Colbran & Ors v State of Queensland [2006] QSC 413

SUPREME COURT OF QUEENSLAND CITATION: Colbran & Ors v State of Queensland [2006] QSC 413 PARTIES: Benjamin John COLBRAN and Norma Violet COLBRAN trading as TABLELANDS COFFEE (applicant) v THE STATE OF QUEENSLAND (respondent) FILE NO/S: S 441 of 2002 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 18 October 2006 DELIVERED AT: Cairns HEARING DATE: 3 October 2006, 10 October 2006 JUDGE: Jones J ORDER: 1. Application for leave to amend paragraph 17 of the Defence is refused. 2. I direct the parties file and serve Amended Pleadings to reflect this decision on or before 25 October 2006. 3. Costs of and incidental to this application are reserved. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – GENERALLY – application to strike out pleading of the Defence – pleading claimed statutory immunity from liability for defendant’s conduct giving rise to the plaintiff’s claim – whether statutory immunity exists – whether pleading should be struck out or amended STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO INVADE PERSONAL COMMON LAW RIGHTS – OTHER PRESUMPTIONS – defendant claimed statutory -- 1 of 8 -- 2 immunity from liability for conduct giving rise to the plaintiff’s claim – empowering statute granted immunity for acts done “pursuant to the Act” but no immunity for acts done for the “purpose” of the Act – what conduct is regarded as “pursuant to the Act” Acts Interpretation Act 1954 (Qld), s14A Plant Protection Act 2002 (Qld), s 2, s 13, s 14, s 28 Benning v Wong (1969) 122 CLR 249, considered Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, followed Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, considered COUNSEL: A Collins for the applicant P Freeburn with D Grigg for the respondent SOLICITORS: Williams Graham and Carman for the applicant Crown Law for the respondent [1] On 20 September 2006 I delivered partial reasons for judgment on this application for the striking out of certain paragraphs of the Further Further Amended Defence and adjourned the matter for further hearing. The decision left two matters for further consideration namely, whether the plaintiffs’ allegation of negligent misrepresentation should be withdrawn or struck out and secondly, whether leave to amend the Defence by substituting a new paragraph 17 should be granted or refused. [2] In the proposed amendment the defendant claims statutory immunity from liability for the spraying of the plaintiffs’ coffee plants, which gives rise to the plaintiffs’ claim. [3] The structure of the proposed new pleading sets out five new paragraphs, 17A – 17E. In paragraph 17A subparagraphs (a)-(i) set out factual matters about which one assumes for present purposes there is no dispute. They provide details of the regulatory regime leading to prescribing of the pest, declaring quarantine areas and appointing inspectors. In subparagraph (j), the defendant admits that it did not give directions under s 13 of the Plant Protection Act 2002 (PPA). In subparagraph (k), it raises the issue about the circumstances in which the coffee growers, including the plaintiff, consented to the spraying of their crops. The defendant contends that because of this consent it was no longer necessary for its officers to comply with the statutory requirements which would have attended non-consensual spraying. That being the case, the defendant argues that its actions were nonetheless undertaken “pursuant to the Act” (para 17B) and thus liability for damages did not attach (para 17C). The remaining paragraphs – 17D and 17E – raise the immunity based upon acts done bona fide for the purposes of the Act and without negligence. [4] The immunity depends on the applicability of s 28 of PPA which relevantly provides:- 28 Limitation of Action -- 2 of 8 -- 3 (1) Liability at law shall not attach to the Crown, the Minister, the chief executive, an inspector or any other person acting in aid of an inspector on account of any act or thing – (a) done or omitted to be done pursuant to this Act; or (b) done or omitted to be done bona fide for the purposes of this Act and without negligence. … (2) Notwithstanding the provisions of subsection (1), where a person suffers damage through compliance with this Act, whether by himself or herself or another person, no compensation shall be payable to the person except in a case where the person is entitled to compensation pursuant to section 14(3).” [5] The conduct which the defendant claims is protected by this immunity is the spraying of the plaintiffs’ coffee plants in pursuit of the eradication of the prescribed pest the Papaya Fruit Fly (PFF). The defendant contends that such spraying was “done pursuant to the Act” or “done for the bona fide purposes of the Act and without negligence”. The Plaintiffs argue that the principal immunity contended for is narrowly based and relates not to spraying but to the conduct of the defendant’s officers exercising power and authority provided for by the PPA. [6] I should set out some other relevant provisions by which the scope of the PPA and its objects can be gauged. Firstly, the objectives are:- (2) Objectives of Act The main objectives of this Act are to – (a) prevent, control or remove pest infestation of plants in Queensland; and (b) help other jurisdictions prevent, control or remove plant pests, diseases, pest infestations, infections or conditions; and (c) facilitate the movement of plants into and out of Queensland. Part 2 of PPA deals with the appointment of inspectors and persons authorised to act in pest surveillance programmes. Part 3 deals with