FEDERAL COURT OF AUSTRALIA Fitzgerald v Fahey [2000] FCA 95 ADMINISTRATIVE LAW – judicial review of decision to require possession of land – whether a reasonable expectation of consultation. Lands Acquisition Act 1989 (Cth), ss 57, 132 Australian Heritage Commission Act 1975 (Cth), s 30(3) Environment Protection (Impact of Proposals) Act 1974 (Cth), s 5(1), s 8 PATRICK FITZGERALD v JOHN FAHEY, MINISTER FOR FINANCE AND ADMINISTRATION Q 275 OF 1999 DOWSETT J 8 FEBRUARY 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 275 OF 1999 BETWEEN: PATRICK FITZGERALD APPLICANT AND: JOHN FAHEY, MINISTER FOR FINANCE AND ADMINISTRATION RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 8 FEBRUARY 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceedings, including the costs of the application for an adjournment. 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 FOR FINANCE AND ADMINISTRATION RESPONDENT JUDGE: DOWSETT J DATE: 8 FEBRUARY 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 3 February 1972, the Department of the Interior advised the father of the present applicant that certain property owned by him had been acquired by the Commonwealth, vesting therein on 16 December 1971. The land was described as Subdivisions 3 and 4 of Portion 19V and Subdivision 2 of Resubdivision 3 of Subdivision B of Portion 24, Parish of Witheren, County of Ward, containing a total area of 171 acres, 31 perches. Thereafter, and until his death in 1997, the applicant's father, the applicant and other members of the family entered into correspondence with various representatives of the Commonwealth with respect to the right of Mr Fitzgerald senior to continue to reside there. At one stage, an order for possession was obtained against him, but it was never executed. The Government authorities appear to have been reluctant to force the issue and allowed him to continue in possession under various arrangements. During that period, there was also correspondence between the Fitzgerald family and Commonwealth authorities as to the management and use of the land. Those authorities appear to have extended quite exceptional courtesy to the Fitzgeralds throughout this very lengthy period, presumably taking into account their peculiar family interest in the property which is of some significant environmental value. That value has been recognised by various environmental protection agencies. 2 As I have said, Mr Fitzgerald senior died in 1997, and, as far as I can see, whatever claims to continued occupation he may have had died with him. No suggestion to the contrary has been made. It has been asserted at various stages that the present applicant has a right to possession of the land, but no factual or legal basis has been laid for such claim. In those circumstances, on 25 August 1999 or thereabouts, the present respondent decided to give the present applicant a notice pursuant to Section 132 of the Lands Acquisition Act 1989 (Cth). I should say that the land was not acquired under that Act, but under previous legislation. However the matter has proceeded before me upon the basis that, notwithstanding this, s 132 applies. That section provides as follows: (1) This section applies where: (a) an acquiring authority holds an interest in land; (b) the interest entitles the acquiring authority to possession of the land; and (c) another person (in this section called the "unauthorised person") is in possession of the land, otherwise than under a subsisting lease or agreement, or a right of occupancy under section 47. (2) If the unauthorised person: (a) refuses or fails, when so required by the Minister by notice in writing, to give up possession of the land to the acquiring authority; or (b) hinders or obstructs an authorised person attempting to take possession of the land for the acquiring authority; a court of summary jurisdiction may, on the application of the Minister, make an order authorising a member of the Australian Federal Police or other person named in the order, with such assistance and force as are reasonably necessary, to enter on the land and deliver up possession of the land to the acquiring authority. (3) A copy of the application under subsection (2) shall be given to the unauthorised person and that person is entitled to appear and be heard on the hearing of the application. 3 Clearly enough, the Commonwealth has acquired an interest in the land and is entitled to the possession thereof as a result of that acquisition. Equally clearly, to the extent that the present applicant claims to be in possession, he is an unauthorised person for the purposes of s 132(1)(c), having neither lease nor agreement, nor being a person with a right of occupancy pursuant to s 47 of the Act. It follows that the Minister was entitled to require possession pursuant to subs (2) and thereafter to take steps to enforce his demand for possession. It is said that the decision to demand possession is subject to judicial review. Whether that is so is not entirely clear to me, but again, the matter has proceeded upon the basis that it is so. The grounds for review are numerous and appear in the amended application. They have been dealt with extensively by counsel for both sides in their outlines, and so it is relatively easy for me to deal with them seriatim. 