Resort Management Services Ltd v Council of the Shire of Noosa [1996] QCA 441

Following the events that gave rise to this litigation, s.20(2)(c) has been replaced by another provision which is now designated s.20(1)(c) of the Acts Interpretation Act. For present purposes the difference between the two provisions is negligible. Both provide that repeal or amendment of an Act does not "affect a right ... acquired ..." under that Act. The earlier provision also referred, as s.20(2)(c) still does, to a right or privilege acquired or accrued; but more comprehensively to "any right interest, title, power or privilege credited, acquired, accrued, established or exercisable ...". It may be doubted whether the ensuing reduction in verbiage altered the substance or effect of the provision. But, in any event, the amendment by which s.20(1)(c) replaced s.20(2)(c) did not take effect until 1 July 1991, which was after the amended town planning scheme in question was substituted on 15 December 1990. The earlier version in s.20(1)(c) therefore appears to be the governing provision; but, as it happens, both versions include the critical words "affect a right acquired".

To assess the impact of s.20(1)(c) in this instance, it is in my view helpful to start by saying something about the relevant town planning scheme and the effect of the alteration to it. Before the Scheme was amended, the subject land (of which there are several distinct parcels) was in a zone identified under the Scheme of 1985 as the Rural Preservation Zone. In that zone, which embraced only freehold land situated on the north shore of Noosa inlet, land could be used "as of right" (as the saying goes) for a limited number of specified purposes, and for other specified purposes only with the consent of the Council. The amendment of the Town Planning Scheme on 15 December 1990 (which involved the substitution of a new Scheme in the Schedule to the Council's town planning by-law or ordinance) altered the effect of the Rural Preservation Zone in a number of different ways. Both the purposes for which the land could be used "as of right", and those for which it could be used with Council consent, were further restricted. Considered from the standpoint of the lawful use for which the land could in future be lawfully used, some of the changes were of considerable significance because of their likely impact on the value of the land.

Land has value only according to the use that can be made of it. Restricting the owner's common law rights to use it as he pleases therefore not only reduces those rights but also depreciates the value of the land. Considered apart from other statutory provisions, it may be that the effect of a provision in the form of s.20(1)(c) of the Acts Interpretation Act would have been to preserve the owner's right to continue using the land for all purposes previously permitted by the 1985 town planning scheme despite the 1990 amendments. But if that were so, there would, of course, be no occasion at all for compensating for any impairment of rights. The owner would be entitled to continue using the land as if the 1985 Scheme had not been altered in 1990.

It is, however, clear that s.20(1)(c) did not and was not intended to preserve for an owner a right to insist that the provisions of the 1985 Scheme continue to apply to land as if it were not affected by the introduction of the new Scheme in 1990. The application of s.20(1)(c) of the Acts Interpretation Act is liable to be displaced by "a contrary intention appearing in any Act". That represents the current form of s.4, as it now is, of the Acts Interpretation Act. Previously it was embodied in s.3 of that Act; but, again, any differences between the two provisions are for present purposes not material. What matters is that s.20(1)(c) or its equivalent operates only as a form of interpretative presumption liable to be displaced by other express provisions or by contextual indications disclosing such an intention. One might expect that what was meant was indications appearing in the repealing Act rather than in the Act repealed; but s.3 explicitly refers to the existence of such an intention appearing "in any Act". Both the Act creating the right, and the Act repealing it, are therefore possible sources of such a contrary intention.

Apart from considerations of the inconvenience liable to arise from adopting any other interpretation, a compelling reason for thinking that s.20(1)(c) was not, at least in general, intended to preserve the operation of a superseded town planning scheme is that the Local Government Act 1936 has, so far as relevant, always embodied a provision for compensating persons injuriously affected by a prohibition or restriction in such a scheme, or by the coming into operation of a provision of a scheme. For present purposes the relevant section is s.33(10)(a) of the Local Government Act 1936, which speaks of an "entitlement to obtain" compensation from the local authority. In the face of that express entitlement, it obviously becomes difficult to sustain an argument that s.20(1)(c) of the Acts Interpretation Act conferred on an owner of land a right to insist on maintaining existing rights under a superseded town planning scheme as if they were not altered or impaired by a repeal or amendment of that scheme. Conferring an entitlement to compensation for rights lost is altogether inconsistent with an intention to preserve those rights unimpaired.

