Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: considered
At a later stage in these reasons, I will refer to the decision of the Privy Council in Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 and that of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355. Both decisions address the effect of irregularities in the exercise of statutory power. However, in considering the consequences of any failure by the council to give notices pursuant to paras 6(1)(b) and (c), it is not necessary to have recourse to those decisions. In my view, the absence of notification is of no significance. Pursuant to subs 9(2) of the Land Holding Act, upon the council approving the Pollards' application, they became entitled to the grant of a lease in perpetuity over Lot 13, and the Governor-in-Council was authorized to grant such a lease. Pursuant to subs 10(1) the title to Lot 13 thereby divested from the council, and the land became Crown land. However, pursuant to subs 10(3), the Crown could only lease it in perpetuity to the Pollards. Nothing in the Land Holding Act supports the proposition that the rights conferred by subs 9(2) were liable to divesture in the event of non-compliance by the council with its obligations pursuant to paras 6(1)(b) and (c). 28 A more useful submission concerned the applicability of the decision of the High Court in Project Blue Sky (supra) at [93] where the majority (McHugh, Gummow, Kirby and Hayne JJ) said, concerning the question of failure to comply with a statutory requirement regulating the exercise of a statutory power: 'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales ... . In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" ... .' 29 At [97] their Honours continued: 'Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act ... .' 30 The Land Holding Act required that there be public notification of any application for the exercise of the council's power, and that any interested party should be heard in opposition. Observance of those requirements may well have been a condition precedent to the exercise of the power. However I see no reason why mere requirements as to the form of the application should be so treated. In any event, at the time of the application, s 40 of the Acts Interpretation Act [1954-1962] (Qld) provided: ' Variations of forms. Whenever, by any Act or by any instrument made thereunder, forms are prescribed, it shall be deemed to be provided, unless the contrary intention appears and provided that deviations from the prescribed forms occurring therein are not calculated to mislead, that forms to the like effect shall be sufficient.' 31 The application was clearly made by both Mr and Mrs Pollard. The absence of Mrs Pollard's signature could not, in any sense, mislead a person reading it. As to the inclusion of the children, the assertion that each had attained the age of 18 years was patently false, given the inclusion of their birthdays. In my view there was sufficient compliance with the statutory and regulatory requirements as to the form of the application. 32 Another matter of potential concern is the fact that the Pollards did not live at the property between 1994 and 2002. Section 18 of the Land Holding Act provided that the lessee must be a qualified person as defined in s 4. Such a person had to be, in the opinion of the council, a resident of the relevant community. Section 22 provided for forfeiture of the lease if the lessee ceased to be a qualified person or if the premises were not occupied 'by or on account of' the lessee for a continuous period of two years. The Pollards' absence from 1994 to 2002 was quite lengthy. One might have expected that questions would have arisen concerning the possible operation of s 18 or s 22. However it was for the council to act as it thought appropriate. It is not necessary to take this matter any further.