Determination of Rents - Pastoral Holding and Grazing Selections - Hughenden, Longreach and Roma Districts [1992] QLAC 52

.. LAND APPl;AL COURT (LEE J., MR WHITE, MR WENCK) BRISBANE, 17 FEBRUARY 1992 RE: DETERMINATION OF RENTS - PASTORAL HOLDING AND GRAZING SELECTIONS - HUGHENDEN, LONGREACH AND ROMA DISTRICTS. Appeals by lessees - question of jurisdiction in the Minister and the Court to determine rents for the first decennial rental period raised in the Court below and abandoned - appeals were brought on grounds which included the question of jurisdiction - whether appellant estopped from raising the matter on appeal. Appeals (5) were brought before the Court by lessees against determinations of the Land Court of the rent to be charged for one Pastoral Holding and four Grazing Homestead Perpetual Leases for the purposes of the first decennial rental period which commenced on 1.1.90. In the proceedings before the Land Court, the question whether the Minister had the power to determine the rents (and subsequently the Court) was raised and abandoned. Grounds 4 and 5 of the notice of appeal raised the matter again. On the motion of the Crown, the Court was asked to strike out these grounds for reasons that such grounds were frivolous and/or vexatious and/or an abuse of the process of the Court, having regard to the abandonment by the appellants of such grounds in the proceedings from which the appeals were brought. The application was dismissed, the reasons of the Court were given by His Honour Lee J. as follows - In these matters on the motion of the Crown (the respondent in the proceedings) the Court is asked to strike out certain grounds of the appeals, more particularly grounds 4 and 5, for reasons that such grounds are frivolous and/or vexatious and/or an abuse of the process of the Court having regard to the abandonment by the appellants of such grounds in the proceedings from which the appeals are brought. The substance of the grounds sought to be struck out is one going to the interpretation of the Land Act as amended by the Land Act Amendment Act of 1987. It is contended that the Minister had no power to determine the rents, the subject of the appeals. This is a matter going to the jurisdiction of the Court. The question was raised in tfle Court below but was not pursued - indeed it was expressly abandoned. The respondent argues that in those circumstances the appellants are estopped from raising the matter on appeal. The submission is based on principles contained· in The Commonwealth v. Verwayen (1990) 64 A.L.J.R. 540. The appellants rely upon the provisions of section 44(13) sub-paragraph (e) of the Land Act. This sub-section provides as follows: II The Land Appeal Court may hear and determine any question which arises in the course of the appeal, including any question so arising which was not brought before or considered or decided by the Court, or was not contained in any prescribed notice, but in such case any party to the proceedings shall be entitled to an adjournment upon such terms and conditions as the Land Appeal Court thinks just. 11 [1992] QLAC 52 -- 1 of 12 -- The manner in which appeals before this Court should be conducted has been considered ·previously. Subject to the provisions of section 44 sub-section ( 13) paragraphs (a) to (c) inclusive, the Land Appeal Court is empowered to rehear on the evidence adduced before it, the whole matter which is the subject of the appeal - see Queen v. Rigby 26 C.L.L.R. 55. In Maltry v. The Commissioner of Main Roads (1980/81) 7 C.L.L.R. 134, the Land Appeal Court at p. 137 said - II The appeal before this Court is by way of re-hearing. 'The Land Appeal Court may hear and determine any question which arises in the course of the appeal, including any question so arising which was not brought before or considered by the Land Court or was not contained in any prescribed notice but in such case any party to the proceedings shall be entitled to an adjournment upon such terms and conditions as the Land Appeal Court thinks fit.' - section 44(13) of the Land Act. The respondent made no application for an adjournment. The appeal before us is in the nature of a general appeal - a re-trial. Old evidence may be relied on and reconsidered or new evidence adduced. There is no limit imposed on the Court's powers and functions in this regard - see The Queen v. Rigby 100 C.L.R. 146 at 150. Appellants are thus not bound to adhere in compensation cases to their grounds of appeal. Our functions are inquisitorial and we are required to consider all the evidence placed before us in order to arrive at our own independent judgment of the amount of compensation to which the claimants are entitled and which we have a statutory duty to find and determine. 