Marshall v Director-General, Department of Transport B52/2000 [2000] HCATrans 740 (7 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B52 of 2000

B e t w e e n -

MELVILLE ROBERT MARSHALL

Appellant

and

DIRECTOR-GENERAL,

DEPARTMENT OF TRANSPORT

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 2000, AT 2.18 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.A. KELLY, for the appellant. (instructed by James Conomos Lawyers)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear with my learned friend, MR R.S. JONES, for the respondent. (instructed by the Crown Solicitor for Queensland)

GLEESON CJ: Mr Jackson.

MR JACKSON: Your Honours, as the Court is aware, this appeal is concerned with the ambit of the entitlement to compensation in consequence of compulsory acquisition of land conferred by section 20(1)(b) of the Acquisition of Land Act 1967 of Queensland.

GLEESON CJ: Mr Jackson, I am afraid I was not clear, from reading the papers, about the relationship between the facts found and the facts not found and the issue about Edwards' Case. Could you just briefly explain that?

MR JACKSON: Yes, I will, your Honour. I do propose to come to that in just a moment, if I may.

GLEESON CJ: Whenever is convenient.

MR JACKSON: Yes. Your Honour, it comes about, in a sense, because the ability to challenge Edwards' Case was raised, in a sense, in the Court of Appeal and a ground of appeal was inserted in the notice of appeal there, in consequence of that. But if I could just go to the provision, first of all. Your Honours will see that it gives an entitlement to the person whose land has been compulsorily acquired to have regard paid in the assessment of compensation to a matter in addition to the value of the land taken, that matter being the damage caused by the exercise by the "constructing authority", which is a defined term, of any "statutory powers" otherwise affecting other land of the claimant from which the resumed land has been severed.

Your Honours, could I indicate first, before coming to the outline, the course which we would seek to take in dealing with these submissions, to go to the basic matters which give rise to the issue for the Court. Could I, in that regard, refer your Honours to our written submissions and, in particular, to paragraphs 6 to 11 of those. Your Honours will see, from paragraph 6, that there were three proclamations made pursuant to the Acquisition of Land Act 1967 , which had the result that an area of land, which we owned, was compulsorily acquired for road purposes to allow the construction of additional northbound lanes to the west of the, then, Bruce Highway.

Your Honours will see - I will not read them out, of course - but paragraphs 7 through to 11, that what took place was that the land resumed was, in the end, held not to be land which had, itself, given rise to the damage for which we contend.

CALLINAN J: Mr Jackson, do we have in the appeal book a copy of the proclamation or the notice of intention to resume?

MR JACKSON: I think the answer to that is no, your Honour, but it is recited in the opening part of the member's decision.

CALLINAN J: Because there is a statutory obligation, is there not, to state the purpose?

MR JACKSON: Yes, your Honour.

CALLINAN J: And unless there is a genuine statutory purpose, then the acquisition would be unlawful.

MR JACKSON: Yes, your Honour. That is section 5.

CALLINAN J: So, in effect, they are really bound by their statement of purpose and if they say they want it for a road or highway, then presumably we can take their word for it and how can they be heard to deny later that they did not use it or they are not using it for the highway?

MR JACKSON: Your Honour, what your Honour has just put to me raises, in fact, one of the aspects that, in our submission, militates against the adoption of Edwards' Case and it really has two aspects. One is this, that at the time when compensation comes to be assessed the particular works may or may not have been constructed and the second aspect of that, of course, is that the location of the particular thing may or may not have been constructed and, indeed, if one takes something like a road, particularly a large road, then very commonly one might think that areas where there is really no work, that are passive areas are part of the road.

CALLINAN J: Exactly, and, indeed, in modern times one would have an expectation that more and more often there is going to be a provision, with increasing traffic, for unused parts of the road for exactly that purpose.

MR JACKSON: Yes, your Honour.

CALLINAN J: Not only roads but also all sort of undertakings by constructing authorities.

MR JACKSON: Your Honour, I suspect that a more sophisticated word is today used to describe it but "buffer zone" or "buffer strip" is a common expression.

CALLINAN J: Mr Jackson, what I would like to have if I can - I think that the Act makes provision, does it not, for a prescribed form of both proclamation and notice of intention to take land, certainly a notice of intention. That is section 7.

MR JACKSON: Yes.

CALLINAN J: I take it the prescription is in regulation, is it? Is there a form in a regulation? It is just that I would like to see the regulation or a prescribed notice.

MR JACKSON: Your Honour, may I give those to your Honour. Your Honour, although I have the regulations I have not copies of them as at the relevant time.

CALLINAN J: You can see why I want to see them. It is in relation to the matter I have just put to you.

MR JACKSON: Your Honour, I think, as I said, it is paraphrased at the commencement of the member's reasons. My learned friend suggests page 6, line 50.

CALLINAN J: It is just you put it a little more expansively than that in your written outline, I think. That is the only thing.

MR JACKSON: I am sorry, your Honour, I just did not catch what your Honour said then.

CALLINAN J: You put it a little more expansively in your written outline, that is to say the purpose. We know what the purpose was. It was to construct the Bruce Highway or some further lanes on it, but the member, at page 6 - a member of the Land Court - at line 49 refers to "for road purposes". I just wanted to know whether the notice went beyond that, in fact.

MR JACKSON: Yes. Your Honour, I think the answer is, no, and I think that is our accurate paraphrase of what was said. Your Honours, the issue which arose - if I could come to what your Honour the Chief Justice was putting to me - arose as your Honours will see from our written submissions that one of the things we had included a claim for was for damages due to "injurious affection" and that claim was rejected by the Land Court.

Your Honour will see that that is so at page 27, lines 6 to 15. Your Honours will see, if your Honours look through the whole of that paragraph, that he reached that conclusion by the application of what was described as:

the principle of Edwards case to the relevant evidence on the assumption that the claimant's views of the cause of the flooding are correct.

GLEESON CJ: Does that reflect a conflict of expert evidence at first instance that he did not ever resolve?

MR JACKSON: That is so, your Honour.

GLEESON CJ: And was the expert evidence that was advanced on behalf of Mr Keane's client to the effect that the - well, perhaps I had better just ask what was the substance of the expert evidence in favour of the respondent?

MR JACKSON: Well, your Honour, the expert evidence in favour of the respondent was to the effect that the flooding was either insignificant so far as its causation by the highway was concerned, or that it was largely caused by works we had done on the land ourselves.

So there was a conflict, your Honours, as to the extent of the flooding, but there was a resolution of the conflict that is more germane to the application of Edwards' Case, a resolution by the Land Court member, and that was to the effect that on the part of the land that had been resumed from us, the highway had not been built and that although there was some stone on the land, there was, in effect, no weight-bearing part of the highway that was on the land resumed from us, because, if I could put it this way, your Honours, the land that was ours had played no part in holding up, in effect, the highway, the construction of which, in our submission, had brought about the flooding and increased susceptibility to flooding, therefore, we were not entitled to any damages for injurious affection, even though the land was more subject to flooding by reason of construction of the road.

GLEESON CJ: So that he took the view that no part of the flooding was the consequence of anything that happened on the land that was resumed from your client?

MR JACKSON: Yes.

GLEESON CJ: Therefore, by reason of Edwards, he did not need to determine how much of it, if any, was the result of works done by your client on land that was not resumed from your client.

MR JACKSON: Yes, or how much of it was caused by the highway, to put it shortly. Your Honours, could I indicate the course of reasoning that leads to that, and it is in a passage where the primary findings commence at page 13, and may I indicate to your Honours in a passage that goes up to, I think, about page 26, the core pieces of it. Your Honours will see that commencing at page 13. If I could perhaps go first to page 18, about line 19 on that page, what your Honours will see is the member there sets out his thesis, and he says:

In the face of the authorities that I have referred to I am bound to follow the principle enunciated in Edwards and applied consistently through the cases in Queensland, until either the Acquisition of Land Act is changed or a superior Court makes it quite clear that Edwards is no longer to be followed.

Then a little further down the page, at line 55, he sets out the primary question and your Honours will see that is set out in the first three lines of that paragraph. Your Honours, from there, one goes to the next page, about line 46 on page 19, where he says:

This now brings me to the facts of the instant case. The nuisance complained of is flooding. The question to be answered is, "what is the cause of that flooding?" In considering this question, I will proceed on the assumption that Mr Marshall's embankments -

that is our works -

do not contribute in any way to the flooding.

He goes, then, your Honours, on the next page, page 20, to about line 10, where he states the proposition:

Consistent with the authorities to which I have referred, if any part of those structural elements is on the resumed land and in a practical sense may not be treated separately, then injurious affection must flow -

Your Honours, from there he seeks to apply that approach to the circumstances of what is described as the "rock spill". That is at page 20, line 40, where he says:

The road surface of the new northbound carriageway, the new culverts and the extended bridge are all located on the original road reserve. There is, located partly on the road reserve and partly on the resumed land, what I will refer to as a "rock spill", but a critical issue is whether any part of the embankment supporting the northbound carriageway is located on the resumed land.

At line 54 he commences his consideration of the position of the rock spill and he goes on to hold, your Honours, on the next page, page 21, line 64, that - he said he:

cannot hold that the rock spill on the resumed land is therefore part of the works which cause the flooding.

Your Honours, from there, and I am nearly at the end of it, he dealt with the batter, that is page 22, line 15, that is, the road embankment or batter, and, to put it shortly, there was in some parts under the road a one-stage batter, in others a two-stage batter. He found that the whole of the primary batter was in the road reserve and not in the land resumed from us, that is page 23, line 16. So far as the secondary batter was concerned, he found that it was in part "on the resumed land" and in part "on the original road reserve", that is page 23, line 34. He found, your Honours, that the secondary batter was not part of the structure of the road which caused the flooding, that is page 24, lines 34 to 51, it was cosmetic.

