First Plaintiff v First Defendant

1 Counsel in this case were agreed at the trial that they were unaware of any previous case quite like it.[1] Nevertheless, or perhaps for that reason, counsel in their oral submissions (over three days) and in their detailed pre-hearing and post-hearing written submissions, referred me to 115 decided cases. They also referred me to 37 legislative instruments and eight secondary sources. I have since found it necessary to consider as well many other decided cases, legislative instruments and secondary sources. Counsel's arguments traversed, among other things, constitutional and statutory law affecting Victorian coastal waters, administrative law, statutory interpretation (especially the reconciliation of conflicting statutory provisions), property law (especially 'indefeasibility' of title in relation to land under, or sought to be brought under, the Torrens system), the law of obligations and various aspects of equity.

2 The matter arises from an application made in December 2011 to the then Department of Sustainability and Environment ('DSE') (on behalf of the relevant Victorian Minister) for a grant under the Land Act 1958 (Vic) of Crown leases over two areas of Victorian coastal waters and subjacent sea-bed.

3 The application was made by one Gerardus (called Gerry) Menke on behalf of a business then being conducted by or on behalf of the Menke family. At that time the family relevantly comprised Gerry Menke and his wife Mary Menke and their four children, Paul, Brett, Sarah and Anna. The business involved the culturing of pearls within abalone. The abalone were held in cages placed on the sea-bed.

4 After the application for the grant of Crown leases was made but before it was finalised, the family business was incorporated as MAPA Pearls Pty Ltd. That company is the fifth defendant in this proceeding. It is common ground that everything possessed, done, required to be done or omitted to be done, at any time, by any member of the Menke family or by the family business as a whole or by any entity involved in its ownership or control, in relation to the application for a grant under the Land Act 1958 or otherwise in relation to the subject matter of this proceeding, is to be attributed to MAPA Pearls Pty Ltd, and this notwithstanding that some relevant events occurred before the company itself was incorporated and registered in February 2015. Hereafter, I will use the expression 'MAPA' to cover not only the company but also, as far as appropriate, the Menke family, its members, the family business as a whole and those who from time to time have controlled the business. This accords with the way in which all of the parties have proceeded in this case.[2] By the time MAPA's application for the Crown grant came to be finally considered, the DSE had been amalgamated into a larger Department called the Department of Environment, Land, Water and Planning ('DELWP').

5 In statutory terms, MAPA's application was, or became, an application for two particular purpose (non-agricultural) leases under s 134 of the Land Act 1958. The proposed leases were to cover two offshore sites, close to two islands off the coast of Eastern Victoria, namely Gabo Island and Tullaberga Island. MAPA's operations were already being conducted at those sites. MAPA had long held appropriate aquaculture licences (and permits) under the Fisheries Act 1995 (Vic) in relation to its operations, but it came to believe that the obtaining, also, of leases of the sites under the Land Act 1958 would provide greater long-term security. However, as will appear, it seems that a more suitable alternative, having regard to the interests of others and to the circumstances generally, may have been renewable 10 year particular purpose licences under ss 138 and 140 of the Land Act 1958.

6 Throughout the Crown lease application process, MAPA and the relevant government officials regarded the offshore sites as Crown land the disposition or occupation of which was governed by the Land Act 1958. That remains the position of MAPA and of those representing the Victorian Government in this case. This became an issue at the trial, but, for reasons to be explained later, it is not an issue that I should finally determine.

7 The sites in question include reefs which have for a long time been productive of abalone and sea urchin, being reefs which, prior to the events now in issue, were fished commercially by the plaintiffs and others as part of their own longstanding operations under fishing licences and quota units issued to them by Victorian Government instrumentalities pursuant to the Fisheries Act 1995. In its original written application under the Land Act 1958 for the Crown leases which, as noted above, was made in December 2011, MAPA expressly recognised the established operations of the fishers, and expressly assured the DSE that it did not seek to exclude the commercial fishers, or anyone else, from the sites. This was noted, and treated as significant, in an intra-governmental email sent in December 2012 by the officer of DSE who was then handling the application. In August 2013, MAPA gave a further written assurance to DSE - this time in the course of applying to the Department for a related consent under the Coastal Management Act 1995 (Vic) ('CMA') - to the effect that MAPA's proposal would have no adverse impacts, economic or otherwise, on anyone at all. In my view, as I will explain in due course, MAPA's assurances to DSE contributed to the fact that at no stage during the lengthy application process were the plaintiffs, or the public generally, notified of MAPA's proposal. This in turn has considerable significance for the plaintiffs' attack in this case on the decisions that were ultimately made on MAPA's application for the Crown leases, and for the plaintiffs' claims in this case generally.

8 For a time during the progress of this case, the plaintiffs sought to make something of another aspect of MAPA's application for the related consent under the CMA. The plaintiffs contended that there was a time-related defect in the ultimate decision of the DSE to grant that consent; and that without a fresh application for, and a fresh grant of, a CMA consent there could be no valid decision to grant MAPA's application for the Crown leases. In the end, the plaintiffs rightly became unenthusiastic about that last step of their time-related CMA point and did not press it.[3]

9 However, there was another aspect of MAPA's application for the Crown leases that does bear very significantly on the lawfulness of the Department's handling of it. This is a matter that intersects with the abovementioned assurances that were given by MAPA to the DSE. Under s 137 of the Land Act 1958, any applicant for a Crown lease has an obligation to notify its application publicly, at least fourteen days in advance of any grant, in a local newspaper and in the Victorian Government Gazette. And, as it happened, Departmental officials told MAPA many times during the application process about this statutory obligation, including the fact that the obligation to carry out the advertising rested on MAPA itself as the applicant. The Department also made it clear to MAPA that this was one of the steps that had to be taken before any Crown lease could be granted.

10 Plainly, the purpose of the statutory obligation is to inform any interested persons of the proposal for the lease and to facilitate the making of any objections (especially by persons who might be adversely affected by the proposal for the grant).[4] However, MAPA did not publish any such notification. It asserts now that, despite the Department's numerous prior statements to the contrary, a Departmental official told MAPA at a very late stage of the application process that the Department would publish the notifications on MAPA's behalf. As surprising as this claim may seem, it is supported by uncontradicted sworn evidence and I am prepared to accept it. However, in my view, MAPA's claim is a matter of little or no moment, because in fact the Department did not publish the notifications either. Nor did anyone else. Indeed, the fishers were given no notice whatsoever of MAPA's proposals. Consequently, the particular Ministerial delegates who ultimately determined, separately and at different times, the two parts of MAPA's application for a Crown grant under the Land Act 1958, completely overlooked the interests of the plaintiffs and of the wider public. In those circumstances, the Ministerial delegates proceeded to purport to grant MAPA the leases sought. Putting aside any overriding Commonwealth legislation or any matters arising from international law, the purported leases would, if valid and effective, confer on the company exclusive possession of the relevant sites, including the sea bed and the waters above.

11 As soon as each purported lease was granted, it was registered under the Transfer of Land Act 1958 (Vic). The first purported lease, which related to the Gabo Island site, was granted and registered in May 2018. The second one, which related to the Tullaberga Island site, was granted and registered in February 2019. Each purported lease was expressed to run for a term of 21 years, with an option to renew for a further term of ten years. It was only in June 2019, after the second purported lease (the Tullaberga Island lease) was registered under the Transfer of Land Act 1958, that MAPA first told the fishers about the purported leases. MAPA then demanded that the fishers cease including the sites in their fishing operations.

12 Over time, exclusion of the plaintiffs and other fishers from access to the reefs would be significantly detrimental to their fishing operations. They have paid, and continue to pay, for appropriate licences and quota units under the Fisheries Act 1995 that, otherwise, would authorise them to include both sites in their fishing operations. Never before had there been a Crown grant to a private body enabling the private body to exclude licensed fishers from the areas covered by their licences and quota units. In all of these circumstances, unsurprisingly, the fishers protested to MAPA about MAPA's reliance on the purported leases. However, MAPA was unmoved. Despite its earlier statements to the DSE to the effect that it did not seek to exclude commercial fishing or to exclude anyone at all, and despite its omission to comply with its statutory obligation to advertise its proposals, MAPA stood on its registered title to the purported leases. And, notwithstanding its own legal and other errors, the State Government in effect supported MAPA as against the fishers.

13 Hence this proceeding. The plaintiffs apply for remedies in the nature of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 in relation to the Departmental decisions to grant the purported leases, together with such further or other relief as may be necessary or appropriate to render those remedies effective. The first five plaintiffs are abalone fishers and the sixth plaintiff is a sea urchin fisher. After some changes to the defendants, the first defendant is the relevant Minister, the fourth defendant is the State of Victoria, the fifth defendant (as mentioned above) is MAPA Pearls Pty Ltd and the sixth defendant is the Registrar of Titles (who has taken no active part in the case and will abide the judgment of the Court). There is no objection to the standing of the plaintiffs to apply for the remedies they seek, nor any objection to any necessary extension of time. No point has been taken about the procedural form of the proceeding (originating motion for judicial review supported by affidavits, as distinct from a writ and statement of claim).

14 In late 2019, the plaintiffs sought an interlocutory injunction to re-establish their access to the sites pending the hearing. The application was opposed by the State defendants and MAPA. As part of its opposition, MAPA asserted that the plaintiffs' fishing operations were a threat to its aquaculture operations.[5] In those circumstances, among others, the interlocutory injunction was refused. Now, however, MAPA in effect admits that neither the plaintiffs' fishing operations - nor even the open public access to the sites that was previously available - represented, or would in future represent, any kind of threat to the company's aquaculture operations.[6]

15 For the final hearing, affidavit evidence was filed on behalf of the plaintiffs, the State defendants and MAPA respectively, although the (only) affidavit filed by the State defendants was largely documentary and did not come from either of the Ministerial delegates who purported to grant the leases or from any officer with principal responsibility for preparing material for the delegates. No objection was taken by any party to the admissibility of any of the affidavit evidence of any other party.

16 At the final hearing, six main issues were raised by the parties:

(i) Were the areas that were purportedly leased to MAPA under the Land Act 1958 'Crown land' that was covered by that Act?

(ii) Did the (admitted) failure to advertise the proposed leases invalidate the grants?

(iii) Did the (admitted) failure to hear the plaintiffs invalidate the grants?

(iv) Did the (admitted) failure to take into account the plaintiffs' interests and the interests of the wider public, together with and in the context of MAPA's assurances, the failure to advertise and the failures to hear the plaintiffs, give rise to legal unreasonableness and to jurisdictional error that invalidated the grants?

(v) Was there a valid and current Ministerial consent under the CMA for the use and development of the sites in question, and, if not, did this affect the validity of the grants of the leases?

(vi) Are the purported leases beyond challenge as a result of their registration under the Transfer of Land Act 1958 notwithstanding the facts and circumstances surrounding their grant?

17 Ultimately, after lengthy written and oral submissions, including detailed post-hearing written submissions, the State defendants and MAPA effectively conceded that the grants were invalid for each of the reasons mentioned in sub-paragraphs 16(ii), (iii) and (iv) above.

18 On the other hand, in relation to the issue referred to in sub-paragraph 16(i), those defendants continued to maintain that, when the leases were purportedly granted, the sites were 'Crown land' covered by the Land Act 1958. As mentioned above, I consider that it is inappropriate to determine this issue. That is so mainly because of a post-hearing amendment to the Land Act 1958 to which I will come in due course.

19 The State defendants and MAPA continued to contest the plaintiffs' claim that there was a time-related defect in the CMA consent that rendered it, and in turn the purported leases, invalid (see paragraph 16(v) above). In the end, as already mentioned, the plaintiffs did not press this particular claim.

20 As to the issue referred to in paragraph 16(vi), the State defendants and MAPA maintained that the purported leases, having been registered, were effective according to their tenor regardless of the circumstances surrounding their grant. They relied heavily on the so-called 'indefeasibility' provisions of the Transfer of Land Act 1958. The plaintiffs responded by relying on various claimed 'exceptions' to the principle of indefeasibility and on other related arguments, including, principally, an argument to the effect that the plaintiffs have an 'in personam' right against MAPA to have the registration of the purported leases set aside on the basis that, in all the circumstances, and particularly in view of MAPA's own acts and omissions, MAPA's reliance on its legal rights (ie on its registered title) amounts to equitable (or constructive) fraud as against the plaintiffs. Thus the indefeasibility point ultimately became the main battleground between the parties.

(i) Having regard to my other conclusions it is unnecessary - and because of the abovementioned post-hearing amendment to the Land Act 1958 it is inappropriate - to determine finally whether the sites in question were covered by that Act.

(ii) The failure to advertise the proposed leases did invalidate the grants.

(iii) The failure to hear the plaintiffs did invalidate the grants.

