Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Western Australia.

YALLINGUP FORESHORE LAND BILL 2005
Introduction and First Reading

Bill introduced, on motion by Mr J.A. McGinty (Attorney General), and read a first time.
Explanatory memorandum presented by the Attorney General.

Second Reading

MR J.A. McGINTY (Fremantle - Attorney General) [3.52 pm]: I move -
That the bill be now read a second time.

This bill is substantially the same as was introduced in the previous Parliament and I provide my second reading speech for incorporation into Hansard.

[The following text was incorporated in accordance with a resolution of the house.]

This bill will ensure that the people of Western Australia retain approximately 13.5 hectares of beachfront land, much of which remains in its natural state, at Yallingup near the foreshore and Caves House. This land was resumed from Thomas Garfield Hammond by the state in 1938 for the purposes of “public recreation grounds at Yallingup”. The resumption was carried out under the provisions of the Public Works Act 1902. Subsequently, a number of developments have been done on the land. For example, a road has been established through the land and a barbecue and picnic area has been established on the foreshore side of the road. In addition, some of the land has been used or set aside for car parking and part of the land has been leased to operators of a caravan park. Part of the land has also been used as a fire brigade depot. However, the remainder of the land, which constitutes the major portion of the land, has been left in its natural state.
For the benefit of members, it is important that I outline the relevant statutory provisions and their history.

Section 29 of the Public Works Act 1902: In 1955 the original section 29 in the Public Works Act 1902 was repealed and new sections 29 and 29A were inserted into that Act. These sections provided for a right to the former owner of land to repurchase land resumed under the Public Works Act 1902 in identified circumstances. In 1997 both sections 29 and 29A were repealed. However, transitional provisions in section 200 of the Land Administration Act 1997 continued to apply sections 29 and 29A to the Yallingup land. These transitional provisions were inserted, following representations made to the government, in circumstances which I will outline later.

Section 29 of the Public Works Act 1902 applies where resumed land is, in the opinion of the Governor in Executive Council, not required for the public work for which it was resumed. In those circumstances, section 29 provides that the land may be sold or used for other public work. However, in some circumstances, the former owner must first be given an option to repurchase the land before the land is sold or used for other public works.

Under section 29A of the Public Works Act 1902, the former owner may apply for the matter to be referred to the Governor in Executive Council if the land is not being used for any public work. If the Governor in Executive Council decides that the land is not required for the public work for which it was resumed, the former owner may be given an option to repurchase the land.

The price paid by a former owner who exercises the option to repurchase the land is the initial compensation, plus 10 per cent of that compensation - not compounded - for each year since the land was resumed.

In 1938 the amount of compensation paid for the land at Yallingup was the equivalent of $502. The maximum price that could be required to be paid in 2002 by a former owner of this land, if the provisions of sections 29 and 29A of the Public Works Act 1902 were invoked, is approximately $3 600.

I now wish to turn to legal proceedings taken in relation to this land.

Legal Proceedings Prior to 1993: As I have indicated, in 1938 the Yallingup foreshore land was resumed from Thomas Garfield Hammond. Mr William Garth Hammond is the executor of the estate of his father, Thomas Garfield Hammond.

On 14 November 1988, Mr William Hammond Jr commenced an action in the WA Supreme Court. Mr Hammond sought, first, a declaration as to his entitlement to have his application, under section 29A of the Public Works Act 1902, referred to the Governor in Executive Council. Mr Hammond had applied to the then Minister for Works for this referral to occur. However, the minister declined to refer the matter. Secondly, Mr Hammond sought a declaration that the use of part of this land for a caravan park, parking and a bush fire brigade depot was unlawful.

These proceedings were commenced against the Minister for Works and the Minister for Lands. The members of the executive council at the time were also joined as third defendants. Subsequently, the names of the third defendants have been amended as the membership of the executive council has changed following changes of government. Presently, the current members of the executive council are named as third defendants.

A trial of preliminary issues took place in the Supreme Court before Hon Justice White in 1991. Two principal matters were raised at the trial of preliminary issues concerning the Limitation Act 1935: first, whether, in commencing his action, Mr Hammond had complied with the requirements of section 47A of the Limitation Act 1935. Section 47A required Mr Hammond to commence proceedings within one year of his cause of action accruing. The alleged unlawful use of the land as a caravan park, car park and fire brigade depot began more than one year before Mr Hammond commenced his legal action on 14 November 1988. Alternatively, under section 47A, the court may grant leave to commence proceedings but only within six years of the date on which the cause of action accrued. The second preliminarily limitation issue concerned Mr Hammond’s application to the minister under section 29A of the Public Works Act 1902 for the matter to be referred to the Governor in Executive Council. That application was made on 9 March 1987.