Now, your Honours, could I simply mention, without taking your Honours to the detail of the references, that he then dealt with another proposition which was advanced on our behalf, namely that the drainage on the resumed land was an integral part of the project. That commences at page 26 line 25. He rejected that proposition, that is lines 26 to 47 on page 26, and your Honours will see his ultimate conclusion at page 27 lines 6 to 30 in the passage to which I have taken your Honours earlier.

Your Honours, the result of those findings was that in the courts below the terms of section 20(1)(b) were held inapplicable, and we would submit that was incorrect and may I indicate the course that I would seek to take in relation to the argument on that issue and it is to do two things: first, to go to the words of section 20(1) itself, to demonstrate that they do not support such a view or to seek to demonstrate that; and then, secondly, to go to the contention adopted by the Court of Appeal that whatever the inherent merits or demerits of the argument, that Edwards should be treated as settled law. Your Honours, may I deal with the matters in that order and take your Honours first to the terms of the statute.

Your Honours, the Act commences, relevantly, with the definition of "Constructing authority" in section 4. Your Honours, a copy of the Act, as at the relevant time, should have been, I think, annexed to, or with, our submissions in a photocopied form. Your Honours will see the term "Constructing authority"-

GLEESON CJ: It is in section 2 of our Act.

GAUDRON J: Is the relevant legislation as amended up to Act No 1 of 2000?

MR JACKSON: Your Honour, the copy that we have given the Court - - -

GUMMOW J: This is the 1989 reprint?

MR JACKSON: Yes. Your Honour, it should be the Acquisition of Land Act -1988. Now, there is not a - - -

HAYNE J: We find it at the back of your submissions.

MR JACKSON: Yes. Your Honour, there is not, I think, a relevant difference, except there are some changes in numbering, but you will find the particular - - -

CALLINAN J: It might be useful to get the complete Act, Mr Jackson; the parts I have got do not have - - -

MR JACKSON: There should be one there, your Honour.

CALLINAN J: There should be one, thank you.

McHUGH J: At the back of the submissions.

MR JACKSON: Your Honour, can I say that apart from some numbering matters there is no relevant difference as far as I am aware.

McHUGH J: I do not know whether it makes any difference, but section 2 of the later Act refers to the "State" whereas section 4 refers to the "Crown".

MR JACKSON: Yes, I am sorry, I should have said that, but I do not think it is otherwise relevantly different. Your Honours will see "Constructing authority" defined to mean:

The Crown or any person or local authority authorised by this Act or any other Act.....to take land for any purpose.

Section 5 then provides, in section 5(1)(A), so far as the Crown is concerned, that:

Land may be taken under and subject to this Act -

(a) Where the constructing authority is the Crown, for any purpose set out in the Second Schedule to this Act;

And, your Honours, that includes roads. I am not certain, in fact, that the copy your Honours have does include that schedule. If it does not, your Honours, I will have copies given to the Court that includes roads. And, your Honours, the purposes include, as your Honours will see from section 5(2) "incidental" purposes. The "notice of intention to resume" is to state the relevant purpose; that is section 7(3)(a) and on publication of the relevant proclamation two things occur, and the proclamation is provided for by section 12(5). Two things occur: one is that the land is vested in the constructing authority; the other is that the owner's rights become a right to claim compensation under the Act. Your Honours, section 12(5) is a long provision, that is at page 12 of that copy, but it is really the last half of it, where it says in the last five or six lines:

and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act and every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.

Your Honour, in the event there is a right to claim compensation which is, I think, to be found in section 12(5).

The quantification, however, your Honours, is the relevant provision. It is section 20. One can see in subsection (1) that it says:

In assessing the compensation to be paid, regard shall in every case be had -

to, in effect, three matters: first of all, the opening words of section 20(1):

not only to the value of land taken -

that is the first thing, but secondly -

also to the damage (if any) caused by either or both of the following -

The first of those, your Honours, is damage caused by:

(a) the severing of the land taken from other land of the claimant -

and the third is the relevant one, to damage caused by:

(b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

GLEESON CJ: Does Edwards, if applicable to this Act, mean that you should read paragraph (b) as though it said "the exercise on the land taken of any statutory powers", et cetera?

MR JACKSON: Yes, your Honour. That is essentially what Edwards says. The word "otherwise" in 20(1)(b) seems to indicate other than as referred to in (a), so it is at least that, but otherwise than by severance, at least. Could I take your Honours at that point to our written submissions, paragraph 31. The point we would seek to make is that if one looks at section 20(1)(b), one would not treat it as extending to damage caused by an exercise of powers, which was unrelated to the implementation of the purpose of the resumption.

What we seek to say is that to describe it as the exercise of statutory powers by the constructing authority is to do two things. One is to identify the body whose exercise of power is relevant but the other is to identify the capacity in which it is acting - that is, as constructing authority. In other words, the constructing authority would very often, by reason of its constating statute, have a number of powers, some of which would be entirely unrelated to the resumption. No doubt some limitation is to be imposed but that is the limitation, if there is to be one, we would suggest.

GLEESON CJ: Could injurious affection take the form of creating a nuisance by smell?

MR JACKSON: Yes, it could, your Honour.

GLEESON CJ: Then suppose black acre and white acre are two adjoining parcels of land and the constructing authority resumes some land from the owner of white acre and some land from the owner of black acre, and on the combined parcel of land so resumed builds a tanning factory. How do you tell how much of the smell is coming from the land that was resumed from white acre and how much is coming from the land that was resumed from black acre?

MR JACKSON: Your Honour, it would be difficult - it may be difficult, in the sense that - - -

CALLINAN J: I think in fact it can be measured now.

MR JACKSON: That is what I was going to say, your Honour.

CALLINAN J: I think you would find that Mr Winders, who was one of the experts here, would tell you that it can be measured. Mr Winders was an expert who was connected with the construction of an abattoir just outside Brisbane and I know that sort of evidence is given both as to dust particles and as to smell.

MR JACKSON: Yes, your Honour, that is the - - -

GLEESON CJ: And noise.

CALLINAN J: And noise also. There are sound engineers who can test by taking readings at various points in the same way as they measure wind influences and wind direction.

McHUGH J: In page 109 of the book, the Court of Appeal seems to think that there was a difficulty in apportioning compensation that this Court thought it might be the case in Morison's Case.

MR JACKSON: Yes. Well, your Honour, what I was going to say in response to your Honour, was, first of all, in a sense, what his Honour Justice Callinan said, that it may well be, in an appropriate case, possible to do that. In part, it would be brought about by the way in which the tannery had been built, I suppose, because the tannery has a number of aspects, some of them less noxious than others. The same applies to abattoirs. The bonox aroma is not always present to the same extent, as in others, your Honour. It depends, no doubt, on the various times of day.

But having said that, your Honour, the other aspect of it is that, in many cases, there would be very considerable difficulty in endeavouring to identify, particularly when one is talking about things that involve some kind of communication - a road, pipeline, things of that kind - how much of one is responsible for the other.

HAYNE J: You suggested some manner of reading subsection 20(1)(b) by reference to the constructing authority. I am not sure that I understood how you say that should be read in a case where the constructing authority is the Crown or the State.

MR JACKSON: Your Honour, there would be difficulty in doing it and, presumably, one does, in a sense, have to read it down. Your Honour, if I could just say this by way of a preparatory averment, as it were: it is not really necessary, in our submission, in the present case for one to work out every circumstance in which it would be necessary to limit the operation of section 20(1)(b). All I am seeking to say about it is that it may well be, in relation to a body like the Crown, that when one is speaking of the constructing authority, one is looking at the emanation of the Crown, which is exercising the power, because your Honour will have seen that the definition of "constructing authority" speaks of:

The Crown or any person or local authority authorised.....to take land for any purpose.

The term "constructing authority", where used in the provision, would be likely to provide an indication of the purpose that is to be taken into account in the operation of section 20(1)(b). Now, your Honours, the Crown would, no doubt, have very many powers, but if some were unrelated to the purpose of the resumption, it would seem unlikely that they are intended to be covered by 20(1)(b). But, your Honour, can I say that the extent to which one needs to read down the provision does not really form an essential part of, in a sense, this case, although we recognise that in some cases it may be necessary to do so.

Your Honours, the next thing I was going to say was this. If one looks at the words used in section 20(1)(b), it does not contain any limitation of the kind expressed in Edwards' Case or, as your Honour the Chief Justice put it to me, such as the words "on the land". Your Honours, the absence of there being any further or additional requirement than those expressed in 20(1)(b) itself, was adverted to in a relatively recent case in Queensland in the Land Appeal Court, Barns v Director General, Department of Transport (1997) 16 QLCR 22.

Now, your Honours, in that case, a claim was held to fall within section 20(1)(b), where it was for death of stock brought about by the construction activities of the resuming authority having caused a drop in water level of a dam and, in consequence, the growth of an algae which caused the death of stock.

Now, may I say immediately, your Honours, before going to it, that the correctness of Edwards was not put in issue, although Edwards does not seem to have been greeted with warmth by that court. Could I take your Honours to what was said by Justice Fryberg, one of the members of the court, at pages 29 to 30, first of all? Your Honours, will see that, in the last paragraph on the page, his Honour noted:

that the respondent expressly disclaimed any reliance upon the principle said to be embodied in Edwards -

and then, a few lines from the bottom of the page, said it was not:

the time nor the place to consider whether Edwards represents the law of Queensland. It has been applied or distinguished in a number of cases in this court, but as far as I am aware in none has its correctness or applicability in this state been expressly considered. It has always been assumed to have been correctly decided and to be applicable. In particular, in Vanhoff -

and your Honours will see - I will not read out the remainder of that paragraph on page 30 - but he referred to the possibility that it was "questionable whether Edwards represents the law".

Your Honours, at page 33 your Honours will see in the paragraph commencing about point 4 on the page in the second sentence:

s. 20 is designed to provide compensation where the constructing authority acts lawfully. It is of course necessary that there be a nexus between the claimant's land and the actions of the constructing authority. That nexus is provided by the fact that the land is injuriously affected. The introduction of a further requirement that the damage take the form of diminution in value of the retained land-

which was the argument in that case -

selects a criterion which is random in its operation.