(iv) The failure to take into account the interests of the plaintiffs and of the wider public, together with and in the context of MAPA's assurances, the failure to advertise and the failures to hear the plaintiffs, did give rise to legal unreasonableness and to jurisdictional error that did invalidate the grants.

(v) It is neither necessary nor appropriate to decide whether there was a valid and current Ministerial consent under the CMA for the use and development of the sites, because any want of such consent did not of itself go to the legal validity of the grant of the purported leases.

(vi) Whether or not the purported leases would otherwise have been protected by the Transfer of Land Act 1958, the plaintiffs are entitled to 'in personam' relief against MAPA for equitable (or constructive) fraud on its part constituted by MAPA's unconscientious reliance, as against the plaintiffs, on its registered title in the face of its prior assurances mentioned above and in the face of its non-compliance with s 137 of the Land Act 1958, absent which, almost certainly, the purported leases would not have been granted or, at least, would not have been granted in the form in which they were granted (ie without exceptions or reservations to protect the plaintiffs and other established users of the leased areas). As a result, the plaintiffs are entitled to appropriate relief against the State defendants and MAPA which, subject to further submissions, may include orders in the nature of certiorari or declarations that the purported leases were invalidly granted and are of no force or effect, together with (if need be) appropriate injunctions and/or an order directed to the Registrar of Titles that the registration of the purported leases be set aside or cancelled. It is not necessary or appropriate to express concluded views on the other arguments raised by the plaintiffs in response to the reliance by the State defendants and MAPA on the 'indefeasibility' provisions of the Transfer of Land Act 1958.

22 In the result, as a matter of law, the application made by MAPA under the Land Act 1958 will be exposed as uncompleted and undetermined. If MAPA wishes to persist with the application it will need to re-prosecute it in compliance with the Land Act 1958.

23 I turn now to the relevant facts and events in more detail.

The plaintiffs' pre-existing operations and their rights under the Fisheries Act 1995

24 The principal affidavits filed on behalf of the plaintiffs were the affidavits of Christopher Daniel sworn 16 August 2019[7] and 9 December 2019[8] respectively. Mr Daniel is the fourth plaintiff and is the husband of the fifth plaintiff, Vanessa Daniel. There was, ultimately, no challenge to anything contained in Mr Daniel's affidavits. What follows under the present heading is based mainly on Mr Daniel's affidavits and on the unchallenged summary of the factual background set out in the written outline of opening submissions for the trial prepared by counsel for the plaintiffs.[9]

25 Under the Fisheries Act 1995, the Victorian abalone fishery is sub-divided into three management zones, namely the Western Zone, the Central Zone and the Eastern Zone. The Eastern Zone stretches from approximately Lakes Entrance in Victoria to the New South Wales border.

26 Mr and Mrs Daniel are the sole owners and controllers of their family business of abalone fishing in the Eastern Zone. The other plaintiffs, also, though they be corporations, conduct, in effect, family businesses of fishing for abalone or sea urchins in the Eastern Zone.[10]

27 Commercial abalone fishing has been undertaken in the Eastern Zone since approximately 1965.[11] The plaintiffs hold access licences and/or quota units under the Fisheries Act which entitle them to fish for abalone (in the case of the first to fifth plaintiffs) or sea urchin (in the case of the sixth plaintiff) in the Eastern Zone fishery.[12]

28 From about 2005 to about June 2019, commercial abalone and sea urchin fishing operations, including those of the plaintiffs, co-existed with MAPA's operations under its aquaculture licence in what subsequently became the purported Crown lease areas. Those areas also remained open to recreational users, as is implicitly recognised in the conditions of the aquaculture licence.[13] This co-existence and concurrent use continued throughout the period during which MAPA applied for the Crown leases and took other ancillary steps in relation to the lease application and ultimately executed the second of the purported Crown leases (the Tullaberga lease).

29 In uncontradicted evidence,[14] Mr Daniel estimated that the continued exclusion of the commercial abalone fishers from the reefs in question would be likely to result, directly or indirectly, in a reduction of about 8 tonnes in the total quantity of abalone available to be fished commercially in the Eastern Zone fishery pursuant to the arrangements in place under the Fisheries Act 1995. I accept that estimate. A substantial share of the burden of the potential reduction would (necessarily) be borne by the plaintiffs. There would also be additional operational costs and difficulties as indicated by Mr Daniel.[15]

The events leading up to the purported grant of the Crown leases

30 MAPA had commenced culturing blacklip abalone at the Gabo and Tullaberga sites in about 1996. It appears that, initially, it did so under a general aquaculture permit issued in the name of Mary Menke under the Fisheries Act 1995.[16]

31 On 12 December 2000, a delegate of the then Minister for Environment and Conservation gave consent to MAPA to use and develop coastal Crown land under s 40 of the CMA.[17] That consent permitted MAPA:[18]

To place twenty cages on the western side of Gabo island and twenty cages on the western side of Tullaberga island for the purpose of growing Black lipped abalone. Each cage will contain approximately 50 abalone.

32 Certain conditions were attached to the CMA consent given in 2000, including:[19]

...

• The use and development of the subject land must at all times be in accordance with the Aquaculture Licence, issued pursuant to Section 41 of the Fisheries Act 1995.

• The use and development of the subject land must not commence until the Aquaculture Licence [is] granted in accordance with the requirements of the Fisheries Act 1995.

• This consent will expire if the Aquaculture Licence issued under the provisions of Sec 41 of the Fisheries Act is cancelled.

...

33 For more than a decade, until late 2011, MAPA appears to have been content to cultivate abalone pearls pursuant to the CMA consent granted in December 2000 and the aquaculture licences and permits that were issued to MAPA from time to time under the Fisheries Act 1995.

34 It is not clear whether any particular event prompted MAPA to seek leases over the Gabo and Tullaberga sites under the Land Act 1958. But in November 2011 MAPA (through Gerry Menke) made inquiries with DSE which caused Timothy Shepherd, Senior Project Officer - Property Management, in the Public Land Division of DSE, to write to MAPA on 30 November 2011. In his letter, Mr Shepherd outlined the process by which a Crown lease of unreserved land adjacent to Tullaberga Island might be applied for, and enclosed a blank 'Application to use Crown land' form.[20] On its face, the same blank form could have accommodated either an application for a Crown lease for non-agricultural purposes under Subdivision 1 of Division 9 of Part I of the Land Act 1958, or an application for a Crown licence for non-agricultural purposes under Subdivision 2 of Division 9 thereof.[21] The letter did not mention the Gabo site. Among other matters, Mr Shepherd's letter stated that approval in principle to any proposed lease would involve:

Publication of a notice of intention in the Victoria [sic] Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with section 137 of the Land Act 1958.

35 Shortly after, on 12 December 2011, MAPA (through Gerry Menke) returned the completed form under cover of a handwritten letter, which read:

HI TIM

PLEASE FIND APPLICATION AS REQUERED [sic].

IT COVERS TWO SITES ONE AT GABO ISL. THE OTHER AT TULLABERGA ISL

HAVE A GOOD CHRISTMAS AND MANY THANKS.

REGARDS.

[signed]

GERRY MENKE

36 The application itself comprised a pro forma document with hand written answers filled in.[22] Supporting documents were attached.

37 In section A of the form, under the heading 'APPLICANT DETAILS', Gerry Menke's details were inserted. Section B was headed 'LAND DESCRIPTION', and asked for details of the land which was the subject of the application. The hand written description read:

TWO AREAS OF CROWN LAND FOR AQUACULTURE USE, AS PER AQUACULTURE LICENCE CLA8 'ONE SITE @ GABO ISLAND, area 6ha, and ONE SITE @ TULLABERGA ISLAND area 3ha'.

At the end of Section B, the form appeared to invite the applicant to attach a sketch plan of the land sought to be leased by the printed words 'See ATTACHMENT 1 for Sketch Plan of Crown Land'. Below those words were hand written '& ATTACHED SURVEYS'. The supporting documents attached to the application were surveys of Tullaberga Island and Gabo Island and the surrounding waters, with the sites marked on the relevant areas of sea, and a copy of the aquaculture licence CLA8.

38 Section C of the form was headed 'Non Agricultural Purposes', and sought specific details of the proposal. Hand written into Section C was the following (my emphasis):

CLA8 already possess aquaculture cages of no/minor significance to the natural environment. Further cages are planned for installment [sic]. The aquaculture cages utilize and blend with the natural environment. The improvements do not impede commercial or recreational use. The reason for application is through advice from Mr Andrew Clark, suggesting a lease provides security of use of land to continue a locally funded and run business without fear of a revoke [sic] of use due to circumstance.

The use of this land is needed for future aquaculture use to continue the aquaculture business. This business benefits the local community through employment, promoting local natural products.

39 The next part of the form, in Section C, asked 'Do you propose to have exclusive use of the land? If so, detail the reason for this requirement'. The hand written answer inserted was:[23]

NO NOT EXCLUSIVE AS IT IS IN AN AREA OF COMMERCIAL ABALONE USE.

40 The application form was signed by Gerry Menke and dated 12 December 2011.

41 On 22 October 2012, Mr Shepherd emailed Darryl Burns, Ranger-in-charge, Far East Gippsland, for Parks Victoria seeking advice from Parks Victoria regarding the proposed leases and any special conditions that might be considered for inclusion in the lease. Mr Shepherd's email attached MAPA's completed application form. On 23 November 2012, Mr Burns replied saying, relevantly (my emphasis):[24]

• In principal [sic] I support this application for the purposes of abalone aquaculture.

...

• I am aware of debris associated this aquaculture operations washing up/being deposited on Tullaberga Island. I am keen to see a condition in the lease that requires the lease holder to maintain the site and adjacent areas free of debris associated with aquaculture operations.

...

• Does the Aquaculture Lease give exclusivity of the site to the lease? The waters adjacent to Tullaberga & Gabo are utilised by commercial and recreational fishers and divers. I anticipate issues arising from these groups if this is the case.

42 Mr Shepherd replied on 3 December 2012. His response included, relevantly (my emphasis):[25]

Site specific conditions can be added to the standard lease document, including requirements for set asides, debris removal and boundary marking.

The details regarding the land status will be identified in a Survey Report to be completed by the Survey-General Victoria to ensure that the lease sites do not encroach on the National Park or reserved Crown land.

By definition, a lease is designed to provide exclusive use of Crown land to a tenant. However, the proposed tenant has indicated that exclusive use is not required in this case as the lease sites are utilised by other commercial and recreational divers. Accordingly, DSE will consider a condition in the lease to maintain public access or alternatively a licence to undertake the aquaculture activities on the sites.

43 Mr Shepherd appears to have forwarded his emails with Mr Burns to another employee of Parks Victoria, Chantal Allen, on 17 December 2012.[26] On the same day Mr Shepherd sent an email to Chantal Allen which included the following:[27]

Further to our previous emails regarding the proposed aquaculture leases to Mr Gerry Menke adjacent to Gabo Island and Tullaberga Island in Gippsland, please note that Parks Victoria has provided in principle support for the leases providing they do not encroach on the Islands.

Land Administration will advise Mr Menke that a survey report and subsequent survey of the proposed lease sites will need to be conducted.

However, I note that Mr Menke is yet to obtain consent for the aquaculture operations under the Coastal Management Act 1995. Normally for aquaculture reserves, this consent would be progressed by the Department of Primary Industries while establishing the reserve, however as the proposed lease sites are not in a reserve the consent would not have been obtained through this process.

Could you please advise me of the relevant contact from Gippsland Region who will undertake the CMA process ? I'll then include these details in my letter to Mr Menke.

44 The evidence does not reveal any steps taken by MAPA or within Government to progress the lease application between the end of 2012 and August 2013.

45 On 6 August 2013, MAPA (through Paul Menke) applied in writing for a new consent to use or develop Crown Land under the CMA.[28] MAPA did so by reference to the proposal to lease the two sites.

46 Under part 1 'Proposal outline', the application for consent under the CMA included the following:

Mallacoota Abalone Pearls Australia (MAPA) are at current using the aquaculture site CLA 8 and CLA 9 to culture and harvest quality abalone pearls. Mr Gerry Menke, CEO of MAPA, is the person named on the Aquaculture licence and translocation permit used in these operations. MAPA have been in operation for 5 years and are at current producing stunning local product. To solidify land use for future aquaculture use, MAPA and Mr Gerry Menke wish to lease the land currently in use.

47 Part 8 of the application form was headed 'Project description (siting and design, risk)'. It called for responses on, among other things, 'mitigation of public risk' and 'potential impact on coastal processes' and, most significantly for present purposes, 'maintenance of public access'. In response, MAPA set out further details of the project, including the following statement:[29]

The area is open to public recreational use. The area is very remote with little to no public usage.

