Marshall v Director-General, Department of Transport [2001] HCA 37

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MELVILLE ROBERT MARSHALL APPELLANT

AND

DIRECTOR-GENERAL, RESPONDENT

DEPARTMENT OF TRANSPORT

Marshall v Director-General, Department of Transport

[2001] HCA 37

21 June 2001

B52/2000

ORDER

1. Appeal allowed with costs including reserved costs.

2. Set aside the orders made by the Court of Appeal of the Supreme Court of Queensland on 22 October 1999, and in place thereof, order that:

(a) the appeal to that Court be allowed with costs;

(b) the order of the Land Appeal Court made on 24 July 1998 be set aside;

(c) the application dismissed by the Land Appeal Court be remitted to that Court to be dealt with in accordance with law.

On appeal from the Supreme Court of Queensland

Representation:

D F Jackson QC with D A Kelly for the appellant (instructed by James Conomos Lawyers)

P A Keane QC, Solicitor-General for the State of Queensland with R S Jones for the respondent (instructed by Crown Solicitor for Queensland)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Marshall v Director-General, Department of Transport

Real property – Resumption of land by public body – Compensation – Whether compensation for injurious affection is payable in respect of land taken for the statutory purpose but not, or not yet, physically used for that purpose.

Words and phrases – "injurious affection" – "compensation" – "depreciation" – "severed land" – "residual land" – "road purposes".

Acquisition of Land Act 1967 (Q), ss 4, 7, 12, 20.

Land Act 1962 (Q) ss 44, 45.

Land Clauses Consolidation Act 1845 (UK), s 63.