Cox v State of Queensland, Primary Industries Corporation & Anor [1998] QCA 147

1 COURT OF APPEAL [1998] QCA 147 PINCUS JA DERRINGTON J WHITE J Appeal No 3851 of 1998 CECIL ARTHUR COX First Applicant (First Plaintiff) and VALARIE MARY COX Second Applicant (Second Plaintiff) and LEX HOWARD COX Third Applicant (Third Plaintiff) and STATE OF QUEENSLAND First Respondent (First Defendant) and PRIMARY INDUSTRIES CORPORATION Second Respondent (Second Defendant) and CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES Third Respondent (Third Defendant) BRISBANE -- 1 of 10 -- 2 ..DATE 28/04/98 JUDGMENT PINCUS JA: This is an appeal against the judgment of Dowsett J. refusing an application for interlocutory relief in two proceedings brought in this Court by Cecil Arthur Cox and others relating to land in the Burdekin Basin resumed for a dam. The proceedings in question are an action commenced by writ and an application for judicial review. The plaintiffs in the action and the applicants in the application are identical and I shall call them simply "the plaintiffs". They were formerly the owners of land resumed for the scheme. They all owned land described in the reasons of Dowsett J. as lot 44. The first plaintiff owned lot 42 and the second owned lot 43. The third plaintiff also owned lot 5 but no argument has been advanced to us on the basis of that ownership. The plaintiffs unsuccessfully applied to Dowsett J. for an injunction restraining the sale of land involved in the scheme, which sale was intended to be effected by auction today. These reasons are to be read with those given by Dowsett J. in which some aspects of the dispute between the parties are discussed and that discussion is not repeated here. The plaintiffs' primary case, as explained by counsel on their behalf, is that a decision erroneous in law was made by a "without prejudice" letter of 18 June 1996 written by Mr Bevin from the Office of the Director-General of the Department of Natural Resources. The letter refers to what is described as the basic agreement reached in relation to various matters and says -- 2 of 10 -- 280498 T2/KG4 M/T COA90/98 3 JUDGMENT that Mr Bevin "would be prepared to recommend the existing agreement be set aside and a new agreement be negotiated thereby giving your clients the opportunity to purchase" certain lots at current market prices. It was argued for the plaintiffs that this letter constituted a decision which was wrong in law in two respects: firstly, insofar as it relied upon what was described as an existing agreement and secondly, insofar as it indicated that lots spoken of by Mr Bevin as being ones which he would recommend the plaintiffs be given the opportunity to purchase were to be purchased at current market value prices, as opposed to prices prevailing before acquisition. One difficulty about the plaintiffs' contention is that on the face of it the letter is not a decision, but merely an indication that the writer is prepared to make a recommendation. It would be, as it seems to me, unorthodox for the Court to rule upon the legality of so preliminary a document. When the nature of the letter relied on by the plaintiffs was pointed out in the course of argument, other correspondence was referred to as more easily qualifying as a decision which might be attacked in this Court; but it does not seem necessary to discuss the alternative case which was thus foreshadowed. When the matter was before the primary judge, the question was raised whether section 12(6) of the Water Resources Act 1989 contemplates the making of decisions by the chief executive only in advance of an acquisition of land as opposed to decisions after resumption has been completed; I do not set that provision out. The view taken by Dowsett J was that the "whole of the subsection -- 3 of 10 -- 280498 T2/KG4 M/T COA90/98 4 JUDGMENT is to take effect with respect to a proposed acquisition." Counsel for the plaintiffs challenged that view and went on to argue, in effect, that although the land in question was resumed some years before the letter of 18 June 1996 was written, it remained open for the chief executive to act under section 12(6). This appears to me to be a point which it is undesirable to decide, even provisionally, in view of the haste which has been involved in the hearing of this appeal and the small amount of time available for discussion and decision. As was suggested by counsel for the plaintiffs, there are indications in section 12(6) which are perhaps against the view taken by the primary judge. One is that paragraph (a) contemplates, in subparagraph (ii), that the chief executive may resume land and thereupon transfer or sell it back