11 In Kyniga!akis v. The Crown (1956-57) 26 C.L.L.R. at 27, the Land Appeal Court at page 31 - in dealing with an objection as to jurisdiction which was not raised in the Court below said - The point had not been taken before the Commissioners' Court nor before the Land Court nor indeed has it been taken in the grounds of appeal before us. However, ,as the point goes to jurisdiction we are satisfied that it may be raised at ·any time and the fact that it has not been raised previously is immaterial. 11 The fact that this particular point was raised and abandoned in the Court below does not, in our opinion, prevent the point from being raised on appeal. Section 44(13) sub-paragraph (e) provides for the conduct of an appeal in the broadest terms. We cannot read into the section a meaning which would obstruct the primary intent and place limits upon the Court to consider the whole matter, the subject of the appeals. We find that the above authorities are of more relevance on this issue than the authority relied upon by the respondent. This is enough to dispose of the application but some further brief observations may be made in view of the submission covering the doctrine of election, waiver and estoppel. -- 2 of 12 -- • J . As to the doctrine of election, it is settled that before an election can be said to arise a party must be faced with two mutually exclusive courses of action; for example, if a party has a right to claim compensation before two separate tribunals, each with jurisdiction, and elects to go before one body, then of course he cannot later on resile and seek a determination by the other tribunal. The same may be said of various modes of trial. An election may be made as to the mode of trial. These are mentioned by way of example only. For an election to rise against a person, therefore, he must have two mutually exclusive courses of action. Here, the Minister, having determined the rents and the appellants desiring to appeal, the appellants were not faced with two mutually exclusive courses of action. The appellants could say (1) that the Minister and the Court did not have the power to determine the rents and in the alternative, if the Minister and the Court did have the power, then the quantum was too high. Also it should be mentioned that it is a good defence to any question whether based on election, waiver or estoppel, that if the determination arrived at by the Minister or the Court below, is in fact invalid and contrary to law, this Court would be condoning or sanctioning that invalidity or illegality if the grounds sought to be relied upon in the subject application are struck out. The private rights and interests of the individual must yield in such circumstances to the higher rights and interests of the State. It simply means that this concept cannot be used to render nugatory the operation of a statute. Likewise, if it be the case that the Minister and the Court had no power to make the determinations under appeal, neither contract nor estoppel can be invoked so as to confer jurisdiction to do so. Further this is a matter which can be raised by the Court of its own motion whether or not the parties took the point or abandoned the point. For these additional reasons, the application is dismissed . -- 3 of 12 -- , . Re: Appeals from decisions of Land Court - Determination of Rents - LAND APPEAL COURT, BRISBANE 20th March, 1992 P.H. Stawellton (23/2004 Hughenden District) and other leases POINT OF JURISDICTION - REASONS FOR DECISION GIVEN 18TH FEBRUARY, 1992. The lessees of one pastoral holding and four grazing homestead perpetual leases have appealed to this Court against the determination of the Land Court of the rent for the first decennial rental period of the leases which period commenced on 1 January 1 1990. When the matters were called on for hearing, two preliminary points were raised - 1) by the respondent by way of an application to strike out certain grounds of the appeals going to a question of jurisdiction which was raised in the lower Court and abandoned; and 2) by the appellants a) that the rental period said to commence on 1st January, 1990 is wrong, and b) that neither the Minister nor the Land Court had power to determine the rent during the period of an existing rental period already determined. The application by the respondent was dismissed - see Determination of Rents - Pastoral Holding and Grazing Selections - Hughenden, Longreach and . Roma Districts (1992) 17 February, L.A.C. to be reported. We now state our reasons for rejecting the submission of the appellants which is one going to jurisdiction. These leases were granted on various dates between 1960 and 1982. The leases were divided into rental periods. The relevant provisions governing the division of the leases into rental periods are contained in s.61 (pastoral leases) and s.131 (grazing homestead perpetual leases) of the Land Act 1962 (the Act). For the purposes of considering the submissions before the Court, these provisions are -- 4 of 12 -- 