Alcina Pty Ltd & Ors v Port of Townsville & State of Queensland [2009] QSC 126

SUPREME COURT OF QUEENSLAND CITATION: Alcina Pty Ltd & Ors v Port of Townsville & State of Queensland [2009] QSC 126 PARTIES: ALACINA PTY LTD ACN 010 553 894, JM & L SKINNER INVESTMENTS PTY LTD ACN 010 615 675, HEINRICH EICHENBRENNER, MECHTILD EICHENBRENNER and CORAL SEA SHIPPING LINES PTY LTD ACN 010 786 017 (First Plaintiffs) ROSSHAVEN MARINE PTY LTD ACN 010 615 719 (Second Plaintiff) v TOWNSVILLE PORT AUTHORITY (First Defendant) STATE OF QUEENSLAND (Second Defendant) FILE NO/S: S8553/08 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 27 May 2009 DELIVERED AT: Townsville HEARING DATE: 26 May 2009 JUDGES: Chief Justice ORDER: 1. That the application be refused with costs to be assessed on the standard basis. -- 1 of 4 -- 2 CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE RULES OF COURT – SUMMARY JUDGMENT – apprehended loss of business because of public works – equitable damages sought summarily – development approval necessary, but not yet issued – application premature Coastal Protection and Management Act 1995 (Qld), s 123 Integrated Planning Act 1997 (Qld) Sch 8 Pt 1 Table 4 Item 5(a), s 3.1.5 and s 4.3 Land Act 1994 (Qld) Barbagallo & Anor v J & F Catelan Pty Ltd [1986] 1 Qd R 245, considered Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, distinguished M'Bride & Co v Council of the Municipality of Brisbane (1885) QLJ 73, cited York Bros (Trading) Pty Ltd v Commissioner of Main Roads (1983) 1 NSWLR 391, considered COUNSEL: D Savage SC with J Chapple for the Plaintiffs D Hinson SC for the Second Defendant SOLICITORS: Connolly Suthers for the Plaintiffs Crown Law for the Second Defendant [1] The plaintiffs seek summary judgment against the second defendant. While in the amended Statement of Claim they seek damages, the relief now sought summarily is as follows: Declarations that "(a) the Ross River is and at all material times has been a navigable river free and open to the public; (b) the second defendant does not now have, nor has it at any material time had, any right to execute any works which will in any way interfere with or obstruct the navigation of the said river; (c) the bridge presently being constructed across the river at its mouth will, if completed in accordance with the specifications disclosed by the second defendant, namely six metres in height above the high spring tide, interfere with and obstruct the navigation of the said river." And an order that "argument as to whether to grant an injunction to restrain the construction of the bridge or to order equitable damages be set down for further hearing on a date to be fixed." -- 2 of 4 -- 3 [2] The principal basis of the second defendant's opposition to the application is that it is "premature and requires speculation about future events". [3] The plaintiffs occupy land abutting Ross River, which is a navigable waterway. They consequently enjoy a right of access between their land and the river. The second defendant intends constructing a rail and road bridge across the river downstream from the land occupied by the plaintiffs. The plaintiffs conduct a marine services business on their leased land. Because as presently proposed, the bridge will exclude the passage of vessels higher than six metres travelling upstream of the bridge, the plaintiffs are concerned about diminution in their business, rendering it financially unviable. They contend that consequent interference with their right of access to the river for the purpose of that business will breach their riparian rights, or alternatively, give rise to "special loss", enlivening the Court's jurisdiction to compensate them in damages. [4] The plaintiffs contend that they are presently entitled to a quia timet injunction, or equitable damages in lieu. As seen from the Statement of Claim, it is the damages they pursue. On the basis the bridge is constructed as presently proposed, such an entitlement may arise. See Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, 856-860; and Barbagallo & Anor v J & F Catelan Pty Ltd [1986] 1 Qd R 245, 250-1. Were such a judgment now given, the damages would be calculated by reference to the loss to the plaintiffs flowing from the presence of the bridge. As discussed during argument, while there may be discretionary reasons militating against the granting of an injunction, the making of an award of damages in such circumstances, while compensating the plaintiffs, might also have the effect of causing the second defendant to re-think its determination to proceed. [5] The second defendant's opposition to a grant of summary judgment is more comprehensively expressed as follows, as taken from counsel's outline: "The plaintiffs' application asks the Court to assume that construction of the bridge cannot (and will not, given that nothing has yet occurred) be carried out in a way that will lawfully interfere with or derogate from the public right of navigation of a navigable waterway. Construction of the bridge requires a development permit. There may be some tenure allocation made over the relevant land under the Land Act. There may be some further statutory authority granted to construct the bridge… The plaintiffs' application is premature and requires speculation about future events. There is presently no basis for concluding that any rights of the plaintiffs have been infringed, or that they will be infringed, in a way which is actionable. Absent any present or threatened actionable infringement of their rights, they have not suffered and will not suffer any damage." [6] While the second defendant's present intention is clear - and as to that, Exhibit D to the Affidavit of A E Johnson filed 28 April 2009 provides good evidence, Mr Hinson, who appeared for the second defendant, contended, without challenge from Mr Savage for the plaintiffs, that "the construction of a bridge in, on or above land under tidal water is ‘tidal works' as defined by the Coastal Protection and Management Act 1995. It is assessable development under the Integrated Planning Act 1997 Schedule 8 Part 1 Table 4 Item 5(a). Assessable development requires a development permit before it can lawfully be carried out: IPA sections 3.1.5 and -- 3 of 4 -- 4 4.3. If a development permit is granted, it is taken to include a right to use and occupy the land on which the bridge is situated unless a lease is granted under the Land Act 1994 for the land, or a permit to occupy is issued under that Act for the land, or the land is freehold land or a reserve under the Land Act: section 123 of the CPM Act." [7] Mr Hinson's submission that the plaintiffs are premature in their claim for summary relief is based on the fact that the relevant development permit has not yet issued. The permit may not issue. Alternatively, a permit may be subject to conditions which protect the plaintiffs' entitlements. The situation may therefore be contrasted with the situation in Leeds, where there was a finding that "the appellants' buildings when completed would cause an actionable obstruction to the respondents' rights" (pp 851-2). [8] I accept that submission. While the plaintiffs entertain a strongly based present apprehension as to what is proposed for the construction of the bridge, and its serious consequences for their business if the construction proceeds as proposed, to grant the relief presently sought summarily, particularly declaration (c), would be premature, when no construction has as yet commenced (as the case as has been presented before me), and construction could not lawfully be commenced, because of the absence of a development permit, which might by its terms vary what is presently proposed, or through the denial of a permit, effectively stop the development. [9] The terms of any development permit may, additionally, equate to statutory authority for the construction, within the first category of case to which Powell J refers in York Bros (Trading) Pty Ltd v Commissioner of Main Roads (1983) 1 NSWLR 391, 397. See also M'Bride & Co v Council of the Municipality of Brisbane (1885) QLJ 73, 80. [10] For these reasons, I order that the application be refused, with costs to be assessed on the standard basis. -- 4 of 4 --