to the owner; plainly, the second part of this step cannot be carried out until resumption is complete. Another is that paragraph (b) contemplates an offer relating to land acquired from the owner or other owners and this again may imply that steps may be taken under the subsection after resumption is complete. I should add that resumption of lot 44 occurred on 22 December 1990 and that of the other two lots, 42 and 43, on 18 December 1992. Leaving aside the difficulty the plaintiffs have, at least so far as the document primarily relied on is concerned, that it appears to be merely an indication of intention to recommend, the question is whether the chief executive can be under any obligation under section 12(6) in view of the agreement to which the letter of 18 June 1996 refers. The parties argued on the assumption, which I accept for the purpose of this appeal, that if the agreement -- 4 of 10 -- 280498 T2/KG4 M/T COA90/98 5 JUDGMENT was intended to deal wholly with the plaintiffs' rights under section 12(6), it was not open to the plaintiffs to make further claims under that provision. Counsel for the plaintiffs did not contend that there was no agreement, but they argued that the agreement did not exhaust the rights of the plaintiffs under section 12(6) and in the alternative they said that the agreement might be invalid. As to the first point, we were referred to no part of the correspondence to support the suggestion that the parties agreement was intended to deal with only part of the possibility of retention or reacquisition of land under section 12(6). The primary judge said that the agreement appears to be substantially evidenced by a letter dated 2 July 1992 from the plaintiffs' solicitors; and that seems not to be disputed. If one examines the terms of that letter it is impossible to find within it any indication, express or implicit, that the agreement was to deal only partially with the section 12(6) possibilities. It is true that the letter does not expressly say that it is intended to be exhaustive of the plaintiffs' rights under that provision. But it would be strange, as a practical matter, that the solicitors for the plaintiffs should, apparently by prearrangement, go to the trouble of carefully defining (as they did) the way in which the issue was to be dealt with if that definition was intended to leave it open to the plaintiffs, and presumably to the defendants also, to reopen the whole question of section 12(6) rights. One positive indication in favour of the defendants is that the letter says "Our clients accept that such area" (being an area previously referred to) "shall be accepted by our clients in satisfaction of your Commission's -- 5 of 10 -- 280498 T2/KG4 M/T COA90/98 6 JUDGMENT policy" explaining the policy. But, more generally, the care and precision with which the letter is drawn are indications that the terms set out were intended to be final. Counsel for the defendants referred us to the reply dated 13 July 1992, accepting the proposal made and expressing the gratitude of the Commissioner of Water Resources for "your clients' efforts in progressing these difficult negotiations". I note that there was a further letter about the agreement dated 21 July 1992 from the plaintiffs' solicitors which, again, contains no indication that the agreement between the parties was intended to leave open the possibility of acquisition of further rights relating to the subject lots under section 12(6). The other objection taken to the agreement seems to be based on an assertion, inspired by the decision below, that section 12(6) permits only action taken in advance of resumption. From the dates I have given, it will be seen that the date of the agreement fell between the resumption of lot 44 and the resumption of lots 42 and 43. The difficulty about the plaintiffs' argument on that point is that, if it is right, then their claim to rely on section 12(6) long after the resumptions have been completed must fail. There is a dilemma: the plaintiffs can only assert that the agreement is invalid on the basis of the primary judge's construction of section 12(6) at the cost of destroying the foundation of their argument, based on the view that action under that section is still available. In the result, I am of opinion that on the arguments presented, -- 6 of 10 -- 280498 T2/KG4 M/T COA90/98 7 JUDGMENT the agreement relied on by the defendants appears to have been intended to resolve the issues arising under section 12(6) and appears to be a good answer to the plaintiffs' claim. In these circumstances it would not be in my opinion a proper exercise of discretion to enjoin the sale of some of the land the