Tuesley v The State of Queensland
[2010] QLC 2
•22 January 2010
LAND COURT OF QUEENSLAND
CITATION: Tuesley v The State of Queensland [2010] QLC 002 PARTIES: Joe (Colin) Tuesley
(applicant/respondent)v. The State of Queensland
(respondent/applicant)FILE NO: OTH 063-09 DIVISION: Land Court of Queensland PROCEEDING: Application by the respondent to strike out or set aside originating application DELIVERED ON: 22 January 2010 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT: Mrs CAC MacDonald ORDER: 1. The State of Queensland is to be substituted as respondent to this proceeding in place of the Crown Solicitor.
2. It is declared that the originating application dated 18 March 2009 and filed in this Court on 7 April 2009 has not, for want of jurisdiction, been properly started.
3. The originating application is set aside.
4. There is no order as to costs.
CATCHWORDS: Jurisdiction – acquisition of land – Nerang River Entrance Development Act 1984
Practice and Procedure – Uniform Civil Procedure Rules 1999 – Land Court Act 2000
Land Court Rules 2000 – application to set aside or strike out for want of jurisdiction – substituted party applicationAPPEARANCES: Mr J Tuesley on his own behalf
Mr JM Horton of Counsel for the respondentSOLICITORS: Crown Solicitor, Crown Law, for the respondent
On 7 April 2009, Mr Joe (Colin) Tuesley (the applicant) filed an originating application in this Court naming the Crown Solicitor as the respondent. The application says that approximately 11 acres of freehold land on The Spit in Southport were vested in the Crown by the Bjelke-Petersen government without compensation or notification and that the Nerang River Entrance Development Act 1984 gave the Government the right to take the land without compensation. The land the subject of the application (the subject land) was identified in the application by Mr Tuesley as:
1. No. 53954 Book 52 Folio 181 Vol 487 Folio 214 New Title 272375ª
2. No. 53260 Book 51 Folio 216 Vol 482 Folio 102 on New Title 2723Y6ª
3. No. 43837 Book 41 Folio 134 Vol 398 Folio 97 New Title 27237ª
4. No. 43880 Book 41 Folio 139 Vol 398 New Title 272373ª
5. No. 43881 Book 41 Folio 140 Vol 398 New Title 272374ª
6. No. 205647 Book Vol 1215 Folio 137 Purchase No 35
The applicant estimated the value of the land to be between $50,000,000 and $60,000,000 and, it appears, he is seeking an award of compensation from the Court for the taking of the land.
The Crown Solicitor, on behalf of the respondent, has filed a general application seeking orders that -
1. The State of Queensland be substituted for the present respondent.
2. The applicant's originating application filed 7 April 2009 be struck out or set aside pursuant to rr.16(a) and 171 of the Uniform Civil Procedure Rules 1999 (UCPR), which applies by virtue of s.4 of the Land Court Rules 2000 because:
(a) the Court does not have jurisdiction to hear the originating application;
(b) the originating application discloses no reasonable cause of action; or
(c) the originating application is otherwise an abuse of the process of the Court.
This decision deals with that application.
Background
Mr Tuesley annexed a written statement and copies of certain documents to his originating application and he subsequently filed written submissions with annexures. Although Mr Tuesley has not formally proved the factual information set out in the filed documents, I am prepared to assume for the purposes of this application that the facts that he has supplied are correct, although I make no findings that they are.
As explained by Mr Tuesley, the 11 acres of land referred to in the originating application were purchased in fee simple by a member of his family in the early part of the twentieth century. At the time, the land was located in the town of Moondarewa on South Stradbroke Island. Mr Tuesley's family ran a successful tourist business there. It appears from an extract from Hansard[1] that the subdivisional development of the town of Moondarewa occurred in the latter part of the nineteenth century, when the Southport Bar was located at Main Beach, Southport. Subsequently the Bar and the Southport Spit migrated northwards. The southern end of South Stradbroke and the area covered by the township eroded off the Island with the result that the subject land now lies south of the Southport Bar and forms part of the Spit.
[1] Hansard, 21 December 1983, p. 1096. Exhibit JLP2 to the affidavit of JL Prior filed 15 July 2009.
In the early 1980s, the State Government developed plans to stabilise the entrance to the Nerang River and Broadwater and a Gold Coast Waterways Authority was established. The Nerang River Entrance Development Act 1984 was passed by Parliament in December 1983 and came into effect on 10 January 1984.