Then, your Honours, at page 34 commencing at about point 6 on the page he said:

Weighing up these matters, there is in my judgment no reason why s. 20 should be given other than its plain meaning.

There is no relevant or "express restriction". The other members of the court, Mr Trickett and Judge Wall, at page 77 in the first new paragraph on the page said that it referred to the fact that "the particular legislation" needed to be looked at, and then in the next paragraph simply set out what, in effect, the words of the section said:

two requirements which must be satisfied.....They are -

and your Honours will see the two there set out. Could I refer also, your Honours, to page 81. There is a reference about halfway down the page to the Sisters of Charity of Rockingham v The King and then the next paragraph:

If as a consequence of the works carried out by the constructing authority injurious affection is caused to the retained land -

and three lines further down -

that is sufficient; it is not a requirement that the damage itself be to the retained land as such.

Then your Honours will see that paragraph goes over to the top of the next page and finally, your Honours, at page 84, your Honours will see in the first new paragraph on that page a submission made in the first few lines:

that compensation is only awarded in respect of injurious affection if the value of the interest of the landowner in the land is depreciated as a consequence of the resumption or of the use to which the resumed land is put. We cannot agree with such a submission -

Your Honours will see that going on for a few lines. Your Honours, that is, with respect, very close to a rejection of Edwards.

GLEESON CJ: That might be overlooking Edwards.

MR JACKSON: Your Honours, it may be in one sense, but it is a question of what Edwards does and what I am going to come to in a few moments is this, that the cases that really lie behind Edwards are based, not just on the provision that was referred to in Edwards but on another provision that was in existence at the time of the cases which provided for there to be the very thing that was decided by Edwards, and that is that at the time when the original cases that gave rise to Edwards were decided, there was a specific provision that said that injurious affection related only to the works on the land which was resumed. That provision went, in effect, but Edwards really pays no attention to the fact that the earlier cases were based on a specific provision and your Honours, may I come to that in a moment?

KIRBY J: That does not include Rockingham, does it?

MR JACKSON: Rockingham adverts to it, your Honours.

KIRBY J: Because the legislation in Rockingham looked to me, at first glance anyway, to be very similar to this legislation.

MR JACKSON: Yes. Your Honour, may I come to Rockingham?

KIRBY J: Yes, in due course.

MR JACKSON: What Rockingham was seeking to do, in a sense, was give some compensation where none had been given. I appreciate, your Honour, that in the end some observations are made to the same effect as Edwards but the circumstances in which they were made differ significantly, in our submission. Your Honours, what was given in Rockingham was what was asked for. The larger claim does not seem to have been made.

Now, your Honours, could I take your Honours also to section 20(3). Your Honours will see that subsection (3) contemplates that in carrying out the exercise referred to in subsection (1), that is:

In assessing the compensation to be paid -

there is to be a "set-off or abatement" and that is to take place where there has been an -

enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

Your Honours, so that one is to take into account in reducing or bringing to nothing the amount of compensation otherwise calculated under subsection (1) matters of the kind referred to in subsection (3) and, your Honours, in our submission, that provides an indication that, in looking at section 20(1)(b), like for like should be applicable.

Could I move then to the second aspect of the case, namely, should Edwards in effect be applied notwithstanding the language of 20(1)(b). The first thing we would mention, and mention in a sense again, is the observation of Justice Fryberg in Barns that the correctness of it had been assumed but not considered. As four members of the Court said in Ebner v Official Trustee in Bankruptcy, which is a relatively recent decision of the Court, at paragraph 43:

Legal thought and reasoning has a temporal dimension.

GLEESON CJ: It is good to see you spend your time usefully.

MR JACKSON: Your Honour, one has plenty of time sometimes. The second thing is that the principle for which Edwards stands, or was revivified to stand for, did not itself stand the test of time. It was reversed in the United Kingdom within 10 years by section 44 of the Land Compensation Act 1973.

KIRBY J: That works both ways, does it not, because Mr Keane argues that you should wait patiently until it is reversed here by legislation?

MR JACKSON: Yes. The legislation was in consequence of a 1969 Justice Commission report. May I take your Honours to a copy of that. I do not think your Honours have copies of it but, if not, may I give the Court copies.

GUMMOW J: Is this in your written outline, Mr Jackson?

MR JACKSON: I do not think this document is actually, your Honour.

GUMMOW J: But the point you are making goes to the reversal after Edwards?

MR JACKSON: Yes.

KIRBY J: But we have had our reports here. The Australian Law Reform Commission was critical of Edwards.

MR JACKSON: I am just about to come to that, your Honour, yes.

KIRBY J: And I think the South Australian committee was mentioned in the footnote.

MR JACKSON: Your Honours will see at page 21 of this document under the heading "Compensation in respect of injurious affection", paragraph 53 draws a distinction:

between damage caused to land where other land of the owner has been acquired compulsorily, and damage -

where that does not happen. Then it says:

In the former situation, apart from one significant defect, the compensation payable is adequate. In the latter situation -

then it goes on. But "one significant defect" to which it refers can be seen in the next paragraph and particularly at the top of the next page. About five lines into that paragraph on page 22 it says:

This rule, which was recently confirmed in the case of Edwards v Ministry of Transport [1964] 2 QB 134, means that an owner who loses merely a small part of his land in order to provide a footpath for a by-pass road, or a hard shoulder for a motorway, is entitled to receive compensation only for injurious affection in respect of damage caused to the part of his land retained through the use of the footpath or hard shoulder, and not in respect of damage caused to it through the use of the by-pass road or motorway.

Your Honours will see in the next sentence that it is said they believe that should be reversed.

McHUGH J: I do not think it is an answer to what you are putting, but there are no perfect solutions here, are there? I mean, take this very case: these very works done on the road may cause the same or similar damage to an adjoining owner who has no right unless that person can make out a claim of negligence. So, in that respect, because the damage occurs by reason of something done off the land taken, the decision in Edwards Case does make some sort of sense.

MR JACKSON: Well, your Honour, could I just say about that two things. First of all, the decision in Edwards in that regard really does not, in our submission, pay attention to the words of the statute. That really should be the starting point. The second thing, your Honour, is this, that the very thing that your Honour has put to me is the matter to which more than a hundred years ago Lord Macnaghten adverted in Cowper Essex v Local Board for Acton in a passage we refer to in our written submissions in reply and your Honours will see in paragraph 2 of that that he said, quoting the passage there:

It may be said that an adjoining lessee or owner from whom no land is taken might suffer in the same way, and that he would be without redress.

But the point he went on to make was:

That is true. But I cannot see why a person whose case is within the spirit and within the very letter of the Act should be deprived of the full measure of compensation because -

to put it shortly, someone else is treated as a member of the public. Your Honour, that is the point we would seek to make about it, that if you are given a right to compensation, why should the statute be interpreted in a type of niggardly way, so that one does not get what the legislature has said one is to get and is left the courts to interpret.

McHUGH J: But, on one view, the whole doctrine of injurious affection gives you a benefit. It gives you a benefit in the sense that although injury is done to land that is not taken, therefore, you get a right to be compensated for that, even though if the very same work had been done without taking any land, you would not get any. So, even though you retain your land, you get a benefit. I mean, if the following month some other statutory authority came along and decided to do exactly the same work, or did some work on the road, for example, you would not have a right to compensation.

MR JACKSON: Your Honour calls it a benefit, but it is a benefit that is measured by the damage you have suffered and the only benefit in real terms brought about by the provision is that one does not have to prove that the exercise of statutory power brought about something that had two features. One is that, otherwise, it would have given rise to a common law right of action. On the other hand, the exercise of statutory power was negligent.

McHUGH J: Yes.

MR JACKSON: So, your Honour, that is the element of benefit. But the damage one suffered, what one gets under section 20(1)(b) is expressed as being damage, and so - - -

McHUGH J: But when you have a long history of common law doctrine, then you have the decision in Edwards' Case in 1964, and then you have the Queensland statute following the same language, though re-arranging the words slightly, why should you not adhere to that view?

MR JACKSON: Well, your Honour, there is a number of reasons and I would seek to deal with them, if I may. The first is that, really, the correctness of Edwards has been assumed rather than considered. The second thing about it, your Honours, is that if one looks at the position in the United Kingdom, it was regarded as unsatisfactory within a very short time, and elsewhere, and we have given a number of references, including the Australia Law Reform Commission Report No 14 (1980) and could I refer your Honours to page 154. Your Honours will see in paragraph 290, the reference to Edwards' Case and at the bottom of that page in the main text:

The case illustrates the artificiality of the distinction between acts done on the land taken from the claimant and acts done on land acquired from someone else.

Then towards the end of that paragraph:

The decision met with criticism. A 1969 Justice Report recommended that the principle applied in Edwards' case be reversed -

and your Honours will see that report referred to in footnote 30, and I took your Honours to that earlier. In paragraph 295 on page 157, your Honours will see in the first bullet point:

The Canadian Law Reform Commission, in 1976, criticised the provision of the federal Expropriation Act 1970 which limits compensation for injurious affection on a partial taking to damage caused by construction or use of public works on the land acquired, as under Edwards' case. The Commission suggested that this approach was `narrow and unfairly restrictive -

and that was a statutory provision, your Honour.

KIRBY J: Did the Law Reform Commission suggest a statutory solution in the case of the Federal Acquisition of Lands Act? Was that carried into force by the Act which followed the Commission Report?

MR JACKSON: Your Honour, I am sorry, I cannot give you an immediate answer to that.

KIRBY J: Yes, if you could just have a look.

MR JACKSON: Yes, I will, your Honour.

KIRBY J: Because if that is done, that is a bit of an argument against you in the sense that where the criticism has led to law reform reports and then Parliaments have acted on it, the question arises, why should we interfere in Queensland when they have not seen fit to do so there?