2 parallel. S.61 as it stood on the passing of the Act in 1962, save for the metric conversion in paragraph (d), as amended by No 31 of 1972, provided in paragraphs (c), (d) and (e) that - 11 (c) Periods. Where the term of the lease exceeds ten years, the term shall be divided into rental periods no one of which shall exceed ten years. The last period shall be of such duration as will permit the other period, or each of the other periods, as the case may be, to be of the duration of ten years; (d) The rent shall be computed according to the number of square kilometres in the lease, and during the term or, where the term exceeds ten years, during the first period, the annual rent shall be the notified rent or, in respect of a pastoral lease issued otherwise than under this Part as determined by the Minister or the Court, as the case may be; (e) Reassessment. Where the term exceeds ten years, the rent payable for the second and each succeeding rental period, shall be determined by the Court. 11 The rent payable under the lease of Stawellton (the pastoral holding before the Court) was last determined for a rental period (the third rental period) which commenced on 1st April, 1988. The lease commenced on 1st April, 1965. The term of the lease (with extensions) is for 53 years. Thus, the period for which the rent was determined in 1988 was for ten years and extends beyond 1 January, 1990. This position pertains to all leases before the Court but in differing degrees because the date of reassessment has been governed by the commencement date of the term of each individual lease. In these circumstances, leases come up for determination of rent on various dates in varying years. The Land Act Amendment Act of 1987 sought to regularise this position by placing all such leases on a common date for the purpose of the reassessment of rent. Paragraphs (c) and (d) of s. '61 were omitted and the following paragraphs were inserted - 11 (c) The term of a lease shall be divided into one or more of the following rental periods:- (i) where the lease commences during a decennial rental period, the rental period from the commencement of the lease until the end of that decennial rental period or the expiry of the lease, where the lease expires before the end of that decennial rental period, as the case may be; (ii) one or more decennial rental periods; (iii) where the lease expires during a decennial rental period, the rental period from the commencement of that decennial rental period until the expiry of the lease; -- 5 of 12 -- ' . 3 (ca) The first decennial rental period shall commence on 1 January 1990; (cb) On the expiry of each decennial rental period a new decennial rental period shall immediately commence; (d) The annual rent during the term of a lease shall be - (i) for the first rental period, the notified rent, or where the lease is issued otherwise than under this Part, as determined by the Minister or the Court, as the case may be; (ii) for each subsequent rental period, the annual rent reassessed at the commencement of that decennial rental period; " The Act as amended was taken by the Minister as a direction to re-assess the rents of all pastoral leases and grazing homestead perpetual leases for the purposes of the first decennial rental period - he being vested with the power since the Amending Act of 1985 to determine the annual rent for the second and any subsequent rental period and the lessee being given the power to notify the Minister that he requires the annual rent to be determined by the Court (Land Act Amendment Act 1985). The matters which are before the Court have followed this progression. However, the submission made to us is that - (1) The rental period said to commence on 1 January, 1990, is wrong; and (2) Neither the Minister nor the Land Court had power to determine the rent during the period of an existing rental period already determined. The submission is based in substance on the premise that the amendment speaks prospectively; that there is no clear prescription that the amendment applies to rental periods subsisting at the commencement of the first decennial rental period and therefore the Act as amended has no application to rental periods subsisting as at 1 January, 1990. In this context the submission, if correct, would mean that all such leases which were granted prior to the passing of the Amendment Act would run on until expiry or in perpetuity under the law applying prior to the amendment. Authorities cited in support of the submission were - Geraldton Building Co. Pty . Ltd. v. May (1977) 51 A.L.J.R. p. 445 at p. 454 per Stephen J.:- The point must, then, be resolved in the light of he principle that, in the absence of clear indications to the contrary, amending enactments are to be taken to have a prospective operation only - Fisher v. Hebburn Ltd (1960) 105 C.L.R. 188 at p. 194 per Fullagar