The Nerang River Entrance Development Act 1984 authorised the Gold Coast Waterways Authority to carry out certain specified works (s.3). Section 9 provided -
"9 Vesting of certain lands in the Crown (1) All those lands in the Parish of Currigee, town of Moondarewa, alienated by the Crown in fee simple shall on the commencement of this Act and by force of this Act be divested from the owners thereof and vest in the Crown without the making of any compensation in respect thereof.
(2) The Minister shall cause such notification to be given to the Registrar of Titles as will sufficiently identify to him the lands referred to in subsection (1) and the Registrar of Titles shall on receipt of such notification make every entry, cancellation and correction in any register, record or book in his custody, or under his control and do and execute such other Acts, matters and things as shall to him appear necessary and proper to register and record the vesting of the lands in the Crown."
In the course of the Second Reading speech concerning the Bill, the Minister for Water Resources and Maritime Services said[2] -
"Prior to the development works being carried out, it will of course be necessary for the lands comprising the training walls and the reclamation areas to be free of encumbrance and be lands owned by the Crown. The only lands relevant to the works not at present owned by the Crown comprise certain allotments situated in the old town of Moondarewa, …
…Under the proposed development works, a significant proportion of the town of Moondarewa will be reclaimed and components of the trained entrance will be constructed partly on land within the town.
The town of Moondarewa subdivision originally comprised 194 large allotments of which 121 allotments were alienated by the Crown. The 121 alienated allotments comprise 102 freehold allotments and 19 allotments held under lease from the Crown. … After taking into account surrenders to the Crown of some freehold allotments, including some allotments which had reverted to the old Southport Town Council for arrears of rates and subsequently surrendered to the Crown, and the subdivision of two of the allotments, the position now is that there are 86 allotments each averaging in excess of one acre which are shown in the Titles Office as having a registered proprietor.
The payment of compensation for freehold lands acquired by the Crown or a statutory authority for public purposes is a well-established policy embodied in statute law. However, the principles upon which the payment of compensation are based in the usual land acquisition are not present in this land acquisition. The area, although subdivided many years ago, is devoid of any development. Any development or use of the area by registered proprietors has long since become right out of the question. Owners have for all intents and purposes vacated any interest they may have had in the subdivided lots.
Because of their location since the town was lost to the sea in the 1940s, the allotments were not included in the 1949 Gold Coast valuations made by the Valuer-General for local authority rating purposes and hence no rates have been levied on the lands for at least 34 years. Some of the subdivided area has re-emerged on The Spit side of the proposed entrance, so that it now forms part of the area of The Spit above high-water mark. Obviously, leaving aside any of the town-planning, access and legal hurdles which would be faced by any person now attempting to assert a proprietary interest in the land, it is quite clear that public opinion would not countenance any private development on that land, so that the allotments in the hands of private owners have no market value.
Taking all these matters into consideration, including the fact that the lands were lost by a natural process, it is considered this is a situation where there is no case for the payment of any compensation to the remaining registered proprietors and where, in any case, the difficulty of tracing registered proprietors or their successors would make normal procedures for the taking of land of the Crown impossible to follow. Accordingly, the Bill provides for the lands concerned to revert to the Crown without payment of any compensation therefor."
[2] Hansard, 21 December 1983, pp 1096, 1097. Exhibit JLP-2 to the affidavit of JL Prior filed 15 July 2009.
Mr Tuesley has produced evidence which indicates that his father attempted to pursue his claim to the subject land, with no success. The subject land was vested in the Crown pursuant to the Nerang River Entrance Development Act.
No compensation has been paid to Mr Tuesley or any member of his family and accordingly Mr Tuesley has sought compensation in the originating application filed in this Court.
Proper Respondent
There is no disagreement between the parties that the State of Queensland is the proper respondent to these proceedings.[3] Accordingly, the State of Queensland should be substituted as the respondent in these proceedings.
[3] Section 8, Crown Proceedings Act 1980; r69(1) UCPR.
Application to set aside or strike out the originating application
The respondent relies on rr16(a) and 171 of the Uniform Civil Procedure Rules as the basis of the application to set aside or strike out the originating application. As there is no provision in the Land Court Rules providing for an application on these grounds, s.4 of those Rules applies. Section 4 provides that –
"4 Application of Uniform Civil Procedure Rules
(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2)For subrule (1), an originating application under these rules is to be treated as if it were a claim under the uniform rules."
Rule 16(a) of the UCPR provides that the court may declare that the proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started.
Counsel for the respondent (Mr Horton) submitted that the Land Court had no jurisdiction to hear the originating application for a number of reasons –
·Section 5(1) of the Land Court Act 2000 provides that the Land Court has the jurisdiction given to it under an Act. No Act gives the Land Court jurisdiction to hear the originating application or to grant the relief sought.