48 Part 9(b) of the form required responses as to how the proposal was consistent with certain published coastal and environmental policies of the Victorian Government. As to the item 'Differing Demands for use of Coast', MAPA said: 'MAPA does not affect the surrounding use of the available coast line'. As to 'Economic Implications', MAPA said, among other things, 'MAPA has no negative economic affect [sic].[30]

49 On 5 May 2014, some nine months after the application for consent under the CMA was made, Rob Stewart, Program Manager, Public Land, for DSE, signed a memorandum addressed to Grange Jephcott, the 'approved delegate' of the Minister, recommending that Mr Jephcott approve and sign the attached 'Coastal Management Act 1995 Consent'.[31] Under the heading 'Key Issues' the memorandum stated:

The proponent is requesting to change his existing licence issued under the Land Act 1958 to a section 134 lease under the Land Act 1958 for the two sites that he current operates for Aquaculture at Tullaberga and Gabo Islands for the longer term financial viability of the venture.

Of course, the 'proponent' did not then (or ever) hold a licence issued under the Land Act 1958. Rather, MAPA held a licence or licences (and a translocation permit) granted under the Fisheries Act 1995 and an old, apparently superseded, consent to use and develop coastal land granted under the CMA.

50 Under the heading 'Context' the memorandum of Mr Stewart further stated, relevantly:

Due to the change in tenure arrangements from an annual licence to a 25 year lease the proponent was required to obtain a new Coastal Management Act 1995 consent and a revised Native Title Act 1993 Future Act assessment.

51 By letter dated 9 May 2014, Mr Jephcott purported to approve MAPA's application for consent for proposed use and development of coastal Crown land pursuant to the CMA_,_ subject to conditions contained in the notice attached to the letter.[32] At trial, the plaintiffs said that, by virtue of ss 38 and 40 of the CMA, this approval was too late to be valid and effective under the CMA; and, as mentioned above, the plaintiffs contended, at least for a time, that this affected the validity of the later grants under the Land Act 1958 of the purported leases.[33]

52 The consent notice accompanying Mr Jephcott's letter contained the subject line 'CONSENT FOR: LEASE FOR AQUACULTURE PURPOSES TO MALLACOOTA ABALONE PERALS [sic] AUSTRALIA (MAPA)'. The notice listed certain conditions, which, broadly, related to compliance with the terms of the proposed lease under the Land Act 1958 and with the conditions of the aquaculture licence under the Fisheries Act 1995 and with all relevant policies and guidelines. The notice also set the term of the consent as 25 years; provided that the consent would expire if the aquaculture licence was cancelled; and imposed requirements to remove infrastructure on cessation of the authorisations.[34] No conditions dealt with use of the sites by the public or by persons in the position of the plaintiffs.

53 On 22 May 2014, shortly after coastal consent was purportedly granted, Mr Shepherd (of DSE) emailed Andrew Clarke, Manager, Aquaculture, for Fisheries Victoria (a part of the then Department of Environment and Primary Industries ('DEPI'), about the terms of the proposed lease. Mr Shepherd's email included the following (my emphasis):[35]

...

I've also amended the standard aquaculture lease documents for use in this case. Please find the attached document for your reference.

To enable DEPI to progress this lease further, could you please advise whether the following items are relevant to this case and hence should remain in the lease:

• Survey and navigational mark requirements; (the Site will be determined by survey on a Plan for Lease Purposes OP by the Surveyor-General Victoria)
• Acceptable Activity Level;
• Fisheries Reserve and Management Plan; (this could be relevant in the future)
• Baseline Survey;
• Further Term; (should the standard re-application process apply rather than a further term option)
• Guarantor; (does Fisheries Victoria generally request a guarantee)
• Public Disclosure; (DEPI will need to arrange for the advertising requirements of section 137 of the Land Act 1958 to be satisfied and the lease will be registered at the Titles Office once executed, hence the details will be publicly available).

54 Why Mr Shepherd would here indicate to Mr Andrew Clarke that 'DEPI', as distinct from DSE and as distinct from the proponent (MAPA), would 'need to arrange for the advertising requirements of s 137 of the Land Act 1958 to be satisfied' was not explained in the evidence or explored at the hearing. In any event, so far as the evidence shows, no response was received from DEPI, and no steps to further progress the application were taken until the end of 2014.

55 On 17 July 2014, Gerry and Mary Menke were tragically killed when Malaysian Airlines flight MH-17 was shot down over the Ukraine.

56 On 31 December 2014, Damian Clarke of Clarke Legal, the solicitors acting on behalf of Gerry and Mary Menke's estate, sent an email to Mr Shepherd (of DSE) with the subject line 'Estate of the late Gerardus and Mary Menke' that included the following:[36]

We are acting on behalf of the Estate of the abovenamed who were tragically killed in the Malaysian Airlines disaster on 17 July 2014.

At the time Gerry held an Aquaculture Licence being Licence No. CLA8. He was using the Aquaculture Licence for propagation of pearls in abalone.

In support of the Licence he also held a Permit being GA40.

In the lead up to his death, Gerry had made application for transferring the existing Licence to a Coastal Crown Land Lease. We understand from talking with Mr Neilson that consent was given under s.40 of the Coastal Management Act 1995 (this appears to have been done 09/05/14) and then went back to your area for the issuing of the Lease. However we understand that in the interim notification was given as regards to the death of Gerry so matters were put in abeyance.

Under the Estates of Mr & Mrs Menke, the four adult children are the equal beneficiaries, these being Paul, Brett, Sara & Anna.

Brett and Paul are both actively involved in the family business.

We would like to progress matters as a matter of urgency in terms of progressing the Crown Lease for the benefit of the family and a continuation of what their father was doing.

Could you please let us know what is needed.

Additionally we should point out that even though all the Licences have been in the name of Gerry Menke personally, at all times he has been operating them for the benefit of Mollusc Pty Ltd as Trustee for the Menke Family Trust. Is it possible to get everything put in the name of Mollusc Pty Ltd ATF Menke Family Trust?

57 There is no evidence that licences or leases were ever granted to Mollusc Pty Ltd. The possibility that licences or, indeed, the Crown leases themselves, would be transferred or granted to Mollusc Pty Ltd, as a trustee or otherwise, is not mentioned again in the evidence.

58 Also around this time, in late 2014, the Victorian Labor Government was elected, and DSE and DEPI were amalgamated to form DELWP.

59 Mr Shepherd, now acting on behalf of DELWP, responded to Clarke Legal on 7 January 2015 saying, relevantly:[37]

Thank you for your email and please pass on my condolences to the Menke family.

The application for a Crown lease over parts of Gabo and Tullaberga Islands was still in an early stage, and was placed on hold following the tragedy in July 2014.

We are certainly willing to progress the Crown lease to the relevant beneficiaries of the Menke estate providing that the tenant is an appropriate entity to hold the Crown lease and is the same entity which holds Aquaculture Licence CLA8 as the two authorisations will be linked. We will coordinate with Fisheries Victoria to ensure this occurs.

I will review the Crown lease file promptly and prepare correspondence to you to identify the next steps to progress the Crown lease.

60 Further emails followed later on 7 January 2015 in which representatives of Fisheries Victoria indicated that renewals of the aquaculture licence and permit under the Fisheries Act 1995 were expected to be 'signed off' on 12 January 2015.[38]

61 At about 1.31pm on 7 January 2015, Mr Shepherd (for DELWP) forwarded to Andrew Clarke and John Vaytauer, both of Fisheries Victoria, Mr Shepherd's earlier email to Fisheries Victoria dated 22 May 2014 quoted above.[39] About four minutes later, at about 1.35pm, Mr Shepherd emailed the same persons at Fisheries Victoria again, saying:[40]

Further to my previous email in May 2014, I'm reviewing the Menke Crown lease file to progress with the new party.

Could you please review the attached draft Crown lease and advise whether the following items are relevant to this case and hence should remain in the lease:

• Survey and navigational mark requirements; (the Site will be determined by survey on a Plan for Lease Purposes OP by the Surveyor-General Victoria, and Parks Victoria has advised that navigation marks may pose more of a risk to recreational users)
• Acceptable Activity Level;
• Fisheries Reserve and Management Plan; (this could be relevant in the future)
• Baseline Survey;
• Further Term; (should the standard re-application process apply rather than a further term option)
• Guarantor; (does Fisheries Victoria generally request a guarantee)

62 The six dot points in Mr Shepherd's email of 1.35pm on 7 January 2015 to Andrew Clarke and John Vaytauer (of Fisheries Victoria) are almost identical to the first six dot points in the earlier email (of 22 May 2014) to Andrew Clarke that Mr Shepherd had forwarded to them at 1.31pm. The 7 January email, however, does not reproduce the seventh and final dot point from Mr Shepherd's 22 May 2014 email, which (somewhat curiously, as already mentioned) read:

• Public Disclosure; (DEPI will need to arrange for the advertising requirements of section 137 of the Land Act 1958 to be satisfied and the lease will be registered at the Titles Office once executed, hence the details will be publicly available).

63 Andrew Clarke (of Fisheries Victoria) responded the following day (8 January 2015),[41] discussing Fisheries Victoria's preferences on each of the six dot points in Mr Shepherd's 7 January 2015 email (at 1.35pm). Mr Clarke's response does not mention the notification requirements in s 137 of the Land Act.[42] However, those requirements would in due course be referred to again, several times, in various communications.[43]

64 On 3 March 2015, Phil Collins, Senior Project Officer - Land Administration - Land Management Policy Division of DELWP, enters the picture for the first time. It seems that he takes the matter over from Mr Tim Shepherd. Mr Collins writes to Clarke Legal, then acting for MAPA, requesting the details of the proposed lessee and setting out the remaining parts of the process for the grant of the Crown lease. As to the latter, Mr Collins says (my emphasis):[44]

The process to grant each Crown lease will involve the following:

• Approval of the Minister for Environment, Climate Change and Water;

• Agreement to the specific Crown lease document which has been developed by the department for use in the occupation and operation of aquaculture sites;

• Payment of the following statutory fees;

• Lease application fee of $18.50 (no GST);

• Lease preparation fee of $319.10 (no GST), in accordance with the Land Regulations Act 2006;

• Preparation of a Plan for Lease Purposes, in consultation with the Office of the Surveyor-General Victoria (OSGV), to clearly define the sites for each Crown lease. I have enclosed for the surveyor's information a copy of the Guidelines for the Cadastral Survey of Victoria's Offshore Aquaculture Fisheries Reserve, Fisheries Victoria Management Report Series (2005).

The applicant's surveyor should contact the OSGV as follows:-

Eddie Cichoki | Manager Cadastral Infrastructure and Standards

Office of the Surveyor-General Victoria

Level 17, 570 Bourke Street, Melbourne Victoria 3000

T: 03 8636 2545 | M: 0429 161 369 | eddie.cichoki@delwp.vic.gov.au

• Payment of lease rental in accordance with the Leasing Policy for Crown Land in Victoria 2010 as assessed by the Office of the Valuer-General Victoria or its appointed qualified valuer based on the market value of the aquaculture sites, the permitted use and any restrictions or conditions pertaining to the permitted use;

• Publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with sections 135 and 137 of the Land Act 1958.

Following the completion of the plan for lease purposes, this office will provide you with the appropriate notice for publication;

• Registration of each Crown lease at Land Victoria, including the production of a Certificate of Title and associated Title Plan for each Crown lease, to identify the leasehold interest in the Crown land.

65 Mr Collins' letter appears to have gone unanswered, though Paul Menke deposes that, between March 2015 and February 2016, he followed up with DELWP by phone.[45] It is common ground that DELWP never provided MAPA with a 'notice for publication'.

66 On 1 March 2016, Paul Menke received an email from Mr Collins indicating that Mr Collins had received no response to his email to Clarke Legal of 3 March 2015, and asking Paul Menke to 'please followup [sic] with the solicitors and advise me as to your intentions'.[46]

67 According to his affidavit, Paul Menke recalls, and I accept, that, in early March 2016, he called Jeremy Nielson, Acting Program Manager for DELWP, regarding the proposed leases. On 23 March 2016, Paul Menke emailed Mr Neilson asking whether Mr Nielson 'would be able to help the Menke family continue this application and hopefully satisfy all points noted'.[47] Mr Nielson responded on 24 March 2016 by email, stating 'I am happy to discuss and assist where I can when you return to the country'.[48]

68 Paul Menke deposes that between April 2016 and early January 2017 he had 'follow up telephone discussions with delegates at DELWP regarding the proposed crown leases'.[49] It may be doubted whether Mr Menke was necessarily dealing with appointed 'delegates' on all (or any) of these occasions, but I accept that he was in discussions with Departmental officers.