4 It is first alleged that the applicant has been denied natural justice, having a reasonable expectation that he would be heard before any decision was taken pursuant to s 132. The bases for this expectation are the various matters referred to in ground 1 of the amended application. These matters constitute letters and conversations between representatives of the Government, including Ministers and the Prime Minister (on one occasion) and principally, the applicant's father, although in some cases the applicant, and in one case, his sister were involved. These various exchanges appear to have related mainly to the right of Mr Fitzgerald senior to occupy the land and to its management. The applicant sought to rely primarily upon exhibits M, N, O, P, T and V to his affidavit filed on 23 December last year. An examination of those documents highlights the difficulty which he faces in trying to establish the reasonable expectation to which he refers. 5 Before turning to them, however, it is important to focus upon the provisions of s 132. The section deals only with obtaining possession; it does not deal with anything else. The present decision is concerned only with that subject, and its validity or otherwise must be considered in that context. Only an expectation to be consulted about a decision to seek possession can be relevant for present purposes. 6 Exhibit M is a letter dated 9 September 1986 from the then Prime Minister to Mr Fitzgerald senior. It relates to land use. It is difficult to see how it can be taken as a basis for an expectation as to consultation about possession. Exhibit N is a fax from the then Minister for Defence, Mr West and is in the form of a press release. Mr West was said to have observed: When and if the Federal Government gets the eviction order, I will seek to negotiate with Mr Fitzgerald to find a solution which is sensitive to Mr Fitzgerald, Killarney Glen and Australian defence interests which do not involve live shooting on the property and the interest of the public who wish to enjoy the area. Some time within the next few weeks, officers in my department in Brisbane will be putting a position to Mr Fitzgerald. 7 This statement relates to the occupation of the land by Mr Fitzgerald senior, indicating that a formal order for eviction was to be sought. It is difficult to see how this document could be relied upon in any way as creating, in the present applicant, a relevant expectation. 8 Exhibit O is a letter dated 24 November 1989 from the State Manager of the Australian Property Group to Mr Fitzgerald senior. The relevant passage indicates that the Minister wished to find: ...a solution which is sensitive to you, Killarney Glen and Australian defence interests. It is not the Minister's intention to proceed with the eviction order at this time. Consultations with interested parties, including yourself, will take place with a view to finding an alternative solution as outlined above. 9 Exhibit P is a transcript of a media conference with Mr West in which, at numerous points, he makes it clear that there is no desire to evict Mr Fitzgerald senior and that there is a desire, at governmental level, to reach agreement as to the management of the land. Again, there is nothing which can be said to justify an inference on the part of the present applicant that he would be consulted prior to any decision being made to seek possession of the land after his father's death. At the time of creation of these documents, the applicant was not in possession of the land, it being then in the possession of his father. Thus it is difficult to see how he could have formed any expectation as to how the Government would behave in respect of his own subsequent illegal occupation. Exhibits T and V, in my view, take the matter no further, and it is not necessary for me to refer to them. Similarly, the other documentation referred to is quite incapable of creating any sort of expectation of the sort alleged. I am satisfied that there is no basis for the assertion that the applicant had an expectation that he would be consulted before any notice of the kind contemplated by s 132 was given to him. 10 The second ground of complaint is that procedures prescribed by s 30 of the Australian Heritage Commission Act 1975 (Cth) were not complied with in connection with the decision. This is a somewhat difficult argument to understand. Sub-section 30(3) provides: Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it. 11 It is common ground that the property is part of the national estate, and the argument appears to be that the property is only part of the national estate because of the presence upon it of the present applicant, meaning that he has performed work upon it which has enhanced its value as part of the national estate. There is also a suggestion that the Department of Defence is unlikely to be as good at husbanding the land as is the present applicant and that the land may therefore be adversely affected to a significant extent if possession is transferred from the present applicant to the Department of Defence. 