CATCHWORDS
PRACTICE AND PROCEDURE - separate questions - many causes of action pleaded - complex claim for damages and loss of profit - whether determination of questions will resolve sufficient issues - whether determination of questions will reduce length of hearing
Land Act 1962 (Qld) s 343 s 345
Trade Practices Act 1974 s 45D
Federal Court Rules O 29 r 2
Landsal Pty Ltd (In Liquidation) v REI Building Society (1992) 113 ALR 643 Refd
Famel Pty Ltd and Anor v Burswood Management Limited & Ors (1990) ATPR 41-004 Refd
Rocklea Spinning Mills Pty Ltd v The Anti-Dumping Authority (unreported decision Full Court 6 April 1995) Refd
CBS Productions Pty Ltd v. O'Neill [1985] 1 NSWLR 601 Refd
The Wik Peoples v The State of Queensland & Ors (unreported decision of Drummond J 26 May 1994) Refd
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Refd
Northern Territory of Australia & Ors v Mengel & Ors (1995) 69 ALJR 527 Refd
Bourgoin S.A. v Ministry of Agriculture, Fisheries and Food [1986] QB 716 Refd
Attorney-General (NSW) v Quinn (1989-90) 170 CLR 1 Cons
Turner v Owen (1990) 96 ALR 119 Refd
Roberts v Repatriation Commission (1992) 111 ALR 436 Refd
JL Holdings Pty Ltd v The State of Queensland and Anor
No SG1 of 1994
Kiefel J Brisbane 16 June 1995
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. SG 1 of 1994
BETWEEN:
J L HOLDINGS PTY LTD
Applicant
AND:
THE STATE OF QUEENSLAND
First Respondent
AND:
SOUTH BANK CORPORATION
Second Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 16 June 1995
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The respondents' motion be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. SG 1 of 1994
BETWEEN:
J.L. HOLDINGS PTY LTD
Applicant
AND:
THE STATE OF QUEENSLAND
First Respondent
AND:
SOUTH BANK CORPORATION
Second Respondent
CORAM: Kiefel J.
DATE: 16 June 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
The respondents apply pursuant to Order 29 rule 2(a) for an order with respect to the decision of questions separately from other questions in the proceedings and before trial of the proceedings.
Outline of the Proceedings
I have outlined in my Judgment of 28 April 1995, when I dealt with issues relating to discovery, the factual background to these proceedings. It is necessary to reiterate some of it. From about 1987 the applicant proposed, in response to the Brisbane City Council's call for tenders, the development of land owned by the Council. It also proposed the development of adjoining land which was land reserved and set apart for certain purposes under the Land Act 1962 (Qld) and in respect of which the Council was trustee. With respect to that land the relevant parts of s.343 and s.345 of the Land Act provide:
343. Limitation on power to lease (1910, s.185(2)). (1) The trustees of a reserve that is an environmental park have no power to lease or agree to lease the whole or any part of the reserve.
The trustees of land granted in trust or of a reserve other than one that is an environmental park shall not lease or agree to lease the whole or any part of the land under their control without the approval in writing of the Minister first had and obtained.
...
(4) The Minister may, in his absolute discretion, refuse to approve the proposal or, if the Minister is satisfied that the proposed lease is -
(a) not detrimental to the public interests;
(b) not inconsistent with the purpose for which the land was granted in trust or reserved and set apart; and
(c) not for an excessive term and complies otherwise with the requirements of section three hundred and forty-four of this Act,
approve the proposal in whole or in part, and in either case subject to such conditions, reservations and modifications as he deems fit.
345. Minister's approval to be endorsed on lease. When a lease under this Division has been duly executed in accordance with the terms and conditions approved by the Minister the original and all other executed copies of such lease shall be forwarded to the Minister for endorsement thereon of his approval of the lease.
...
A lease to which this Division applies which is not endorsed with the Minister's approval shall have no validity or effect in law and in the case of a lease with respect to land granted in trust shall not be capable of registration under "The Real Property Acts, 1861 to 1960".
The applicant's case, in very brief summary since the body of the statement of claim, not including schedules, extends over 87 pages, is that despite an approval under s.343 having been given by the then Minister in October or November 1989 and representations being made to the effect that the applicant's proposed development would proceed, the new Minister in 1990 (there having been a change of government) declined to endorse the lease as required by s.345. As a result the applicant's proposal was never put into effect. Litigation was not however undertaken immediately. Although the initial question may simply have been whether the Minister, having approved a lease, was obliged to endorse approval, that is to say whether s.345 contemplates a mere administrative step and not the further exercise of discretion, the case as now pleaded ranges well beyond that question. The applicant alleges not only that there was no discretion and that the Minister was obliged to complete the process and that promises were made to do so, but that the Minister deliberately refrained from endorsement. Elsewhere it is alleged that the Minister's purpose in doing so was to prevent the applicant from competing with the Southbank development, which was being considered at the same time and in which the first respondent had a financial interest, and that it acted in concert with the second respondent to effect this purpose.
