Fitzgerald v Fahey [2000] FCA 94

FEDERAL COURT OF AUSTRALIA

Fitzgerald v Fahey [2000] FCA 94

PROCEDURE – application for adjournment – whether adjournment necessary to allow access to documents ADMINISTRATIVE LAW – whether documents relate to matters which are properly the subject of judicial review – application of section 132 of the Lands Acquisition Act 1989 (Cth) Lands Acquisition Act 1989 (Cth), s 132 Australian Heritage Commission Act 1975 (Cth) Environment Protection (Impact of Proposals) Act 1974 (Cth) PATRICK FITZGERALD v JOHN FAHEY, MINISTER OF FINANCE AND ADMINISTRATION Q 275 OF 1999 DOWSETT J 8 FEBRUARY 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q275 OF 1999

BETWEEN: PATRICK FITZGERALD

APPLICANT

AND: JOHN FAHEY, MINISTER OF FINANCE AND ADMINISTRATION

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 8 FEBRUARY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for an adjournment 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 Q 275 OF 1999

BETWEEN: PATRICK FITZGERALD

APPLICANT

AND: JOHN FAHEY, MINISTER OF FINANCE AND ADMINISTRATION

RESPONDENT

JUDGE: DOWSETT J

DATE: 8 FEBRUARY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision by the respondent to recover possession of certain land which has been vested in the Commonwealth since some time in the 1970s. The land is near to the well-known military establishment at Canungra and was acquired by the Commonwealth for use in connection with the operation of that establishment. The former owner of the land, the father of the present applicant, proved unwilling to give up possession notwithstanding the Commonwealth's acquisition. For whatever reason, the Commonwealth, through its appropriate agencies, was willing to accommodate that position and for a period of many years, up to his death in 1997, left him in possession. Since his death, the present applicant has asserted a right to possession, and such a right was asserted in Court today, although no factual basis is advanced to justify such a claim. It is suggested that he is a tenant at will, but there is no evidence supporting that view. 2 Thus the position appears to be that the Commonwealth, as registered proprietor of the land, has claimed possession against the applicant, who claims to be entitled to possession, but demonstrates no basis for that claim. The respondent has determined, pursuant to s 132 of the Lands Acquisition Act 1989 (Cth), to demand possession of the land and to take such steps as may be necessary to recover it. An appropriate notice was given to the applicant, and he responded by commencing the present proceedings, seeking review of the decision by the Minister pursuant to s 132. I assume, for the moment, that the course adopted by the Minister involved a reviewable decision. 3 The applicant claims firstly, that the decision breached the rules of natural justice in that he had a legitimate expectation that he would be consulted about future steps by the respondent in connection with the land and given an opportunity to comment thereon, that no such consultation took place and no such opportunity was extended to him. Secondly, reliance is placed upon provisions of the Australian Heritage Commission Act 1975 (Cth), the Environment Protection (Impact of Proposals) Act 1974 (Cth) and the Lands Acquisition Act 1989 (Cth). 4 When the matter was called on this morning, the applicant sought to have the proceedings adjourned because he has not been able to obtain access to certain material in the records of the Department of Finance and Administration and in the Department of Defence, said to be relevant to the present application. It seems, however, that these documents were made available to him on the basis of a Freedom of Information application in December of 1999 and January of this year, but that he has not taken advantage of their availability because he is unwilling to pay the relevant fees. There is some doubt as to whether the documents would otherwise be available to him by way of discovery in these proceedings. He does not say that if an adjournment is allowed, he will be able, or willing to pay the relevant fees. 5 The documents relate to the matters raised in pars 4(e) and (k) of the amended application. Paragraph 4(e) alleges: The respondent failed to take into account changes in the needs of the Defence Forces since the initial decision to acquire Killarney Glen in 1971, namely significant reduction in the through-put of the Army All-Corps Training Centre (formerly known as the Land Warfare Centre) ("AACPTC") since the downgrading and eventual cessation of Australian involvement in the war in Vietnam dropping from approximately 6000 at the war's height to 2985 in 1972 to the respondent's current figure of 1600 per year; 6 Subparagraph (k) asserts: The respondent took into account undocumented assertions by the Department of Defence that Killarney Glen was needed for the operation of the AACPTC including as a safety buffer for the effective environmental management of the AACPTC...but failed to take into account [various other matters]. 7 This appears to be a reference to paragraphs in the respondent's reasons, in particular, pars 3, 4, and 5, as follows: 3. I accepted the information provided to me that the area known as Killarney Glen remains an integral part of the overall management strategy for the LWC and it is required for the provision of a safety zone around various training areas, both planned and in place, on the LWC and to ensure the environmental sustainability of the entire area. 4. I also accepted the information that there are increasing pressures on the training area at LWC and that the area must be managed responsibly and in accordance with the LWC environment management plan to ensure its long term viability and suitability as a close country combat training area and to meet the Department of Defence heritage obligations. 5. I considered that this could only be achieved if LWC has unrestricted access to the entire training area without concern for civilians crossing in a situation where there are no effective controls in place. 8 These criticisms of the Minister's decision go to the factual merits of the decision and are not properly the subject of judicial review. They have been dressed up as allegations that the Minister has taken into account irrelevant considerations or has failed to take account of relevant considerations, but that cannot affect their substance. The applicant is really seeking review of a factual question. The documents which he presently seeks go to that factual question rather than to any proper basis for review. 9 In any event, it seems to me that the issues raised in pars 4(e) and 4(k) are irrelevant for a more fundamental reason. There is nothing in s 132 which requires the Minister to take account of matters such as those referred to in these paragraphs. Section 132 is merely a procedural provision, complementary to the acquisition procedure prescribed elsewhere in the Act. It enables the acquiring authority to deal with the problem of an unauthorised person in possession of land which has been acquired. The acquiring authority's need for the land is relevant to the acquisition process, but there is no current challenge to the validity of the acquisition. There is no justification, in my view, for the assertion that before the power conferred by s 132 can be exercised, the acquiring authority's need for the land should be again addressed.