MR JACKSON: Your Honour, the Edwards notion is, of course, a judge-made construction or provision.

KIRBY J: I realise that, and I take the point of your very powerful criticism of the notion, which seems to me, at least on the face of things, to be a mythology that has grown up and has not paid regard to the words of the statute, but it is pretty established in the doctrine, as Justice McHugh says, and it would carry a lot of money to change it.

MR JACKSON: Your Honour, that is the next thing to which I wish to go.

McHUGH J: And the view seems to be taken, does it not, that the statute did not take account of the previous law? Is that not what it comes to?

MR JACKSON: No, your Honour, all the statute - - -

McHUGH J: Well, that is the approach in Edwards, is it not?

MR JACKSON: Your Honour, one of the difficulties with the approach in Edwards is that there does not seem to be any very principled reason that one can derive from the decision. It gives an answer and does really no more than give the answer, without there being any particular reference to the terms of the provision in relation to which the answer was being given.

GLEESON CJ: Mr Jackson, did the legislation that was considered in Edwards contain a provision comparable to section 20(3)?

MR JACKSON: No, your Honour.

GLEESON CJ: Well, if the argument that you put earlier, based on subsection (3) has merit, that is an important point of difference between this legislation and the legislation considered in Edwards, does it not?

MR JACKSON: Quite, your Honour, yes. We have referred to that in paragraph 34 of our written submissions, where we refer to the fact that that legislation did not include a provision like subsection (3).

HAYNE J: Just before you go on, the ALRC refer to the position in California, where there seemed to be some judge-developed principle similar to Edwards. Do we get any advantage from looking at what was done there or is that to be put aside for some reason to which you would point? I had in mind the third bullet point in 295.

MR JACKSON: Your Honour, I do not think it takes it anywhere. The position in the United States varies very much from State to State, but I do not know that the recommendation is much more than to the same effect as - - -

HAYNE J: The recommendation is, but this rule in People v Symons, which seems to have established an Edwards-type rule - I just wondered whether there was some basis to which you could point as saying, look, disregard that, that gives you no assistance at a level of principle.

MR JACKSON: Your Honour, I am not certain if I am quite answering what your Honour is putting to me, but, in our submission, there is not really any particular underlying principle one can derive, in our submission. The reason why I say that, your Honour, is because, as is referred to in the Sisters of Charity Case by Lord Parmoor, the fact of the matter is, all entitlements to compensation are statutory - - -

HAYNE J: Start and finish at the Act.

MR JACKSON: - - - that is assuming a decision of the Court. But all entitlements to compensation one assumes are statutory and the quantum and the nature of the entitlement will depend on that. Your Honour, one sees the statutes are often similar, but in the end they tend to depend on their own terms.

KIRBY J: Is the reason why they have had this common construction in the United States and parts of Australia and elsewhere that when it is all boiled down they are Lands Acquisition Acts and that, therefore, you read the particular provision, such as section 20, in the context of providing compensation for the acquisition of land, not for the non-acquisition of land, not for compensating people in respect of land that is not acquired? It is conceptually a different concept.

MR JACKSON: Your Honour, they vary and they vary in Australia. One sees, for example, the South Australian provision that is referred to in a number of cases is one which is narrower than this because it requires the injurious affection to relate to the land acquired.

McHUGH J: But that is part of the problem of your argument, is it not? Your argument itself requires a gloss to be put on the section, unless it is to be left extremely wide. You have to construe it as meaning something like "otherwise injuriously affecting such land by reason of carrying out of, or the proposal to carry on, the public purpose for which the land is acquired".

MR JACKSON: Your Honour, one could call it a gloss, if one likes, but that really is to do no more than to say that one treats the provision in the context in which it appears.

KIRBY J: When one looks at the long title of the Act, it talks of being an Act for the "Acquisition of Land" but it goes on "and other Public Purposes", so it is not limited entirely to the acquisition of land.

MR JACKSON: Your Honour, the point I was going to make in response to your Honour Justice Kirby was that no doubt the Acts are concerned with acquisition of land, the issue would not arise otherwise, but the quantification of the compensation in relation to them is, in our submission, dependent on the terms of the statute.

Your Honours, the thing I was going to go onto next was really to go to the proposition that your Honour Justice McHugh was putting to me a moment ago, and that was that there is, in effect, a settled interpretation of it and people are happy enough with that and there is no particular reason to alter it. It should be for the legislature, I suppose, if there is to be a change.

McHUGH J: But does your argument require some sort of foresight as to what damage may be done? After all, your right to compensation comes into existence as at the date of the notice. As at that time, if no actual affectation has occurred, but may occur by reason of noise, smell or otherwise that will injuriously affect the land, does the compensating tribunal have to make an assessment as to what may be done in the future?

MR JACKSON: Your Honour, the answer is yes, but can I just say two things. The first is, if one goes to section 20(2), it speaks of:

Compensation shall be assessed according to the value of the estate.....taken on the date when it was taken.

So that deals with really the first of the three elements.

McHUGH J: I appreciate that, but if there is damage going to be done in the future, then one would have to discount that damage to the land in accordance with the present value and so on.

MR JACKSON: Your Honour, may I just complete saying something about the first one?

McHUGH J: Yes, sorry.

MR JACKSON: It is this, that in the Queensland cases in the Land Court and Land Appeal Court, I think, the view has been taken that section 21(2) deals only with the question of the Spencer-type value of the land. When one comes, however, to the assessment of the compensation for injurious affection, that appears to encompass really two things. It is not just the damage caused by the actual construction of it but also by the potential use of it. Now, that really comes to be assessed at the time when the case for compensation is being heard because one is dealing then with a potentiality which has become more capable of identification by what has taken place.

Your Honour, undoubtedly, one does have to look at the situation as at the time when the case is heard, and it may be that, in some cases, one is talking about something that has not yet been built and, so, estimates and predictions have to be made. But, your Honour, that has an aspect which is as well, in our submission, in our favour, because what it demonstrates is that if you take a case like this, if the issue came to be determined, if it was decided for budget reasons to put off building the road for a couple of years, one deals with circumstances where the precise location of the road may not be exactly known, so one has to take into account the possibility that the road will be built here or there, and it makes it seem unlikely that the better interpretation of the provision is that one has to decide that the part that is being resumed will not be used for the purpose for which it is being resumed.

McHUGH J: Yes, but is that not against you? Because if you take the Edwards' view of it, one knows by the time of the trial, one would think, as to whether or not there is any exercise of the statutory powers on the land, whereas for the construction for which you contend, the court may have to evaluate, not only potential use of the land, but what the constructing authority may do in the future, perhaps years down the track. I mean, land is resumed for roads which may never be brought into existence for many, many years.

MR JACKSON: But, your Honour, that is the position under the Edwards' test. Rockingham decides that, that one looks at the potential use of it. It does not matter which test you have, the same issue arises.

McHUGH J: I appreciate that, but at least if you go look at the source of the damage on the land that is being taken, then you are in a different position than if you are going to go outside the whole area of land and talk about damage from the roads and pipes, or whatever it is that is done.

MR JACKSON: But, your Honour, the difficulty, if there be one, in particular cases, and, your Honour, one might well expect that if a particular aspect of the case is one that is a bit unknown at a particular time, then the result might well be that that part of the case is put off. But in reality, the same question is going to arise whether one adopts the Edwards' test or the other one. It is the present position.

CALLINAN J: Mr Jackson, all of those matters that Justice McHugh put to you are matters peculiarly within the knowledge of the resuming authority. That is one aspect of it. The other aspect of it is that unless there is a bona fide intention to use it for the purpose for which it has been acquired, and that is to say, perhaps, within the foreseeable future, it might be arguable that it is not, for genuine purpose, an inquiry.

MR JACKSON: Well, indeed, your Honour, and those factors are ones that militate against there being difficulties of the kind to which your Honour Justice McHugh referred.

CALLINAN J: The fact is when constructing authorities are continually being urged to make their intentions plain and to acquire ahead of time so that people can plan what they are going to do on and about their land, and constructing authorities and experience, certainly in my experience, are very loath to acquire property until they absolutely need it because they do not want to outlay the money for it until it is required.

MR JACKSON: Well, your Honour, that is one feature, but, indeed, some of the town planning laws make provisions for there to be an inquiry made of bodies such as main roads departments, and so on, to determine what their position is for the future, and they have to declare themselves in relation to whether there will be road acquisitions, and so on.

Your Honours, I was going to move, if I could, to the proposition that this is really treated as being - the Edwards' principle is one that is readily applied and readily accepted. Could I take your Honours to two Queensland cases which recognise, in a sense, the unpalatability of the Edwards' notion. They are decisions in the Land Appeal Court or Land Court. The first is South East Queensland Electricity Board v Beaver Dredging Pty Ltd (1985) 10 QLCR 166. Now, your Honours, in that case, an easement was acquired, which your Honours will see referred to at the bottom of page 167, and the nature of the easement, about 6 or 7 lines from the bottom of that page, was described as being:

The easement encumbers a strip of land 9 metres wide along the full length of the north-western boundary of the Claimant Company's land, and is contiguous with an easement resumed from the adjacent Headlands golf course -

and, Your Honours, as appears at page 172 at the top of the page the argument was raised that because:

the power line structures are mainly not on the subject easement, but on the golf course, easement, then compensation should be only minimal -

Edwards was relied on. They said:

With this suggestion we do not agree.

Your Honours will see then the reference to the Court's decision in Morison and, your Honours, I will not read out most of that paragraph but we invite your Honours to, and to take your Honours then to about the last eight or nine lines of that paragraph:

We have no doubt that the resumption of the subject easement is an integral and inseparable part of the resumptions necessary for the construction of the power line and we cannot appreciate in a practical sense and in having regard to the rights and obligations conferred and imposed by the easement how a separation of damage -

in effect, could be arrived at. So that your Honours will see that in that case, if one stands back for a moment from the detail of the facts, it is difficult, in our submission, to see any serious ground of distinction between this case and a case such as Beaver Dredging. We would submit that is exacerbated if one looks at the case which followed, Treston v Brisbane City Council (1985) 10 QLCR 247.