pest control measures under subordinate legislation and under other pest control measures which includes the following important provisions:- 13 Special powers in relation to specific pest infestations (1) Subject to subsection (3), an inspector for the purposes of controlling or removing a pest existing in or upon any land or for the purpose of preventing the spread of any existing pest to any land may give directions to the owner of the land directing the owner forthwith or within a time specified by the inspector to take such measures as the inspector thinks fit including to – (a) quarantine, upon conditions as directed, all or any part of the land in question; (b) destroy pests thereon or any plants, packages or other matters or things that are infested with pests or that, in the opinion of the inspector, it is necessary or desirable to destroy in the circumstances; (c) treat as directed all or any part of the land or any plant, appliance, soil or other matter or thing thereon; (d) take such measures as may be prescribed. -- 3 of 8 -- 4 … (3) It shall not be competent to an inspector to give directions under this section ordering the destruction of any part of a growing or harvested crop that is not infested with pest. … (8) A person must comply with a direction under this section, unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (8) – 2000 penalty units. Section 14 provides:- 14 Destruction of healthy crop to prevent pest infestation (1) The chief executive, if the chief executive considers it necessary to do so in order to prevent, control or remove pest infestation of plants, may give directions in writing – … (2) If a crop or part thereof is destroyed in compliance with directions given under subsection (1), the owner thereof shall be entitled to compensation under, subject to and in accordance with this section, and the owner shall not be otherwise entitled to compensation. … [(3), (4) and (5) relate to the fixing of compensation.] … (6) A person must comply with a direction under this section, unless the person has a reasonable excuse for not complying with it. Maximum penalty for subsection (6) – 400 penalty units.” [7] In addition to these specific pest control measures, appropriate officers have certain enforcement powers such as to claim expenses (s 17), enter upon land in order to investigate, search any such place, stop and detain vehicles, seize or remove any matter or thing from such a place and direct the furnishing of records etc (s 19). An inspector may also provide certificates (s 19A) and give information on notices (s 20AA). An inspector has enlarged powers in circumstances of imminent risk (s 20A). Part 6 makes provision for the challenge to administrative decisions by applying for reconsideration (s 21M) and by appeal to the Magistrates Court (s 21O). What conduct attracts the immunity? [8] The defendant argues for a construction of the immunity provisions whereby it is immaterial whether the spraying was done with the consent of growers or pursuant to a statutorily authorised direction. It submits that having regard to the circumstances of the case the only reason the direction was not given was because the growers waived the need to do so. The purpose of the Act remained the same and consequently the spraying was done pursuant to the Act. [9] The plaintiffs’ point to the different choice of words in the two paragraphs of s 28(1) comparing the concepts of “pursuant to” and “for the purposes of” to contend that “pursuant to the Act” in paragraph (a) is not about spraying but rather to the actions authorised by PPA and, in particular, inspectors giving directions to treat plants or take prescribed measures. This then distinguishes between that conduct and the broad range of conduct envisaged in paragraph (b) which is undertaken in -- 4 of 8 -- 5 pursuit of the objectives of the Act where immunity is dependant upon bona fides and there being no negligence. [10] I note also in s 28(2) the concept of limited compensation for damage suffered “through compliance with” the Act which the defendant argues supports the contention of the provision of a broadly based immunity. [11] Obviously the choice of words in s 28(1) makes clear an intention to distinguish between the concepts “pursuant to” and “for the purpose of”. The concepts are not reconciled by reference to the various shades of meaning that can be attributed to either phrase. To note that “pursuant to” has a dictionary meaning equivalent to “in accordance with” does not clarify the distinction that must be made between the two phrases. [12] The defendant relies upon the evident purpose of the Act to deal effectively with serious threats of the kind that the PFF presented. It argues that any ambiguity would be resolved having regard to the purpose of the legislative provision. In this sense the principle the argument evokes is the approach to interpretation discussed in Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation1 where the following passage appears in the joint judgment of Mason and Wilson JJ at p 321:- “If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.” [13] In addition, the Acts Interpretation Act 1954, by s 14A requires that an interpretation “that will best achieve the purpose of the Act is to be preferred to any other interpretation. Further, in the definition provision (s 36), “purpose” includes policy objective. [14] The plaintiffs point to the structure of the PPA and the number of matters with which it deals – the appointment of inspectors, accreditation, and surveillance programmes etc. Included amongst these is the granting