Noosa Shire Council v T M Burke Estates Pty Ltd [1998] QCA 350

1. In May 1997, the developer's appeal to the Planning and Environment Court not having come on for hearing, the Council issued a writ against the developer in the Supreme Court of Queensland and delivered with it a statement of claim alleging that the developer's special lease conferred no interest on it, because statutory conditions requisite to the grant of a valid lease had not been satisfied. After some further correspondence, the content of which requires no discussion, two summonses were issued, one by each party to the action. The developer applied, by its summons, for orders that the statement of claim be struck out and the action dismissed. The Council applied, by its summons, for orders that the State of Queensland be joined as a defendant and that it have leave to amend its statement of claim. The orders made after the hearing of these summonses included refusal of the Council's application to amend, allowance of its application to join the State of Queensland and adjournment sine die of the developer's application.

1. The appeal to this Court is, as I have said, against the judge's refusal to give the Council leave to amend. The primary judge had before him a proposed amended statement of claim prepared on behalf of the Council which alleged (as had the first statement of claim) that the statutory conditions precedent to grant of the special lease had not been fulfilled. The proposed amendment would have set up a new case, that the special lease had become frustrated by reason of the gazettal of the new provisions in the Planning Scheme. The additional declaration which it was sought to claim, by amendment, was that further performance of the purpose of the special lease had become impossible by reason of the gazettal and that the State of Queensland and the developer had become discharged from the special lease.

1. The primary judge held that the argument based on frustration "should not be permitted to proceed"; his Honour said, ". . . that part of the action will be struck out". The order sheet which is on the Court file notes that one order made was: "The claim and the statement of claim relating to the second ground will be struck out". But the sealed order does not mention the striking out of any claim. There is perhaps some doubt as to the state in which the action stands, having regard to the apparent discrepancy between the orders made by the learned primary judge and the sealed order. It does not, however, appear necessary to resolve any difficulty relating to that topic.

1. The arguments put on behalf of the Council complained of the primary judge having been unwilling to let the action include a claim for a declaration with respect to the question of frustration. It was contended that it was relevant for the Council to know whether the special lease, if one was validly granted, had been frustrated, for a number of reasons, such as that the Council had to determine whether or not the land was rateable; therefore, it was said, the Council has locus standi. It is plain enough, however, that the only live issue to which the declaration sought is likely to be immediately relevant is the claim for compensation; it is equally plain that it is the pendency of that claim which has prompted the Council to seek the declaration under discussion.

1. The Council has argued in this Court that, because of certain provisions in the lease, the only injurious affection on which the developer could rely, in its claim for compensation, is a right to acquire a freehold title to certain subdivided lots. But the Council says that in order to determine the claim for a declaration with respect to the alleged frustration, it would not be necessary for the Court finally to determine the issue of injurious affection; that issue, it appears, has relevance merely to the question of the Council's standing.

1. Enough has been said to demonstrate that the proposed claim for a declaration based on the doctrine of frustration would involve the Supreme Court, if the action goes to trial, in looking into issues which the Planning and Environment Court would have to consider in the appeal before it. The same applies to the allegation that the purported lease was not validly granted; the Planning and Environment Court could not grant compensation based on the existence of a void lease. The primary judge said in effect that the decision of the Supreme Court with respect to the existence of the lease would be "extremely useful" in the appeal pending before the Planning and Environment Court. As to the question of frustration, his Honour held in effect that the Council's claim was unacceptable and should therefore not be allowed to proceed.

1. During the course of the hearing before us, there was discussion as to the extent to which the Planning and Environment Court being seized of the appeal against refusal of compensation ousts the Supreme Court's declaratory jurisdiction. The principal provision of the Act relevant to that question is s. 7.4(2), which makes the jurisdiction of the Planning and Environment Court under the Act exclusive; that court's jurisdiction to determine the appeal here in question is conferred by ss. 3.5(13) and 7.4(1).

1. Whether or not s. 7.4(2) ousts this Court's jurisdiction to determine this action is not a matter which it is necessary finally to determine, although some observations are made about it, below. For, in any event, the claim for a declaration with respect to the alleged frustration of the lease is not one which this Court should, in the exercise of its discretion, entertain.