Now, your Honours, the circumstances of that case were really about as close as one could get to Edwards, yet Edwards was not applied. The facts were not exactly comparable, but they were legally so, because in Treston a suburban byway, in effect, became a kind of highway but all that was built on the resumed portion of the claimant's land was a relatively innocuous footpath. But it was held that Edwards was inapplicable and that the damage caused to the claimant's remaining land by reason of activities on or in relation to the resumed land could not be separated out from that caused by the project as a whole.

Your Honours will see referred to at page 251 a reference to section 20 and then the member of the Land Court said:

The provisions.....are.....identical with section 63 of the -

English provision which gave rise to Edwards and there he - - -

GLEESON CJ: No, no:

The provisions of subsection (1) are.....identical - - -

MR JACKSON: I am sorry, your Honour, "The provisions of subsection (1)" and he referred to Edwards and what Edwards decided in the last few lines of that page and then said, at the top of the next page:

Now in the subject case the evidence is that the land taken from the claimants is used solely for footpath purposes which on the strict application of Edwards' Case would require an assessment of damage flowing from that use only. The ramifications of the application of the principle are obvious.

Then, your Honours, in a paragraph commencing about point 6 on the page, he said:

Whilst the judgement is of assistance in interpreting the provisions of the respective legislation it affords no guidance in the application of the principle where it is difficult, if not impossible, to identify and quantify the damage flowing from the use made of the land taken from the claimant in isolation to that flowing from the whole of the scheme.

Could I refer your Honours to the remainder of that paragraph.

Then at page 256 there is a reference in the second new paragraph to the most recent authority. That is the Beaver Dredging Case to which I referred a moment ago. Then at page 257, second new paragraph on the page, your Honours will see the view taken, summed up in the last sentence in the last five lines in that paragraph. The view that was adopted in that case will so often be the true situation. What we would submit is that the cases to which we refer demonstrate how unusual it will be to be able to make fine distinctions of the kind that Edwards' Case requires and also the absence of any very principled basis for making the distinction in any event.

CALLINAN J: Mr Jackson, the Land Appeal Court came close to inventing, in effect, a doctrine which is very close to what you are putting to us to get around Edwards in those last eight or nine lines of Beaver at page 172 where the members of the court say:

We have no doubt that the resumption.....is an integral and inseparable part of the resumptions necessary for the construction of the power line and we cannot appreciate in a practical sense -

and so on. It is very close to a doctrine which nullifies the strict effect of Edwards.

MR JACKSON: It was put, your Honour, in a court that was not able to put it as directly as your Honour has put it, as being a softening of the harshness of the Edwards' doctrine in a decision in Vanhoff v Commissioner of Main Roads, to which I will give your Honours a reference in just a moment.

CALLINAN J: It was always an embarrassment to argue Edwards. It.....such unfair effects.

MR JACKSON: I see your Honour argued both the cases on different sides to which I have just referred and I would understand the position in that regard.

CALLINAN J: There are a number of cases involving this power line, as I recollect.

MR JACKSON: If one takes power lines or roads as an example, just perhaps take roads, we would submit it is a really bizarre concept if part of one's land is taken and if the statute by section 20(1)(b) says in terms that one is entitled to the damage caused by the exercise of statutory powers by the constructing authority, the constructing authority goes ahead or proposes to go ahead with the work and to do so will cause damage to other land, but you get nothing because it cannot be demonstrated that any actual work was done on the land that has been resumed from you. That seems to defy the terms of the statute.

McHUGH J: I know it defies the literal terms of the statute, but it seems to me in this area, as in a number of other areas of the law, courts approached statutes of this class as stating a principle rather than being tied to the technical or the literal words of the statute. Sir Owen Dixon pointed that out in respect of limitation statutes, for example, protecting public authorities. You do not pay much attention, if any attention, to whether it is under or in execution of or pursuant to. Courts have tended to look at the matter as a principle. That is what seems to have happened here over a period of a century and a half.

MR JACKSON: Your Honour, if one can identify the principle as having some reason which can properly be derived from the words of the statute, then that militates against overruling. But can I just say this, your Honour: if one sees a situation where the courts that have to administer the enactment themselves are endeavouring to move away from it and to say, "Well, this does not really apply, this is not something that should be applied, it is very hard to apply", things of this kind, then one tends to see that the time has come to go back to the proper starting point, which is these are the words of the statute. Your Honour, there is, of course, subsection (3) which did not appear in the United Kingdom provision.

Your Honours, feature two - I am sorry to give your Honours a reference. There is a decision in the Land Appeal Court of Vanhoff Pty Ltd v Commission of Main Roads (1993) 14 QLCR 331, and at page 341 your Honours will see in the first new paragraph on the page:

We agree that the decision of the Land Appeal Court in the Beaver Dredging case (supra)incorporated as "Principle (iv)" of the Corbould judgment -

that is a reference back to page 339, your Honours, of the same report -

softens the apparent harshness of the Edwards' principle.

Then they said they could not interpret Beaver Dredging as the window of opportunity going quite wide enough, in effect.

Now, your Honours, what we would submit is that cases such as Beaver and Treston demonstrate the principle is not conducive to practical operation. Your Honours will see also that in various of the cases, including Treston at page 252 - and I will not take your Honours back to the case itself, but there is a reference, an observation by Lord Justice Harman in Edwards to the fact that the parties had agreed on what were the right amounts to be awarded if, on the one hand, one could take into account all the effect of the works or could only take into account the effect of the works that were done on the land resumed, and he said, by some form of alchemy which he could not understand, that the parties had agreed on a particular figure. Your Honours, we would submit the recognition of the need to engage in the alchemy or dark art of that kind should have provoked the realisation that the adoption of a test which brought about a need to do that was an indication that the test was itself suspect.

Your Honours, the principle also has a very erratic operation which was adverted to by Justice Menzies in The Commonwealth v Morison [1972] HCA 39; (1972) 127 CLR 32 at page 44. Your Honours will see at the top of page 44 referring to an argument based on Edwards. He said:

To the construction for which the Commonwealth contends there are a number of obvious objections. In the first place, at the time of acquisition - the date at which compensation is to be assessed - it might not have been determined to what particular use of the land acquired from one landowner would be put in the carrying out of the public purpose proposed.

If one goes down to the end of that paragraph, he said there was a more fundamental objection. Your Honours will see in the next paragraph he describes the nature of the possibilities and your Honours will see particularly the reference to:

land....used as open space adjoining a runway -

for example. Your Honours, it would seem curious if one arrived at results of that kind which his Honour referred to in the next paragraph as "artificiality of the sort" when one looks at the statutory language of 20(1)(b).

Now, your Honours, the decision in Edwards (1964) 2 QB 134 relies on a series of cases dating from Stockport. Your Honours will see that the discussion commences at page 146 of the previous cases where there is a reference to Justice Crompton in Re: The Stockport, Timperley and Altringham Railway Co. Now, your Honours, that case was one in which there was no reference in the decision itself to the terms of the statutory provision. But the position which obtain was that if there had been, it would have been apparent that the statute specifically provided for injurious affection by reason of the exercise as regards the resumed lands of the relevant statutory powers.

Now, your Honours, I need to go for a moment in that regard to the history of that type of legislation in the United Kingdom and it is summarised conveniently in an article by Professor Todd headed "The Mystique of Injurious Affection in the Law of Expropriation" (1967) UBCLRev 127, and the history, your Honours, is set out at page 131, where he refers to the English Railway Legislation.

The effect of what is said is that in the earlier part of the 19th century the United Kingdom Parliament was deluged with railways Bills and in 1845 a number of consolidating Acts were passed, some for Britain, some for Scotland, and your Honours will see that, if one goes to page 134, he refers in the first two paragraphs to the enactments that were passed and the relevant provisions are set out at the conclusion of the article, in particular page 170, 171. To put it shortly, your Honours, if one looks at the first provision, which is set out at page 170, which is section 68 of the Lands Consolidation Act, it referred to, simply:

If any party shall be entitled to any Compensation in respect of any Lands -

et cetera, and then dealt with the procedure for obtaining it. But to be read with that Act was also the Act which was No 20 of the same year, which your Honours will see in part extracted on page 171. Section 6 of that Act, if I could go about six or seven lines into it, said:

or injuriously affected by the Construction thereof, full Compensation for the Value of the Lands so taken or used, and for all Damage sustained by such Owners, Occupiers, and other Parties, by reason of the Exercise, as regards such Lands, of the Powers by this or the special Act.....Incorporated -

Now, your Honours, section 6 made it clear that the basis for "injurious affection" was by reason of activity on the land resumed itself. So that the railway cases, which lie at the heart of this area that ultimately resulted in Edwards, do not really provide, in our submission, a very firm base. They do not provide a firm base because the starting point of them, for example, Stockport, was one where what was relied upon were the enactments, the two enactments, the provisions to which I have just referred.

May I take your Honours now to the case to which I adverted a moment ago and that is the decision of the Privy Council in Sisters of Charity of Rockingham v The King (1922) 2 AC 315.

KIRBY J: Just before you come to that, in between that is the passage of our Constitution and the provision of section 51(xxxi) which talks of "acquisition of property" being "on just terms". Now, you would not be able to mount an argument, would you, that it would not conform to the constitutional requirement not to give compensation where you have a situation such as the present? You have to have the nexus of the acquisition of the property.

MR JACKSON: Yes, your Honour, I mean, you have to have an acquisition otherwise there is nothing to - the situation does not arise at all. Your Honours, section 51(xxxi) would not bite unless there is property that has been acquired. When I say "would not bite", in terms of - - -

KIRBY J: And Morison was a case about the Federal Act, was it not?

MR JACKSON: Yes.

KIRBY J: Is there any discussion in it of the, as it were, perimeter of the constitution or notion of just terms in that connection?

