Vincent v Johnstone Shire Council

[1995] QCA 550

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 87 of 1995

Brisbane

[Vincent v. Johnstone Shire Council & Ors]

BETWEEN:

MICHAEL SHANE VINCENT and

SHIRLEY ANN VINCENT

Appellants

AND:

THE COUNCIL OF THE SHIRE OF JOHNSTONE

First Respondent

AND:

BRETT DERMER WILSON and

LYNDA RUTH WILSON Second Respondents

Davies JA
McPherson JA

Dowsett J

Judgment delivered 08/12/1995

Separate concurring Reasons for Judgment of each member of the Court

APPEAL ALLOWED. ORDER BELOW BE SET ASIDE. THE MATTER BE

REMITTED TO THE PLANNING AND ENVIRONMENT COURT IN CAIRNS

CATCHWORDS:	STATUTORY INTERPRETATION - "signed by each objector" in s.4.3(9) of the Local Government (Planning and Environment) Act 1990 (Q) allows the signature of an authorized agent signing as an agent.
Counsel:	M E Pope for Appellant E J Morzone for First Respondent J R Webb for Second Respondent
IN THE COURT OF APPEAL	[1995] QCA 550
SUPREME COURT OF QUEENSLAND

Appeal No. 87 of 1995

Brisbane

Before McPherson J.A.
Davies J.A.
Dowsett J.

[Vincent v. Johnstone Shire Council & Ors.]

BETWEEN

MICHAEL SHANE VINCENT and
SHIRLEY ANN VINCENT

(Appellants) Appellants

AND

THE COUNCIL OF THE SHIRE OF JOHNSTONE

(Respondent) First Respondent

AND

BRETT DERMER WILSON and

LYNDA RUTH WILSON Second Respondents

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 8th day of December 1995

In this matter I agree with the reasons and the orders proposed by Dowsett J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 87 of 1995

Brisbane

Before Davies J.A.
McPherson J.A.
Dowsett J.

[Vincent v. Shire of Johnstone and Wilson]

BETWEEN:

MICHAEL SHANE VINCENT and

SHIRLEY ANN VINCENT

Appellants

AND:

THE COUNCIL OF THE SHIRE OF JOHNSTONE

First Respondent

AND:

BRENT DERMER WILSON and

LYNDA RUTH WILSON

Second Respondents

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 8th day of December 1995

I agree with the reasons for judgment by Dowsett J.

Solicitors:	Clayton Utz as t/a for B K Gillian for Appellant Vandeleur and Todd for First Respondents Mullins and Mullins for Second Respondents
Hearing Date:	8 November 1995

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 87 of 1995

Brisbane

Before	Davies JA McPherson JA
Dowsett J

[Vincent v. Johnstone Shire Council & Ors]

BETWEEN:

MICHAEL SHANE VINCENT and

SHIRLEY ANN VINCENT

Appellants

AND:

THE COUNCIL OF THE SHIRE OF JOHNSTONE

First Respondent

AND:

BRETT DERMER WILSON and

LYNDA RUTH WILSON

Second Respondents

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 08/12/1995

The second respondents were applicants for the re-zoning of land in the shire administered by the first respondent. In the course of the re-zoning process, a solicitor acting on behalf of the appellants wrote to the first respondent with reference to the application for re-zoning as follows:-

"I have been instructed to write to you to formally object to the application referred to on behalf of Mr M S and Mrs S A Vincent who are adjoining land owners."

Thereafter followed details of the grounds of objection and the letter concluded:-
"I shall look forward to hearing details of Council's decision in due
course, but would trust that Council will not approve the application in

all of the circumstances.

Yours faithfully,

B K Gillan."

The re-zoning was approved, but the present appellants have appealed to the Planning and Environment Court at Cairns. They failed to serve the second respondents and applied to extend time within which to do so. On the hearing of that application, the second respondents submitted that the notice of objection was invalid for non-compliance with the requirements of s.4.3(9) of the Local Government (Planning and Environment) Act 1990 which provides:-

"An objection made under sub-s.(8) -

(a)	is to be in writing and signed by each person who makes the objection;
(b)	...
(c)	..."