12 These arguments fail to recognise the fact that the only decision with which I am presently concerned is the decision to seek possession of the land, the right to possession flowing from the long-established position of the Commonwealth as owner of the fee simple title. That decision, and indeed the taking of possession itself, cannot affect the heritage value of the land. If, thereafter, some proposed action may potentially affect the value of the land as part of the national estate, then perhaps there should be a notice pursuant to subs 30(3), but I cannot see that for present purposes, the decision with which I am concerned was one which required such notification. 13 The next ground of criticism is that provisions of s 8 of the Environment Protection (Impact of Proposals) Act 1974 (Cth) were not complied with. That section requires that: Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act. can be given or done by the Minister: (a) for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures; and (b) for ensuring that any final environmental impact statement or public environment report formulated in accordance with those procedures, and any suggestions or recommendations made in accordance with those procedures, are taken into account, in matters to which they relate, in the Department administered by the Minister and by any authority of Australia in respect of which the Minister has ministerial responsibilities. 14 In argument, it was conceded that this section would only have applied if subs 5(1) of the Act applied. It provides: The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to: (a) the formulation of proposals; (b) the carrying out of works and other projects; (c) the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States); (d) the making of, or the participation in the making of, decisions and recommendations; and (e) the incurring of expenditure, by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person. 15 It is submitted that the decision was such as to affect the environment to a significant extent and that s 8 therefore applied. Once again, it seems to me that for the reasons already given, the decision with which I am concerned was not one which could in any way affect the environment. Decisions made thereafter by any person in possession might do so, but I can see no basis for saying that the decision to demand possession would have that effect. 16 The next ground of criticism is that the decision was an improper exercise of the power conferred by s 132 of the Lands Acquisition Act 1989 in that it did not take into account various environmental, social, aesthetic and natural heritage values and that it did not take into account heritage listing and various other matters associated with such listing. It is also complained that the respondent did not take into account recommendations by the Australian Heritage Commission in respect of the future use of the land, in particular the advice of the Commission that the eviction of the applicant would not serve the national estate values of the land. It is also asserted that the respondent failed to take into account changes in the needs of the Defence Department since 1971. Various other complaints were made with respect to use of the land and as to local feeling concerning the threatened eviction of the applicant from it. 17 The answer to all of these complaints is either that s 132 does not enquire that such matters be taken into account or that the decision in question does not, in itself, adversely affect the land. Section 132 requires only that the Commonwealth be entitled to possession and that somebody else be in possession. No other factual matter is relevant to the exercise of the discretion conferred by s 132. The applicant sought to establish that the section was part of some overall plan for the protection of proprietary rights, designed to facilitate acquisition of land by the government in a way which would cause least dislocation to those from whom it was acquired. Such a view is, in my opinion, simply not open. Section 132 is an enabling section, designed to assist the acquiring authority to obtain vacant possession of the land against a person who is not entitled thereto. It is impossible to imagine any rational reason for imposing upon the Commonwealth an obligation to re-litigate with such a person the circumstances in which the Commonwealth came to acquire the land and/or the use to which the Commonwealth proposes to put that land in the future. It is fanciful to imagine that it was the intention of the Parliament that these issues should be litigated with somebody who is no more than a trespasser. In the circumstances, I consider that the application should be dismissed. 18 There is no reason why costs should not follow the event. Although I accept that the applicant was motivated by a desire to protect the public interest, nonetheless the application was bound to fail. It would be quite inappropriate to encourage people to think that they can litigate in those circumstances at no risk as to costs. As to whether or not the Commonwealth chooses to enforce that order, that is a different matter. There may well be considerations militating against its doing so. 19 I order the applicant to pay the respondent's costs of the proceedings, including the costs of the application for an adjournment this morning. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 28 March 2000 Counsel for the Applicant: Mr P Rashleigh Solicitor for the Applicant: Rinaudo & Co Counsel for the Respondent: Mr D Rangiah Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2000 Date of Judgment: 8 February 2000