Re Section 11a of the City Area Leases Act 1936 and Re An Application By Wattle Community Association Incorporated To Vary the Covenant In Crown Lease of Block [1990] ACTSC 33 (22 August 1990)

SUPREME COURT OF THE ACT

IN THE MATTER OF Section 11A of the City Area Leases Act 1936 AND IN THE
MATTER OF an application by WATTLE COMMUNITY ASSOCIATION INCORPORATED to vary
the covenant in Crown Lease of Block 29 Section 48 Division of Lyneham in
relation to purposes for which the said Block may be used
S.C.A. No. 264 of 1990
City Area Leases Act 1936
(1990) 101 FLR 21

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

City Area Leases Act 1936 - s.11A(4) - whether mandatory

Hatton v Beaumont and Others (1978) 20 ALR 314

Maloney v McEacharn [1904] HCA 3; (1904) 1 CLR 77

David Jones (Aust.) Pty Ltd v Arauner (1981) 38 ALR 657

Tsoulis v Associated Properties Ltd (1977) 14 ALR 249

HEARING

CANBERRA
22:8:1990

Counsel for Chief Minister: Mr O'Neill, Australian Government Law Office

Counsel for Wattle Community Assosciation Incorporated: Mr J.W. Constance, Messrs Snedden Hall and Gallop

ORDER

The Court orders that the Notice of Motion dated 14 May 1990 be dismissed.

A new Notice of Motion be published and served nominating a new day for hearing.

DECISION

On 10 August 1990, I dismissed an application to vary the purpose clause in a Crown Lease of Block 29 Section 48 Division of Lyneham. The application was made pursuant to s.11A of the City Area Leases Act 1936 (CALA).

2. Whilst more than 30 days notice of the application was given to the public through the Government Gazette and The Canberra Times, only 11 days notice was given to the Minister.

3. Section 11A permits this Court to vary the purpose clause of a Crown Lease. It also provides in sub-s.(4) as follows:-
"The applicant shall file with the Registrar of

the Court a notice of motion together with the
affidavit in support and shall, at least thirty
days before the day named in the notice for
hearing the motion -
(a) serve a copy of the notice and affidavit
on the Minister; and
(b) publish the notice in the Gazette and a
newspaper circulating in the Territory."

4. The issue is whether that requirement is mandatory or whether the Court can overlook non-compliance with it.

5. In Hatton v Beaumont and Others (1978) 20 ALR 314, the High Court held that a provision of the Liquor Act 1912, relating to the institution of an appeal was partly mandatory and partly directory. Jacobs J noted that the word "shall" prima facie indicates a mandatory obligation. However, the context or purpose of the obligation may indicate otherwise.

6. In Maloney v McEacharn [1904] HCA 3; (1904) 1 CLR 77 the use of a particular category of witness for an application for a postal vote was held mandatory. Griffiths CJ considered it significant that it was a case "where a privilege is granted subject to a condition" (p 84). That characterisation is applicable to an application to vary the terms of an existing Crown Lease.

7. The presence of a power to dispense with compliance may indicate that the provision is not mandatory (see David Jones (Aust.) Pty Ltd v Arauner (1981) 38 ALR 657). There is no such provision in the CALA.

8. The purpose of the provision is important. Notice to the public of intention to vary a purpose clause enables a person within 21 days from the publication of a copy of the notice of motion in the Gazette, to give notice of intention to object to the proposed variation (see sub-s.(6)). Unless the 30 days notice required was given, an objector might not have a fair opportunity to take action before the advertised return date.

9. In Tsoulis v Associated Properties Ltd (1977) 14 ALR 249, Barwick CJ held that s.11A(6) of the City Area Leases Ordinance imposed a mandatory obligation on a would-be objector to file notice of intention to object within the 21 day limit. Failure to do so meant that such a person had lost the right to be heard.

10. It was conceded by Mr Constance, for the applicant, that if the obligation under sub-s.11A(4)(a) was not mandatory, the right of the Minister to file a certificate under sub-s.11A(2)(b) would be unfettered by a mandatory obligation to file that certificate no later than seven days before the date named in the notice of motion for the hearing of it.

11. It seems to me that so to characterize that obligation would be inconsistent with Tsoulias v Associated Properties Ltd (supra).

12. The purpose of sub-s.11A(4)(a) is to ensure that the Minister has adequate time within which to decide whether to object to and so terminate the application. If the Minister files the certificate referred to in sub-s.11A(2)(b) the Court must refuse the application.

13. It seems to me, therefore, that the contention of Mr O'Neill, for the Chief Minister, that sub-s.4(a) imposes a mandatory obligation is correct. Accordingly, I find that a failure to comply with sub-s.11A(4), is fatal to the success of this application. It will be necessary for a new notice of motion to be published and served nominating a new day for hearing.