William Warren Daniel as Administrator of the Estate of the late Ada Mary Daniel v Minister for Works - [2003] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WILLIAM WARREN DANIEL as Administrator of the Estate of the late ADA MARY DANIEL -v- MINISTER FOR WORKS & ANOR [2003] WADC 150

CORAM: FRENCH DCJ

HEARD: 26 MARCH 2003

DELIVERED : 11 JULY 2003

FILE NO/S: CIV 1837 of 2002

MATTER :IN THE MATTER of s 47B of the Land Acquisition and Public Works Act 1902

BETWEEN: WILLIAM WARREN DANIEL as Administrator of the Estate of the late ADA MARY DANIEL
Plaintiff
AND
MINISTER FOR WORKS
Firt Defendant
MINISTER FOR LANDS
Second Defendant

Catchwords:

Appeal from decision of Deputy Registrar dismissing defendants' aplication to strike out statement of claim and dismiss the action for abuse of process - Compensation claim for resumption of land - Statutory interpretation - Presumption against retrospectivity - Clear intention that legislation have retrospective effect - Minister has power to extend time to make claim

Legislation:

Land Acquisition and Public Works Act 1902 (WA)

Result:

Defendants' appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr J D Allanson
Firt Defendant               :     Mr N C Monahan
Second Defendant         :     Mr N C Monahan

Solicitors:

Plaintiff:     Dwyer Durack
Firt Defendant               :     State Crown Solicitor
Second Defendant         :     State Crown Solicitor

Case(s) referred to in judgment(s):

Maxwell v Murphy (1957) 96 CLR 261

Case(s) also cited:

Admiralty Commissioners v Valverda (Owners) [1938] AC 173
Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471
Byrnes v Groote Eylandt Mining (1990) 19 NSWLR 13
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629
Kammins Co v Zenith Investments [1971] AC 850
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Pederson v Young (1964) 110 CLR 162
Republic of India v India Steamship Co Ltd [1993] AC 410
Rodway v The Queen (1990) 169 CLR 515
The Commonwealth v Verwayen (1990) 170 CLR 394
The State of Western Australia & Anor v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25
Timeny v British Airways PLC (1991) 56 SASR 287
Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833
Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228

FRENCH DCJ: In 1944 Ada Daniel became registered as the sole proprietor of six lots of land in Mt Yokine and Wanneroo ("the lands"). On 27 November 1950 the lands were resumed for State housing pursuant to the Public Works Act 1902. Under the provisions of the Public Works Act upon publication of the Notice of Resumption the estate and interest of the owner is deemed to have been converted into a claim for compensation. The time limit for making a claim for compensation under the Public Works Act was a period of two years. No claim for compensation was made by Ada Daniel nor was any compensation paid in respect of the resumption of the lands. Ada Daniel died intestate on 10 August 1957. On three occasions in 1960, 1969 and 1980 the plaintiff's father submitted claims for compensation. In 1994 the plaintiff's daughter contacted the Minister for Heritage and Planning on behalf of the plaintiff's father in relation to the claim for compensation. Despite these claims no compensation has been paid in respect of the lands.
On 22 January 1997 the plaintiff, who is the grandson of the late Ada Daniel wrote to the Minister for Lands and the Department of Land Administration ("DOLA") requesting an extension of time within which to lodge a claim for compensation. By letter of 31 January 1997 DOLA advised the plaintiff that an extension had been granted to 31 July 1997. This was confirmed by the Minister for Lands by letter dated 12 February 1997. The plaintiff submitted a claim for compensation on 28 June 1997. On 14 August 1997 DOLA advised the plaintiff that it was necessary to obtain a Grant of Letters of Administration of the estate of Ada Daniel. The plaintiff was requested to supply a copy of the Grant within one month. The plaintiff was not able to comply with that request but forwarded a copy of the Letters of Administration some time after that period. By a letter dated 12 May 1998 DOLA rejected the plaintiff's claim for compensation pursuant to s 214 of the Land Acquisition and Public Works Act 1902 on the grounds that the claim was absolutely barred because a copy of the Grant of Letters of Administration had not been supplied within one month of 14 August 1997. The plaintiff applied to the Supreme Court and on 13 August 1998 was granted an extension of time to supply a copy of the Grant of Letters of Administration.
The plaintiff issued a writ in these proceedings on 8 July 2002 seeking payment of compensation for the resumption of the lands from the Minister for Works (first defendant) and the Minister for Lands (second defendant). The first and second defendants filed a defence and applied to strike out the plaintiff's statement of claim and dismissing the action on the grounds that it was an abuse of process as the right to claim compensation expired two years after the publication of the Notice of Resumption on 27 November 1952 and there was no power to extend time in which to lodge a claim.
The matter came before the Registrar in January 2003 and the defendants' application to strike out was dismissed. The first and second defendants have appealed against that decision.