Mr Hammond commenced his Supreme Court action on 14 November 1988. Therefore, more than one year had elapsed between his application under section 29A and commencement of court proceedings. In these circumstances, Mr Hammond would have been prevented by the Limitation Act 1935 from pursuing his claim.

On both preliminary limitation issues, Justice White found that Mr Hammond had not complied with section 47A of the Limitation Act 1935 in commencing his Supreme Court action on 14 November 1988. Mr Hammond subsequently appealed to the Full Court of the Supreme Court against Justice White’s decision in relation to the Limitation Act 1935. The full court upheld Justice White’s decision on the second preliminary limitation issue, namely that Mr Hammond’s cause of action under section 29A of the Public Works Act 1902 accrued more than a year prior to the commencement of the action. The full court did not deal with the first preliminary limitation issue, namely, the applicability of section 47A of the Limitation Act 1935 in relation to Mr Hammond’s claim regarding the unlawful use of the land as a caravan park, car park and fire depot. Despite these court proceedings, it remained open to Mr Hammond to make a new application under section 29A of the Public Works Act 1902 to have the matter referred to the Governor in Executive Council. Mr Hammond could then have commenced fresh proceedings within a year of making a new application, seeking a declaration, as to his entitlement to have the matter referred to the Governor in Executive Council.

On 10 September 1992, after the decision of the full court, Mr Hammond’s solicitors wrote to the Crown Solicitor’s Office. Their letter noted that Mr Hammond had the option of applying for leave to proceed out of time, or initiating the section 29A procedure. Mr Hammond’s solicitors asked whether, in order to avoid this unnecessary expense, the defendants would agree to waive the section 47A Limitation Act 1935 defence. On 2 October 1992 the Crown Solicitor’s Office wrote to Mr Hammond’s solicitors advising that the defendants were not prepared to waive the limitation defence. Simply put, in 1992 the government was not prepared to waive a major defence that the state had to Mr Hammond’s litigation.

Legal proceedings post 1992: Following the change of state government in 1993, Hon George Cash became Minister for Lands. Hon George Cash received two briefings in March and May 1993 from the Department of Land Administration on the Supreme Court action. He also received approaches from the Shire of Busselton and Mr Hammond.

On 29 June 1993, Mr Hammond’s solicitors wrote to Hon Graham Kierath, the then Minister for Works. Mr Hammond’s solicitors made a second application that the matter be referred to the Governor in executive council, under section 29A of the Public Works Act 1902, for a decision as to whether the land was still required for “public recreation grounds at Yallingup”. On 1 July 1993 the principal private secretary to the Minister for Works referred the request to the Minister for Lands.

On 2 August 1993, Hon George Cash, Minister for Lands, wrote to Mr Hammond concerning his second application under section 29A of the Public Works Act 1902, indicating that he would not refer the matter to executive council. However, Hon George Cash also stated that he had instructed the Crown Solicitor’s Office that no application should be made to strike out the present proceedings - that is, the 1988 Supreme Court proceedings - on the ground that section 47A of the Limitation Act 1935 had not been complied with. That is, Hon George Cash, Minister for Lands, instructed the state’s solicitors not to have Mr Hammond’s litigation struck out on the basis that it was statute barred.

Mr Hammond commenced new court proceedings on or about September 1993, based on the second section 29A application. The two Supreme Court actions taken in 1988 and 1993 were joined on 8 October 1993. The written undertakings given by Hon George Cash to this point did not operate to substantively prejudice the state’s interests. The terms of the above waiver of the limitation defence related only to section 47A of the Limitation Act 1935 as it applied to the 1988 proceedings that sought a declaration that the matter be referred under section 29A to the Governor in Executive Council.

A memorandum from the Department of Land Administration on 18 February 1994 instructed the Crown Solicitor’s Office to invoke the general six-year limitation in relation to the claim of unlawful use of the land for a caravan park, car park and a bush fire brigade depot. This defence was filed in March 1994. This prompted Mr Hammond’s solicitors, in a letter dated 14 March 1994, to allege that Hon George Cash’s previous undertaking on 22 August 1993 related to all limitation defences. Mr Hammond’s solicitors denied that this waiver was confined to the section 47A defence. They alleged that the waiver also applied to Mr Hammond’s claim for a declaration that the matter be referred under section 29A of the Public Works Act 1902 to the Governor in Executive Council. A contrary position was advanced in a letter dated 18 March 1994 from the Crown Solicitor’s Office to Mr Hammond’s solicitors.