69 By January 2017, it seems, Mr Collins' role at DELWP in relation to MAPA's Crown lease application was assumed by a Mr Daniel Dyson. Mr Dyson was a Project Officer, Land Administration, for DELWP. On 13 January 2017 Mr Dyson asked Andrew Clarke (of Fisheries Victoria), by email, whether aquaculture licence CLA8 had been transferred to another entity. Mr Dyson indicated that DELWP was willing to progress the Crown leases provided that the tenant was the same entity that held licence CLA8.[50] Mr Andrew Clarke replied by email on 16 January 2017, indicating that licence CLA8 was held by Brett Menke and that licence CLA8 listed the sites at Gabo Island and Tullaberga Island. As indicated above, Brett Menke is Paul Menke's brother and the son of Gerry and Mary Menke.

70 On 17 January 2017 Mr Dyson emailed Paul Menke again setting out steps that remained to be taken before the Crown leases could issue. The email included the following (my emphasis):[51]

• There are a number of survey requirements which need to be satisfied to enable a Crown lease to be granted. I have re-submitted the original plans by Robert Webb dated 12/03/2002 to the Surveyor-General Victoria (SGV) to confirm requirements. The standard lease process requires the SGV to prepare a Survey Report that determines the survey and legal requirements of the proposed Crown leases. The Survey Report fee of $1199.01 would need to be met by the applicant. This report informs the final preparation of a Plan of Crown allotment in OP format. I will confirm the survey requirements with you as soon as possible.
• Publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with section 137 of the Land Act 1958.

...

I confirm that DELWP is willing to progress the proposed Crown leases provided that the tenant is the same entity which holds Fisheries Licence - CLA 8. Fisheries Victoria has confirmed that CLA8 is held by Brett Gerard Menke at 5 Howden Crt Mallacoota. Can you please confirm that the lease will be in the name of Brett Gerard Menke?

Once the SGV has clarified survey requirements and you have confirmed the above, I will write formally to progress the matter.

71 Later the same day (17 January 2017), Paul Menke replied to Mr Dyson's email. Mr Menke's email included the following:[52]

We may also be Changing the aquaculture licence from Brett Menke (my brother) to MAPA Pearls Pty Ltd, a company my siblings and I are involved in with the abalone pearl aquaculture at site CLA8. This will be happening in the next week and should not hold up proceeding with the finalities of the crown land lease application.

72 Several emails concerning MAPA's details and other information relevant to the leases followed.

73 On 23 February 2017, Mr Dyson wrote to Paul Menke. This time, the correspondence was addressed to Paul Menke of 'MAPA Pearls Pty Ltd'. In his letter, Mr Dyson outlined requirements that needed to be addressed before Ministerial approval for the Crown lease could be sought. Relevantly, the letter included the following (my emphasis):[53]

Survey

The Office of the Surveyor-General Victoria (SGV) has advised that as it has been 15 years since the original survey work was undertaken, MAPA Pearls' surveyor should prepare the lease plans in OP format and submit them to SGV for registration as 'Plan of Crown Allotment' applications via SPEAR. This will give your surveyor the opportunity to review/update his surveys, and subsequently certify the plans under the current Surveying (Cadastral Surveys) Regulations 2015.

The OP plans should be prepared in general accordance with the requirements of the 'Guidelines for the Cadastral Survey of Victoria's Offshore Aquaculture Fisheries Reserves' (enclosed), except that the current SPEAR OP Plan template is to be used. The non-survey or 'NS' OP Plan template is be [sic] utilised so that the appropriate certification can be added by SPEAR to the plan. The surveyor is to add a notation to the Notations panel on each plan describing the GNSS technique used to determine the coordinates, the date of survey and who performed it.

Advertising

In accordance with s 137 of the Land Act 1958 and the Leasing Policy for Crown Land in Victoria 2010, MAPA Pearls Pty Ltd is required to advertise its intention to lease, in both the Victorian Government Gazette and a locally circulating newspaper. Copies of the advertisements must be forwarded to this office when published. A sample advertisement containing the relevant details will be provided once the precise lease area is appropriately defined by survey.

...

Should you wish to proceed in this matter, please provide payment of the enclosed invoice relating to the fees as detailed above.

Ministerial approval to the lease can be sought once the above processes have been completed satisfactorily and the format of lease documentation has been agreed.

74 On 24 February 2017, Paul Menke responded to Mr Dyson's letter by email, which set out steps he was taking with surveyors and concluded (my emphasis): '[f]rom there we can get approval for the survey and gazette the lease application'.[54]

75 Mr Dyson replied to Paul Menke on 27 February 2017 saying, among other things (my emphasis):[55]

Any approval-in-principle would be subject to the survey plans being certified by the Surveyor-General and the advertising requirements (gazette/local newspaper) being met.

76 On 26 April 2017, Paul Menke emailed Mr Dyson, forwarding surveys of the sites. Several emails followed between Mr Menke and Mr Dyson in which they discussed surveying requirements and valuation of the sites until, on 11 May 2017, Mr Menke sent Mr Dyson an email which included the following:[56]

Do we need to Gazette the lease application soon, or is that the last step after the OK from the surveyor general? If so do you have an example that I could use, as I could get this ready.

77 Mr Dyson replied later that day. His email included the following:[57]

The Crown allotment details will need to be confirmed by the Surveyor-General Victoria before advertising can be undertaken. I will provide you with the relevant information for advertising at the appropriate time.

78 It is common ground that DELWP did not ever send to MAPA 'the relevant information for advertising'.

79 On 28 July 2017, the Valuer-General of Victoria wrote separate letters to two officers of DELWP, attaching rental valuation reports for each of the sites. The annual rent for the Gabo site was assessed to be $750 per annum, plus GST.[58] The annual rent for the Tullaberga site was assessed to be $375 per annum, plus GST.[59]

80 On 17 August 2017, Will Guthrie, Executive Director, Land Management Policy at DELWP, a delegate of the Minister, gave approval in principle to the grant of the leases.[60] The approval document included what appears to be a front-sheet headed 'APPROVAL IN PRINCIPLE TO ACQUACULTURE [sic] LEASES AT GABO AND TULLABERGA ISLANDS', with a space for the delegate to tick boxes representing 'Approved', 'Not approved', 'Noted' and 'Returned for review' and a place for the sheet to be signed and dated by the delegate. Under the sub-heading 'Core message', it reads:

Your approval-in-principle is sought as delegate for the Minister for Energy, Environment and Climate Change to the grant of two aquaculture leases over unreserved Crown land adjacent to Gabo Island and Tullaberga Islands for the operation of aquaculture sites.

81 Under the sub-heading 'Recommendations', the front-sheet reads:

1. Pursuant to section 134 of the Land Act 1958, provide your approval in principle to the grant of aquaculture leases to MAPA Pearls Pty Ltd for a term of 21 years.

82 The front-sheet is signed and dated by Mr Guthrie, and the box representing 'Approved' is ticked. The footer is signed and dated as having been endorsed by Ms Crute and reviewed by Nick Houlihan, Manager, Land Administration, the day before, being 16 August 2017. The second and third pages of the approval document set out an internal memorandum addressing key information about the proposed leases, their context and consultation that had occurred regarding them. The footer to those two pages indicate they were prepared by Mr Dyson. The copy of the document in evidence contains some hand-written amendments that do not appear consequential. The substantive parts of those pages read (paragraph 2 is italicised by me for emphasis):[61]

Key information

1. In December 2011 MAPA Pearls Pty Ltd applied for two leases over unreserved Crown land adjacent to Gabo Island and Tullaberga Island in Gippsland for the operation of aquaculture sites. The application was held in abeyance for a number of years due to a tragic event. The estate of the applicant has now re-commenced the process to apply for the leases on behalf of MAPA Pearls.

2. In applying the principles of the Crown Land Leasing Police 2010 to this application, Land Administration has considered the following:

• it is clear beyond reasonable doubt that MAPA Pearls is the only prospective tenant due to it holding a Fisheries Licence to operate at these sites.

• MAPA Pearls will be required to undertaken a public notification process to ensure an open, fair and impartial lease application process.

• Land Administration therefore recommends that a lease by direct negotiation is the preferred method of allocation.

1. MAPA Pearls has prepared survey plans in general accordance with the 'Guidelines for the Cadastral Survey of Victoria's Offshore Acquaculture [sic] Fisheries Reserves' (Attachment 1). Subject to your approval-in-principle the plans will be lodged at the Office of the Surveyor-General Victoria for certification.

2. The Department of Economic Development, Jobs, Transport and Resources (DEDJTR) Fisheries has been consulted and has no objection to the grant of the leases. Fisheries has confirmed that MAPA Pearls holds the appropriate Aquaculture Licence to operate at the proposed lease sites.

3. Fisheries adviseds that as the aquaculture sites are not located within an aquaculture fisheries reserve, the Department of Environment, Land, Water and Planning (DELWP) should progress a standard market rent assessment for the Crown lease.

4. The Valuer-General Victoria has determined a market rent of $375 plus GST for the Tullaberga Island site and $750 plus GST per annum for the Gabo Island site.

5. The leases will be for a term of 21 years for the purpose of operation of aquaculture sites.

6. DELWP's Gippsland Forest Fire and Regions (FFR) has no objection to the grant of the leases. The proposed terms and conditions of the leases will be determined in consultation with Gippsland FFR and Fisheries. Documentation will be in the standard aquaculture section 134 Land Act format.

7. Gippsland FFR has confirmed that there are no procedural rights under the Native Title Act 1993 (Cth) relating to the grant of the leases.

Context

1. On 9 May 2014 the Delegate for the then Minister for Environment and Climate Change provided coastal consent to MAPA Pearls to use or develop the coastal Crown land for aquaculture, pursuant to the Coastal Management Act 1995.

2. Parks Victoria manages Gabo Island, as the appointed committee of management under the Crown Land (Reserves) Act 1978, and Tullaberga Island, as part of the Croajingalong National Park under the National Parks Act 1975, and has provided in-principle support to the proposed Crown leases provided that they do not encroach onto the islands.

Consultation

Land Administration Unit has consulted with the following people during preparation of this briefing:

• Paul Menke, MAPA Pearls Pty Ltd;
• Offices of the Surveyor General and Valuer General Victoria; and
• Andrew Clark, Manager Aquaculture, Fisheries.

83 Of course, the plaintiffs would challenge the assertion in the document that 'it is clear beyond reasonable doubt that MAPA Pearls is the only prospective tenant due to it holding a Fisheries Licence to operate at these sites'. And it is clear that MAPA did not ever engage in a 'public notification process to ensure an open, fair and impartial lease application process'.

84 By a letter dated 23 October 2017 attached to an email of that date, Mr Dyson notified Paul Menke (for MAPA) that approval-in-principle to proceed with the matter had been granted.[62] In his covering email, Mr Dyson indicated that the 'Surveyor-General has advised that the survey plans should be finalised by COB Friday 3 November 2017', and in the meantime attached the 'letter of lease offer outlining the major terms of the proposed leases and process required to finalise the matter'. The attached letter enclosed the proposed lease documents for both the Tullaberga Island site and the Gabo Island site. It stated that 'the document is in the Department's standard format for aquaculture leases under Sec. 134 of the Land Act 1958'. Importantly, the letter also included the following (my emphasis):

In accordance with section 137 of the Land Act 1958, MAPA Pearls is required to publish a notice of intention to lease in the Victoria Government Gazette and a locally circulating newspaper. The notices are to be lodged in this office once published. The instructions for publication will be provided upon finalisation of lease plans from the Surveyor-General Victoria.

85 It is common ground that DELWP did not ever provide to MAPA any 'instructions for publication';[63] and that MAPA did not ever lodge with DELWP any published notices.[64]

86 On 16 and 17 January 2018, Paul Menke exchanged emails with Mr Dyson. In the email exchange, Mr Dyson told Mr Menke that the Surveyor-General had identified a need to amend the survey plan for the proposed Crown lease areas.[65]

87 Paul Menke deposes that he recalls calling Mr Dyson in early April 2018 to ask about the Crown leases, and telling Mr Dyson that he 'did not know what the Government Gazette was, or what was required to undertake the public notification'.[66] He deposes that Mr Dyson responded with words to the following effect: 'The advertising will be handled on our end'.[67] As a result, Mr Menke deposes, he 'assumed that DELWP took care of the public notification'.[68] Mr Paul Menke was not required for cross-examination, either by the plaintiffs or by the State defendants. No evidence contradicting these statements of Mr Paul Menke was adduced by any party. In particular, there was no evidence from Mr Dyson. The fact that Paul Menke was not cross-examined and that his claim on this point is uncontradicted is not conclusive[69] but, as surprising as the claim may be, I accept it as true. Of course, the 'assumed' public notification did not lead to any objections. Mr Menke apparently did not wonder about that. Presumably, he assumed that the public notification would have been of a proposal for non-exclusive rights.