The defendants' submissions

Section 18 of the Public Works Act provides that when land is resumed the estate and interest of the owner in the land is converted to a claim for compensation upon publication of the Notice of Resumption. The provisions of the Public Works Act at the time of the resumption of the lands in 1950 limited the time for making a claim for compensation to a period of two years from the date of publication of the notice so that after that period no "action or proceedings shall lie, nor any claim for compensation be made" (s 36(2)). There was no provision for any extension of that period of two years in the legislation as it stood in 1950. Therefore, as no claim was made Ada Daniel's statutory right to claim for compensation expired on 27 November 1952.
On 13 December 1955 the Public Works Act was amended to reduce the time within which a claim for compensation could be made to six months but providing that that time limit (whether it had expired or not) could be extended on application to the Minister if the application was reasonable and was made in good faith. The amending provision (s 36) retained the time limit of two years for land resumed prior to the amendment in 1955. The power to extend time was not limited to land resumed after the coming into operation of the amending Act. However, the defendants submit that it did not extend to the right to claim for compensation if that had already expired before the amendment came into operation. It was therefore submitted that the Minister did not have the power to extend time when he purported to do so in January 1997.
The defendants' submission relies on the presumption against retrospectivity and on an argument that on a true construction of the legislation it was not intended that a right that had already expired could be revived by the amending Act.
The defendants also submitted that an estoppel does not arise in this case as the Minister's purported extension of time was invalid. There is no existing statutory right to grant an extension of time. Consequently the Court does not have jurisdiction to grant any remedy in relation to the resumption of the lands.
The provisions of the Public Works Act operate so as to convert an existing proprietary interest in land to a right to claim compensation upon the publication of the Notice of Resumption. That right to claim compensation came into existence on 27 November 1950 but only existed during the period of two years that was the operative limitation period at that time. Therefore, by 27 November 1952, the right to claim compensation no longer existed as there was no power to extend the time period. In this situation, namely where a time limitation period operated so as to extinguish a right rather than simply barring the right to seek a remedy the common law presumption against retrospectivity is regarded as strong. (Maxwell v Murphy (1957) 96 CLR 261 at 267). However, the common law presumption against retrospectivity is a rule of statutory construction albeit a strong presumption. It is displaced when it is clear that the Parliament intended that the amending statute was to have retrospective effect. This was clearly stated by Dixon CJ at p 267 in Maxwell v Murphy above:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."
The provisions of the Interpretation Act(1984) apply to the amendment to the Public Works Act as they apply to an Act passed before its commencement (Interpretation Act s 3(2)). Section 37 of the Interpretation Act relevantly provides that the repeal of a provision does not unless the contrary intention appears:
"(a)revive anything not existing at the time at which the repeal takes effect, or
(b)effect the previous operation of the provision repealed or,
(c)effect any right accrued prior to the repeal."
It follows that the previous operation of the Public Works Act namely, that the right to compensation was extinguished on 27 November 1952, would not be affected by the amendment, that is, the Minister would not have the power to extend the time in which a claim could be made unless the contrary intention appears. In this sense the Interpretation Act reflects the common law although it is not merely a rule of statutory construction but expressly operates so as to conserve accrued rights.
However, I consider that the plain and natural meaning of the provisions of the amendment clearly state a contrary intention in this case. Section 36(1)(a) expressly refers to land taken or resumed prior to the coming into operation of the amendment Act. There is nothing in the provisions of s 36 that conveys either expressly or implicitly that it is intended to include only lands that have been resumed less than two years prior to the operation of the amendment Act. On the contrary, the provisions of s 36(2)(a) that confers the power on the Minister to extend time expressly refers to a period limited by s 36(1) whether it has expired or not.
There is no ambiguity in this provision. The lands resumed on 27 November 1950 are "lands resumed" prior to the coming into operation of the amendment in 1955. The power conferred on the Minister to extend time covers any period limited by s 36(1) namely, a period of two years if the land was resumed before 13 December 1955, or the period of six months regarding the land resumed after that date. In the words of Dixon CJ "the intention appears with reasonable certainty".
The defendants' argument that Parliament must not have intended the power to extend time to apply to land resumed when the period had already expired involves a construction that is entirely inconsistent with the clear wording of the statute. If Parliament had intended the construction contended for it would have been a simple exercise for that intention to be conveyed by a clear statutory instruction. No such instruction is present in the statute nor can any such intention be discerned in the Parliamentary debate. The argument that Parliament cannot have intended the provision to have a broad scope because that would contingently revive or create rights that had been extinguished for many years overlooks the fact that the power to extend is limited to reasonable claims made in good faith.
In any event it is strongly arguable that on a proper construction of the amending Act it does not operate retrospectively by reviving an extinguished right but prospectively by creating a new right, namely the right to apply to the Minister for an extension. Section 36(1) provides that when land is resumed prior to December 1955 the owner only had a right to claim within a period of two years. Whether that right was subsequently extinguished or not the amendment created a new right, namely the right to apply to the Minister for an extension of that period. The right conferred on the claimant by that extension is a new right. It only has the effect of reviving a previously existing right to make a claim for compensation if the application for an extension is granted by the Minister. In this case the plaintiff exercised his right to apply for an extension and it was granted by the Minister.