On 5 April 1994, Hon George Cash received a briefing note on the Limitation Act 1935 issue, which outlined the state’s limitation defence. The effect of this note indicated that on 2 August 1993, waiver of the Limitation Act 1935 related to only the application of the section 29A cause of action. It did not encompass the 1993 application made by Mr Hammond that the matter be referred to the Governor in Executive Council. Hon George Cash wrote the word “noted” and added his signature and date to the briefing note. Subsequently, Mr Hammond wrote a letter on 6 December 1995 and raised with Hon George Cash issues regarding the waiver. On 14 December 1995, Hon George Cash wrote to the chief executive officer of DOLA inquiring why the limitation point was still being pursued. On 29 December 1995, the acting chief executive officer of DOLA wrote to Hon George Cash restating the position that Hon George Cash’s letter of 2 August 1993 to Mr Hammond’s solicitor was confined to the application of section 47A of the Limitation Act to the 1988 proceedings seeking a declaration that the matter be referred under section 29 of the Public Works Act to the Governor in Executive Council.

The acting chief executive officer stated that there was no unqualified waiver of any limitation issue that could be raised in respect of new matters. It was recommended that Hon George Cash maintain his position on this issue. An interim reply to Mr Hammond from the acting chief executive officer was attached. In addition, Hon George Cash was advised that if he agreed with the above points, the Crown Solicitor’s Office would be asked to draft a substantive response to Mr Hammond along these lines as outlined in the memorandum. Hon George Cash signed an “approved” stamp on this memorandum, and dated it 19 January 1996. He also signed the interim reply to Mr Hammond. However, it does not appear that the Crown Solicitor’s Office was ever asked to prepare a substantive response, and Hon George Cash sent no such letter. Mr Hammond sent further correspondence to the subsequent Minister for Lands, Mr Shave, in August 1997.

Ministerial discussions: On 9 October 1997, at Mr Shave’s request, a meeting took place between Hon George Cash, Mr Shave’s chief of staff and DOLA officers. A subsequent meeting also took place on or about 16 October 1997 between Hon George Cash, Mr Shave, Mr House, Mr Shave’s chief of staff and a DOLA officer. As a result of this meeting, Mr Shave issued instructions to withdraw the state’s six-year limitation defence. Acting on those instructions, the Crown Solicitor’s Office wrote to Mr Hammond’s solicitors on 22 January 1998 advising that they had been instructed to withdraw the state’s limitation defence. However, the court documents have never been amended to withdraw the limitation defence.

Land Administration Bill 1997: When the Land Administration Bill 1997 was introduced, it proposed to repeal sections 29 and 29A of the Public Works Act 1902. An approach was made to the state government by Mr House and Mr Hammond’s solicitors to ensure that Mr Hammond’s position was not prejudiced by the proposed repeal of sections 29 and 29A of the Public Works Act. Following a meeting between Mr Hammond’s solicitors, state officers and a ministerial officer of Mr Shave on 30 April 1997, an amendment to the Land Administration Bill 1997 to achieve this was introduced. This amendment had been prompted by concerns raised by Mr House and Mr Hammond’s solicitors as to the effect of the proposed legislation on Mr Hammond’s position. However, the new provisions contained in the amendment to the bill were in general terms. That is, the new provisions did not refer specifically to Mr Hammond’s claim.

On 10 June 1997, these new provisions were introduced at the committee stage of debate on the Land Administration Bill 1997. In the Legislative Council, Hon Max Evans said -

It has come to the Government’s notice that the general savings and transitional provision in the Interpretation Act and in clause 281 of the Bill may not be sufficient to transition across the processes already commenced under the Land Acquisition and Public Works Act. As a matter of precaution it has been decided to include a general transitional provision to ensure that all procedures already commenced under the Land Acquisition and Public Works Act are saved and can be completed under that Act, despite the proclamation of this Bill and the repeal of the relevant provisions of that Act.
The proceedings in committee were then adjourned to 11 June 1997 when Hon Mark Nevill responded to the proposed amendment as follows -
The Australian Labor Party supports this amendment. It allows for processes already commenced under the compulsory resumption of land under the Land Acquisition and Public Works Act to be transferred across. I understand that although the original clause was intended to make that provision, there was some doubt about whether it would achieve that. The Opposition supports this amendment, which I understand puts that beyond doubt
The proposed amendment to the bill was then put and passed.
The consequence of this amendment was that Mr Hammond was able to take advantage of the provisions of sections 29 and 29A of the Public Works Act notwithstanding that both those provisions were not in force in 1938 when his father’s land was resumed and that the provisions had been repealed by the Land Administration Act 1997.