Extensive damages, including those representing
profits lost from a successful operation of the development, are sought. There are no shortage of claims said to
entitle the applicant to an award for such damage: that for breach of agreement for lease; for breach of lease; for inducement to breach lease; for misfeasance in office; for breach of statutory duty; for conspiracy (between the two respondents)
to injure the applicant in its business;
for negligent misstatement and for infringement of s.45D of the Trade
Practices Act 1974. There is
a further claim for compensation founded upon unconscionable
conduct, referred to as the "estoppel"
claim and there is also foreshadowed further amendment to the statement of
claim to plead fraud.
There have already been lengthy applications for discovery in the proceedings and the applicant estimates a hearing will take two months. If the applicant pursues each of the above claims there will clearly be a long hearing, which will require a large number of witnesses, the examination of many documents and, subject to further consideration as to how it might best be managed, will be complex for all involved.
The Application
Order 29 rule 2(a) of the rules of this Court provide:
"The Court may make orders for -
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings ..."
and by rule 1:
"In this Order, "question" includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise".
The questions which the respondents seek to have first determined are:
"(a) Upon the true construction of s.345 of the Land Act, is the Minister for Land Management obliged to (and has no discretion but to) endorse a lease with his consent once:
(i) an approval referred to in s.343 of the Land Act had been obtained; and
(ii) a lease in accordance with that approval has been executed;
(b) Upon the true construction of s.345 of the Land Act, can the Minister for Land Management be estopped from declining to endorse a lease with his consent?"
It is not suggested by the respondents that the questions will resolve all of the issues in the proceedings and it is conceded that they will not even touch upon questions in the claims for copyright infringement, civil conspiracy, defamation, negligent misstatement or for infringement of s.45D of the Trade Practices Act.
The copyright and defamation actions do, as the
respondents submit, raise discrete issues and separate claims for damage. There is said to be a short answer to the
s.45D claim, but no orders are presently sought with respect to it. The issue of liability arising from the
alleged conspiracy to injure, it is conceded, will not be resolved by a decision
on the questions since, I take it, the question of discretion or not is not a
necessary element in this cause of action.
It seems to me however that it would require a deal of the same evidence
as that necessary for other claims sought to be brought to determination by
this process. The respondents however submit that the allegations pleaded
presently disclose only a bare outline of such an action and the claim ought be
regarded as speculative and therefore unlikely in any event to be pursued to
hearing. There is little detail of the
claim given by way of particulars, a position which was promised to be cured
following discovery, but this has not yet occurred. The inference the respondents contend for is
open but to act upon it would involve a risk which could be
overcome simply enough. Were there merit
otherwise in the procedure under O.29 being undertaken the applicant ought be
required to state fully the basis for this claim so as to enable a proper
assessment. The claim for negligent
misstatement, to the effect that the first respondent failed to warn the
applicant that further approvals might not be granted is, the respondents
submit, lacking in real merit. It does
not impress as a strong claim and in any event would, as the respondents point
out, give rise to a different and more limited claim for damages.
The respondents contend that the questions will resolve or substantially resolve the remaining claims in contract, tort and equity which are to be seen as the "core" of the applicant's case. It would seem, at least before any detailed analysis of the statement of claim is undertaken, that the question whether the Minister was obliged or could be obliged to endorse approval is indeed central to these claims.
The Order 29 Procedure
The procedure under O.29 r.2 allows not just whole
issues, but questions which may arise within wider issues to be determined
separately. The term "question" embraces less
decisive matters of dispute than "issues": Landsal Pty Ltd (In Liquidation) v REI
Building Society (1992) 113 ALR 643, 647, and the rule which
follows envisages not only orders determining a claim for relief in whole or in
part being made but also the making of directions. As French J observed in Famel Pty Ltd and Anor v.
Burswood Management Limited & Ors (1990) ATPR 41-004, 51,086 the
matter is one of case management, which involves a judgment as to the most
economical and expeditious way
of disposing of the proceedings. But
whilst there is obvious advantage to all if a shorter and simpler path is
found, by which the matters in controversy may be brought to resolution, and
cases such as this necessarily promote real interest in examining any
possibilities, words of caution against undertaking a course which has as much
potential to prolong the dispute are often repeated, most recently in Rocklea
Spinning Mills Pty Ltd v. The Anti-Dumping Authority (unreported decision Full Court 6 April
1995). As was there observed, the
determination of a question where the factual foundation for it has not been
resolved is unlikely to produce the desired saving of time and costs. And it seems to me that the process of
reasoning to decision, absent the relevant facts, is liable to involve
deviation from the correct course and may lead, unnecessarily, to further
amendment to pleadings to accommodate the decision then reached. Likewise, where there are truly alternative
counts in reserve there may be little point in undertaking the procedure (CBS
Productions Pty Ltd v. O'Neill [1985] 1 NSWLR 601, 606) at least
where it is likely that they will be pursued in any event.