88 On 16 April 2018, Mr Dyson emailed to Paul Menke a copy of the final proposed Crown lease for Gabo Island.[70] Later that day, Paul Menke and his sister, Sara Menke, signed the lease document on behalf of MAPA Pearls Pty Ltd and returned signed copies to DELWP by post.[71]

89 On 8 May 2018, Peter Beaumont, Executive Director, Land Management Policy, at DELWP, another of the Minister's delegates, purported to grant the proposed lease over the Gabo Island site. The grant document[72] was again in the form of a front-sheet. It was headed 'GRANT OF LEASE - GABO ISLAND' with boxes for the delegate to tick for 'Approved', 'Not approved', 'Noted' and 'Returned for review' and a place for the sheet to be signed and dated by the delegate. Under the sub-heading 'Core message', the front-sheet read:

On 17 August 2017 the Executive Director Land Management Policy provided approval-in-principle, as delegate for the Minister for Energy, Environment and Climate Change, to the grant of a new lease to MAPA Pearls Pty Ltd at Gabo and Tullaberga Island (Attachment 1).

MAPA Pearls has agreed to lease terms and conditions for a lease at the Gabo Island site and has executed the lease document which is now submitted for your execution, as delegate for the Minister (Attachment 2).

90 Below the quoted passage, the delegate has ticked 'Approved' underneath the following two recommendations:

1. Approve the terms and conditions of a lease over Crown allotment 2004, Parish of Gabo to MAPA Pearls Pty Ltd, under section 134 of the Land Act 1958.
2. Execute and initial the lease document (in duplicate) where indicated (Attachment 2).

91 Again, the second page of the approval document sets out material under the headings 'Key information', 'Context' and 'Consultation'. The information provided does not mention the public notification requirements or the interests of the commercial fishers or the interests of the wider public at all.

92 Apparently by way of explanation of the bifurcation of the process into an approval for the Gabo Island lease and a separate approval for the Tullaberga Island lease, the following appeared:

The lease over the Tullaberga Island site is pending further survey work, which is being coordinated between the Surveyor-General Victoria and MAPA Pearls. A subsequent brief will be prepared for your approval once the survey matters are completed at Tullaberga Island.

93 The footer to the second page indicates that it was prepared by Mr Dyson.

94 Three days later, on 11 May 2018, the lease over the Gabo site was registered.[73] It was confirmed at the oral hearing that the lease had been submitted to the Registrar of Titles by the Department rather than by MAPA.[74]

95 On 8 January 2019, Cameron McKenzie, Senior Project Officer, Direct Leasing Unit, DELWP, emailed to Paul Menke the final version of the proposed lease documents in respect of the Tullaberga site.[75] On about 22 January 2019, Paul Menke and his sister Anna Cowen signed the proposed Tullaberga Island Crown lease on behalf of MAPA Pearls Pty Ltd and returned signed copies to the Department by post and email.[76]

96 On 7 February 2019, Annie Volkering, Acting Executive Director, Land Management Policy for DELWP, a delegate of the Minister, approved the proposed Tullaberga lease.[77] The front-sheet of the grant document was headed 'GRANT OF LEASE - TULLABERGA ISLAND' and was in substantially identical terms as the front-sheet of the equivalent document relating to the Gabo site, save that it referred to the Tullaberga site, instead of the Gabo site. Ms Volkering appears not to have ticked the boxes to approve the leases, though she signed and dated the bottom of the front-sheet, and the copy of the registered lease that is in evidence is signed by Ms Volkering.[78] The second page of the grant document is very similar to the equivalent part of the Gabo site grant document, though its footer indicates that it was prepared by Mr McKenzie, not Mr Dyson.

97 Again, there is no reference to the public notification requirements, to the interests of commercial fishers such as the plaintiffs or to the interests of the wider public.

98 The Tullaberga Island lease was registered on 13 February 2019.[79] Again, the lease was submitted to the Registrar of Titles by the Department.[80]

99 As indicated above, each of the purported Crown leases purports to confer on MAPA exclusive possession of the leased area, albeit only for the purposes of the aquaculture licence. As the plaintiffs emphasise,[81] it is common ground, now, that exclusive possession was not (and is not) necessary for MAPA's operations under the aquaculture licence; exclusive possession was expressly disclaimed by MAPA when MAPA was applying for the leases, in recognition of existing commercial and recreational abalone fishers; the purported Crown leases would create the only privately owned blocks ever created in the Eastern Zone fishery; and, despite all this, the purported Crown leases were granted without any prior notice being given to the public or to affected interest holders, including the plaintiffs.

100 Further, as mentioned above, MAPA has dropped the suggestion that it raised at the interlocutory injunction hearing to the effect that the resumption of the previous access arrangements would hamper or prejudice or threaten its aquaculture operations.[82] MAPA had every opportunity between the time of the interlocutory hearing and the time of the trial to find any evidentiary material that might have justified a submission based on prejudice to its operations. Apparently it could find none.

The first main issue: were the relevant areas covered by the Land Act 1958?

101 At the trial, the plaintiffs contended that the Minister had had no power under the Land Act 1958 to grant a lease over the Gabo site or the Tullaberga site to anyone. They submitted that the areas purportedly leased, insofar as those areas were comprised of waters beyond the low water mark, and therefore beyond the territorial limits of the State of Victoria, were not covered by the Land Act 1958. The plaintiffs called this their 'narrow ultra vires point'.

102 The plaintiffs acknowledged[83] that, following the decision of the High Court in New South Wales v The Commonwealth ('the Seas and Submerged Lands Act case'),[84] in which it was held that the boundaries of the former Australian colonies ended at the low water mark and that the States and Territories had no sovereign or proprietary rights in respect of the territorial sea or subjacent soil, the Commonwealth enacted the Coastal Waters (State Powers) Act 1980 (Cth) (the State Powers Act) and the Coastal Waters (State Title) Act 1980 (Cth) (the State Title Act). The plaintiffs further acknowledged that the State Powers Act, by s 5, relevantly confirms that the legislative powers of each of the States extend to the making of all such laws as could be made by virtue of those powers if the coastal waters of the State were within the limits of the State. 'Coastal waters of the State' is defined in ss 3(1) and 4(2) of the State Powers Act, and relevantly comprises the territorial sea within the adjacent area in respect of the State out to a distance of three nautical miles, and any sea on the landward side of the territorial sea but not within the limits of the State. So far as the State's relevant proprietary rights are concerned, s 4 of the State Title Act provides:

By force of this Act, but subject to this Act, there are vested in each State upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the State, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State.

103 As the plaintiffs submitted,[85] these provisions are deeming provisions - they do not provide that the coastal waters are within the limits of Victoria, but rather confirm State legislative competence and confer proprietary rights on the State as if the coastal waters were within territorial limits. Each of the State Powers Act and the State Title Act is subject to express qualifications that: (i) ensure that nothing in those Acts shall be taken to extend the limits of any State; and (ii) preserve the status of the territorial sea under international law, including the right of innocent passage of ships. The plaintiffs observed (in a footnote) that it was difficult to see how the grant of a lease conferring exclusive possession of coastal waters and subjacent sea-bed could be regarded as consistent with the 'international status' of such waters or with the right of innocent passage of ships, at least in the absence of express reservations or exceptions.[86] However, the questions of international law and Australian constitutional law that may be raised by this (passing) observation of the plaintiffs need not be pursued in this case, for reasons to which I will come.

104 The plaintiffs proceeded to submit that, while the operation and effect of the State Powers Act and the State Title Act had been considered in several cases,[87] the precise question raised by the present case did not appear to have been previously decided. The plaintiffs said that it could be accepted that the State of Victoria (ie the Crown in right of the State of Victoria) now has proprietary title to the sea-bed in the coastal waters of Victoria (and the waters and air space above that sea-bed).[88] Nevertheless, the plaintiffs submitted, the limits of the State remain unchanged, and the sea-bed under the coastal waters are therefore not 'in Victoria' (the plaintiffs were referring here to the language of s 4 of the Land Act 1958, to which I will come). While the Parliament of Victoria has legislative competence to create, or to provide for the creating of, interests in the sea-bed in coastal waters,[89] the question remained, the plaintiffs submitted, whether the Parliament of Victoria had made such provision in the Land Act 1958, and in s 134 thereof in particular_._

105 I interpolate that, so far as presently relevant, s 134 of the Land Act 1958 confers power to grant leases of 'any Crown land' for non-agricultural purposes. Section 134 is found within Part I of the Land Act 1958. Section 12 of the Land Act 1958 is also within Part I. Section 12 appears as the first section in Division 2 - Grants and Reservations of Part I. It provides:

12. Governor in Council or Minister may convey land under this Part.

(1) Under and subject to the provisions of this Part but not otherwise, the Governor in Council or the Minister in the name and on behalf of Her Majesty may grant convey or otherwise dispose of lands for the time being belonging to the Crown for such estate or interest as in each case is hereby authorised and for none other.

106 At trial, the State defendants[90] and MAPA[91] submitted that the provisions of ss 12 and 134 of the Land Act 1958, read with the provisions of the State Powers Act and the State Title Act, authorised the Minister to make grants of leases of waters within the 'coastal waters of the State'; and, to the extent necessary (if any) they also relied on s 38 of the Interpretation of Legislation Act 1984 (Vic), which provides (so far as relevant):

Definitions

1. In all Acts and subordinate instruments, unless the contrary intention appears-

...

Crown means the Crown in right of Victoria;

...

land includes... land covered with water...; ....

The State defendants and MAPA made the related submission that s 12 reflects the longstanding principle that all dealings by government in Crown land must be in accordance with statutory authority: there is no remaining executive or prerogative power to deal in Crown lands.[92]

107 Notwithstanding the statutory provisions and the longstanding principle relied on by the State defendants and MAPA, the plaintiffs, at trial, maintained that s 134 of the Land Act 1958, on its true construction in the context of the Act as a whole, did not confer any power to grant a lease in respect of Victorian coastal waters beyond the low water mark. In that regard, the plaintiffs relied, more or less exclusively, on the abovementioned s 4 of the Land Act 1958, which was another section within Part I of the Act, and which, as at the time of the purported grant of the Crown leases to MAPA and as at the time of the trial, provided:

Section 4. Application of Part

Except as otherwise expressly provided in this Part, this Part applies to all Crown land in Victoria.

108 As indicated above, the plaintiffs emphasised the words 'in Victoria' contained in s 4 of the Land Act 1958. They submitted that even if it were correct to refer to areas of the sea-bed of the coastal waters of Victoria as 'Crown land' (which the plaintiffs did not concede), 'The areas are definitively not within State territorial limits and are not "in Victoria" for the purposes of s 4 of the Land Act.'[93]

109 The plaintiffs' submissions based on s 4 of the Land Act 1958 gave rise to a great deal of intricate argument, both before, at and after the oral hearing. Some of the debate concerned the legislative history of s 4 of the Land Act 1958. According to the State defendants and MAPA, that legislative history assisted to show that s 4 was not a restrictive or limiting provision at all, but rather that its purpose was merely declaratory and for the avoidance of doubt.[94]

110 Since the close of the parties' post-hearing submissions, my own researches have revealed that, at the very time of trial, there was a Bill before the Victorian Parliament for, among other things, the repeal of s 4 of the Land Act 1958. The Bill was entitled the Parks and Crown Land Legislation Amendment Bill 2019. In the second reading speeches for the Bill in the Legislative Assembly and the Legislative Council, and in the relevant explanatory memorandum, all of which were published in November 2019, there were observations about s 4 of the Land Act 1958 - most notably, that it was a 'redundant provision'- being observations which, one might think, were far more consistent with the defendants' interpretation of s 4 than with the plaintiffs' interpretation of it. The Bill was in due course passed as the Parks and Crown Land Legislation Amendment Act 2020. By s 37 of that Act, as from 15 December 2020, s 4 of the Land Act 1958 was duly repealed. The section was not replaced. Apparently, all of this escaped the attention of the parties and their legal representatives. They have not at any time referred the Court to any of it.

111 I have pondered whether, notwithstanding the repeal of s 4 of the Land Act 1958, I should proceed to rule on whether, as the Land Act 1958 stood in 2018 and 2019 when the Crown leases were purportedly granted, there was power under the Act to grant leases over areas of Victorian coastal waters. I have reached the conclusion that I should not rule on that matter, for the following reasons.

112 First, a ruling either way would make no difference to the ultimate outcome of this case. As already mentioned, I am of the view that the purported Crown leases should be set aside on other grounds in any event.

113 Secondly, a ruling either way on the interpretation question could not advance the position of any of the parties. After the making of my proposed orders, MAPA might, if so advised, choose to renew its application under the Land Act 1958, but any such renewed application would fall to be considered and determined at a future time and under the Land Act 1958 as amended to that time (ie without the old s 4).[95]

114 There is a third reason too. It would not be appropriate to determine the construction point without giving the parties an opportunity to comment on the question whether the extrinsic materials to which I have referred, or the very fact of the repeal of s 4, could legitimately be taken into account in construing the Act as it stood prior to the repeal of s 4, and if so in what way.[96] That would involve considerable additional time, trouble and expense for the parties, to no apparent benefit.

