Industrial land resumed for a public purpose was to be valued according to the compensation legislation, and this did not in the circumstances of this case involve valuing the land as unaffected by earlier local government proposals, the High Court of Australia has held. In 2002, NSW Premier Bob Carr announced that the State Government would begin negotiations with Caltex Petroleum to buy the 2.5-hectare headland, Ballast Point on the Birchgrove Peninsula in Sydney, to turn it from a fuel terminal to a harbourside park. McRoss Developments Pty Ltd (which became Walker Corporation Pty Ltd) had an option to purchase the site. Two months after Mr Carr’s announcement Walker exercised that option and contracts were exchanged. While the contract was still on foot, the SydneyHarbour Foreshore Authority compulsorily acquired the land. Caltex received as compensation $14,375,000, calculated by deducting from the $16,500,000 price $2,125,000 for remediation of the land, which Caltex would have had to perform under its contract with Walker. The Caltex compensation is not in dispute. The Valuer-General determined that Walker should be offered $10.1 million in compensation. Walker lodged an objection with the Land and Environment Court, contending that the market value was $81 million. The Land Acquisition (Just Terms Compensation) Act provides in section 55 that the factors to be considered in determining the amount of compensation include the market value of the land on the date of acquisition. Justice Angus Talbot ordered Walker should receive compensation of $43,555,138.50. This was calculated by deducting the cost of completing the contract of sale from an assumed market value of $60 million had the site been earlier zoned “residential”. In 1989 and 1994, Caltex sought to have the land rezoned from “waterfront industrial” to “residential” to permit construction of apartments. Leichhardt Council resisted those proposals and initiated a scheme for a harbourside park on the site. It did not exercise its own powers of acquisition and failed to obtain State and Commonwealth funding. Justice Talbot found that the market value had been constrained by the Council thwarting any change in zoning that would permit residential development. He held that maintenance of the industrial zoning had reduced the value of the land at the time of its resumption in 2002. On appeal by the Foreshore Authority to the NSW Court of Appeal, the matter was remitted to the Land and Environment Court. Justice Talbot again fixed compensation at $43,555,138.50. After a second appeal by the Foreshore Authority, the Court of Appeal again remitted the matter for assessment of the market value. It held that Justice Talbot was in error in his approach. Walker appealed to the High Court against the Court of Appeal’s two decisions. The High Court unanimously dismissed the appeals. Section 56 of the Compensation Act relevantly defines market value as the amount that would have been paid if the land had been sold by a willing but not anxious seller to a willing but not anxious buyer, disregarding any increase or decrease in the value of the land caused by the proposal to carry out the public purpose for which the land was acquired. The Court held that this reflected a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority — the Foreshore Authority — is responsible. Leichhardt Council’s earlier conduct was not a part of the Foreshore Authority’s proposal to make the land public space. The case returns to the Land and Environment Court on the second remitter ordered by the Court of Appeal.
Ayles v The Queen [2008] HCA 6 (28 February 2008)
A trial judge’s amendment of the provision under which a person was charged was within power and did not give rise to a miscarriage of justice in the circumstances of the case, the High Court of Australia has held.
Mr Ayles was charged with six counts of indecent assault and two counts of buggery while he was an Anglican priest at Para Hills in Adelaide. In the South Australian District Court in June 2006 he pleaded guilty to two counts of indecent assault and not guilty to the other charges, all involving a boy, T, whose family were parishioners. Counts 1 and 2 alleged indecent assault between 24 October 1971 and 2 May 1972 to which Mr Ayles pleaded not guilty. Mr Ayles had asked T to clean his house for pocket money when he touched T’s penis (count 1) and encouraged him to reciprocate (count 2). The prosecutor said T fixed the time as during a short period when his parents separated, about the time he was sitting a high school entry exam. This would have been 1971 when he was 12 years old and Mr Ayles 26. However in his testimony T said he believed he had been 13 and had just started high school. T’s birthday is 2 May 1959. The prosecutor applied to amend counts 1 and 2 (and other counts) to make 1 May 1973 the date marking the end of the period in which the offences occurred. Judge Andrea Simpson, who was sitting without a jury, ordered the amendments.
Mr Ayles had been charged under section 70 of the Criminal Law Consolidation Act 1935 (CLCA). It was amended on 9 November 1972 to replace sections 69 to 71 with a single section, section 69. The offences in the period before 9 November 1972 therefore needed to be identified by reference to section 70 and from that date by reference to section 69. In evidence Mr Ayles agreed that the incident that gave rise to counts 1 and 2 occurred but said it happened about October 1973, when T would have been 14. In her written judgment, Judge Simpson amended the end of the period in which count 1 allegedly occurred to 31 October 1973 and changed the relevant provision of the CLCA to section 69. She found Mr Ayles guilty of count 1. He was sentenced to four years’ imprisonment with a two-year non-parole period for the three offences of which he was guilty.
Mr Ayles appealed to the SA Court of Criminal Appeal, arguing that Judge Simpson did not have the power to amend the charge without an application from the prosecutor, and that the effect was to substitute a new charge that went beyond the power of amendment. The CCA held that the prosecutor had foreshadowed an application by identifying the provisions she relied upon at the close of her case. Although she should have formally applied for an amendment so submissions could have been heard, Judge Simpson did not need to wait for an application as a judge was responsible for correcting the pleadings. The CCA held that in the circumstances of the case, there was no miscarriage of justice. Mr Ayles appealed to the High Court.
The High Court, by a 3-2 majority, dismissed the appeal. The majority held that Judge Simpson’s
correction of the provision to section 69 gave effect to the prosecutor’s stated intention and she had not usurped the prosecutor’s role as she he did not decide for herself to add a charge to the indictment. An indictment referring to a statute not in effect at the time of offence was defective but capable of amendment. There was no unfairness or miscarriage of justice.
Telstra Corporation Limited v The Commonwealth [2008] HCA 7 (6 March 2008)
The telecommunications access regime set out in the Trade Practices Act (TPA) did not amount to an acquisition of Telstra’s property, the High Court of Australia has held.
Telstra asserted that contrary to section 51(xxxi) of the Constitution, which provides that Parliament has the power to make laws with respect to the acquisition of property on just terms, the access regime effected an acquisition other than on just terms of some of its local loops, the twisted pairs of copper or aluminium wire running between a local exchange and a consumer’s premises. Telstra has about 10.1 million local loops and about 5,120 local exchanges. The local loops are used for either unconditioned local loop services (ULLS), which have no equipment located along the loop, or line sharing services (LSS), which allows one supplier to use the low-frequency part of the spectrum for a voiceband service to an end user’s premises while another supplier uses the high-frequency non-voiceband part of the spectrum for high bandwidth services.
Telstra began proceedings in the High Court against the Commonwealth, the ACCC and 11 other
telecommunications service providers. Questions were reserved for consideration of the Court. The questions asked whether sections 152AL(3) or 152AR of the TPA in their application to ULLS and LSS were beyond the legislative competence of the Parliament by reason of section 51(xxxi).
The Court unanimously dismissed Telstra’s case, holding that sections 152AL(3) and 152AR of the TPA were not invalid. The rights in Telstra’s assets were rights to use the assets in connection with the provision of telecommunications services but those rights were always subject to a statutory access regime which permitted other carriers to use its assets. Telstra had always owned and operated the assets within a regulatory regime by which other carriers have the right to connect their facilities to Telstra’s network and to obtain access to Telstra services.