The problem in the present case stems from the fact that s.33(10)(a) was itself repealed by the Local Government (Planning and Environment) Act 1990 (the Act of 1990), which on or from 15 April 1991 substituted a corresponding but fresh compensation provision. It was common ground on this appeal that the new provision, originally designated s.3.5 of the Act of 1990, has no application to Resort Management's claim for compensation arising out of the repeal or amendment of the Scheme in 1990. However, the entitlement to obtain compensation under s.33(10) came into existence at the earliest on 15 December 1990, when the Scheme of 1985 was superseded. It was only after that date, when the Act of 1990 or relevant part of it, came into force on 15 April 1991 that s.33(10) itself was repealed.

There was therefore a period between 15 December 1990 and 15 April 1991 during which Resort Management had at least a potential entitlement to compensation under s.33(10(a) of the Act of 1936 arising out of the impairment in 1990 of what it claims were its rights under the superseded town planning scheme of 1985. What is now urged against its attempt to enforce that claim is that any such entitlement to compensation disappeared with the repeal of s.33(10)(a) on 15 April 1991. In making its claim Resort Management may, it seems, have used the wrong form of document or notice for claiming compensation. In the court below, this was presented by the appellant Council as the principal, and perhaps the only, reason for not accepting the claim. The learned primary judge rejected the Council's submission to that effect, and the point, which was not relied on before this Court, was abandoned on appeal

This makes it difficult to identify any substantial basis in law on which the claim to compensation could legitimately be rejected. Essentially the submission now advanced by the appellant Council is that the compensation claim was made by being served on the Council only on 14 December 1993, which was nearly three years from the repeal on 15 December 1990 of the Scheme of 1985. Why such delay took place is not readily apparent; but, although s.33(12)(c) of the Local Government Act imposed a limit of time for making such a claim, the time it prescribed was three years "from the date on which the claim arose". Since the claim could not have arisen at any time before repeal of the Scheme, it follows that, on any view of it, the claim, although belated, was made within the time allowed by s.33(12)(c) of that Act.

In the end, the submission on behalf of the appellant Council now comes down to this; that s.33(1)(a) was the only basis for Resort Management's entitlement to compensation; and that, when that provision was repealed on 15 April 1991, s.20(1)(c) was not effective to prevent its being extinguished. The statutory entitlement to obtain compensation under s.33(10) was, so it was said, not within the meaning of s.20(1)(c) a "right" or a "right acquired" so as to be capable of surviving repeal of that provision; or at most it was, until the claim was in fact made in 1992, only an inchoate or contingent right on which s.20(1)(c) did not or could not operate.

The submission on behalf of the Council possibly gains a little (although very little) force from the presence in s.33(1) of the words "to obtain"; but that consideration is itself more than offset by the use of the term "entitlement" in the same context. I find it impossible to view a statutory entitlement to compensation like that conferred by s.33(10)(a) on an identifiable person as affording no more than a mere prospect or hope of recompense for rights lost or taken away. No doubt it is true that, unless a claim for compensation is made, no compensation will be paid; but it does not follow that, until such a claim is made, the entitlement has no existence, or that it is of such an inchoate or contingent character as to be beyond the scope or protection of s.20(1)(c). By way of analogy, a common law right to recover damages is viewed as a chose in action before any judgment for damages is given, and even before any writ or claim to recover it has been issued or made. As such, it is a form of personal property capable of attracting the protection of the law: cf. Georgiadis v. Australian & Overseas Telecommunications Corporation (1994) 179 C.L.R. 297.

The "entitlement" to compensation conferred by s.33(1) of the Local Government Act is admittedly a creature not of the common law but of statute; but it is not, for that reason, less capable of being considered a "right" within the meaning of s.20(1)(c) of the Acts Interpretation Act. It may be taken away, as it was created, by statutory enactment; but so too may a right at common law. The primary purpose of s.20(1)(c) is to prevent rights which have been created or conferred by statutes from being casually, or it may be unintentionally, destroyed by repeal of the statute and without any further or other specific indication of a legislative intention to do so going beyond the fact of the repeal itself. Apart from that, s.20(1)(c) has no recognisable function.