Whilst not all issues would here be resolved by
determination of the questions, the respondents submit that it would "substantially narrow the field of
controversy" (CBS v. O'Neill 606, per Kirby P,
referred to with approval in The Wik Peoples v. The State of
Queensland & Ors unreported decision of Drummond J, 26 May 1994) which is sufficient warrant
for the process to be undertaken. The
submissions for the respondent can be seen to depend upon the answers to the
questions being determinative of the issue of liability in the actions for
breach of agreement for lease; breach of
lease; inducement to breach lease; "estoppel"; misfeasance of office and breach of statutory
duty, which is
to say that the subject of one or both of the questions is an essential element
in the particular cause and an answer liable to be fatal to one of the opposing
views. Whilst not conceding that this is
so with respect to question 1(a) the applicant's principal submission, it
seemed to me, was that any determination unfavourable to it would result in an
appeal process, as far as that were possible, with consequent loss of time and
perhaps unnecessary expense. It was
further submitted that the issue as to whether an estoppel could operate,
raised in question 1(b), could never be determined without reference to
considerable evidence in any event and therefore there would be no real
shortening of the proceedings by providing the answers. Question 1(b) however assumes the existence
of a discretion given by s.345. Whether
that is so may be resolved by question 1(a).
Before consideration is given to whether benefit would be gained, given
the applicant's desire to appeal any determination of that first question which
is not in its favour, it is first necessary to analyse what an answer to 1(a)
would effect and what, if anything, would remain to be litigated. Whilst, as I have said it seems that the
question as to whether there was a choice given to the Minister is central to
the issue of liability in the claims brought in tort and contract, it does not
necessarily follow that an answer or answers will resolve sufficient to warrant
the procedure being undertaken.
Misfeasance/Breach of Statutory Duty
The two causes, although referred to in submissions as having a similar character, are separate and distinct causes of action. What course was open to the Minister under s.345 is however central to both. Of them, it seems to me, breach of statutory duty has the greater potential for resolution by a decision on question 1(a).
An answer to that question and one favouring the applicant would be to the effect that the Minister was obliged by the section to endorse the lease. But that would be so only upon the factual, and perhaps legal, assumption upon which the question is premised, namely that approval had been given under s.343. That is not admitted by the respondents in their defence and whilst Mr Hanson QC for them submitted that it may, in light of documents recently made the subject of notice to admit, be difficult to contend otherwise, no admission has yet been made. There also remain other points of law which could arise and the respondents' position with respect to them has not been adverted to. A question which often arises in these cases is whether the statute in question confers a civil cause of action for breach of statutory duty: see John Pfeiffer Pty Ltd v. Canny (1981) 148 CLR 218, 230, which encompasses an enquiry as to whether there is a right conferred by the statute to have the duty performed: see Northern Territory of Australia & Ors v. Mengel & Ors (1995) 69 ALJR 527, 538 and the cases there cited. It may be that these matters are capable of resolution so as to permit the procedure under O.29 to be undertaken by formal admissions and concessions. Those which would be necessary to conclude liability for misfeasance however are such that I would think it unlikely they would be given.
The tort of misfeasance in office is to be
regarded as analogous to those torts which impose personal liability for the
intentional infliction of harm. It is a
deliberate tort, comprehending acts done intentionally or with knowledge of the
lack of power, and where damage is foreseeable:
Northern Territory v. Mengel 539-541. Here knowledge is
relied upon (see Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food
[1986]
QB 716, 777). Foreseeability of
damage has not been pleaded, but the statement of claim predates the recent
decision of the High Court which establishes this as a requirement. The question of the relevant Minister's
knowledge, although not as yet particularised, I infer from argument and
material in recent applications for discovery of documents, would seem to
require an extensive review of documents and of witnesses, subject to what may
still be a question outstanding, as to legal professional privilege. Whatever be the legal conclusion as to the
Minister's power or discretion the issue of knowledge remains very much in
contention and it is not, I apprehend, likely to be conceded. In these circumstances it is difficult to
conclude that a determination of question 1(a) will resolve the larger part of
the issue of liability for misfeasance.
Breach of Agreement for Lease/Breach of Lease/Inducement to Breach/Estoppel
The applicant alleges an agreement for lease between it and the Brisbane City Council of 5 December 1989 and that the agreement was approved by the Minister. It is then alleged that there are to be implied terms (which were breached) generally to do all that was necessary to conclude the lease, but specifically a term that the Minister would endorse the lease. That term ought to be implied, it is alleged, because of representations to that effect by the first respondent and because of the fact of approval of the lease.
