BIG BROTHER’S (UN)NATURAL JUSTICE

You remember "The Castle"?

The government wanted to resume the family home to accommodate expansion of the airport. A legal battle is taken all the way to The High Court were natural justice prevails and the family lives happily ever after..

Unfortunately in real life, happy endings are rare.

Imagine you are a builder and you are building a house. You have done your searches and obtained all the necessary council and government approvals. The house is valued at $200,000 at completion including your own labour and a small profit and you have put $86,000 of your own money in it for the land, putting in the drainage, sewerage, concrete slab etc.

Then you hear a rumour that a road will be constructed where your house is being built. Surely not! Council and Main Roads couldn’t be that stupid to let you construct a building that will be pulled down straight away. Don’t they have a duty of care to the citizens and rate payers?

You contact Main Roads and they inform you that indeed the road is going to be built. Because you think it is absolutely ridiculous to spend another $80,000 or so, only to see the house being pulled down straight away, you agree to the department’s order to stop work.

The department promises that they will buy the property and compensate you for the fact that you had to stop work and couldn’t earn a living.

Their ‘offer’ comes in; $60,000 for the lot. But you have spent $86,000 and what about the builder’s profit and the hard work that you have put in. Bad luck, "that is all you are going to get" the department tells you. They finally give you $60,000, 7 months after they ordered you to stop work. In the mean time you had no money and you couldn’t start building another house because you need at least a deposit and all your money is tied up in the house to be demolished. . After 7 months you accept the $60,000 as cashflow is desperate. You have lost $28,000 plus a year’s wages and you have all sort of problems to make ends meet. You resume your builder’s job, very much at a reduced speed because of your financial losses.

You are not happy and take Main Roads to court to recoup some of the losses. Delays and legal costs. More money that you don’t have. You want to settle as quickly as possible but the normal administrative procedures take a long time and it takes 3 years to finish the court case. Surely you finally going to get some money, but it takes another 7 months before the judge makes a decision.

The judge awards you $71,000. This is still $15,000 less than you had spent. A further compensation of $6,000 was agreed to by the solicitors of both parties for the loss of interest and damage as a result of the order to stop work during the 7 months before the resumption. But the only compensation the judge can give under the law is for damages after the resumption and not for damages before the resumption. The judge felt you deserved the $6,000, but sorry it cannot be paid.

Because the judge said it couldn’t be paid the department agrees and breaks the agreement. They are entitled to do this because the right to compensation on resumption "is entirely the creature of statute and does not depend upon general principles of the common law relative to the ascertainment of trespass or other tort or for breach of contract". Hardie J in Charles McDonald Pty v Housing Commission of NSW (1957) 2LGRA 160 at 1611.

So the department can promise whatever it likes but does not have to keep the promise. Breach of Contract does not count in the land Court. And if you think that is bad. In a recent case when a department lost in court they changed the law and won retrospectively.

Russia here we come!

You are getting desperate. You have lost $15,000, let alone your profit and your wages. Your family is hurting, you can’t sleep at night, and your building business is desperately in need of cash. You decide to cut your losses and accept the $71,000 of the judgement. Finally it is all over, you can start life again.

Then 3 days before you are due to receive the money (and having already spent it) Main Roads in its wisdom decides to appeal. You sort of felt good. When you agreed to stop work, you effectively saved the Main Roads department $129,000 which is what they would have had to pay extra if the house had been completed. The Main Roads Department is a government department paid for by you and me. The $129,000 would have come out of the taxpayer’s pocket, payment for a building to be bulldozed and wasted. You saved that money and felt good doing your bit for the community.

You are not feeling so good now.

Another 9 months go by and the appeal is heard. The judges decide that the appeal by the Department was not valid and the amount of $71,000 stands. But in the original judgement you were awarded costs. The rule is that whoever is closest to the midpoint of the claims by both parties is awarded cost and you were closer. In the appeal however the Main Roads, in several misleading statements, emphasises the fact that your original claim was exorbitant. The misleading statements were not challenged, with the result that the judges agreed. Your original claim was for $120,000 being the valuation of the finished property ($200,000) less the amount still to be spent ($80,000).. To speed things up, you dropped every part of the claim about which there was the slightest doubt and only claimed for moneys actually spent which was $89,000. No profit, interest or award for your own labour. All parties agreed that this was the final claim and that that was the claim that counted in law. Nevertheless, the judges decided that your original claim was exorbitant and that you had been naughty and decided that you had to pay our own cost.

The department’s claim actually valued the block of land at minus $10,000 but nobody judged anything wrong with that.

The facts were clear. The judges were misled in believing that your original claim was exorbitant where as a matter of fact your claim was only for the actual money spent and instead Main Roads department’s claim was ridiculous in valuing a block of land at a negative value. Indeed during the trial one of the witnesses for main Roads actually said that if the land would have been offered to him at no cost he would not have accepted it.

After further legal advice you decide to go on appeal on the matter of costs. Submissions are made by both parties and no matter what the Department says they are on very weak ground in maintaining that our claim was exorbitant and it looks very much like we are going to win.

The department objects to everything that we want to include in the " record book" , which is the material that the judges make their decision on, and finally the "record book is prepared.

Then at 4.30 on the evening before the trial, the Department comes up with a late submission. Normally it is not allowed to include such a submission, but next day in the trial the judges allow it to be submitted.

Out of the Department’s hat is pulled the $6,000 interest for the period between the stop work order and the resumption. The judge could not allow it under law and the department did not want to pay it, breaching a contract. However, in the late submission they now allege that technically this amount should have been added to the claim in order to determine the midpoint. All parties and the judge had previously agreed that it was not part of the claim but this was not pointed out to the present judges.

The present judges fall for the magical trick and the midpoint is changed. The judges admit that the fact that the Department has not paid and breached a contract is not fair but irrelevant. They decide in favor of Main Roads and you have to refund the cost that you previously had been awarded.

There is no legal recourse even under common law. A State Government can make as many misleading or deceptive statements as it likes because they are not bound by The Trade Practices Act or Fair Trading Act.

You can’t pay that and will have to go bankrupt. All because Main Roads has stolen your property and made you out to be the criminal in having the nerve to ask for compensation. And when you "won" they deferred justice indefinitely by going on appeal forcing you into legal costs until you went broke.

What avenue does an ordinary citizen have to obtain natural justice if a government department:

It may not be as bad as misery and injustice in other parts of the world.. Nevertheless it is enough to drive a person to suicide, a heart attack or a mental institution.

Natural Justice?

Unlike in the film "The Castle" there is no fairy godmother that will help you to fight your case as an ordinary citizen in the High Court. And even if there was, you would loose, as The High Court has already decided that State Governments can acquire property without just or adequate compensation.

There is nothing we can do. Or is there?

There must me plenty of people that have had similar experiences to me.

 

It is worth fighting for justice.

 

Other reading:

New Port Rail Line

Will these residents be treated the same way by the Queensland Labor Government?

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