·The effect of s.9(1) of the Nerang River Entrance Development Act was that the property owners affected by the legislation have no ability to claim compensation.
·The subject lots were not resumed under the provisions of the Acquisition of Land Act 1967. Those provisions would have converted the owner's estate or interest in the land to a right to claim compensation (s.12(5)) and the Land Court would have jurisdiction to determine all matters relating to compensation under that Act (s.26).
In response, the applicant submitted that -
·The Land Court must have jurisdiction over any land that is in Queensland. If the Land Court does not have jurisdiction, it is because the Queensland Government passed the Nerang River Entrance Development Act to specifically exclude compensation so that construction of the seaway could commence.
·The southern walls of the seaway were mostly above high water mark and mainly on freehold land.
·If the land had been resumed under the Acquisition of Land Act 1967, notification of the resumption would have been given to the landowners and compensation would have been paid.
·The then government enacted the Nerang River Entrance Development Act to specifically exclude the payment of compensation and to rid the land of the old titles so that construction could commence.
·The subject land was above high water mark and anyone attempting to reclaim their land was faced with a long legal battle that would leave them penniless.
·The applicant contests the statement in the Second Reading speech that there was difficulty in tracing the registered owners or their successors, at least in the case of the subject land. The Tuesleys were well known in the Southport area as was their business on South Stradbroke Island. It would have been very easy to have located the registered owner of the subject land.
·The applicant's land has been taken without the payment of compensation. The applicant has been cheated by the government and by a particular developer as the whole process was an act of theft from start to finish.
·The applicant says that the government was in collusion with a local developer and that the land was taken for the purpose of benefiting that developer.
·The applicant does not contest the government's power to take the land without compensation although he emphasises the injustice of his land being taken in that way.
As indicated above, the applicant has made a number of allegations of corruption and some intimidation against the government responsible for the enactment of the Nerang River Entrance Development Act. Those allegations are unproven. In any event, this Court does not have jurisdiction to deal with such allegations.
Understandably, the applicant is aggrieved by the fact that, as appears from the material set out above, his family's land has been taken without the payment of compensation. Mr Tuesley said that he and his father had spent a considerable amount of money and time in pursuit of a just outcome, but have always been met with the response that there is nothing that can be done about this matter.
As I explained to Mr Tuesley at the hearing, this Court cannot deal with a claim for compensation unless the Court has jurisdiction to do so. The Land Court is a statutory court and its jurisdiction is defined under s.5 of the Land Court Act. Section 5(1) provides that the Land Court has the jurisdiction given to it under an Act. I am not aware of any legislation giving the Land Court jurisdiction to deal with this matter. Nor was Mr Tuesley able to point to any piece of legislation or Act which gives this Court the jurisdiction to deal with his claim for compensation.
This is not surprising because the terms of the Nerang River Entrance Development Act are clear in that s.9(1) provides that the lands in question are to be divested, by virtue of that Act, from the owners and vested in the Crown without the making of any compensation in respect thereof. In my opinion the effect of that provision is that compensation was not to be payable in respect of the divesting of this land. The Second Reading speech confirms, if there were any doubt as to the meaning of s.9(1), that the intention of the legislature was that the land be divested without payment of compensation. The Minister said "It is considered this is a situation where there is no case for the payment of any compensation to the remaining registered proprietors".[4] While it is accepted that Mr Tuesley contests the accuracy of some of the statements made in the Second Reading speech – particularly that there was difficulty in locating the owner of the subject land – the words of the legislation are clear and they indicate that it was the intention of Parliament that no compensation was to be payable.
[4] Hansard, 21 December 1983, p. 1097 Exhibit JLP-2. to the affidavit of JL Prior filed 15 July 2009.
The subject land was divested from the owners under the provisions of the Nerang River Entrance Development Act. In Queensland, most resumptions of land to be used for the construction of public infrastructure are made under the provisions of the Acquisition of Land Act 1967. Had the subject land been acquired under that legislation, the applicant's interest in the land would have been converted into a right to claim compensation under s.12(5) of that Act and this Court could have dealt with such a claim. However, that legislation does not apply.
My conclusion is that the Land Court does not have jurisdiction to deal with the applicant's claim for compensation made in the originating application filed 7 April 2009.
ORDERS
1.The State of Queensland is to be substituted as respondent to this proceeding in place of the Crown Solicitor.
2.It is declared that the originating application dated 18 March 2009 and filed in this Court on 7 April 2009 has not, for want of jurisdiction, been properly started.
3.The originating application is set aside.
4.There is no order as to costs.
CAC MacDonald
PRESIDENT OF THE LAND COURT
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