To this may be added a reference to the consideration adverted to earlier in these reasons. It is primarily because the Local Government Act 1936 conferred an entitlement to compensation that could be regarded as disclosing an intention that, upon repeal of the town planning scheme, existing rights under that Scheme were not to be maintained by the operation of s.20(1)(c) of the Acts Interpretation Act . If it is correct to view the provision for compensation as in a sense a statutory substitute for the rights impaired by that repeal, it would involve some degree of departure from that reasoning if s.20(1)(c) failed to preserve the compensation entitlement from destruction by later legislation which operated simply to replace it with a new but similar provision. There is nothing in the terms or context of the Act of 1991 to suggest that such a result was intended, and accordingly no reason for refusing in this instance to give to s.20(1)(c) its ostensible meaning and effect.

The authorities considered in the reasons of Fryberg J. support the conclusion arrived at by his Honour. In my opinion the appeal should be dismissed with costs.

I have read the reasons prepared by McPherson J.A. and Fryberg J. and agree with their conclusions and the orders proposed. It is unnecessary for me to repeat what they say about the circumstances and issues involved in this appeal. As the appeal was argued the issue was whether Resort Management Services Limited (Resort Services) had a right to compensation which survived the repeal of s.33(10)(a) of the Local Government Act 1936. The right was founded on the effect of a change in a Town Planning Scheme on Resort Services land. The right survived if it was accrued right in terms of s.20(1)(c) of the Acts Interpretation Act 1954 at the time of the repeal.

I agree with McPherson J.A. and Fryberg J., that the right survived essentially for the reasons given by Fryberg J. As a matter of construction Resort Services had a right of compensation subject to the adoption of the prescribed procedures for working out that right, at the time of repeal. I share McPherson J.A.'s reservations about the role of "contemporary ideas of justice" in giving effect to the provisions of s.20(1)(c). As the reasons of both McPherson J.A. and Fryberg J. demonstrate in any event an analysis of the authorities and of the respective statutory provisions demonstrates that in the present case there was an accrued right of which survived the repeal of the section. I agree with Fryberg J. that the question of whether Re: Gonzo [1989] 1 Qd.R. 160 was wrongly decided should remain open.

This is an appeal from a preliminary ruling made in the course of an appeal to the Planning and Environment Court. For the purposes of the ruling, the following facts were proved or were assumed, expressly or by implication. The present respondent ("Resort Management") is and was at all material times entitled to an estate or interest in land in the Noosa Shire. That land was included within a Town Planning Scheme approved pursuant to s.33 of the Local Government Act 1936 ("the 1936 Act") in 1985. On 15 December 1990 the scheme was amended. Resort Management's estate or interest in its land was injuriously affected either by the coming into operation of the amended provisions in the Scheme or by a prohibition or restriction imposed by them. Resort Management did not immediately make any claim for compensation for that injurious affection.

Section 33(10)(a) of the 1936 Act as it then stood applied in those circumstances. It provided that any person in the plaintiff's position

"... shall, if he makes a claim therefor within the time prescribed, be entitled to obtain from the Local Authority compensation in respect of such injurious affection ... ."

On 15 April 1991 the Local Government (Planning and Environment) Act 1990[1] ("the 1990 Act") commenced. That Act repealed s.33 of the 1936 Act. It contained transitional provisions but it was common ground that none of them applied to the present case. It also contained a provision for compensation which was similar to that previously contained in the 1936 Act, but it was common ground in this Court that this provision could give a right to compensation only in respect of injurious affection occurring after the commencement of the Act.

On 14 December 1993 Resort Management lodged a claim with the present appellant ("the Council") for compensation for the injurious affection. That claim was not in the form prescribed by the Council by by-law under s.33(12) of the 1936 Act, though it contained all of the information required to be included in that form. It was in fact in a form which had been prescribed by regulation for use between 15 April 1991 and 23 July 1992 for claims for compensation under the 1990 Act, and was headed by a reference to that regulation and that Act. Resort Management's solicitors emphatically asserted by letter dated 17 January 1994 that the claim was brought pursuant to the 1990 Act, impliedly asserting a right so to bring it under one of the transitional provisions of that Act. Three days later the Council resolved to reject the claim on the ground (inter alia) that Resort Management did not have a statutory right to apply for compensation for injurious affection. Resort Management lodged an appeal to the Planning and Environment Court against that decision on 28 February 1994.