1. The circumstances in which a Supreme Court should decline to make a declaration with respect to an issue within the jurisdiction of a specialist court or tribunal are, with respect, usefully discussed by Mr Justice Young in the 2nd (1984) edition of his book, "Declaratory Orders" at pp. 42-46. The principal Australian authority relevant to this problem was at that time, and still is, Forster v. Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 C.L.R. 421. There, the High Court upheld the grant of a declaration by the Supreme Court of New South Wales with respect to an issue which was relevant to a then pending inquiry before a mining warden; that issue was whether the respondent company held certain rights under the New South Wales Mining Act 1906. As to the exercise of the discretion whether to grant or refuse the declaration, Gibbs J. referred to a number of considerations favouring the former course, including that the questions involved were difficult and were "pure questions of construction" and also referred to matters having a countervailing tendency such as delay, cost and inconvenience (439). The other members of the Court, except Walsh J., expressed themselves in terms which amounted to agreement with these observations. Walsh J. remarked:

"In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute".(427)

What was said by Gibbs J. about the exercise of discretion was not inconsistent with the view of Walsh J., which has considerable importance in assessing the proper course to take in such a case as this. In Dalgety Wine Estates Pty Ltd v. Rizzon [1979] HCA 41; (1979) 141 C.L.R. 552, a question arose whether the South Australian Supreme Court acted properly in declining, in the exercise of its discretion, to grant an injunction to restrain an applicant before the South Australian Licensing Court from pursuing his application to that court. Mason J. with whom the other members of the majority agreed said:

"First, a superior court should hesitate before granting an injunction restraining a party from commencing or maintaining proceedings in a court or tribunal which has been specially constituted by statute with a jurisdiction to entertain and determine proceedings of that kind, the more so when the proceedings relate to rights or privileges which depend for their existence on the statute . . . " (574).

In agreeing with Mason J. that the discretion was rightly exercised, Stephen J. said:

"The South Australian legislature has, after express advertence to the question, clearly entrusted the question of breach of covenant, as it may affect the transfer of a licence to the Licensing Court, whereas the relevant jurisdiction of the Supreme Court has not, of course, been the subject of any such express legislative advertence" (568).

Gibbs J., who dissented, referred to what Walsh J. had said in Forster and expressed the view that the Dalgety case was not one of the kind to which Walsh J. referred (563). Walsh J.'s dictum has also been treated as authoritative on a number of occasions in Supreme Court decisions. An example is Slattery v. Public Service Board [1983] 3 N.S.W.L.R. 41 at 46, dealing with an application for a declaration touching on a matter which the legislature had committed to the New South Wales Industrial Commission. Another is Concord Council v. Optus Networks Pty Ltd (1996) 90 L.G.E.R.A. 232 at 267. But I think it is important to note that what Walsh J. said was not intended to express an absolute rule, circumstances will no doubt arise in which it will be right for the Supreme Court to grant declaratory or injunctive relief in relation to a matter which is within the jurisdiction of a specialist tribunal.

1. Here, in contrast to the Forster case, the specialist tribunal is constituted by a judge, being a member of the District Court; the civil jurisdiction of that court has been expanded, so as to cover matters of considerable substance and complexity. It does not appear to me that it would be proper, or indeed sensible, for the Supreme Court to give declaratory relief in respect of an issue arising in proceedings pending before the Planning and Environment Court on the supposition that such a judge would not be able competently to decide it. As for the questions of delay, cost and convenience, they all appear, in the present case, to tend against the appellant. Pursuit of the appellant's action in this Court to a conclusion, with or without any subsequent appeal, might take a considerable period of time; the case has not progressed far towards finality since the writ was issued in May 1997. And resolution of the appellant's claims in the Supreme Court would not necessarily put an end to the dispute between the parties, which might well have to await final determination in the Planning and Environment Court. From there an appeal would lie, on the ground of error in law or lack of jurisdiction, to the Court of Appeal: s. 7.4(3) of the Act.
2. What the appellant wishes to defend is an interruption of the ordinary course of disposition of disputes of this sort, in the forum which the legislature has chosen, by a, perhaps expensive and protracted, determination of some of the issues in the Supreme Court. A reason which goes in favour of allowing the amendment which the primary judge refused is that the Planning and Environment Court proceedings might in any event be held up, because his Honour let the appellant's initial claim in that court stand. But that circumstance, although in my view unfortunate, is not enough to justify further entertaining issues which would otherwise fall for decision in the Planning and Environment Court. At the hearing before us, there was some discussion about the possibility of the developer applying for leave to appeal out of time, with the purpose of achieving the result that the action in this Court is simply dismissed; but no such application was made. If the developer is concerned about the possibility of the Supreme Court case continuing, it could bring on the application to strike out which was adjourned sine die; but it is likely that, having regard to these reasons, the Supreme Court action will not be actively pursued. I see no reason why the Planning and Environment Court proceedings should not now go ahead.