J. - so as not 'to upset vested rights and liabllities which are complete in themselves' - Clement v. D. Dais & Sons Ltd (1927) A.G. 126 at p. 131 per Viscount Dunedin. As Dixon C.J. expressed it in Maxwell v. Murphv (1957) 96 C.L.R. 261, there is a 'presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired'; this -- 6 of 12 -- 4 may, no doubt, be extended beyond accrued rights and immunities to include accrued liabilities as was done in Fisher v. Hebburn Ltd. at p. 202 per Kitto and Menzies JJ. In Maxwell v. Murphy the Chief Justice explained the need for accommodation of this principle with the way in which the law treats the repeal of a statute and in doing so cited what was said by Blackburn J. in Butcher v. Henderson (1968) L.R. 3 Q.B . 335; that repeal operates as to new matters as if the repealed provision never existed 'yet as to transactions already completed under it, it still has full effect'. His Honour had earlier - at p. 267 - noted the description given by Lord Tenterden C.J. to such cases in Surtees v. Ellison (1829), 109 E.R . 278, at p. 279 - 'transactions past and closed'. • Fisher v. Hebburn Ltd (1960-61) 105 C.L.R. 188 at p. 194 per Fullagar J.: There can -be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. " Maxwell v. Murphy (1956-57) 96 C.L.R. 261 per Dixon C.J. at pp. 266/7:- If the Interpretation Act does not apply, the rule of the common law on the subject must receive effect. In the first place it must be borne in mind that at common law the repeal of a statute or statutory provision means that the law must be applied as if the provision had never existed. This is subject to an exception, variously expressed, as to past matters. Lord Tenterden C.J. used the expression 'transactions past and closed': Surtees v. Ellison (1) . Lord Campbell C.J. said '.... ... all matters that have taken place under it before its repeal are valid and cannot be called in question' : Re a. v. Inhabitants of Denton (2) . The phrase of Blackburn J. was 'transactions already completed under it' - Butcher v. Henderson (3) . 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. • Reference was also made to the provisions of s.20 of the Acts Interpretation Act 1954 and in particular paragraph (c) of sub-s. (i). In the paragraphs to which our attention was drawn in the cases cited the words "unless the intention appears with reasonable certainty"; Dixon C.J.: "in the absence of clear indications to the contrary"; Stephen J.: and "is prima facie to be construed as having a prospective operation only"; Fullagar J., have relevance in considering whether the presumption against retrospectivity is rebutted or whether accrued rights and obligations are -- 7 of 12 -- 'J 5 affected (it being submitted that the determination for Stawellton in 1988, for example, falls within such category). It would appear also that s.3A of the Acts Interpretation Act has relevance in that it provides "The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act." Distinctions are drawn between the amendments in question and others which have been made to these sections of the Act in the last decade, such as by the Land Act and Another Act Amendment Act of 1981 by which the prescription of a minimum rent is followed by a clause providing - In respect of a lease the term of which commenced prior to the passing of the Land Act and Another Act Amendment 1981, this paragraph (da) applies on and from 1 July 1981." (s. 61(da)). We turn then to the submission of the respondent which took the form of two principal considerations which we abbreviate as follows - What was the object (intention) of the legislation? - Was it intended that the first decennial rental period should apply to all pastoral leases and grazing homestead perpetual leases granted before the passing of the Amendment Act of 1987? We may proceed to address these considerations in accordance with principles which require the Court to "inquire what was the state of the law before the alteration was made, what was the mischief intended to be remedied, and what was the nature of the remedy provided" -c Weedon v. Davidson (1907) 4 CLR 895 Heydon's case 3 CO. REP.7a 637. The regard which may be had to the mischief from which the Act was directed may include reference to extrinsic material, such as parliamentary debates, legislative history of the bill and reports of committees of inquiry - Wacando v. The Commonwealth (1980-1981) 148 C.L.R. 1; Assam Railways and Trading Co v. Commissioner of Inland Revenue [1935] A.C. 445; Bitumen and Oil Refineries (Australia) Ltd v. Commissioner for Government Transport (1954-55) 92 C.L.R. 200; Dillingham Constructions Pty Ltd v. Steel Mains Pty Ltd (1975) 132 C.L.R. 323; Black - Clawson Ltd v. Papierwecke AG [1974-75] A.G. 591; Wacal Developments Pty Ltd v. Realty Developments Pty Ltd (1978) 140 -- 8 of 12 -- l • 6 C. L. R. 503; Albury City Council