The decision from which the present appeal was brought was made upon an application by the Council to the Planning and Environment Court for (inter alia):

"2. An Order that the Appellant has no entitlement pursuant to s.3.5 of the Local Government (Planning and Environment) Act 1990 or any other provision thereof to claim compensation pursuant to the provisions of that Act in respect of a claim arising from an amendment made to the Respondent's Town Planning Scheme for the Shire on 15 December 1990;

3. An Order that the Appellant's appeal dated 28 February 1994 in so far as it relates to the claim for compensation for alleged injurious to its land arising from an amendment of the Respondent's Planning Scheme for the Shire on 15 December 1990 be struck out or otherwise dismissed;"

The application also claimed further or other relief as the Court should deem fit.

The learned judge below summarised the Council's argument:

"Essentially the [Council's] argument was that [Resort Management] had no right, pursuant to s.3.5 of the current Act, to make a claim for injurious affection to the subject land which occurred in December of 1990. Any rights to such compensation are confined to those given by the relevant provisions of the repealed Act. Under that Act the entitlement to compensation was conditional upon the making of a claim in accordance with that Act and within the time prescribed thereunder. That time has now expired and a claim pursuant to that Act has not been forthcoming. The only claim made within the limitation period was one which described itself as having been made pursuant to the current Act."

To meet that contention in the Court below, Resort Management argued the point raised in its letter of 17 January 1994, namely that it could invoke the procedures provided under the 1990 Act in respect of injurious affection occurring before the commencement of that Act. The judge rejected that argument. He then continued:

"I accept the [Council's] argument that rights to compensation for the injurious affection of December 1990 are confined to those rights given pursuant to s.33(10) of the repealed Act. Those rights were not of course extinguished upon repeal of that Act but (there being nothing in the 'savings and transitional' provisions of the current Act which assists in any way) endured pursuant to s.20(1) of the Acts Interpretation Act."

He held however that the claim as submitted substantially complied with the form prescribed pursuant to s.33 of the 1936 Act[2], and therefore refused the ruling sought in the application.

Implicit in the argument addressed to His Honour on behalf of the Council was an acceptance of the view that Resort Management would have been entitled to claim compensation on 14 December 1993 if only it had used the correct form. Before us, the Council abandoned that acceptance - indeed, it abandoned the whole of its argument as described by the learned Judge. Instead, it argued that no question of substantial compliance arose, because Resort Management had no right under s.33(10) of the 1936 Act which survived the repeal of that section. That point did not fall within the ambit of its application to the Planning and Environment Court (except perhaps the claim for further or other relief) and, more importantly, it was not decided by that Court. In these circumstances it is by no means clear to me that an appeal lay to this Court from the judge's decision[3]. Moreover the point raised before us did not lie within the ambit of the notice of appeal. However, counsel for Resort Management did not raise these issues and they were not argued before us. For that reason, and to avoid a multiplicity of proceedings, it is preferable that we deal with it. That we do so should not be regarded as setting a precedent.

For the Council, Mr Hampson QC argued that s.33(10)(a) of the 1936 Act did no more than confer the possibility of compensation; it did not confer a right to compensation. Such a right would come into existence only when (and if) a claim for compensation was made. No such claim had been made when the section was repealed. Since s.20 of the Acts Interpretation Act 1954 could operate only on a right which had accrued at the date of the repeal of s.33 of the 1936 Act, it had no application in the present case. All that Resort Management had at the time of the repeal was a capacity to try to avail itself of a statute. On the authorities, that was not a right within the ambit of s.20[4].

Subject to an argument which I shall mention later, there is no doubt that s.20(1)(c) of the Acts Interpretation Act 1954, as it stood at the relevant time, operated to preserve only acquired or accrued rights[5]. On the Council's submission, the first question which arises is whether by reason of s.33(10)(a) of the 1936 Act, Resort Management had such a right within the meaning of s.20. Resolution of this issue depends as much upon the interpretation of s.33(10)(a) as upon the interpretation of s.20. As Mr Justice McPherson observed during the argument, "The question is whether making the claim is itself a part of the definition of the right you have or whether it's merely a procedure that applies to enable your right to be vindicated." It is convenient to consider both provisions at once; but first I shall say something of the function and purpose of s.20.