subject of the plaintiffs' action, which sale is intended to take place at auction in an hour or so. I would dismiss the appeal with costs. DERRINGTON J: I agree with the decision of Justice Dowsett, and his reasons, that section 12(6) of the Act is relevantly confined to arrangements made prior to or at the time of the resumption but not after. The opening words of the subsection clearly imply that. The other provisions of the section are not in conflict with this and on the contrary the tenor of the whole section is consistent with it. The reference in subsection 8 to "the land acquired or proposed to be acquired" does not affect this. That provision specially allows for the action it empowers to be taken, even if the resumption is complete. This extension is logical since the resumption may or may not have been completed before that process reaches maturity. Significantly, the prefatory words contained in subsection 6 are not contained in subsection 8. The whole section seems to have been drafted as a logically -- 7 of 10 -- 280498 T2/KG4 M/T COA90/98 8 JUDGMENT integrated scheme to operate up to and including the time of acquisition by resumption with special provision for any action necessarily outside that time. The price formula prescribed is also consistent with this. The integrated nature of the scheme is demonstrated in subsection 6(a)(ii) which contemplates the associated sequential step upon resumption of transferring or selling back part of the land to the dispossessed owner in a single combined action. The same reasoning applies to paragraph 12(6)(b). I also agree with the proposition that the agreement that was reached totally compromised the appellants' claims, if any, in respect of the resumption and resale process. Any steps towards a further sale of the subject land, that is, the land the subject of these proceedings, would have had to be authorised under section 13, though this is in the power of the corporation and not the chief executive; but the point is, that there was no power to entertain a further transaction under section 12. There is no indication of any satisfactory case in estoppel particularly in respect of the element of detriment. I would agree with the learned presiding Judge in respect of those matters and with the orders which he proposes. WHITE J: I agree with the learned presiding Judge's orders that the appeal be dismissed and for the reasons that he gives save that I am not persuaded that Mr Justice Dowsett's approach to -- 8 of 10 -- 280498 T2/KG4 M/T COA90/98 9 JUDGMENT section 12(6) may not be correct. The subsection states in terms that it applies to "a proposed acquisition by resumption of land" and although subsection 6(a)(ii) refers to a resumption of the whole of the land and a transfer or selling back to the owner, that second step is to occur contemporaneously with the resumption. The incorporation of the word "thereupon" into the subsection dictates this approach as his Honour found. The reference to "land acquired from the owner" in subsection 6(b) does not, I think, assist since, as the facts here have revealed, acquisitions of different parcels of land from an owner can occur at different times and past acquired land can be a source for an additional area under subsection (b). The reference in that subparagraph to "the time of the proposed acquisition" affirms the operation of the subsection to a future acquisition. It is argued that subsection 8 colours the construction of subsection 6. It refers to "land acquired or proposed to be acquired". It is not inconsistent with the construction mooted by his Honour that a somewhat different regime should prevail in subsection 8. If the third respondent is of the opinion that the plan or proposed plan for subdivision would be unduly adversely affected by granting an application under subsection 6, the matter must be referred to the Governor in Council. By use of the expression "land acquired" this contemplates that -- 9 of 10 -- 280498 T2/KG4 M/T COA90/98 10 JUDGMENT the land has been resumed and the third respondent has refused the application of the owner. Certain consequences relating to selling other land to the owner may then result but it is, as the learned presiding Judge has commented, unnecessary finally to decide this question of construction and as I have indicated, I agree with the orders which he proposes. PINCUS JA: Mr Wilson, is there any other order necessary then appeal dismissed for costs? MR WILSON: No, Your Honour. PINCUS JA: What about you Mr Skinner, anything you want to say on your side? MR SKINNER: No, Your Honour. PINCUS JA: Very well. The order will be, appeal dismissed with costs. ----- -- 10 of 10 --