MR JACKSON: No.

KIRBY J: So there is no constitutional theory of this in Australia?

MR JACKSON: No, your Honour, there is not, to put it shortly, no. Your Honour, no doubt a case may arise about it in due course, but I do not mean to convey by that there is a case, but as far as I am aware, there is none. That gives rise, of course, to the question whether Parliament does have, in effect, a margin of appreciation in relation to what may or may not be just, or whether it is simply whether, in the end, the court decides whether statutory provision does make just terms.

Your Honours, this case is one where, if I could simply attempt to describe the property, the Sisters of Charity conducted a school on the western side of a railway. On the eastern side there was a little beach and there were two promontories, what they used for bathing and other school activities. The dominion of Canada resumed that land. The dominion also owned the water and owned it, in effect, in its own right, so that it did not need to resume that. But what it did was to reclaim some of the land that had been under water and then, on that, and on the area covered by the two small promontories, it then built a shunting yard. Your Honours will see that referred to at the bottom of page 316, and then, your Honours, the relevant provision is at page 317, about point 3 on the page:

By s. 22 "the compensation money agreed upon or adjudged for any land or property acquired or taken for or injuriously affected by the construction of any public work shall stand in the stead of such land or property."

Your Honours will see that what had occurred at first instance, is at the bottom of page 317 and at the top of page 318 and, in particular, your Honours, at page 318, about point 2 on the page, where the primary judge had said:

"Having regard to these authorities, I have reluctantly come to the conclusion that the suppliants are not entitled to claim the damages which will necessarily be occasioned by the use of the property partly in front of their building as a shunting yard."

A similar view was taken in the Supreme Court of Canada.

If your Honours go to the argument in the case, you will see, on page 318, towards the bottom of the page, about 8 or 10 lines from the bottom of the page, there is a reference to "The Expropriation Act" and the "Exchequer Court Act", and the argument that was put was one that said that the provision adopted the terms of "s. 6 of the Railways Clauses Consolidation Act", which is the one to which I referred your Honours earlier, which had said that - referred to the work on the land, "and s. 68 of the Lands Clauses Consolidation Act".

McHUGH J: Mr Upjohn's argument reflects what I was saying earlier, that he starts off by saying:

The principles of compensation established by the English decisions apply to cases in Canada -

even though there is no identify of language and the view is taken the statutes are identical in principle but not in detail.

MR JACKSON: Your Honour, he is putting the argument and he is putting it for this reason, that your Honour will see if one goes to page 319, about five lines from the top of the page, what he is saying is they got nothing and then he says:

But in any case the appellants were entitled to compensation for the damage to their property on the west side of the railway by the construction of the shunting yard upon their expropriated property on the east side -

That was all that was being sought and the argument that then proceeded, as your Honours will see, is that, particularly at the bottom of page 319 for the respondent, where what was said was:

The effect of the provisions.....is to confine the right to damage done by the construction of the works, as distinct from the user of them.

Your Honours will then see, if one goes to the advice of the Privy Council, at the top of page 323 that Lord Parmoor said:

There are sections in the English Railways Clauses and Lands Clauses Acts which do not appear in the Canadian Act, but the words "injuriously affected.....are to be found in s. 6 of the Railways Clauses Consolidation Act, 1845, and substantially similar words are to be found in s. 68 -

et cetera. He sets out there section 6 and your Honours will see the words, particularly in the fourth last line of that paragraph:

by reason of the exercise as regards such lands -

but then says, your Honours, further down:

There is some doubt on the English decisions whether s. 68 alone would give a right to compensation.....or whether that section should be regarded as a procedure section, but this distinction is not of importance in considering the Canadian statute.

Your Honours will see then the question set out at the bottom of the page. Most of the case, your Honours, is concerned with the question whether there was an entitlement to damage for use as well as for damage caused by the construction and it was held that they were entitled to make the larger claim.

Then, your Honours, it is only when one comes to the end of the judgment at page 328 about 12 lines from the bottom of the page where one sees the limitation that is adverted to and in relation to that, at page 329 - your Honours, could I just say this is in a context of them getting something instead of nothing - one sees at the top of page 329 a reference to:

The problem of applying the above principles in a case where the mischief complained of has arisen partly on lands taken from the claimants, and partly on other lands outside their property, can only be settled by a consideration of all the circumstances in a particular case.

Your Honours will see then that goes on to say:

the fact that other lands are comprised in the scheme.....does not deprive the appellants of their right to compensation -

McHUGH J: But Lord Parmoor was the great authority on compensation.

MR JACKSON: His Cripps on Compensation.

McHUGH J: Cripps on Compensation, and he seemed to have thought that the decisions were right.

MR JACKSON: Your Honour, the fact that he had written a book on it does not mean, with respect, that when it came to sitting in the Privy Council after lengthy experience in prize cases during and after World War II, the reason for which he was appointed to the Privy Council - - -

McHUGH J: But the book has gone through many editions. It still lives on.

MR JACKSON: But, I think, not with Lord Parmoor writing it, with respect, your Honour.

CALLINAN J: Might be just repeating the error.

MR JACKSON: Your Honour, this is, if I may say so with respect, a fundamental error of not looking at what the statute said, a beneficial decision in the particular case but, your Honours, if one comes to then move - - -

GUMMOW J: It is a specialist jurisdiction problem, really. This mystique builds up by people in these little bailiwicks and if there is no light from outside allowed in, windows are never - - -

CALLINAN J: No counsel who ever appear anywhere else is ever given a good reception there.

MR JACKSON: That is right, your Honour. That is certainly true, as once was said of - - -

GUMMOW J: We had a whiff of it in Boland v Yates.

MR JACKSON: Indeed, your Honour.

CALLINAN J: More than a whiff of it.

MR JACKSON: As was once said about anaesthetics, a two-hour lecture made into a specialty, but that would not be true these days. The point that we would seek to make about that is that one does have to go back to the statute. The last thing I wish to say is this, that in The Commonwealth v Morison [1972] HCA 39; 127 CLR 32 at page 56, Justice Gibbs attempted to give a rationalisation of the English decisions. At the bottom of the page his Honour said that the words of section 63 of the English Act were materially different from section 23(1)(c) of the Commonwealth enactment. He then said:

The "exercise of the powers" referred to in s 63 appears to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken. In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed.

Could I just say in relation to that two things. The first is that one sees that section 20(1)(b) has added the words "any powers" but, more importantly, we would submit it is not, with respect, natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed. There is no hint of that in section 20(1)(b) and we would submit the true position can be seen really in the next sentence of his Honour's reasons:

However, depreciation caused by carrying out the public purpose for which land was acquired may be more extensive than depreciation caused by the use of the land acquired, because the public purpose may involve the use of the land acquired in conjunction with other land, and in carrying out the public purpose use may be made of land other than that resumed.

Your Honours, those are our submissions.

KIRBY J: Could I just ask for your help. You will recall that in Mr Keane's written submissions he has set out the proposition that whatever one's view generally about restraint in disturbing a long-settled principle, this is a case where the Act has been re-enacted and the Minister has specifically said that every nook and cranny of this area is covered by settled law and that at least in this case, even if you do not accept the general mystique that Parliaments act on the basis of a deep knowledge of the law, that this is a case where there are settled rights and a lot of money turns on it and that therefore it is a case for more than usual restraint on the part of the Court in reaching a different view on something that has apparently been construed in a particular way for a very long time in the context of an Acquisition of Land Act.

MR JACKSON: Well, your Honour, the first thing I would say about that is that there is not really any particular reason, in our submission, why one would treat, for example, the settled principle to which he is referring as being Edwards rather than, for example, the approach taken in The Commonwealth v Morison. The second thing, your Honours, is that the notions to which he is referring are inherently those of the common law, meaning the common law interpreting a statute and the methods of interpretation and the result of interpretation are, in those circumstances, themselves capable of change.

The third feature, your Honours, is that, if one looks at what has happened, we do, of course, have change in two relevant respects. The first is that the later decisions, such as Beaver, such as Treston and such as the observations made in Barns, in courts that are regularly considering the application of the statute, indicate dissatisfaction with a rigid application of Edwards. And, your Honours, the second aspect of that is that one is, of course, dealing in circumstances where, at the time when the Act came into force, there was a much greater acceptance as being the law in Australia of decisions made by the English Court of Appeal and they had more of a reverence attached to them or given in respect of them, than would necessarily be the case today, particularly when, your Honours - I do not mean to be offensive in saying so - one does see that, particularly in Lord Justice Harman's - the manner in which he deals with the case, would strike many people as somewhat offensive, with respect. The humorous references, the middling size house and things of that kind, really seem to play a part in the decision which - - -

McHUGH J: It was ex temp judgment, was it not?

GLEESON CJ: After several days of argument, I think.

MR JACKSON: Yes.

KIRBY J: But you say these condescending remarks are not those which should be persuasive in an Australian court, when its ultimate duty is to construe an Australian statute.

MR JACKSON: Yes, your Honour, yes, and no doubt it would have seemed somewhat amusing at the time to half of those listening to it, but perhaps not to others. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson.

MR JACKSON: I am sorry. My learned friend has provided me with copies of the Notice of Intention to Resume and the Proclamation. Perhaps I will give your Honours copies of those.

GLEESON CJ: Thank you, Mr Jackson.

GLEESON CJ: Thank you, Mr Jackson.

MR JACKSON: My learned friend has also given me a copy of the Act with schedule 2 attached to it.

GLEESON CJ: Yes, Mr Solicitor.

MR KEANE: Your Honours, we would propose, subject to your Honours direction, to look first at the text of section 20 of the Act and then to set it in its historical perspective by reference to the leading authorities and, then, to proceed to the submission that Parliament intended, indeed, the section to operate in the manner explained in those authorities, the most important of which, for our purposes, make no distinction between railways cases and other forms of resumption under the Land Clauses Act. In particular, Cowper Essex, which deals, not with section 68 of the Land Clauses Consolidation Act, but section 63.