It is trite to observe that the effects of the repeal of a statute may be both draconian and arbitrary. Section 20 of the Acts Interpretation Act 1954 exists to counter such effects. It reflects some fairly deeply held social attitudes in our community, including (among others) the idea that people should not be arbitrarily dispossessed of their entitlements without proper compensation, at least when the deprivation does not operate equally throughout the community; and that when society regulates the activities of individuals, those rules should not be changed in such a way that those who are in the middle of an activity are disadvantaged by comparison with the remainder of the community. Those themes in my view run through the decided cases relating to s.20 and its equivalents in other jurisdictions. The nature of those attitudes explains the generality of the language used in the section. Particularly in paragraph (c), the language is the language of jurisprudence. It is not susceptible of precise definition, nor should it be[6]. As Fox J. said:

"It is not possible to define an 'acquired right', any more than it is a 'right', but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely."[7]

The present case does not present the type of problem with which Fox J. was concerned, and it is not necessary here to identify something in the nature of a cause of action which has arisen; but it would be just as unwise in the present case as it was in the case cited to attempt to define what constitutes a right or an accrued right or an acquired right. As in that type of case one should also approach the present type of case by asking whether, if the section does not apply, the result would clearly be unjust. In my view that approach in fact underlies most of the decided cases, although it has not often been articulated[8].

That is not to say that the criteria which have been identified in the cases should be thrust to one side, to be replaced by a myriad of random judicial sensibilities. Quite the contrary: the criteria identified in the cases serve as guides, indicating factors relevant to ascertaining a just result. But it must be remembered that they are only indicators, not ingredients in a statutory definition; and one should not hunt among them for fine distinctions. In my view it is no longer appropriate to approach the problem on the basis that "the distinction between what is and what is not a 'right' must often be one of great fineness"[9]. The criteria should be considered, along with any new factors thrown up by the circumstances of the case, and a decision should be made informed not only by those matters, but also by a robust appreciation of contemporary ideas of justice.

The argument for the Council was founded upon a dictum from Abbott v Minister for Lands:

"It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.

It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligation incurred or imposed'. they think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."[10]

In that case, the repealed "right" was a right to purchase land, available to every member of the public. Existing land holders were granted the benefit of relief against a condition of residence on the land purchased, but that was treated by the Judicial Committee as being of no account:

"Their Lordships think it fallacious to say that the section in question conferred on the fee-simple holder of land the 'right' to make conditional purchases. The only right which, as it appears to them, can be said to have been conferred was that he should be absolved from the condition of residence in the case of lands which he had conditionally purchased. The distinction is important, for it shows how broad the contention of the appellant is. It must, their Lordships think, necessarily go to this extent, that all the enactments of the Act of 1861 of which any one could before their repeal have taken advantage continue for an indefinite time in force and may notwithstanding the repeal still be taken advantage of."[11]

What that case illustrates is that a statutory right available to the public in general is not likely to be taken to be an accrued right under s.20 unless the claimant has taken appropriate steps, or some event has happened, to enable him or her to take advantage of the right by the date of repeal. By that step, a person's right becomes specific rather than general. The conclusion in Abbott v Minister for Lands is consistent with the view of the function of s.20 advanced above.

The view that s.20 applies to specific rights as opposed to rights immediately available to the whole community (or a large class of it) at the date of the repeal is supported by a statement of Channell J. in Starey v Graham:

"'[R]ight acquired' means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. It does not mean 'right' in the sense in which it is often popularly used. ... A right enjoyed in that way is not, within the meaning of this saving clause, a 'right acquired'. Otherwise it is obvious that such a clause would nullify the operation of any Act in which the clause was inserted."[12]

It is true that the court in that case was not referred to Abbott v Minister for Lands, but that cannot be said of a similar statement by Atkin L.J. in Hamilton Gell v White:

"It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instances as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual on the happening of one or other of the events specified in the statute."[13]

For the Council it was argued that the decision in Abbott required that an individual who wished to bring himself within the ambit of s.20 was obliged to take some step, before the repeal of the enactment upon which he relied, to take advantage of the enactment. In my view, the reference made by the Judicial Committee to an "act done by an individual towards availing himself of that right" was intended as an example of a way in which a general right might be converted into a specific right in the sense referred to by Atkin L.J. It is one of the criteria, but not an essential one, which are used to identify those cases in which it would not be just to deprive a person of his or her expectations under a repealed statute. This was the point made by Sugerman P., with whom Holmes J.A. agreed, in Boyce v Hughes:

