master of the Rolls preferred in Welby's Case; and see West v. Gwynne. To follow this method, we have the guidance of Lord Hatherley in Pardo v. Bingham. There it is said: "We must look to the general scope and purview of the Statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated." The language of Lord Selborne in Main v. Stark, and of Lord Morris in Reynolds v. Attorney-General for Nova Scotia, runs in the same direction.
If, doing this, we find that though no express words are found, yet the necessary intendment of the language is retrospectivity, the task is at an end. Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable. (See per Lord Eldon in Wilkinson v. Adam.)
Adopting this approach, I consider that s50(4) of the amending Act should be held to continue to apply, notwithstanding that the claim for compensation has been determined by the former Tribunal. The words "existing claim for compensation" in s50(4) are defined by s50(1) to mean "a claim for compensation under Part VII of the former Act". The right of appeal under s84 is admittedly not in Part VII, but there is no doubt that the appellant's claim is a claim under Part VII and that that part applies to an appeal de novo conducted in accordance with s84. It is difficult to imagine that the legislature intended to abolish the right of appeal in this case and without substituting for it some new right; but no such new right appears. There is no doubt that the power to appeal is a right: see Worrall and Another v The Commercial Banking Company of Sydney Limited, supra, at 31. The legislature did not abolish all rights of appeal from the former Tribunal established to determine compensation claims. All it did was change the type of appeal from an appeal de novo to an appeal in the strict sense. The membership of the former Tribunal included persons with qualifications other than in law, and required a quorum of three. In normal circumstances it could be assumed that the majority of the members were likely to be laymen. The present Tribunal is constituted by a legal practitioner, having certain minimum qualifications and experience, sitting alone. The change in the composition of the Tribunal provides an explanation for the change in the type of appeal provided for, but does not suggest that the legislature intended that appeals would no longer be from the former Tribunal.
Further support for this result is to be found in the decision of the Privy Council in The Colonial Sugar Refining Company, Limited v Irving [1905] A.C. 369. In 1902 the Collector of Customs required the appellant (CSR) to pay £20,000 excise duty. CSR paid the duty and then brought action to recover the money. The Writ was issued on 25 October 1902. Under the Rules of the Supreme Court of Queensland in which Court the action was brought, the matter went to the Full Court as a stated case. On 4 September 1903, the Court held that the government was entitled to the duty. In the meantime, on 25 August 1903, Royal Assent was given to the Judiciary Act, 1903, s39(2) of which provided in effect for appeals from the State courts on matters involving federal jurisdiction to lie only to the High Court. At the time of the hearing, an appeal lay to the Privy Council, but not at the time of judgment. Lord MacNaghten who delivered their Lordship's opinion said, (at pps372-3):
As regards the general principles applicable to the case there was no controversy. On the other hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.
It is clear that their Lordships accepted that a right of appeal to a superior court which exists at the time of a pending action, is a right which cannot be abolished retrospectively except by clear words, even if the proceedings have not reached the stage of judgment. That is the situation in the present case. There is no clear intent manifested by the amending Act to abolish the appellant's existing right.
At the conclusion of the hearing on 3 March, I ruled that the appellant's right of appeal to this Court is governed by s84 of the former Act, i.e. there is a right of appeal de novo, and I said then that I would publish my reasons at a later time. These are my reasons for that ruling.
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