1. In view of the conclusion I have reached, that as a matter of discretion the Supreme Court should not in the present circumstances entertain the Council's claim for declaratory relief; there is as I have said no necessity finally to determine the question whether s. 7.4(2) ousts the jurisdiction of the Court to grant the relevant declarations; but some observations may be usefully made. Section 7.4(2) makes the jurisdiction of the Planning and Environment Court under the Act exclusive. There are authorities suggesting that where a specialist court or tribunal is given exclusive jurisdiction to determine cases of a particular kind, that ousts the Supreme Court's jurisdiction to grant a declaration relating to an issue in such a case: examples are re The Proprietors Portman Place Building Units Plan No. 4313 [1995] 1 Qd.R. 525, Taylor v. The Minister [1973] 1 N.S.W.L.R. 352. Cases in this category tend to rely upon Barraclough v. Brown [1897] A.C. 615, which was decided at a time when a more restrictive attitude was taken, in relation to the jurisdiction to grant declaratory relief than is evidenced by more modern authorities such as Pyx Granite Co. Ltd v. Ministry of Housing and Local Government [1960] A.C. 260, and the High Court decision in Forster (above). The decision in this Court in Cairns City Council v. Fairview Farming Co. Pty Ltd (Appeal Nos. 3244 and 3245 of 1997, 10 February 1998) is plainly inconsistent with the proposition that a grant of exclusive jurisdiction to the Planning and Environment Court, to hear appeals of a particular kind, excludes the Supreme Court's jurisdiction to determine issues which might have been raised by an appeal to the Planning and Environment Court. Here, there is an appeal pending before the Planning and Environment Court, as there was not in the Cairns City Council case.

1. In view of my conclusion that the Supreme Court should not, as a matter of discretion, decide the issues which are sought to be raised before it in the present case, but should rather leave those issues to be determined in the Planning and Environment Court, I do not think it appropriate to express any more than a provisional view on the jurisdictional point; my view is that the grant of exclusive jurisdiction by s. 74(2) of the Act does not appear, on its proper construction, to take away the Supreme Court's power to grant the declaratory relief which has been sought.

1. I agree with the reasons of Pincus J.A. that this appeal should be dismissed with costs; but I do so subject to the qualification or preference referred to in the reasons of Byrne J., with which I also agree.

1. There are, in my opinion, compelling reasons for the Supreme Court to have declined to entertain the claims for declaratory relief.
2. The issues to be agitated necessarily fell for consideration in the determination of the compensation litigation in the Planning and Environment Court. No consideration of cost or convenience favoured the resolution of those points in the Supreme Court. If those isolated issues should be separately determined in a preliminary way, that can be done just as easily in the Planning and Environment Court, and in that Court there is every prospect that the points would be determined with less expense. Further, there is no reason to suppose that a judge of the Planning and Environment Court could not competently determine the issues. In this case, there is no satisfactory basis for the Supreme Court's intervention: cf R.P. Meagher, W.M.C. Gummow & J.R.F. Lehane, Equity Doctrines and Remedies, 3rd ed (1992) p.476. On the contrary, this contest should be resolved in the court which the Parliament has specially invested with the jurisdiction to decide the compensation claim.
3. Otherwise I substantially agree with what Pincus JA has said concerning the discretion to decline to adjudicate upon the issues by declaration.
4. It is unnecessary to, and I prefer not to, express an opinion on the question whether s.7.4 of the Local Government (Planning and Environment) Act 1990 ousts the Supreme Court's ordinary jurisdiction to grant declaratory relief in a case such as the present.
5. The appeal should be dismissed with costs.