of power to inspectors and the chief executive as set out in ss 13 and 14 above. The plaintiffs contend that these matters are important when considering the interpretation of s 28(1) because these powers, if implemented, undoubtedly affect the crop owners’ common law rights. This necessarily requires the courts to take the approach which is identified in the passage in Benning v Wong2 where Barwick CJ said (at 256):- “In the construction of statutes authorising performance of works, there are cardinal rules, the observance of which is fundamental to our system of law. Firstly, the statute will not be construed to authorize an interference with common law rights without compensation without unambiguous and compelling language. It is for the Parliament to make its will in this respect plain. It is not for the courts to search out implications which so displace or reduce common law rights. Secondly, a statute only authorizes those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized or to their execution. Thirdly, a statute which authorizes the doing of an act or 1 (1981) 147 CLR 297 2 (1969) 122 CLR 249 -- 5 of 8 -- 6 the performance of a work in general only authorizes it to be done in a careful manner. If the authority is to extend to a careless execution of an authorized act, the plainest of language must be used. The third proposition has two aspects: firstly, a person who has to justify his otherwise tortious act by an assertion of statutory authority must show as part of his justification in defence that he did the authorized act skilfully and carefully: secondly, the statutory authority to do the authorized act imports a duty of care towards persons who are, or whose property is, likely to be affected by the performance of the act. But a person injured in his person or property by such an act who has no other cause of action than the breach of his duty of care must establish that breach.” Though Barwick CJ was in dissent in the outcome of that appeal, the effect of his construction of the statutory provisions was not different to the other members of the Court. [15] In my view the discernment of the intention of Parliament is not a contest between two strongly competing interpretations as confronted the High Court in Cooper Brooks but rather a need to arrive at a construction of the section in the face of the textual differences in the context of the Act as a whole. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority3, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ states (at 381):- “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 3 (1998) 194 CLR 355 -- 6 of 8 -- 7 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.” [16] Some intention must have underpinned the distinction between the respective phrases adopted in paragraphs (a) and (b) of subsection (1). To my mind that distinction is found in the total immunity provided for in paragraph (a) being limited to conduct which is directly pursuant to the authority or the exercise of a power granted under the Act. That exercise of power authority is subject to review by application for reconsideration (s 21N) and by appeal to the Magistrates Court (s 21O). The conduct envisaged by subsection (1)(b) is of much wider scope and of a kind which is not likely to be able to be reviewed in advance and thus the limitation imposed on the immunity is subject to the conduct being undertaken bona fide and without negligence. [17] Taking this view of the proper interpretation of the Act in the circumstances of this case where the issue between the parties is whether the spraying of the plaintiffs’ coffee plants was not undertaken pursuant to any statutory direction, then it seems to me that the immunity arising in subsection (1A) does not arise. In my view therefore the claim intended to be made by the proposed new paragraph 17 is untenable. [18] As to the provisions of subsection 1(b), the immunity claimed is, in my view, available but it will arise only if the plaintiff fails to prove their case. This means there is nothing to be gained by pleading it. [19] The issue about the circumstances in which consent was given, attracts reference to the plaintiffs’ allegation that their consent was gained though the negligent misrepresentations made by the defendant’s officers. These are the misrepresentations which I considered in my earlier reasons did not go to any issue sounding in damages. They do, however, remain relevant if the question of the plaintiffs’ consent to the spraying is an issue. The position taken by the plaintiffs is that whilst there is any reliance by the defendants on the plaintiffs’ consent in order to exclude liability for the spraying programme then they are entitled to rely on their claims of misrepresentation as showing their consent was unlawfully obtained. If there is no such reliance then the claims of misrepresentation are irrelevant and will be withdrawn. [20] I therefore refuse leave to amend paragraph 17 of the Statement of Claim as proposed. As a consequence of this finding there should be no issue concerning the circumstances in which the plaintiffs consented to the defendant undertaking the spraying of its plants. In accordance with its undertaking I expect that the plaintiffs will withdraw that part of the Statement of Claim which relates to that issue. Orders [21] 1. Application for leave to amend paragraph 17 of the Defence is refused. -- 7 of 8 -- 8 2. I direct the parties file and serve Amended Pleadings to reflect this decision on or before 25 October 2006. 3. Costs of and incidental to this application are reserved. -- 8 of 8 --