"It is not, however, essential in my opinion, although it commonly happens, that the acquisition or accrual of the specific right should occur by virtue of some act done on the part of the individual who acquires it or to whom it accrues. The right may be acquired or accrue by reason of the happening of an event specified by the statute which is independent of the act of the individual concerned."[14]

A similar view was expressed by Aspre J.A.[15]; and the reasons of Sugerman P. were approved by a majority of the High Court in Mathieson v Burton[16].

In the present case, Resort Management had not taken any step toward availing itself of its right to compensation at the date of the repeal; but unless it was required to do so by the very words of s.33(10)(a) (a point to which I shall return shortly), I do not think it had to. Subject to that question, the injurious affection of Resort Management's land by the commencement of the amended planning scheme was "the happening of an event specified by the statute" sufficient to allow a right within the meaning of s.20 to be acquired or to accrue. That event was not merely a statutory precondition to a right to compensation; it was an event by which the statutory right became so specific as to bring it within the ambit of s.20. There were, of course, other matters which affected whether a person fell within the class entitled to the right, for s.20 could obviously operate only in respect of those whose claims had not been resolved by the date of the repeal and (probably) whose claims had arisen within the three years prior to that date[17]. And that event not only acted to narrow the class of persons entitled to the right; it also served as the source of the injustice which would result if the right did not survive the repeal. In the present case, the existence of such an injustice can hardly be doubted; and in any event in the circumstances of this appeal, it would hardly lie in the mouth of the Council to complain that that issue involves a question of fact.

Another factor which, on the authorities, is relevant to determining whether a claimed right is sufficiently specific to fall under s.20 is whether at the date of the repeal the realisation of the right was dependent upon any exercise of discretion by a third party. Director of Public Works v Ho Po Sang[18] was decided by the Privy Council on appeal from Hong Kong. In so far as the case is relevant to the present one, it decided that the repealed legislation in question did not in the circumstances of the case lead to the acquisition of a right by the respondent. That legislation provided for the Director to issue a "rebuilding certificate". At the time of the repeal the Director had indicated his intention to issue such a certificate, but had not done so. While that indication was a statutory step, the ordinance in question did not impose an obligation upon the Director to give a certificate in accordance with the declared intention. On the contrary, it expressly provided for an appeal by tenants against the Director's decision to the Governor-in-Council. In determining the appeal the Governor-in-Council expressly exercised absolute discretion. In these circumstances, the Judicial Committee held that the respondent had, at the date of repeal, no accrued right to a certificate; he had no more than a hope of a favourable decision[19]. The case provides a contrast to the present, where s.33 gave neither the Council nor the Local Government Court on appeal any discretion on whether to grant compensation.

Collector of Customs v Albany International Pty Ltd[20] was a decision which considered both Abbott v Minister for Lands and Director of Public Works v Ho Po Sang. At issue in the case was whether the respondent was entitled to payment of a statutory bounty for production of goods over several years prior to the amendment of the statute, no application for bounty having been made either before the date of the amendment or within the time prescribed by the amendment. The Full Court of the Federal Court held that the respondent did not have a right to a bounty without complying with time limits prescribed by the amendment, for two reasons. First, on the proper construction of the amendment it was intended to apply not only to cases arising after its commencement, but to all cases. Second, under the legislation prior to the amendment, the respondent had no accrued right to payment of a bounty until the Minister had approved the payment, a decision which involved matters of discretion. The case is therefore plainly to be distinguished from the present.

Abbott v Minister for Lands was referred to by Kitto J. in Continental Liqueurs Pty Ltd v G F Hueblein and Bro. Inc[21]. There the repealed legislation, the Trademarks Act 1905-1948, had provided that the Court might, on the application of any person aggrieved, upon proof of certain matters, order the removal of a trademark from the register. The applicant had filed its application before the repeal and Kitto J. held that it thereby acquired a right to have the Court decide whether it ought to exercise its jurisdiction under that Act. However, he also said:

"If the application had not been pending in the Court when the new Act came into force, I should have agreed that the applicant company had not a right to relief under section 72 which it could thereafter enforce. Even though it had a locus standi to apply under the section as a 'person aggrieved', section 8[22] of the Acts Interpretation Act could have no application in its favour: see Abbott v Minister for Lands."[23]

His Honour expressed no reasons for that dictum; but it is to be observed that the power conferred on the court by s.72 was discretionary, and the class of persons who might make application ("person aggrieved") was very wide. For those reasons, the present case is distinguishable from it.