Undue delay defence: In October 1996, the state amended its defence to include an additional defence of undue delay - laches - by Mr Hammond. Following Mr Shave’s instruction in 1997 to withdraw the state’s limitation defence, a question arose as to the status of the undue delay defence. Mr Hammond’s solicitors raised this question with the Crown Solicitor’s Office by letter dated 19 January 1998. On 18 February 1998, in response to the query about whether Mr Shave’s instructions applied to a defence of undue delay that was pleaded separately to the limitation defence, DOLA advised that Mr Shave did not propose to direct that the undue delay defence be withdrawn from the defence. Simply put, the state did not withdraw its undue delay defence.

Subsequently, the government, which included the then premier Richard Court MLA and the then Attorney General Hon Peter Foss MLC, resolved on 18 October 1998 that the case should go to trial on defences, including the limitation defence. All the defendants since that time have maintained that position. Despite this formal decision of government, the actions of Hon George Cash and Mr Shave can be interpreted only as undermining, overriding or, at the very least, compromising that decision.

Mr Hammond seeks to add new grounds to application: In 2000 Mr Hammond sought leave of the Supreme Court to amend his statement of claim to advance new grounds upon which he would rely to succeed in his claim. Mr Hammond’s first new ground sought damages arising out of the alleged unlawful use of the land as a caravan park, car park and fire brigade depot. The proposal to introduce this new ground was subsequently abandoned.

His second new ground was a claim that the original resumption of the land in 1938 was beyond power, and he sought damages or the reinstatement of the land. The defendants opposed the introduction of these new grounds on a number of bases, including section 47A of the Limitation Act 1935.

Affidavit of Hon George Cash: In an affidavit sworn by Hon George Cash on 27 February 2001 in support of Mr Hammond’s application to amend his statement of claim, Hon George Cash stated -

. . . my instructions . . . not to rely upon the Limitation Act or any other defences based on time or delay were absolute, irrespective of the facts pleaded by the plaintiff and the causes of action relied upon by the plaintiff as the basis for the relief claimed.
Hon George Cash also stated that Mr Shave was of the same understanding and had given the same instructions to the Crown Solicitor’s Office; that is, that the state was not to rely upon the limitation defence. In addition, Hon George Cash also stated that he had passed this advice on to the plaintiff. Hon George Cash’s account is supported by an affidavit of Mr Hammond sworn on 1 March 2001. Those affidavits also reveal that there were numerous and close conversations between the ministers and Mr Hammond.
This position now adopted by Hon George Cash does not accord with the recollection of the events by the officer at the Crown Solicitor’s Office to whom the oral instructions were allegedly given. Hon George Cash’s new position is not entirely consistent with the 2 August 1993 correspondence I have referred to earlier; that is, Hon George Cash’s affidavit goes further than his 1993 correspondence. For example, the former states that he issued instructions on the defence of undue delay as well as the limitation defence - only the latter was raised in 1993.

For the purposes of this litigation, the discussions of prime importance are those between the ministers and Mr Hammond - referred to in the affidavits of Hon George Cash and Mr Hammond - rather than those between Mr Hammond and the Crown Solicitor’s Office or the Department of Land Administration. The parties to these conversations - the ministers and Mr Hammond - have given a consistent account and one which is likely to be accepted by the courts.

Effect of waiver: If the former Ministers for Lands have abandoned the limitation defence and the undue delay defence, there is a significant likelihood that the state cannot now reinstate those defences. An attempt to do so by the commonwealth failed in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394. This High Court decision suggests that this state may be bound by an election or waiver, especially when it is relied upon by the plaintiff. The letter from the Crown Solicitor’s Office of 22 January 1998, in accordance with the instructions of Mr Shave, is likely to constitute an effective waiver of the state’s limitation defence against Mr Hammond’s litigation. Also, if Hon George Cash’s undertakings were as broad as indicated in his affidavit, they may constitute a waiver of the state’s defences in relation to new grounds advanced in 2000 by Mr Hammond.

Proceedings concerning Mr Hammond’s new grounds: Mr Hammond’s application for leave to amend his statement of claim was heard before Master Sanderson in the Supreme Court on 25 September 2001. At this hearing, Mr Hammond withdrew proposed amendments claiming damages for the alleged failure to comply with sections 29 and 29A of the Public Works Act 1902. This removed a major proposed amendment to which the defendants had objected. However, Mr Hammond pursued his application to amend his statement of claim to allege that the land was purportedly resumed for an improper purpose in 1938 and, as a consequence, the resumption was invalid. Master Sanderson held that none of the existing defendants was a proper defendant to the cause of action alleging the invalidity of the resumption of the land in 1938. The master accepted the defendants’ argument that the only proper defendant to such an action was the state.