v. North Albury Shopping Centre Pty Ltd [1985] 1 N.S.W.L.R. 220. As a general principle, "If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result" - Nokes v. Doncaster Amalgamated Collieries Ltd [1940] A.G. 1014 per Lord Simon L.C. at p. 1022. Such principles appear to be embodied in the Acts Interpretation Act - s.3A, S.14A and s.14B. The chronology of events relevant in our consideration begins with the Report into Cattle Rents submitted to the Minister by the learned President of this Court (then Member) in 1976. On pp.17 and 24 of the Report, he makes reference to the desirability of rents of both these tenures being ascertained on a common date. At p. 24 he said: The confusion which presently exists is just one more reason why I urge urgent consideration to legislative action to fixing a common relevant date for reappraisement of rental of cattle holdings in various regions of the State with provision for assessment on a five year period. This would overcome the frequent complaint that because of varying lease dates one lessee pays higher or lower rental than his neighbour for comparable country. • The Bill to amend the Act was presented to Parliament in March 1987: (304) Queensland Parliamentary Debates (1987-88) records the Minister as saying:- The date of the reassessment of rents of pastoral and grazing tenures has historically been governed by the commencement date of the term of the individual lease. With neighbours having their rents adjusted at different times during a 10-year rental period, inconsistencies and inequities can occur in the relativity between rents. The Bill provides for a common date for the rea,ssessment of the rents of pastoral leases and grazing homestead perpetual leases, the first such common date to commence on 1 January 1990 and thence every 1O years thereafter. Not only will this be of advantage to lessees, but the Crown will also save in administrative costs and staff will be able to be deployed in more productive and cost-effective work. There are the usual savings provisions so that the Crown does not repudiate the quantum of the rent set for the present rental periods. Any assessment resulting in an increase in rent at 1 January 1990 will not take effect until the present rental period which, but for the introduction of the common date, would have expired. " (P.956) -- 9 of 12 -- 7 The amendment made to s.61 forms but part of the scheme covered by the relevant legislation. In s.68 of the amending Act it is provided in paragraph (1) - 11 {a) Savings and transitional. Where a new pastoral lease or a grazing homestead perpetual lease issued under the Principal Act as amended by this Act commences after the commencement of this Act and prior to 1 January 1990 and the term of the lease extends beyond 31 December 1989, the first rental period of that lease shall commence on the commencement of the lease and end on 31 December 1989. (b) The second rental period of that lease shall commence on the commencement of the first decennial rental period. 11 It can be seen without reference to further provisions of the legislation that s.61 {c){i) speaks prospectively. So also does s.68(1)(a). But they maintain a common thread which is that a first rental period, however short, expires before the commencement of a decennial rental period, be it the first decennial rental period or a subsequent decennial rental period. We come then to s.68(2) which sub- section provided - 11 Where in respect of a pastoral lease or a grazing homestead perpetual lease the annual rent determined for the first decennial rental period under the Principal Act as amended by this Act exceeds the annual rent payable under that lease for a rental period subsisting immediately prior to the commencement of the first decennial rental period, the annual rent payable under that lease shall - (a) until that subsisting rental period would have expired but for the commencement of the first decennial rental period, be the annual rent determined for that lease for that subsisting rental period; (b) from the date that the subsisting rental period would have expired but for the commencement of the first decennial rental period and until the expiration of the first decennial rental period, be the annual rent determined for that lease for the first decennial rental period. 