At first instance, counsel were unable to find any authority with which to assist the learned Judge. They had, however, performed a detailed examination of the Act and asserted to his Honour that with one exception, no other provision expressly required that a person sign a document, the exception being s.4.18 concerning the withdrawal of objections made by more than one person. Whereas sub-s.(4) provides that a sole objector may simply withdraw his or her objection, sub-s.(5) provides that where an objection has been made by more than one person, the notice of withdrawal must be signed by all of them. His Honour also noted that in rule 16 of the Rules of Court, specific provision was made for signing of a notice of appeal, "by the appellant or his solicitor or agent". His Honour decided that as Parliament had distinguished between different documents, requiring that some be signed and some not, documents in the former category should be personally signed by the relevant party.

Since the hearing in the Planning and Environment Court, counsel have discovered a decision of the Local Government Court which is inconsistent with the present decision. In Belah Nominees Pty Ltd (trading as Sheldon Caravan Park) v. Brisbane City Council and Anor. [1982] QPLR 313, a company which operated a caravan park and eight people who lived nearby objected to a proposed development. The relevant legislation required that such an objection, "be in writing and signed by each person who makes the objection". The objection had been signed by the managing director of the company, "on behalf of the objectors". Byth DCJ, accepted that such person had authority to sign on behalf of the company and also on behalf of the other objectors. No reasons were given. The current legislation contains the same words.

The appellants submit that where a legislative provision has received judicial interpretation and been again used in a later statute, it may be assumed that the legislature has adopted that interpretation. See Barras v. Aberdeen Steam Trawling and Fishing Co Limited [1933] AC 402 at p.411, per Viscount Buckmaster, where his Lordship said:-

"It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it."

Elsewhere in the authorities, it is suggested that the rule applies to constructions adopted by superior courts. See Ex parte Campbell LR 5 Ch 703 at p.706. Counsel for the second respondents submits that the rule should not be extended to courts of limited jurisdiction such as the Local Government Court or the Planning and Environment Court. There is, however, much strength in the appellants' response that given the specialist nature of the jurisdiction of those courts, decisions affecting the legislation which has created them and which they exist to apply should be similarly treated. It is not necessary to determine the appeal upon that basis.

In McRae v. Coulton (1986) 7 NSWLR 664 at p.663, Hope JA, with whom Kirby P and McHugh JA agreed, said:-

"The first question is whether the applicants must sign personally or whether signature by an agent on behalf of the applicant was permissible. It has long been the law that, where a provision of a statute or of delegated legislation requires that a document shall be signed by a particular person, prima facie that provision does not exclude the common law rule qui facit per alium facit per se and if the person authorises another to sign on his behalf, a signature made by that other pursuant to the authority is equivalent to the signature of the person giving the authority. ... An intention that a personal signature is required may appear from the language of the statute or delegated legislation or from its subject matter. Thus other provisions in the statute or in cognate legislation expressly authorising signature by agents may preclude the application of the principle where no such provision is made ..."

In Deputy Commissioner of Taxation (Vic) v. Boxshall (1988) 83 ALR 175 at p.178, the Full Court of the Federal Court said:-

"At common law, where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it ... There are cases in which a statute may require personal signature. Whether a particular case is in that category is a question of construction of the terms of the particular statute. In some cases concerning some statutes the courts have concluded that personal signature was required. In other cases on other statutes the courts have held that signature by an authorised agent was sufficient ..."

The second respondents seeks to derive some comfort from a decision of the English Court of Appeal apparently to the contrary, In Re Prince Blücher, ex parte Debtor [1931] 2 Ch 70. The court there held that a proposal by a debtor for a scheme of composition must be signed by the debtor personally in order to comply with the statutory requirement that such proposal be, "in writing signed by him". The case was expressly disapproved by the Court of Appeal in McRae (supra) and distinguished by the Federal Court in Boxshall (supra). At the very best, Blücher may be a case in which the context demonstrated an intention that the general rule not apply. At worst, the decision should hereafter be treated as wrong. Curiously , the facts of the case as reported would suggest that the execution of the proposal was not authorised by the debtor who was said to have been so ill as to be unable to discuss or properly appreciate any matters of business. One therefore wonders how he could have authorised his solicitor to sign the proposal on his behalf. It appears that the court did not take time for consideration. The correct result may have been reached, in haste, for the wrong reason.

