Stockdale & Anor v Alesios & Ors [1999] VSCA 128

Stockdale & Anor v Alesios & Ors [1999] VSCA 128 - VSCA 1999 case summary — Zoe

[38]

On this appeal the principal contention of the plaintiffs rested on the common law principle said to be exemplified in Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; [1920] A.C. 508 at 542, 579, that wherever property is taken by government it will not readily be supposed that it is being taken without compensation; and we were referred to Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462 at 467-8, Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 C.L.R. 261 at 290-1 and Johnston Fear & Kingham v. Commonwealth [1943] HCA 18; (1943) 67 C.L.R. 314 at 327, 329, among others. Drawing on what was said by Rich, J. in Australian Apple and Pear Marketing Board v. Tonking [1942] HCA 37; (1942) 66 C.L.R. 77 at 104, counsel described this principle as "based on an old common law doctrine which extends back to Magna Carta" and submitted that it must guide and control the construction of s.153B(1) so that, in determining an amount to be paid under that subsection, the Treasurer and the Minister were bound to have in mind that, the licence having been taken, full compensation was due. Anything less than that, it was said, could be the product only of very clear words indeed and, so far from any such clear words being found here, there was nothing at all in the 1996 Act to tell against the construction which was being advocated. Therefore, in line with the common law, that was the construction that ought to be applied. But in my view this is to misunderstand De Keyser. In that case, property was taken in the exercise of the prerogative and so an application of the common law principle is readily understood. In this case, insofar as property was taken at all, it was taken by statute; for the licence was cancelled by s.153A. The statute effecting that result itself provided for payment to be made and all that remains is properly to construe the relevant legislative provision - that is, s.153B: contrast s.143 of the 1995 Act. In that exercise, the common law principle exemplified by De Keyser can have only limited effect; ultimately the question must turn upon the proper construction of the statute and not upon the common law. That must be so because on a proper reading the statute itself might be such as to exclude the common law principle.

[39]

At one point in their Outline of Argument the plaintiffs were concerned to establish that there had been an acquisition of "property" in this instance, the defendants contending to the contrary. No doubt that debate arose because the 1996 Act in terms cancelled a licence - and, I add, a licence which, as it turned out, was "cancelled" on the very day (31 March) on which, as an annual licence, it was due to expire anyway. In certain circumstances the extinguishment of a licence has been regarded rather as the withdrawal of a privilege than the acquisition of property. Perhaps it is difficult to see here what "property" in the strict sense passed from the citizen to the government, or what it was that having belonged to the individual now belonged to the public; and we were referred to cases such as Banks v. Transport Regulation Board (Vic.) [1968] HCA 23; (1968) 119 C.L.R. 222 at 232-3, Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462 at 467-8, Trade Practices Commission v. Tooth & Co. [1979] HCA 47; (1979) 142 C.L.R. 397 at 413-4, 427-8, Springhall v. Kirner [1988] VicRp 21; [1988] V.R. 159 at 165, Harper v. Minister for Sea Fisheries [1989] HCA 47; (1989) 168 C.L.R. 314 at 325, Minister for Primary Industry v. Davey (1993) 47 F.C.R. 151 at 160, Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 C.L.R. 297 at 306-7 and Commonwealth of Australia v. W.M.C. Resources Ltd. [1998] HCA 8; (1998) 72 A.L.J.R. 280 Some of these cases concerned the constitutional limitation on the Commonwealth's acquiring property otherwise than on just terms and on that account may be affected by special considerations. However that may be, there is no need to consider the authorities in any detail because the defendants have acted on the footing that the licences which were cancelled had a value which was lost to the licence holders, and, as earlier mentioned, that was a basis of the plaintiffs' pleading too. As that approach is common I say no more about it, save to note that it conforms to the heading to s.153B, for what that is worth: Interpretation of Legislation Act 1985 s.36(3), cf.(4).

[56]

For these reasons, I consider that the meaning of s.153B(1) was that ascribed to it by the defendants, the two ministers, and that in their making their determination accordingly no error has been established. After the argument on the appeal was concluded counsel for the plaintiffs sent to the Court, in augmentation of the written Outline earlier supplied for the hearing and his oral argument, a further written submission. This document was delivered without any invitation from the Court and on one view it behoved us not to consider it, at least without inviting the defendants to respond. Not only, however, did the defendants respond of their own accord, but the plaintiffs rejoined with yet a further written submission. This is quite unsatisfactory. Unless the court gives leave or otherwise invites the making of further submissions the conclusion of oral argument should be taken to be the end of the matter, save for judgment. Of course that can be no more than a general precept; there will always be exceptions, such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred. But there was nothing like that here. Counsel for the defendants can scarcely be blamed for responding, but the plaintiffs should not have acted so independently without leave of the court. That is only emphasised when I add that the point which the plaintiffs were seeking to develop by their further submission was already within the plaintiffs' earlier Outline of Argument and that, when developed, the point revealed a significant difference between the parties over how the case had been presented at trial - a difference which, had it mattered, could scarcely have been resolved without further trouble. Fortunately it does not matter in the end; for, having read the further submissions, I am not at all persuaded that there is anything in the point that the plaintiffs were seeking to make. I shall deal only briefly with it.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties

Legislation Cited (2)