Esber v Commonwealth of Australia[24] concerned the repeal of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). Under the 1971 Act, an employee of the Commonwealth who had been receiving compensation under the Act for a continuous period of not less than six months was empowered to request the Commissioner in writing that the liability of the Commonwealth to make further payments to him be redeemed by the payment of a lump sum. The appellant was such an employee. He made that request and it was refused. In accordance with the 1971 Act, he applied to the Administrative Appeals Tribunal for a review of that decision. Thereafter, but before any hearing by the Tribunal, the 1971 Act was repealed. The Tribunal decided to review the decision in accordance with the law applicable under the 1971 Act. The issue before the High Court was the correctness of that decision. The majority[25] held it correct.

The first ground of the decision was that the 1988 Act itself expressly intended that such proceedings should be determined in accordance with the 1971 Act. That part of the decision has no bearing upon the present case. However the Court also considered the position under the Acts Interpretation Act. The majority said:

"The first step in a consideration of section 8 is to identify the 'right' which the appellant says was acquired or accrued under the repealed Act. Paragraph (e) operates in relation to such a right, not independently of it.

In this regard the appellant puts his case on section 49 of the 1971 Act on two footings. First, he says that he had, in the circumstances, a right to redemption of weekly payments. Alternatively, he says that he had a right to have the Tribunal determine his application to review the delegate's decision."[26]

It is the first footing which is material to the present discussion[27]. As to that, the majority said:

"[T]he question is whether, if the Commissioner was satisfied of the matters in paragraphs (a), (b) and (c) of section 49(5), he had any residual discretion to refuse redemption or, perhaps more accurately, whether there were other factors he could properly take into account in so refusing."

The majority found that "not an easy question to answer" and proceeded to decide the issue under the Acts Interpretation Act on the second footing advanced. However the discussion of the first footing is useful for the attention which it directs to the importance of whether the recipient of the application had any residual discretion, a matter already referred to. The discussion also drew attention to the relevance of whether there were other factors which could be considered in refusing an application. In the present case, there were a number of factors under s.33(11) of the 1936 Act which might have disqualified Resort Management from obtaining compensation had they existed; but there was no suggestion before us that any of them had the slightest application to the circumstances, nor that any inquiry which the Council might have wished to conduct in relation to them would be other than a formality. Having regard to the way in which the point argued on appeal was raised, these factual matters should be assumed against the Council.

How then should s.33(10)(a) of the 1936 Act be construed? Is the making of a claim within the prescribed time part of the definition of the right conferred by the section? If it is not there seems little doubt that the right is one falling under s.20(1)(c) of the Acts Interpretation Act 1954. Obviously, the clause expresses a condition. It refers to matters of procedure which are spelled out in greater detail in s.33(12). In Esber v Commonwealth of Australia, the majority said, "Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, although that right might fairly be called inchoate or contingent."[28] In my judgment that describes the situation in the present case. Resort Management had a right to compensation subject to the adoption of the procedures prescribed by the statute for working out that right. As the Privy Council said in Director of Public Works v Ho Po Sang:

"It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act."[29]

The present case is in the former class referred to by the Privy Council. Making a timely claim is not one of the elements defining the right but is merely a condition of its exercise. The function of the condition is not to limit the class of people who would otherwise acquire the right - that was achieved by the other elements of s.33(10)(a). It is to provide a cross-reference to the procedure prescribed for the exercise of the right. That is why this case differs from cases like Continental Liqueurs Pty Ltd v G F Hueblein and Bro. Inc., where commencement of proceedings is the factor that marks out those who have rights (to pursue litigation or some other process) from the public in general (or a large class of it) who merely have a right to take advantage of an enactment.