The general rule requires that we examine the legislation to see if some contrary intention appears, keeping in mind the strength of the presumption demonstrated by the cases. Agency is an indispensable aspect of modern society. The conduct of business or, indeed, society generally would not be facilitated by the creation of a substantial body of exceptions to the general presumption. The words in question, "signed by each person who makes the objection", are neutral, suggesting that the presumption should apply. We have not been referred to any occasion in the Act where signature by an agent is expressly contemplated, although there is one example in the Rules of Court to which I have referred. It is understandable that specific reference should be made to signature by a solicitor in that context. No doubt, the addition of the words "or agent" was designed to recognize the possibility of unrepresented bodies corporate. I do not find this context to be persuasive for present purposes.

We were referred to the section of the Act concerning applications for rezoning. It does not expressly require that such applications be executed at all, but if such an application is made by somebody other than the owner, it must be, "authorised in writing by the owner", which provision gives no indication of whether personal signature is necessary. As to s.4.18 concerning withdrawal of objections, it is true that a sole objector may withdraw an objection by notice in writing. (s.4.18(4)), whereas the withdrawal of an objection on behalf of numerous objectors must be, "signed by all persons who made the objection". (S.4.18(5)) The distinction is between a "single objector" objection and a "multiple objector" objection. The purpose of the distinction is to ensure that an objection is not discontinued without the consent of all objectors. There is no reason why Parliament should have required actual signature in one case and not in the other. It is unfortunate that different language was used in the two sub- sections. Probably, in drafting sub-section (4), the draftsman assumed that only the objector would be likely to originate a notice of withdrawal and so focused upon the necessary document, whereas in drafting sub-section (5), he contemplated that any one of the objectors might generate such a document, and so focused upon the need to get all objectors to agree to the withdrawal. I consider that there is nothing in the Act which demonstrates an intention to depart from the general presumption.

The second respondents also submit that even if it were permissible for an agent to sign the objection, validity depended upon the agent signing the principal's name in his capacity as agent and that it was, "not sufficient for him to sign his name as agent for the principal." The decision of the Court of Appeal in London County Council v. Agricultural Food Products Ltd [1955] 2 QB 218 is authority for the proposition that an agent may sign in the name of his principal, assuming that he has appropriate authority. This question was also considered by the Court of Appeal in McRae (supra), commencing at pp.664-6. In that case, the signature was by a solicitor on behalf of the various applicants. Although Hope JA appears to have accepted that London County Council v. Agricultural Food Products Limited (supra) was authority for a proposition similar to that advanced by the present second respondents, my own reading of the case suggests otherwise.

In any event, I am satisfied to accept the general proposition advanced by his Honour, which seems to be consistent with the practice as I have always understood it. What must be done is to make it clear that the execution is on behalf of the principal. One way of doing this is by writing the principal's name, with or without the further subscription, "pp." and the name of the agent. In either case, the agent is asserting his authority to sign. The same effect is achieved by the agent signing his own name and asserting that he signs as agent for the principal. In the present case, the agent recited that he was formally objecting on behalf of the appellants and signed in his own name. He thus held himself out as having authority to do so, and I can see no practical or theoretical justification for criticising this course. There is no substance in this argument.

In those circumstances, I propose the following orders:

A.	That the orders below be set aside;
B.	That the matter be remitted to the Planning and Environment Court at Cairns for determination of the application for an extension of time in which to serve the notice of appeal dated 1 February, 1995 upon Brent Dermer Wilson and Lynda Ruth Wilson and otherwise to proceed in accordance with law.

As to the costs of the appeal, the second respondents should pay the appellants' costs. As to the costs of the proceedings in the Planning and Environment Court, the substantive application was not determined, and so there must be another hearing, as I have indicated in the proposed orders. In those circumstances, the costs of the previous hearing have been thrown away. I would order that the second respondents also pay the appellants' costs of those proceedings.

Counsel for the first respondent indicated that it would, in effect, abide the order of the court. He submitted that if the appeal were successful, there should be no order for costs against the first respondent and that the matter should be sent back to the Planning and Environment Court. Both submissions are reflected in the proposed orders.