115 As indicated above, at trial the plaintiffs seemed to toy with the idea of suggesting that, even apart from the effect of the (since repealed) s 4, and notwithstanding the various relevant provisions and the longstanding principle relied on by the State defendants and MAPA, the coastal waters of Victoria are neither 'lands for the time being belonging to the Crown' within the meaning of s 12 of the Land Act 1958 nor 'any Crown land' within the meaning of s 134 of the Land Act 1958. However, the plaintiffs did not advance any developed argument to that effect. They did no more than make passing reference to supposed common law rights to use the sea, to the rights of the Commonwealth in relation to the sea and to international law concerning navigation. To my mind, having regard to the matters relied on by the State defendants and MAPA in this regard, the faint suggestion made by the plaintiffs appears to be misconceived. However that may be, the faint suggestion does not gainsay the reasons just given for not finally determining, in the present circumstances, how the Land Act 1958 fell to be construed, in this regard, before the repeal of s 4.

116 Accordingly, I express no concluded view on the plaintiffs' 'narrow ultra vires point'.

The second main issue: did the failure to advertise the proposed leases invalidate the grants?

117 In their pre-trial written submissions, the plaintiffs went to considerable lengths to demonstrate that there had been a total failure to comply with the advertising requirements of s 137 of the Land Act 1958 and to establish that that failure invalidated the delegates' decisions, purportedly made under s 134 of the Land Act 1958, to grant the two Crown leases.

118 By the time of the oral hearing, it had become clear that there had been a total failure to comply with s 137. However, the State defendants and MAPA initially denied that the consequence was invalidity.[97] Ultimately, though they conceded this.[98] I accept their concessions, and I accept most of the plaintiffs' submissions that apparently led to the concessions.[99] Nevertheless, it is desirable (partly for later reference) to mention some of the matters on which the plaintiffs relied in this regard; and, before that, to set out or summarise the terms of certain relevant statutory provisions that have not yet been set out in full.

119 So far as presently relevant, s 134 of the Land Act 1958 provides:

134. Minister may lease Crown land under this subdivision

(1) Subject to this subdivision, the Minister on behalf of Her Majesty may grant leases under this subdivision of any Crown land for any purposes (except for the purposes of agriculture) at the rent and subject to the conditions, covenants, reservations, restrictions and exceptions which he thinks fit.

120 The maximum duration of leases granted or renewed under s 134 is dealt with in s 137AA. The maximum varies depending on the purpose of the lease.

121 Section 137 of the Land Act 1958 provides:

137. Proposed lessee to give notice of lease arranged privately

Where, under this subdivision the Minister leases Crown land by private negotiation, the proposed lessee shall, not less than 14 days before the day on which the lease is to be granted, publish in the Government Gazette and in a newspaper circulating in the district in which the land is situated, a notice specifying-

(a) the particulars of the land which is to be leased;

(b) the purpose and term of the proposed lease; and

(c) the name of the proposed lessee.

122 Where the Minister proposes to offer the right to lease by public auction or public tender (rather than by private negotiation), similar notice requirements are imposed, this time on the Minister, by s 136 of the Land Act 1958.

123 The plaintiffs, in their first set of pre-trial written submissions,[100] having analysed the documentary evidence in some detail, invited the Court to infer that the State defendants, including the delegates, either knew that the notice requirements under s 137 had not been complied with or were reckless as to whether there had been compliance or not, and that the State defendants proceeded to make the decisions to grant the Crown leases regardless.[101] I would not accept that characterisation of what occurred. Rather, in my view, what occurred within the Department amounted to very careless administrative bungling, albeit probably attributable in part to the numerous transfers of responsibility that took place during the lengthy period between the making of the application and its ultimate determination.[102] However, as the plaintiffs submit,[103] a finding of non-compliance with s 137 does not require the drawing of any inference as to the state of mind of the delegates (or of any other Departmental officer); and I would add that the question whether the non-compliance with s 137 led to invalidity likewise does not depend on any individual's state of mind.

124 I agree with the plaintiffs[104] that the total failure by MAPA to comply with s 137 deprived the plaintiffs (and other affected persons) of an opportunity to be heard in respect of the proposed grant of the Crown leases, including an opportunity to object to and oppose the grant without appropriate access arrangements being included in the terms and conditions of the leases. I agree, too, that submissions by the plaintiffs (or by other similarly placed persons) might also have served to alert the State defendants to the fact that, contrary to the assumptions on which the proposed grants were based, there was potentially more than one prospective tenant in respect of the proposed leases, which might call for a competitive tender or public auction.[105] These reflections are fortified, in my view, by s 34 of the Land Act 1958 to which, unfortunately, no reference was made by the parties either before, at or after the trial. So far as presently relevant, s 34(1) provides that, for the purpose of enabling applicants for leases and licences under Part I to have an opportunity of showing the bona fides of their applications, and for the purpose of enabling all objections to the issue of such leases and licences to be publicly heard, notice shall, from time to time, be given in the Government Gazette of a time not less than 10 days from the date of such notice when and of a place where applications for leases and licences and objections to such applications will be publicly heard by the Minister or by a Local Land Board consisting of one or more persons appointed by the Minister. Section 34(2) provides that the Minister or a Local Land Board shall, at the time and place so appointed, publicly hear any evidence which may be tendered with respect to such applications or objections; and that if the hearing is by a Local Land Board it shall report thereon in writing to the Minister. Section 34(3) provides that certain things are not covered by s 34, but, in doing so, s 34(3) only seems to makes it all the clearer that s 34(1) and (2) do apply to an application of the kind made by MAPA.[106]

125 It can certainly be said, also, as the plaintiffs do, that the State defendants failed to ensure that notices had been published in accordance with s 137 before granting the purported Crown leases under s 134.[107] No doubt, as the plaintiffs further submit,[108] this involved a failure on the part of the Department to follow and apply the Victorian Government's Land Transactions Policy and Guidelines (April 2016), but, in my view, no such guidelines can affect the proper construction of the legislation or have any or any great significance for the question whether non-compliance with a provision like s 137 will or will not invalidate a grant under a provision like s 134.

126 On the other hand, I agree with the plaintiffs[109] that the provisions of the Land Act 1958 themselves manifest a clear legislative intention that a failure to comply with s 137 will result in the invalidity of any subsequent decision to grant a lease under s 134.[110] I also agree with the plaintiffs that this proposition is supported by the text, context and purpose of s 137.

127 The plaintiffs point out that the introductory words of s 134(1) are as follows (emphasis added):

Subject to this subdivision, the Minister on behalf of Her Majesty may grant leases under this subdivision of any Crown land to any purposes...

As the plaintiffs say, s 137 is located in the same subdivision as s 134, and it follows that Parliament intended that the power to grant a lease under s 134 be 'subject to' the notice requirements of s 137.

128 Further, as the plaintiffs point out,[111] s 137 is expressed in mandatory terms, providing that the proposed lessee 'shall' publish the notices and prescribing specific matters that must be set out in the notice.

129 The plaintiffs further submit[112] that in circumstances where ss 136 and 137 contain the 'only' statutory notice requirements in relation to the proposed grant of a lease under s 134 of the Land Act 1958, it may be implied that compliance with those requirements is an essential pre-condition to the exercise of power to grant a lease. As I have mentioned, it appears to me now that an additional statutory notice requirement was applicable, namely that provided for in s 34 of the Land Act 1958. However, even so, I would not regard the presence of s 34 as detracting from the proposition that compliance with s 137 is an essential pre-condition to the exercise of power to grant a Crown lease under s 134. Of course, if s 34 was applicable, it was not complied with either.

130 I note in passing that, initially, the State defendants submitted,[113] at some length, that the contrast between s 136 and s 137 as to the person obliged to give the public notice (together with certain aspects of the legislative history of ss 136 and 137) indicated that, while a failure to comply might be fatal under s 136, it would not be fatal under s 137. That submission has now, in effect, been withdrawn, and rightly so.[114]

131 I further agree with the plaintiffs[115] that insofar as the public notification requirements reflect or give effect to what would otherwise be required by the principles of procedural fairness (ie notice of the proposed decision as an aspect of the hearing rule) this corroborates and confirms the legislative intention that a failure to comply with the requirements gives rise to jurisdictional error.

132 The plaintiffs were correct, also, in their submission[116] that such a construction is not only consistent with the ordinary meaning of ss 134 and 137, it is also just and sensible having regard to the purpose of those provisions.

133 Again, the plaintiffs were correct in submitting[117] that the statutory purpose underpinning s 137 would not be advanced by upholding the validity of a lease granted under s 134 without any prior notice having been published - that is, a total non-compliance with s 137. The grant of a lease without prior notice could cause significant disadvantage to third parties, as is illustrated by the facts of the present case. Conversely, as the plaintiffs submit, there would be little, if any, 'general inconvenience'[118] in requiring compliance with the statutory notice requirements as a condition of the valid exercise of the power to grant a lease under s 134. The proposed lessee (here, MAPA) has the principal responsibility of publishing the notices, and compliance with the requirements is entirely within the proposed lessee's control. The fact that compliance with the notice requirements is within the control of the immediate beneficiary of the grant supports the conclusion that the legislature intended to make compliance with those requirements an essential pre-condition to the validity of the lease. Further, while the notice requirements are not imposed directly on the Minister, the Minister has a significant degree of oversight over compliance with those requirements by the proposed lessee, and can easily take steps so as to ensure that a lease is not granted under s 134 in the absence of demonstrated compliance with the notice requirements.

134 The plaintiffs further relied on a matter closely connected to the longstanding principle to which the State defendants themselves had referred (as indicated above) when they were dealing with the question whether land subjacent to coastal waters amounted to 'lands for the time being belonging to the Crown' within the meaning of s 12 of the Land Act 1958 or 'any Crown land' within the meaning of s 134 of the Land Act 1958, namely the principle that all dealings by government in Crown land must be in accordance with statutory authority, ie that there is no remaining executive or prerogative power to deal in Crown lands. The plaintiffs submitted,[119] and I agree, that the resolution of the invalidity issue was informed by the (related) principle that 'where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, the regime will, subject to provision of the contrary, be understood as mandating compliance with the requirements of the regime as essential to the making of a valid grant'.[120] Thus, the plaintiffs continued, as Kiefel CJ, Bell, Gageler and Keane JJ stated in Forrest v Wilson:[121]

When a statute that provides for the disposition of interests in the resources of a State 'prescribes a mode of exercise of the statutory power, that mode must be followed and observed'.[122] The statutory conditions regulating the making of a grant must be observed. A grant will be effective if the regime is complied with, but not otherwise.[123]

This approach to statutory construction had its origin in colonial times in legislation which vested the disposition of land not already disposed of by the Crown in the legislatures of the Australian colonies.[124] Nothing said in Project Blue Sky diminished the force of the authorities which support this approach. Adherence to this approach supports parliamentary control of the disposition of lands held by the Crown in right of the State. It gives effect to an abiding appreciation that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by the officers of the executive government charged with its administration. To permit such a state of affairs might imperil the honest and efficient enforcement of the statutory regime, by allowing scope for dealings between miners and officers of the executive government in relation to the relaxation of the requirements of the legislation. One can be confident that such a state of affairs was not intended by the Act.

135 In addition, the plaintiffs drew an appropriate comparison with the decision of the Land and Environment Court of New South Wales in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act.[125] In that case, as the plaintiffs pointed out,[126] the Court held invalid a purported revocation of a reservation of land pursuant to s 90 of the Crown Lands Act 1989 (NSW) as a consequence of non-compliance with a requirement contained in s 90(2) that a notice of intention to publish a revocation notice be placed in a local or general newspaper circulating in the State. In the course of reaching the conclusion that compliance with s 90(2) was an essential pre-condition to the exercise of the power of revocation, Pepper J said:[127]

... To construe compliance with s 90(2) as a necessary pre-condition for the exercise of power contained in s 90(1) of the CLA is in conformity with its statutory purpose. The object of the section is to inform the general public (to whom the notification is directed) of an intention to revoke a reservation to enable the public to make submissions to the Minister in respect of the proposed revocation.

...

...As stated above, and was tacitly acknowledged by the Minister, it is tolerably clear that the purpose of s 90(2) of the CLA is to facilitate participation in dealings with Crown land by allowing the public to make representations to the Minister with respect to proposed revocations of reservations. If s 90(2) is to be construed as an optional step to be undertaken in the exercise of the Minister's revocation power, this object is wholly eroded. The fourteen day advance notice of the Minister's intention to revoke a reservation may more than arguably, in my view, be characterised as a requirement to consult the public (or a right to consultation). Were it otherwise, and at the risk of repetition, s 90(2) serves scant legislative function.