Your Honours, the question is one of statutory construction. It is not of the development of common law rights. The question is whether the appellant may be said to have been injuriously affected within the meaning of the statute where the damage to his land is not in consequence of the taking of his land. A review of the - - -

HAYNE J: You personalise that, Mr Keane, but it seems to me not to follow the language of 20(1)(b).

MR KEANE: Your Honour, can we go to the language, if we may?

HAYNE J: Yes.

MR KEANE: And in doing so, the first point we wish to make about the text is that a review of it shows that it is unlikely that it is self-contained and self-explanatory. For example, if one goes to section 20(1)(b), one can make three comments. The first is that there must be damage. Now, as is clear, we would think, with respect, in the course of the argument and particularly the exchange between Justice McHugh and our learned friend, that damage is not damage suffered or "caused", as the statute says, as an historical fact, but rather, it is clear that that must be read as "anticipated" or "apprehended damage". That that is so, is affirmed in Cowper Essex and again in the Sisters of Charity Case.

The second point about the text, in particular in section 20(1)(b), is that the damage must be caused by the exercise of statutory powers, and as our learned friends accept, this must be read down so as not to extend to the exercise of any powers by the Crown, being the constructing authority. So, once again we have an acknowledgment that the text cannot be read as a fully explicit statement of the legislative intention. The third point is the most important, with respect, and that is that the causing of the damage must answer a further description. It must answer the description - - -

McHUGH J: Before you rush on, the point that you make is that whereas in the present Act, constructing authority is defined - it refers to the State, does it not?

MR KEANE: Now it does, your Honour.

McHUGH J: Yes, referring to the Crown.

MR KEANE: Looking in the Act at the time, that it applied in 1986 and 1988, it was the Crown. Sorry, we were going to say that the causing of the damage must answer the description of "injurious affection". That is to say, it is not damage simpliciter to the land which continues in the ownership of the person from whom the resumed land is taken. It is not even adversely affected or depreciated - depreciated being the language of the Commonwealth statute considered in Morison, your Honours. It is injurious affection. In other words, just because there is damage caused by the exercise of statutory powers does not mean that, ipso facto, there is injurious affection.

GAUDRON J: Do you say that that means physical damage or something of that nature, as distinct from - - -

MR KEANE: Damage, your Honour, or injurious affection?

GAUDRON J: Injurious affection.

MR KEANE: Your Honour, injurious affection adds something. What it adds - - -

GUMMOW J: It may just affect an estate or interest - it is less than a fee simple, I suppose - may it not?

MR KEANE: Your Honour, the damage that can be done is damage to enjoyment, to amenity. It may even be damage due to the likelihood of smells which will cause the land to be depreciated in value without actually affecting either the physical or the title integrity of the property. That is, in fact, what was held in Cowper Essex, the apprehension of - - -

GLEESON CJ: You might be conducting a restaurant on the rest of the land and somebody building a tannery - I realise that has planning problems - but that could destroy your trade.

KIRBY J: Quite, your Honour, and in Cowper Essex, in fact, there was a subdivisional estate that had been laid out and its value was obviously diminished by the construction of the sewerage works, by the prospect of the use of the sewerage works, even though it could not be assumed that those works would have been used so as to create a nuisance. To return to your Honour Justice Gaudron's question, we submit that to ascertain what is meant by injurious affection and what it adds to the section in terms of focus one must go to the authorities and they suggest that, in our respectful submission, injurious affection is injurious as opposed to merely adverse or depreciating or damaging because it involves the use of the land taken.

GAUDRON J: But I do not see why that should be.

MR KEANE: Your Honour, it is this that - - -

GAUDRON J: I mean, that may be one way of rationalising the cases but I do not see why that is involved in the notion of injurious affectation or affection.

MR KEANE: Your Honour, we would simply start from the position that it is adding something because they are extra words when, on our learned friend's construction, it would be enough if the statute said "also to the damage caused by the exercise of any statutory powers by the constructing authority".

HAYNE J: But is the weight of that clause injurious affection or is the weight of that clause injuriously affecting such other land, that is to say the remaining land. That is, is the damage damage that in some way is related to the land rather than the land owner?

MR KEANE: Your Honour, we have already got damage "caused by" - - -

HAYNE J: But damage to the land owner or damage to the land?

MR KEANE: Well, your Honour, that is another example of - - -

CALLINAN J: Although, is it not damage to the land, having regard to the uses that either can lawfully be carried out on it, or might lawfully be able to be carried out on it, and any of the matters to which you have referred, nuisance or anything of that kind, may have a potential to devalue the land for some of those uses?

MR KEANE: That is so and, of course, because what is being done is being done under statute, absent negligence, there is no actionable wrong, there is no common law right. To just return for a moment to your Honour Justice Hayne's point, what your Honour has put to us shows another example of circumstances in which the text of this provision is not entirely explicit.

To return to your Honour Justice Callinan's point, what your Honour says is of course true. Can we also mention that the exercise that the statute mandates arises from section 12(5). The Act presupposes a taking of the land and confers a right of compensation for the taking. Under section 12(5) the compensation is for the land taken for the purposes of the Act.

GUMMOW J: But the land may just be an estate or interest, may it not?

MR KEANE: Yes, it may, your Honour.

GLEESON CJ: And if there are multiple owners, section 18 provides that you distribute the compensation "among the proprietors in shares proportional to the unit entitlements".

MR KEANE: Yes, but in doing the exercise - - -

GLEESON CJ: That is where you are dealing with home units.

MR KEANE: Yes. In terms of section 20(1)(b), one is seeking to have regard to those items of damage in assessing the compensation payable for the land taken. The acquisition of the land is not merely the occasion for the assessment of damage for injurious affection. It is the taking which is the subject of compensation. To return to your Honour Justice Callinan's point, the damage apprehended by the owner in terms of the adverse effect on lawful uses is part of the value for which he is to be compensated, applying usual principles of compensation in accordance with Spencer v The Commonwealth. It is that sort of exercise that is being performed and it is an exercise of determining the proper compensation having regard to these features.

HAYNE J: But the subject matter of that exercise is not simply that which the acquiring authority acquires. It is what the resumed party has lost.

MR KEANE: Your Honour, to be as accurate as one can be, the exercise is in assessing the compensation to be paid, the compensation to be paid is compensation for the land - see section 12(5). In assessing the compensation to be paid for the land, regard shall be had. So that it is not that there is a separate freestanding head of compensation. It is in assessing compensation for the land which is taken, one has regard to the damage caused by these other features.

HAYNE J: You use the expression "compensation for the land" and referred to 12(5).

MR KEANE: Yes, your Honour.

HAYNE J: Is that a summary of what you contend is the effect or a quote?

MR KEANE: As our learned friend said, it is a very lengthy section, but the material part of it - - -

GUMMOW J: It is a conversion.

HAYNE J: It is conversion into the right for compensation.

MR KEANE: Quite, that is right, your Honour.

HAYNE J: So that it is not as though 12(5) is identifying the subject matter as only the land taken.

MR KEANE: Well, it provides for the vesting of the land and then provides that:

the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation -

GUMMOW J: Yes, but it does not necessarily suggest that the conversion produces an equivalence. It may be more.

MR KEANE: Well, it does not necessarily conclude the point, your Honour.

GUMMOW J: No.

MR KEANE: But it does, we would submit, at least suggest that it has that in mind. It has it in mind that it has taken your land and it has given you something in return.

HAYNE J: Yes, the Lord giveth, the Lord taketh away.

MR KEANE: Quite, and it taketh away the land and it giveth you something for it.

HAYNE J: And in all such transactions, they may not be equivalent.

CALLINAN J: Mr Keane, might there not be some cases in which perhaps no diminution in value as such on the Spencer's Case principle, if you were to sell the land after their resumption of the carrying out of the works, could be demonstrated, but yet there would be an injurious effect upon the land? Now, in that situation, the subsection would have work to do, would it not?

MR KEANE: Your Honour puts it to me in abstract and general terms and, in abstract and general terms I - - -

CALLINAN J: It is conceivable perhaps that there might be a parcel of land which is unsaleable. It might be in some kind of a drainage problem area, there may be an absolute restriction upon it.

MR KEANE: Yes, I take your Honour's point.

CALLINAN J: It may be flooded so frequently that people would not buy it, but somebody might live there and take the flooding - - -

MR KEANE: Yes, "`tis a poor thing, but `tis my own", yes, your Honour.

CALLINAN J: Yes, and there might, in fact, not be any diminution in value at all.

MR KEANE: Quite.

CALLINAN J: But those people might be injuriously affected. Would they not be entitled to compensation under section 20 for injurious affection?

MR KEANE: In so far as the diminution in the use to which they can put the land, sounds in money, yes.

CALLINAN J: That is totally consistent with what has been stated in this Court on a number of occasions, that it is value to the owner and that value may not necessarily be financial value.

MR KEANE: Yes.

GLEESON CJ: There is actually a movie about that.

CALLINAN J: That is right, yes. It was not completely valueless.

MR KEANE: Your Honours, just staying with the text if we may for a moment, can we also draw attention to what is, I acknowledge, a straw in the wind, but your Honours will see that section 20(1)(a) speaks of the severing of the land or damage, if any, caused by:

the severing of the land taken from other land of the claimant -

and -

(b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

That tends to suggest that severance is a species of injurious affection which may occur otherwise than by severance. In other words, this points to injurious affection as a concept directly concerned with the taking of the land.

As to the absence of the words "on the land taken" after the reference to "the exercise of statutory powers", we say two things: firstly, we have already said, the exercise of the statutory power cannot be read without some further focus, some further closer focus, and it is significant that the academic criticisms and other Law Reform Commission Reports do not attack the decision in Edwards and the cases that stand behind it on the basis that the statutes which their Lordships were considering in those cases did not have those words. Now we say that because in Cowper Essex the statute did not have section 6 of the Railways Act and when one looks at the decision of Lord Parmoor in Rockingham's Case one sees that his Lordship said, explicitly, that the difference made no difference; that section 6 of the Railways Act made no difference.