11 The only observation we make on this sub-section is that it could have no sense unless The Act as amended applied to leases granted prior to the passing of the Amendment Act. Further, the position at the date of the amendment (30th April, 1987) can be tested in this way. S.61 of the Act opens with the words - In addition to the other conditions prescribed by this Act, all pastoral leases shall be subject to the following conditions, namely: - 11 In the absence of an express saving clause, it may be taken prima facie that the section as amended does not apply to leases granted prior to the passing of the -- 10 of 12 -- 8 Amendment Act. S.68(2) of the amending Act, however, rebuts that presumption. What it did was to provide a period of grace for the payment of any excess in rent resulting from a determination for the first decennial period until the rental period subsisting as at 1 January, 1990, had expired; as distinct from saving any subsisting rental period until it had expired. Further sub-s. (6) of s. 68 of the amending Act provides - " The provisions of sections 61, 73A(3), 131(2), 159A(2)(c) and 246(1) of the Principal Act shall continue to apply, up to and including 31 December 1989, to leases which commenced prior to 1 January 1990 as if this Act, other than subsection (1), had not commenced. " This legislation was followed by the Land Act and Another Act Amendment Act of 1990. Section 5 of this Act amended S.68 of the 1987 Amendment Act by omitting sub-section (2). The amendment was made retrospective to 30 April 1987 - the date of commencement of the 1987 Amendment Act. The same Act amended S.61 of the Principal Act by inserting after paragraph (e) the following paragraph - "(ea) Notwithstanding the preceding paragraphs, where in respect of such a lease - (i) the annual rent determined for the first decennial rental period is greater than the annual rent determined for the rental period ending 31 December 1989; (ii) which commenced on or after 1 January 1990, the annual rent determined for the first decennial rental period is greater than the annual rent that would have been determined for that lease had it existed during a rental period ending 31 December 1989; the annual rent for the year (or as the case may be, period) ending 31 December 1990 is to be - (iii) in respect of a lease referred to in subparagraph (i) - the same rent as the rent determined for the rental period ending 31 December 1989; (iv) in respect of a lease referred to in subparagraph (ii) - the same rent as the rent that would have been determined for that lease had it existed during a rental period ending 31 December 1989; and the lessee of that lease is to be credited with any rent paid in excess of the rent required by this paragraph;". The practical effect of the amendment is that the period of grace as granted by the 1987 Amending Act (S.68(2)) was reduced to one year. The mischief intended to be cured by the passing of this legislation is expressed in Hansard - No 14, 1990 at P.4222 as follows:- -- 11 of 12 -- 9 The previous Government set up an inquiry into the rental standards of pastoral and grazing homestead perpetual leases. The report of that inquiry, the Carter report, recommended increases in rent for those leases for the rental period commencing 1 January 1990. The 1987 amending Act provided for common dates for assessment of rents of pastoral leases and grazing homestead perpetual leases, and for any increase in rent from 1 January 1990 to be phased in over a 10-year period. Proposed increases are based on the Carter inquiry standards which were struck in 1988. This Bill does away with the 10-year phasing in period and provides that all such lessees pay any increase in rent from 1 January 1991. Any rent overpaid for 1990 will be credited. These measures will give greater equality between lessees, as they will now all pay any increase from the same date. " We were referred to Attorney General v. Lamplough [1878] LR 3ExD 214 as an authority for the proposition that although S.68(2), in view of the repeal, is to be taken as if it had never existed, the Court is not bound to ignore it in construing the Act as a whole. However whilst the authority may be useful as an enabling power in certain circumstances it would appear to have no direct application to the matter before the Court for the reason that the conclusion reached in our deliberations on the intent expressed in s.68(2) and the amendment to the principal Act (s.61) when read with s.68 of the 1987 Amendment Act is equally clear when reading the principal Act and the 1987 Amendment Act both as amended by the Amendment Act of 1990. Sub-s. (6) of s.68 would appear to put this question beyond any doubt. We may add that any interpretation contrary to the conclusion we have reached would leave rental periods and the determination of rents for the ensuing periods of such leases in a vacuum and void of any power in the Minister to determine them, for his powers (and those of the Court) are limited by s.61 as amended. In the circumstances there are no reasons to address alternative submissions on the question whether rights and obligations were accrued under the lease in which event s.20 of the Acts Interpretation Act would have no application or under the Act in which event s.20 may have application in the absence of the contrary being shown. For these reasons the submission made on behalf of the appellants was rejected. -- 12 of 12 --