136 As the plaintiffs further note,[128] Pepper J also observed that this construction of s 90(2) was 'harmonious with existing and historical case law which has construed Crown land legislation as prohibiting the Crown from dealing with such land except in strict compliance with the statutory regime permitting the dealing',[129] referring to the earlier discussion by Lloyd J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act and Ors ('the Kinchela case').[130] In the Kinchela case, Lloyd J had referred to a line of authority in support of the propositions that '[i]n relation to Crown lands legislation,... both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute', and that '[a] failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land'.[131]

137 The last case discussed by the plaintiffs in the present context in their principal pre-trial written submissions was Tyre Marketers (Aust) Ltd v Martin Alstergren Pty Ltd ('Tyre Marketers').[132] In that case, a party unsuccessfully sought to challenge the validity of a Crown lease granted under s 134 of the Land Act 1958, including by relying on an alleged failure to comply with s 137 constituted by the publication of a defective notice that misdescribed the proposed lessee. However, as the plaintiffs pointed out,[133] in Tyre Marketers Marks J held that there had been substantial compliance with the notice requirements of s 137, in circumstances where 'the non-compliance relied on was of very little consequence to anyone as the [principal] object of s 137 is to ensure notice to the public, particularly those likely to be interested, of the dealing in Crown lands', and that '[t]he particulars actually published substantially met that object'.[134] The plaintiffs point out that, in contrast to the circumstances in Tyre Marketers, in the present case there was a complete and total failure to publish any notice of the proposed grant of the Crown leases to MAPA. This was directly contrary to the purpose of s 137. The plaintiffs also commented that Marks J did not decide whether or not a failure to comply substantially with s 137 of the Land Act 1958 results in the invalidity of the decision to grant the lease, but, according to the plaintiffs, the reasons of Marks J are consistent with an assumption that substantial compliance and fulfillment of the statutory objects of the notice requirements in s 37 is essential to the validity of the lease; and the plaintiffs further commented that the total failure to publish the requisite notice in the present case was more closely analogous to the circumstances considered by Pepper J in the New South Wales Aboriginal Land Council case.

138 In my view, the plaintiffs' suggestion that in Tyre Marketers Marks J was of the view that substantial compliance with s 137 is essential to the validity of a grant of a lease is strongly supported by the earlier decision of Marks J himself in Palalow Pty Ltd v The Minister for Property and Services (1988) V Con R 54-322, being a judgment to which Marks J actually referred in Tyre Marketers without hinting that he was minded to depart from anything that he had there said. Palalow related to an auction sale of Crown land in Victoria. Section 90 of the Land Act 1958 required that the Minister should, not less than 14 days before the auction, publish in the Government Gazette and in an appropriate newspaper, a notice specifying the time and place of the auction and particulars relating to the land for auction. The Minister did cause notices to be published in relevant newspapers, but not in the Government Gazette. A contract of sale was entered into at the auction. Marks J held that the contract was void and unenforceable because of the failure to advertise in the Government Gazette. I will return to Tyre Marketers in relation to the indefeasibility issue in due course.

139 In their pre-trial written submissions in reply,[135] the plaintiffs made one or two additional points concerning the consequences of non-compliance with s 137. They submitted, correctly in my view, that the State and MAPA could not prevail by 'passing the buck' between themselves. Both were responsible for the manifest non-compliance with s 137.[136] The plaintiffs further pointed out that in Cudgen v Rutile (No 2) Ltd v Chalk[137] the Privy Council regarded the requirement, in a regulation under the relevant mining legislation for the applicant for a mining lease to advertise the application, as forming part of the 'chain of necessary steps to be taken', such that any attempt by the Minister to bind himself in advance before the occasion for taking those steps 'would be completely outside the Minister's statutory powers'.

140 Finally, the plaintiffs pointed out that not only is the power to grant Crown leases under s 134 '[s]ubject to this subdivision', which includes the requirements in s 137, but also s 12 of the Land Act 1958 provides that Crown land may be granted '[u]nder and subject to the provisions of this Part but not otherwise' (emphasis added). I agree with the plaintiffs[138] that this leaves no room for any argument that it is not a purpose of the Land Act 1958 that compliance with the notification requirements of s 137 is an essential condition of the valid grant of a Crown lease by private negotiation.

141 The second main issue must be determined in favour of the plaintiffs, as the State defendants and MAPA now concede. The failure to comply with s 137 did invalidate the grants.

The third main issue: did the failure to hear the plaintiffs invalidate the grants?

142 In relation to the third main issue, ie the question of natural justice or procedural fairness, the pattern of the parties' submissions largely followed that of their submissions in relation to the second main issue. Ultimately, the State defendants and MAPA conceded, in effect, that the plaintiffs had been unlawfully denied any opportunity to be heard in relation to the proposal to grant the Crown leases; that this amounted to a breach of natural justice or procedural fairness; and that it was another ground for invalidating the Crown leases. Again, I would accept these concessions. I need only make relatively brief mention of the parties' treatment of this issue. At the outset, the plaintiffs submitted,[139] correctly, that, in the absence of a contrary legislative intention, a statutory power which may be exercised to destroy, defeat or prejudice a person's rights or interests is subject to or conditioned by the principles of natural justice.[140] The obligation to afford procedural fairness to persons affected by the exercise of the power can only be excluded by 'plain words of necessary intendment'.[141]

143 The plaintiffs further submitted,[142] once again correctly, that it is clear that the exercise of the power to grant a lease under s 134 of the Land Act 1958 is capable of adversely affecting the rights or interests of third parties, as is plainly demonstrated by the facts of the present case. The plaintiffs hold statutory entitlements which give rights to take abalone and sea urchins in the Eastern Zone Fishery, including the Crown lease areas. Although statutory in nature, the access licences and quota units constitute a species of property rights.[143] The exclusion of the plaintiffs from the Crown lease areas affects the exercise of their fishing rights in those areas, with consequential effects on the total allowable catch in the Fishery and the value of the fishing rights. The effect of the decision to grant the Crown leases on the plaintiffs' rights and interests in relation to the Crown lease areas is sufficient to attract the requirements of procedural fairness, including the obligation to notify the plaintiffs of the proposed grant (independently of the requirements under s 137 of the Land Act 1958) and to provide them with an opportunity to be heard in relation to the proposed grant.

144 As the plaintiffs proceeded to submit,[144] there is nothing in the express terms or statutory scheme of the Land Act 1958 which reveals a clear intention to exclude the obligations of procedural fairness in relation to the exercise of the power to grant a lease under s 134 of the Land Act 1958. No such intention can be discerned in the specific notice requirements of s 137 or, I would add, in the abovementioned requirements of s 34. To the contrary, the presence of those provisions tends to confirm the legislative intention to afford procedural fairness to affected persons.

145 Further, the plaintiffs were correct in their submission[145] that, as a consequence of the failure to notify the plaintiffs of the proposed grant of the Crown leases and to give them an opportunity to be heard, neither the delegate who gave the approval in principle nor the delegates who decided to grant the Crown leases were briefed in relation to the impact of the grants on the interests of the plaintiffs and other persons holding access licences or quota units in relation to the Eastern Zone Fishery, including the Crown lease areas. Accordingly, the delegates did not have regard to those interests before deciding to exercise the power to grant the Crown leases to MAPA. The denial of procedural fairness was clearly material to the decisions in that, if the plaintiffs had been notified of the proposed grant and had been given an opportunity to be heard, there is at least a realistic possibility (indeed, in my view, a quite strong probability) that a different decision would have been made - for example, the delegates might not have granted the Crown leases at all or might have imposed conditions or reservations to preserve continued access to the Crown lease areas by the holders of access licences or quota units granted under the Fisheries Act 1995.

146 The initial response of the State defendants[146] was to say:

No opportunity was afforded to the plaintiffs to be heard prior to the grant of the leases, in circumstances where it is arguable that the plaintiffs could be affected by the grant. The failure is conceded. Again, the issue is the consequence: the State submits that this does not invalidate the grant of the leases.

147 Again, MAPA simply adopted this response.[147] However, as the plaintiffs pointed out in their pre-trial submissions in reply[148] the response was plainly incorrect. A breach of procedural fairness will ordinarily result in jurisdictional error, at least where it is material in the sense that there is a realistic possibility that a different decision might have been made.[149] In the present case, there was clearly (at least) a realistic possibility that a different decision might have been made if the plaintiffs had been given the hearing to which they were entitled prior to the grant of the Crown leases. Neither the State nor MAPA had advanced any submission to the contrary. Accordingly, the effect of the concession (even as it stood at that stage) was that each of the decisions to grant the Crown leases under s 134 of the Land Act 1958 was affected by jurisdictional error, and was invalid and of no effect.

148 Subsequently, in their post-hearing supplementary submissions of 1 April 2020,[150] the State defendants spoke of '[t]he accepted administrative errors under the Land Act 1958 which would otherwise render the Crown leases voidable on judicial review (in the absence of registration under the Transfer of Land Act)...' At that point, on my reading of the submissions of the State defendants, they were in effect conceding that the Crown leases were 'voidable' (ie invalid) for breach of s 137, for breach of natural justice or procedural fairness and for legal unreasonableness, at least. I read MAPA's post-hearing supplementary submissions in the same way.[151] By that stage, both the State defendants and MAPA had retreated to exclusive reliance on so-called indefeasibility of title to resist relief based on those three grounds.

149 In any event, it is crystal clear that the decisions to grant the Crown leases were made in breach of natural justice or procedural fairness and were therefore affected by jurisdictional error, rendering them legally invalid.

The fourth main issue: was there legal unreasonableness that invalidated the grants?

150 As with the second and third main issues, I understand that the State defendants and MAPA now concede that the decisions of the delegates to grant the two purported Crown leases were legally unreasonable, and invalid on that account too. I accept those concessions as well.

151 As the plaintiffs submitted, the exercise of a statutory discretion is confined by the subject matter, scope and purposes of the legislation, and there is generally an implied condition that a statutory power must be exercised reasonably (or, more precisely, in my view, without legal unreasonableness).[152]

152 I agree with the plaintiffs that, in giving approval-in-principle and in granting the Crown leases, the delegates of the Minister made findings or reached decisions that were beyond the bounds of legal reasonableness, and were based on findings that were unsupported by any probative material or logical grounds.[153]

153 In particular, the plaintiffs submitted,[154] it was unreasonable for the delegates to decide to exercise the power conferred by s 134 of the Land Act 1958 to grant leases to MAPA without taking any steps to ensure that notification of the proposed grant had been published in accordance with s 137 of the Land Act 1958, or to ascertain whether there were any persons whose rights and interests would be affected by the grant of leases conferring exclusive possession on MAPA, or to consider the interests of any such affected persons.

154 Further, the plaintiffs submitted,[155] it was legally unreasonable for the delegates to fail to consider exercising their power under s 134(1) of the Land Act 1958 to impose appropriate 'conditions, covenants, reservations, restrictions and exceptions' protecting and preserving rights of access by commercial fishers who hold access licences or quota units under the Fisheries Act 1995, and/or rights of access by the general public for recreational purposes or for navigation or innocent passage over the waters within the Crown lease areas. All the more so, the plaintiffs submitted,[156] in circumstances where there was pre-existing commercial use of the areas by holders of statutory fishing entitlements and MAPA had disavowed any desire or need to be granted the right to exclude such persons from the areas.

155 Neither the State defendants nor MAPA made any real attempt, at any stage, to answer the submissions of the plaintiffs on legal unreasonableness. In my view, no good answer was available. Accordingly, the purported grants of the Crown leases were legally unreasonable and invalid on that account, additionally.

The fifth main issue: consent under the Coastal Management Act 1995

156 As indicated above, the evidence in this case includes quite a lot of material about MAPA's application for consent under the CMA in relation to its proposal to acquire Crown grants under the Land Act 1958, and about the processing of that application.

157 The evidence establishes clearly that the Department regarded the achievement of consent under the CMA as an essential precursor to any Crown grant of the kind sought by MAPA.

158 As will be seen, I regard this as relevant in relation to the factual underpinning of a part of the plaintiffs' response to the reliance by the State defendants and MAPA on the so-called principle of indefeasibility under the Transfer of Land Act 1958 (the sixth main issue in this case, dealt with below).

159 However, I agree with the State defendants and MAPA that the giving of a consent under the CMA was clearly not a legal pre-condition to the grant of the Crown leases sought. Ultimately, the plaintiffs did not press their earlier arguments to the contrary.

160 Hence, the fifth main issue is resolved in favour of the State defendants and MAPA.

The sixth main issue: are the plaintiffs' rights and claims to be defeated by the principle of 'indefeasibility' under the Transfer of Land Act 1958?