I have some difficulty with the allegations that the first respondent induced the Brisbane City Council not to perform its obligations under the lease, the enforceability of which was in any event subject to the endorsement. As presently pleaded it seems to add nothing to the other claims.
I confess also to difficulty with the allegations of breach of lease. They appear to attempt to provide an alternative claim in the event that it is contended there was no approval given to the lease. If that is so the claim may be unnecessary, if the grant of approval is to be admitted. The first respondent is said to be estopped from denying that the lease was completed, and that approval and endorsement were given. It is then alleged that the first respondent repudiated promises, to be implied, to do all that was necessary to secure performance of it.
The claim entitled "estoppel" appears to be an alternative claim for equitable compensation or restitution (but which is not specified) founded upon unconscionable conduct which includes the making of the series of representations elsewhere relied upon, in respect of which it is alleged the first respondent is said to be estopped, which I take it means that it ought be taken as held to its promises for the purpose of the remedies which are then sought.
Putting aside the difficulties I have encountered
with the pleading, the question which is central to the substantial contractual
claims and to the claim for equitable compensation, is whether the Minister can
be held obliged to endorse, given the duty or discretion provided for by
s.345. Whether that result is achieved
by the implication of a term or by equity holding the Minister to promises
made, the question is likely to be much the same: if there be a discretion for the Minister to
exercise (as question 1(b) assumes), whether the public interest in the matter
with which the sections of the statute are concerned would permit the Minister
to disable himself by promising how he would
perform it. In this respect the
applicant submits that the question cannot be answered by reference to the
statute alone since a consideration of the "public
interest" might encompass the doing of justice to an individual and
relies upon the following passage by Mason CJ in Attorney-General (NSW) v.
Quinn (1989-90) 170 CLR 1, 18:
"What I have said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v. Department of Trade [1977] QB 643, at p.707; but see also the criticism of this approach by Gummow J. in Kurtovic (1990) 92 ALR at pp 121-122."
His Honour was clearly speaking of an exception to the earlier statement of the general rule (p. 17):
"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power."
The possibility of
exceptions, albeit confined, has been further recognised: see Turner v. Owen (1990) 96 ALR 119,
132, per Pincus J; Roberts v. Repatriation Commission
(1992) 111 ALR 436, 442. Whether or
not the injury alleged to have been suffered by the applicant in the
circumstances brings it within that class is not a matter for present
determination, and indeed was not the subject of argument before me. It remains the case then that a determination
of question 1(b) has only the possibility that it would resolve this issue, but
not the certainty.
In any event, it seems to me, there would be little purpose in proceeding to a determination of question 1(b) without determining the question of the existence of the discretion, upon which it is based and to which question 1(a) is directed. The issue then is whether to permit a determination of that threshold question so as to remove the assumption. Even were the question in 1(b) one only of statutory construction which did not require evidence, the answer to 1(a) would still leave the claim for misfeasance in office to be heard. There would then be no reduction in the time necessary for a hearing of what will likely be a complex claim for damages and loss of profits. Whilst the evidence necessary for all issues of liability may be lessened, I have no confidence that it would significantly reduce the time for a hearing. Given these matters the procedure appears to me to be inappropriate. Added to that is the time and expense taken in appealing decisions. In these circumstances the motion must be dismissed.
That is not to say however that these proceedings
are not capable of further management and that a deeper consideration of the
numerous claims made, now that discovery has been had, might result in a
substantial narrowing of issues and decisions as to how the hearing can be most
simply and efficiently conducted. In the
process of analysing the statement of claim for the purpose of this application
it became clear to me that a number of the causes of action are pleaded barely
and absent proper particularity,
that some appear to add little to the applicant's case and that further
consideration needs be given to damages appropriate to each head of claim. Similarly it must be said that the defence is
hardly forthright in admissions made and gives little indication as to where
the areas of controversy are likely to be.
I propose to list the matter for further directions on a date which will allow sufficient time to the parties, and in particular the applicant, to review their pleadings conscious of course of the later issue of costs with respect to unnecessary or insubstantial issues.
I will hear counsel as to costs.
I certify that this and the preceding thirteen pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 16 June 1995
Counsel for the applicant: Mr T Gray QC and Mr T Matthews
Solicitors for the applicant: Minter Ellison Baker O'Loughlin
Counsel for the respondents: Mr R Hanson QC and Mr J McKenna
Solicitors for the respondents: Crown Solicitor
Date of Hearing: 26 May 1995
Place of Hearing: Brisbane
Date of Judgment: 16 June 1995