GLEESON CJ: Whether it is ultimately right or wrong, my impression was that the strongest judgment in your favour in Edwards was that of Lord Justice Donovan.

MR KEANE: Quite, your Honour, and his Lordship applies the focus, which is that the taking is injurious affection because one has taken the land which, absent the statutory authority to do it - if one took the land and built things on it, one would have been committing a trespass, and that is what is injurious. You have taken the man's land and you have damnified the rest of his property by taking his land and doing things on it, and he has no statutory remedy. The statute affords a remedy which the common law does not, but it does not go further, which brings us back to your Honour Justice McHugh's point to our learned friend, which is those neighbours, just as adversely affected as a person from whom land is taken may be, have no right.

KIRBY J: Lord Justice Donovan makes that point at the opening of his judgment in Edwards.

CALLINAN J: Mr Keane, because other people might, in absolute terms, be deprived unfairly of a right to compensation - and I accept that unfairly may be an overstatement - but because they may be, can provide no warrant for ignoring the plain language of the statute or, indeed, for depriving people who are affected and who lose land from receiving compensation for injurious affection. It seems to me, with respect, that that argument goes nowhere.

MR KEANE: Your Honour, may we submit, with respect, in response that it does depend upon, of course, the context in which the phrase "injurious affection" is used. Here we have it used in hallowed usage, we would submit. There are, of course, statutes where injurious affection is used in a distinctly different sense, where the statute provides for compensation for parties, persons affected by the imposition of a planning scheme, for example.

CALLINAN J: Yes, but that provision in relation to planning schemes came into effect long, long after there was this sort of provision in Lands Acquisition Acts.

MR KEANE: Quite so, your Honour. With respect, that is precisely the point we seek to make. Those provisions using that language are much more modern than the statutes which were interpreted - and the arguments were fought, the battles were fought out, and in relation to the statutes in pari materia with the statute considered in Edwards' Case and the Queensland statute - - -

CALLINAN J: I do not know whether that is right, Mr Keane. To my knowledge, there have only been about two or three cases in Queensland - there may have been others - involving the construction of the injurious affection provisions in the two planning statutes that applied in Queensland.

KIRBY J: I think you list three in your submission.

CALLINAN J: Three, I mean.

KIRBY J: But surely it is a little bit high on the scale of holiness to call Edwards - what was the word you used - "hallowed'?

MR KEANE: Hallowed.

KIRBY J: When one sees the early seeds of reformation coming in some of the decisions of the Queensland Land Court.

MR KEANE: Your Honour, can we just, apropos of that, ask your Honours to look at page 14 of the appeal book where your Honours will see the decision of the Queensland Land Court in Curtis discussed at lines 15 to 20. This is a decision before Edwards and your Honours will see in the passage cited precisely the same principle applied in relation to the previous provision, section 19 of the Public Works Land Resumption Act, which is in pari materia with section 20(1) and a view that was followed again in 1963.

GAUDRON J: Now, Mr Solicitor, can I take you back to this notion of the poor unfortunate neighbour who gets nothing? Is that notion valid? I mean, he may get nothing for the resumption of the land but he is entitled - surely he might have an action in nuisance.

MR KEANE: Quite, your Honour.

GAUDRON J: Now, this Act does not say it is compensation for land. We have just been through that. He says he has a right to compensation under the Act. That is what it says in 12(5), does it not?

MR KEANE: It says that the right in respect of the land is converted to a claim for compensation. If one has not had one's land taken, there is nothing to convert into a claim for compensation.

GAUDRON J: That is right. If one has not had one's land taken, one may very well be left to one's remedies in nuisance.

MR KEANE: Which will not be of any value if the works are carried out pursuant to statute, which is the hypothesis on which the section - - -

GAUDRON J: Well, you tell me that, but is that because there is some sort of provision which - - -

McHUGH J: It is the general law. You have to prove negligence or - - -

MR KEANE: If the works are authorised by statute - this is the exercise of statutory powers. If the works are authorised by statute, then unless the works are carried out negligently, then there is no nuisance because it is a lawful act.

CALLINAN J: The old railway cases in England first established that, did they not?

MR KEANE: Yes, that is right.

KIRBY J: This is the State's sphere though, not the Federal's sphere.

MR KEANE: Pardon, your Honour?

KIRBY J: In the Federal sphere you are subject to the Constitution, whatever it may require.

CALLINAN J: Well, you do not have an acquisition on just terms provision and, therefore, you do not have to read that language in the way in which it has sometimes been read in this Court in Commonwealth cases. But, Mr Keane, just getting back to the point that you were making about planning legislation which also provides, in Queensland, at all events, for compensation for injurious affection, I was suggesting to you that there had only been a few cases - I do not think you refer to any of them here, do you, in your submissions? But, in any event, what I was going to suggest to you, that my recollection is that the construction of that phrase in the planning legislation, in the two or three cases that have been decided, were not in any way burdened by the Edwards' principle.

MR KEANE: I know, and neither should they have been, your Honour.

CALLINAN J: But the same language was used, "injurious affection".

MR KEANE: But, your Honour, not in the context of an acquisition statute where what is being afforded is compensation, the assessment of which has regard to damage caused by the exercise of statutory powers injuriously affecting the land which remains and it is that which provides the focus - - -

CALLINAN J: Yes. But you do not get anything at all out of the planning legislation.

MR KEANE: Your Honour, the only reason we mentioned it is because we were acknowledging trying to be - - -

CALLINAN J: Trying to be your usual generous self.

MR KEANE: Yes. Trying to acknowledge that statutes can use language in different context. Here, there is a line of authority which shows that compensation is awarded under this statute and its analogues, those which were in pari materia with it, because, to return to your Honour Justice Gaudron's question, but for the statute, the injury to the claimant in taking his land and doing works upon it would have been actionable wrongs.

CALLINAN J: But, Mr Keane, you talk about Edwards' Case, but, I mean, the cases that we have been referred to in Queensland in the Land Court, the High Court's discussion of it in Morison, everybody has really doubted it and questioned it and thought that it was incapable of application, and what was said in that Beaver Dredging is just a device to get around it, really.

MR KEANE: Your Honour, it may well be that the argument of the unsuccessful appellant in that case as a matter of strict law should have been upheld but, however that may be, the kind of problem - - -

GUMMOW J: But what it does, it cannot give you much confidence in Edwards Case and it can hardly provide a very sound foundation for saying that this Court should apply it, notwithstanding the language of the Act that we have to consider.

McHUGH J: My recollection may be hopelessly wrong but I thought that the criticism of the pre-Edwards law was that it gave a benefit that was not intended and what is now being done in this case is almost to turn the proposition on its head, that the view of the 19th century lawyers was that because things were done under a statutory power no compensation was recoverable and then there was a judicial gloss, in effect - or so it was perceived - by giving a very limited right where a statutory power was exercised on your land and that was what was criticised at the - am I right?

MR KEANE: Yes, your Honour, that was what happened in the Stockport Case. We will take your Honours not to that case but to some discussion of it, if we may. But, to go back to your Honour Justice Callinan's observations, the first thing we should say is that in Morison no one - none of the judges doubted the correctness of Edwards.

CALLINAN J: I do not read it that way. Justice Walsh said it threw no light on the provisions there.

MR KEANE: Your Honour, in that respect his Honour was quite right because if one looks at the text of the statute in Morison's Case which your Honours will find at footnote 13 at page 108 of the appeal book the relevant Commonwealth statute provided that in determining compensation for the acquisition of land regard should be had to:

the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out of the proposal to carry out the public purpose for which the land acquired.

So that there was no focus - there was no use of the words "injurious affection". There was a very broad provision providing for having regard to depreciation caused by the carrying out of the work.

CALLINAN J: Do you say that is narrower or - - -

MR KEANE: Much broader, your Honour.

CALLINAN J: You say it is narrower than - - -

MR KEANE: No, much broader.

CALLINAN J: Why?

MR KEANE: The provision in the Commonwealth statute is much broader in the compensation it affords than the Queensland statute.

CALLINAN J: I am not persuaded of that at all, Mr Keane.

MR KEANE: Well, your Honour, it is purely a question of depreciation of the land held, continued to be held, by reason of the carrying out of the proposal.

CALLINAN J: There may not be any depreciation in value, as you and I just agreed. There may be cases in which there is not any.

MR KEANE: No, your Honour, all we are talking about here is the Commonwealth statute - - -

CALLINAN J: I know.

MR KEANE: - - - and making the point that it is entirely different from the provision in Edwards and the provision in section 20(1)(b).

McHUGH J: But is not the argument that you have to face up to that the Land Clauses Consolidation Act had no provision equivalent to section 20(3) and the source of that provision is not English legislation, but is it not some very early Commonwealth legislation? Was there not a provision similar to section 20(3) almost from the very beginning of the Federation in the Acquisition of Lands Acts, even before the 1906 Act?

MR KEANE: Your Honour, I cannot answer that question at the moment.

McHUGH J: I think you might find that is where it comes from.

MR KEANE: What we would say about section 20(3) is that we note that it provides that:

In assessing the compensation to be paid, there should be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

McHUGH J: I know, but it means this, though, that you really have two different standards of determination: one under subsection (3) and one under subsection (1).

MR KEANE: Subsection (1)(b), quite, your Honour, and that that is so - - -

McHUGH J: But why would you have two different standards of determination in which you have different points of reference?

MR KEANE: Well, because, your Honour, I suppose the best reason is that the language is different.

GLEESON CJ: Mr Keane, is that a convenient time?

MR KEANE: Yes, your Honour.

GLEESON CJ: For the benefit of the people in the next case, could I ask how long you expect to be.

MR KEANE: Your Honour, I expect to be another 20 minutes to half and hour.

GLEESON CJ: All right. We will adjourn until 10.15 tomorrow morning.

AT 4.29 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 8 DECEMBER 2000