Mr Hammond then instituted an appeal against the decision of Master Sanderson to the Full Court of the Supreme Court, which was subsequently discontinued.

On 10 November 2003 Mr Hammond commenced a new action in the Supreme Court against the state alleging the invalid resumption of the land in 1938. The state filed a defence on 4 December 2003, pleading defences based on limitations and delay. Mr Hammond has not yet filed a reply to this defence, which would plead the waivers by former Ministers for Lands. Mr Hammond has sought to have the action adjourned by reason of the Yallingup Foreshore Land Bill 2002, which lapsed when the houses of Parliament were prorogued. However, Mr Hammond’s solicitors have indicated that they will rely on the waivers. In a letter of 10 November 2003 they indicated:

“It is our client’s contention that the statements made by the Honorary George Cash (sic) when he was Minister for Lands in 1993 were made by him not in his personal capacity but as a Minister of the Crown the result State of Western Australia is bound by those statements (sic). As a result, the State cannot rely on time or delay, instead our client’s claim is to be decided on the merits after he has had his day in court.”
In the original litigation, Mr Hammond continues to seek declarations as to the invalid use of part of the land for a caravan park, car park and fire brigade depot. The limitation defence was an important element of the state’s defence to this claim. However, there is a good case for saying that the defendants have waived the limitation defence. The argument that the state has waived its limitation defence is weaker in relation to Mr Hammond’s proposed new grounds. Hon George Cash’s affidavit supports Mr Hammond’s position that the limitation defence has been waived in relation to these new grounds.
Legislative Remedy: A legislative solution is the most effective and appropriate way to deal with all these issues. It is within this Parliament’s power to make a law prescribing the status of land. A recent precedent for Parliament exercising its power when the land was the subject of litigation can be found in H A Bachrach Pty Ltd v The state of Queensland and Ors (1998) 195 CLR 547.

In the circumstances I have outlined, several factors strongly support this Parliament enacting the bill. First, the statutory provisions that give Mr Hammond his entitlement did not exist in 1938 when the land was resumed, and do not exist in the same beneficial terms now. Second, the land is a valued and important community asset. Third, the probable waiver by Hon George Cash and Mr Shave of the limitation defences significantly weakens the state’s position. Fourth, the propriety of that waiver, especially in the terms in which Hon George Cash now says it was given, is open to serious question.

This bill implements the government’s proposal to retain this land for the people of Western Australia. The legislation will accomplish the following -

it will preclude a claim that the land was invalidly acquired in 1938;
it will prevent sections 29 or 29A of the Public Works Act 1902 applying to the land;

it will overcome the claim that the caravan park, parking area and bush fire brigade depot were unlawfully used by reason of a failure to comply with section 29 of the Public Works Act 1902;

it will preclude a referral to the Governor in Executive Council under section 29A of the Public Works Act 1902;

it will preclude the application of the current option to purchase provisions in section 190 of the Land Administration Act 1997; and

finally, the bill will provide a process by which the Treasurer can make payment in respect of legal costs incurred in proceedings to which I have referred.

When enacted, this legislation will settle the rights of the parties that are currently in dispute in the Supreme Court proceedings. However, the reality is that this Yallingup land, which was set aside for public use 64 years ago, rightly belongs to all Western Australians. Unless this bill is enacted, this Yallingup land could be lost to a private claimant because of the actions of the two former Liberal ministers Hon George Cash and Doug Shave.
The legislation will overcome the potential damage caused to the state’s position in important litigation by two former Liberal ministers. Those actions have jeopardised the state’s ability to retain public ownership of land in Yallingup worth millions of dollars. Their extraordinary decision to grant waivers to a key defence argument in ongoing court actions - against the advice of departmental officers and the Crown Solicitor’s Office - has seriously compromised the state’s ability to successfully defend this litigation. If this legislation is not enacted to protect the land, a real risk is that this prime beachfront land, worth many millions of dollars, will be handed to Mr Hammond for the mere sum of $3 600.

For the reasons I have already elaborated, the state government has been placed in the position of having to introduce this bill because of the actions of Hon George Cash and Mr Shave in their capacity as former lands ministers. As ministers in the state government, Hon George Cash and Mr Shave had a duty to protect and uphold the public interest. The history of this matter, which I have outlined in some detail, shows that they failed in that duty. Why Hon George Cash and Mr Shave acted against the state’s interest is for them to explain.

In view of all these matters, I am sure that all members will agree that this bill should be enacted. I commend the bill to the house.

Debate adjourned, on motion by Dr G.G. Jacobs.