In these circumstances it is unnecessary to do more than record Resort Management's alternative argument, which fixed upon the fact that at the material time s.20(1)(c) of the Acts Interpretation Act 1954 extended not only to rights acquired or accrued but also to rights "exercisable" - a term apparently not used in most jurisdictions from which the decided cases have been drawn. The only case cited to us in which the word "exercisable" was referred to was Re: Gonzo[30]. On behalf of the Council it was submitted that this case was wrongly decided. I prefer to keep an open mind on the question.

It follows that, pursuant to s.20(1)(e) of the Acts Interpretation Act 1954 subsequent investigations, proceedings and remedies in respect of the right were to be unaffected by the repeal of s.33 and could be instituted, continued and enforced as if the repealing Act had not been passed. The Council abandoned any argument based directly upon non-compliance with the prescribed form. However Mr Hampson submitted that the circumstances clearly showed that Resort Management did not intend to make its application under s.33; it intended to apply under the 1990 Act. He avoided spelling out what consequence flowed from this fact (if it be assumed) and cited no authority in relation to it. This submission did not involve any error or mistake in law on the part of the Planning and Environment Court. It should be rejected.

In my judgment the appeal should be dismissed with costs.

[ 1] Concurrently with its commencement this Act was amended by the Local Government (Planning and Environment) Act 1991, but nothing in this appeal turns upon that fact.

[2] His Honour's reference to s.49 of the Acts Interpretation Act 1954 was presumably intended as a reference to s.40 of that Act as it stood on 15 April 1991.

[3] See Planning and Environment Act 1990 s.7.4(3).

[4] It was not argued that the 1990 Act displayed a "contrary intention" so as to displace the operation of s.20.

[5] Rodway v The Queen [1990] HCA 19; (1990) 169 C.L.R. 515 at p. 523.

[6] As Windeyer J. observed, "We are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld" (Mathieson v Burton [1971] HCA 4; (1971) 124 C.L.R. 1 at p.12). Contrast the approach taken by McEnerney J. in reaching a similar conclusion in Yorkshire Dyeware & Chemical Co Ltd v Melbourne & Metropolitan Board of Works [1968] VicRp 32; [1968] V.R. 277 at p.282.

[7] J R Exports Pty Ltd v Australian Trade Commission (1986) 71 A.L.R. 717 at p.719.

[8] It is apparent in the advice of the Judicial Committee in Free Lanka Insurance Co Ltd v Ranasinghe [1964] A.C. 541 at pp.550-1:

"Their Lordships cannot but feel a considerable sympathy for the unfortunate respondent, who (so far as their Lordships know) has so far received nothing whatever in respect of the damage which he suffered and who, whether for financial reasons or otherwise, has not been represented before the Board on this appeal. ... Their Lordships would indeed be sorry if they were compelled to hold that the terms of the Ceylon legislation were such as to deprive the respondent in the present case of any right to claim against the appellants ... ."

[10] [1895] A.C. 425 at p.431.

[12] [1899] 1 Q.B. 406 at p.411.

[13] [1922] 2 K.B. 422 at p.431; cited with approval by Gibbs J. in Mathieson v Burton [1971] HCA 4; (1971) 124 C.L.R. 1 at p.24.

[14] (1970) 72 S.R.(N.S.W.) 54 at p.57.

[16] [1971] HCA 4; (1971) 124 C.L.R. 1.

[17] See s.33(12)(c) of the 1936 Act.

[18] [1961] UKPC 22; [1961] A.C. 901.

[19] Another issue in the case was whether the respondent had a right to have the appeals pending at the date of the repeal determined. The Judicial Committee held that he did not. Whether that aspect of the decision is authoritative in Australia since the decision of the High Court in Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 C.L.R. 430 may be doubted. It is unnecessary to decide the matter in the present case.

[20] [1991] FCA 408; (1991) 31 F.C.R. 194.

[21] [1960] HCA 37; (1960) 103 C.L.R. 422.

[22] Equivalent to s.20 of the Queensland Act.

[24] [1992] HCA 20; (1992) 174 C.L.R. 430.

[25] Mason C.J., Deane, Toohey and Gaudron JJ., Brennan J. dissenting.

[27] Resort Management did not attempt to support its position by characterising any right conferred by s.33(10) as a right to lodge an application for compensation and have it considered.

[30] [1989] 1 Qd.R. 160.