Buchan v Department of Transport and Main Roads BS4420/16

After a hearing in the Supreme Court on Tuesday 10 May 2016, his Honour Justice Martin delivered a short ex tempore judgment. The judgment does not deal with a novel or difficult point of law. The legal basis for the decision is well known, and amply supported by high authority.

What makes the case important is that it clearly and succinctly reiterates a fundamental aspect of judicial review, one that those seeking to institute (and indeed those defending) judicial review proceedings should heed. It also demonstrates the value to the State of taking decisive steps, when they are properly available, to finalise litigation early.

The applicant’s claim concerned a decision by a Department of Transport and Main Roads (DTMR) officer, representing the State of Queensland as landowner, to terminate a licence agreement over the land.

Under the Land Act 1994, departmental representatives of the State have the power to deal with, lease or licence land owned by the State. There may be circumstances where decisions made under the Land Act would be susceptible to judicial review under the Judicial Review Act 1991 (JRA).

But in this case the decision to terminate the licence agreement was not made under the Land Act but under the licence agreement. And once an agreement, like the licence agreement in this case, is made, it is the agreement between the parties that is the origin of the rights and liabilities between the parties: General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164; Griffith University v Tang (2005) 221 CLR 99.

On that basis, DTMR, represented by Special Counsel Michael Prowse of Crown Law, applied to have the application dismissed. In his ex tempore judgment, Martin J quoted the following passage from the headnote of General Newspapers (the principle applies equally to the JRA and Queensland legislation):

Since the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides the structure for judicial review, not of acts taken under the general law applicable in the community, but rather of acts which have statutory effect because of the provisions of a federal enactment, decisions involving the entry of contracts and conduct leading to the making of such contracts, where the validity of the contracts and the acts done is governed entirely by the general law of contract and not by any enactment, are not reviewable under that legislation.

On the facts of the case, his Honour concluded that there was no ‘decision’ under s 4 of the JRA, and no decision ‘made under an enactment’ to which the JRA would apply. His Honour also found that the making and terminating of a licence agreement over land owned by the State did not take place under ‘non-statutory scheme or program’ under s 4(b) of the JRA.

The application was dismissed and the applicant ordered to pay the respondent’s costs on the standard basis.

The application for a statutory order for review was filed on Tuesday 3 May 2016. Crown Law received instructions to act on Friday 6 May 2016. The application was dismissed on Tuesday 10 May 2016. Finalising the matter within one week saved the client the substantial cost and time that would have been incurred had the matter proceeded to a contested hearing.

Published: 27 May 2016

Author: Tony Keyes