161 The foregoing shows that the plaintiffs have a good claim, indeed an overwhelmingly good claim, against the State defendants for relief in the nature of certiorari or for corresponding declarations and injunctions. They have established that, in breach of fundamental principles of Australian law concerning Crown lands, the State defendants did not ensure that the requirements of the governing statute - in particular, the requirements of s 137 of the Land Act 1958[157] - were met before purporting to grant the Crown leases. The plaintiffs have also established a complete denial of natural justice or procedural fairness. They have established legal unreasonableness. In each of these respects, the default of the State defendants involved jurisdictional error and legal invalidity in respect of the administrative decisions in question, and in respect of the purported Crown leases themselves. Generally speaking, where a party establishes a good legal claim in this Court, the Court will give effect to it by such orders, including such ancillary orders, as may be required.[158] Are the plaintiffs nevertheless to be denied any relief by this Court?

162 The State defendants and MAPA submit that the plaintiffs should indeed be denied any relief. They say that certain provisions of the Transfer of Land Act 1958 commonly referred to as the 'indefeasibility of title' provisions, justify such a result.

163 I disagree. In my view, the provisions of the Transfer of Land Act 1958 in question do not do the work the State defendants and MAPA would attribute to them.

164 In my view, the provisions in question would not generally require the Court to hold its remedial hand where to do so would be to enable a party to profit from its own wrong. That would be the case here. The Court is not obliged to hold its remedial hand in the circumstances of this case.

165 As a matter of legal characterisation, the circumstances of this case can be said to afford to the plaintiffs an equitable right in personam, as against MAPA, for relief on account of equitable (or constructive) fraud, constituted by MAPA's unconscientious reliance on its registered titles in the face of its own prior acts and omissions. And, of course, the State defendants cannot shelter behind MAPA's unconscientious reliance on MAPA's registered titles.

166 The word 'indefeasibility' does not appear in the Transfer of Land Act 1958. It is, rather, a somewhat conclusory shorthand for the effect of certain provisions of that Act.[159] Commentators have criticised the concept of indefeasibility as lacking in precise content,[160] and, so far as it is said to denote some concept over and above the effect of the relevant statutory provisions, misleading.[161] Those criticisms, in my view, are apt. Indefeasibility, if it is useful to use the concept at all, is merely a description of the effect of the relevant provisions of the Transfer of Land Act 1958. The protection afforded to the purported Crown leases is no more than that which is conferred by the relevant provisions.

167 The defendants relied on the following provisions:[162]

40 Instruments not effectual until registered

(1) Subject to this Act no instrument until registered as in this Act provided shall be effectual to create vary extinguish or pass any estate or interest or encumbrance in on or over any land under the operation of this Act, but upon registration the estate or interest or encumbrance shall be created varied extinguished or pass in the manner and subject to the covenants and conditions specified in the instrument or by this Act prescribed or declared to be implied in instruments of a like nature.

41 Certificate to be conclusive evidence of title

No folio of the Register under this Act shall be impeached or defeasible by reasons or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio or the making of any recording on it; and every folio of the Register shall be received in all courts as evidence of the particulars recorded in it and all the recordings of those particulars in the Register, and shall be conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.

42 Estate of registered proprietor paramount

(1) Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except -

(a) the estate or interest of a proprietor claiming the same land under a prior folio of the Register;

(b) as regards any portion of the land that by wrong description of parcels or boundaries is included in the folio of the Register or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser

43 Persons dealing with registered proprietor not affected by notice

Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any land shall be required or in any manner concerned to inquire or ascertain the circumstances under or the consideration for which such proprietor or any previous proprietor thereof was registered, or to see to the application of any purchase or consideration money, or shall be affected by notice actual or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

44 Certificate etc. void for fraud

(1) Any folio of the Register or amendment to the Register procured or made by fraud shall be void as against any person defrauded or sought to be defrauded thereby and no party or privy to the fraud shall take any benefit therefrom.

(2) But nothing in this Act shall be so interpreted as to leave subject to an action of ejectment or for recovery of damages or for deprivation of the estate or interest in respect of which he is registered as proprietor any bona fide purchaser for valuable consideration of land on the ground that the proprietor through or under whom he claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this whether such fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever.

169 Those provisions reflect the Torrens system of title by registration, rather than registration of title, whereby the register of titles is both conclusive and exhaustive, and searches beyond the register are generally unnecessary.[163]

170 The State defendants and MAPA contended in both oral and written submissions, both before and following the hearing, that the leases, being registered, were protected from the plaintiffs' claims by those provisions. The State defendants and MAPA also argued that no exception applied so as to allow the plaintiffs' claim against MAPA's registered title. As a result, the defendants argued, the plaintiffs' claims must fail.

171 It is trite law, and neither the State defendants nor MAPA denied, that the provisions typically relied on to support 'indefeasibility', so-called, do not preclude a claim against a registered proprietor for in personam relief.[164] Such claims are said to give rise to an exception to indefeasibility known variously as the 'rights in personam exception', the 'personal equities exception' and the 'inter se exception'.[165]

172 To say that there exists an exception to the protection conferred by the relevant provisions of the Transfer of Land Act 1958 arising out of such claims in personam is imprecise. The 'exception' is drawn from the decision of the Privy Council in Frazer v Walker. In that case, the Judicial Committee considered corresponding provisions of New Zealand legislation and said, relevantly:[166]

their Lordships have accepted the general principle that registration under the Land Transfer Act 1952, confers upon a registered proprietor a title to the interest in respect of which he is registered which is (under sections 62 and 63) immune from adverse claims, other than those specifically excepted. In doing so they wish to make clear that this principle in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant.

173 That passage has been cited and approved on many occasions by Australian courts, including the High Court. As the passage makes clear, claims in personam are available against a registered proprietor of land because such claims fall outside the scope of the Transfer of Land Act 1958, not because they fall within a non-statutory exception to the legislative scheme. That is, the category of claims in personam that are available against a registered proprietor includes all claims that are not barred by the Transfer of Land Act 1958 and which are otherwise available. Such claims are available because they are untouched by the relevant provisions of the statute, not because they have 'made a narrow escape'.[167]

174 The defendants' case on this point was that the plaintiffs could not establish any 'cause of action' that would not be defeated by the protection afforded to the Crown leases by the provisions of the Transfer of Land Act 1958 extracted above.[168] The question whether the term 'cause of action' is fully appropriate in the present context need not be pursued. [169]

175 It is fair to say that the basis for the plaintiffs' in personam claim shifted as the proceedings progressed. In written submissions filed before the hearing, the plaintiffs indicated they relied on breach of statutory duty, negligence, misleading and deceptive conduct and equitable fraud.[170] They also invited the Court to 'expand the fraud or other exceptions to indefeasibility of title so as to accommodate challenges by way of judicial review to the exercise of power by the Executive to grant the lease'.[171] By the time of the hearing, the disparate 'causes of action' on which the plaintiffs relied had coalesced into a broader reliance on the High Court's decision in Bahr v Nicolay [No 2] ('Bahr v Nicolay')[172], with which I deal in more detail below.[173]

176 In post-hearing written submissions, the plaintiffs also relied on mistake as the basis of an in personam claim against MAPA.[174]

177 In support of each of those arguments, the plaintiffs relied on much the same facts, being, principally MAPA's failure to comply with the notice requirements in s 137 of the Land Act 1958,[175] MAPA's assurance to DSE in the 'Application to use Crown land' dated 12 December 2011 that it did not seek exclusive possession over the sites,[176] and MAPA's assurances to DSE in support of its related application for a consent under the CMA, to the effect that its proposals would not adversely affect third parties. The plaintiffs placed particular weight on MAPA's response to the question 'Do you propose to have exclusive use of the land? If so, detail the reason for this requirement', being:

NO NOT EXCLUSIVE AS IT IS IN AN AREA OF COMMERCIAL ABALONE USE.

178 As to mistake, in particular, the plaintiffs contended that the grant of the leases must have been the result of a mistake because the leases conferred on MAPA rights it never sought.[177] It will not be necessary for me to deal with the plaintiffs' mistake case, because the plaintiffs must succeed on other bases.

179 In post-hearing written submissions, the plaintiffs also reiterated their contention that their public law rights to have the leases declared invalid and set aside provided a basis for an in personam claim against MAPA.[178]

The defendant's submissions on the plaintiffs' in personam arguments

180 In written submissions filed before the hearing, the State defendants maintained that MAPA's registered title was protected from the plaintiffs' claims by the indefeasibility provisions of the Transfer of Land Act 1958 despite the in personam rights the plaintiffs alleged they held. In support of that submission, the State defendants relied on two points of principle. First, they submitted that, although the leases were granted by delegates of the Minister in May 2018 and February 2019, the Minister is a third party to the dispute between the plaintiffs and MAPA, and '[i]n personam claims do not extend to acts of third parties for whom the registered proprietor is not responsible'.[179] As a result, the State defendants submitted, any administrative failures on the Minister's part cannot give rise to an in personam claim against MAPA.

181 Second, the State defendants submitted that, as a matter of principle, a failure to observe a statutory process could not give rise to an in personam claim or to fraud.[180] Putting it squarely, the defendants submitted that the leases, even if void, and for whatever reason they might be void, were effective once registered.[181]

182 MAPA adopted the State defendants' submissions and added a further point. In MAPA's submission,[182] the fact that DELWP had indicated to MAPA that DELWP would provide instructions to MAPA on how to give public notice for the purposes of s 137 of the Land Act 1958, but never provided any instructions, was highly relevant. Because DELWP undertook to discharge MAPA's duty to notify, MAPA submitted, any failures by the State in granting the leases were occasioned by the State's failure. MAPA, it said, could not be held responsible for those failures.[183] In post-hearing written submissions, the State defendants themselves took up a similar theme.[184]

Fundamental flaws in the defendants' submission on the in personam arguments

183 For the reasons that follow, I do not accept the submissions that I have just summarised of the State defendants and MAPA concerning the plaintiffs' in personam arguments.

184 In my view, there is a fundamental flaw in the State defendants' submissions that the conduct of third parties in the position of the State defendants can never give rise to in personam rights enforceable against registered proprietors of land under the Transfer of Land Act 1958, and that failures to observe statutory processes can never give rise to such in personam rights either. The flaw is that those arguments proceed from inappropriate generalisations made about all in personam rights. The trouble with generalisations like these is that the class of in personam rights enforceable against registered proprietors of Torrens land embraces all legal and equitable claims that are not precluded by the provisions of the applicable Torrens legislation, in this case, the Transfer of Land Act 1958. Any true generalisation about in personam claims, therefore, must either be true of all recognised legal and equitable claims that might be brought against a proprietor of land, or must arise on the proper construction of the provisions of the Transfer of Land Act 1958 themselves. For my part, I can see no basis for concluding that the generalisations the State defendants seek to make about in personam claims satisfy either of those conditions.

185 I turn now to consider each of the defendants' arguments on indefeasibility specifically.

Can in personam rights enforceable against the registered proprietor of land arise from the conduct of third parties?

186 The State defendants' first argument involves a mischaracterisation of MAPA's role in the events leading up to the registration of the Crown leases. The State defendants sought to characterise the several fundamental administrative law failures dealt with above as independent failures by the State, acting alone. They said:

In personam claims do not extend to acts of third parties for whom the registered proprietor is not responsible.[185] Thus, any failure or lack of authority by the Minister establishes no in personam claim by the plaintiffs against MAPA. In any case, the plaintiffs are strangers to the land and are not seeking to establish a competing title to the Crown Lease areas.

187 That characterisation misses the crucial fact that, whilst, as a matter of administrative law, it was the Minister's (delegated) decisions that were infected with jurisdictional error, the errors arose because of, principally, MAPA's failure to discharge its obligation to publish the notice and also because of MAPA's assurances from which it now seeks to resile.

188 It was MAPA, not the State, who was required to publish the notice in the Gazette and a local newspaper under s 137. The statutory duty to publish was MAPA's, not the State's. True it is, as senior counsel for MAPA submitted in written submissions, that the 'consistent instruction given to MAPA Pearls by DELWP was that once survey plans for the Crown Lease areas were finalised, DELWP would provide instructions to MAPA Pearls on how to give public notice for purposes of section 137 of the Land Act' and that 'no such instructions were given'.[186] But the statutory duty to publish remained MAPA's. At its highest, MAPA might have said, the State undertook to act as MAPA's agent for the purposes of compliance with s 137. Even if, on a proper construction of the Land Act 1958, MAPA's obligation under s 137 were dischargeable in that way - and it is far from clear to me that it is - it has never been the law that a principal can rely on his or her agent's failure to discharge the principal's duty.[187] To say as much is sufficient to dispose of the argument, made first by MAPA, to the effect that the State's failures with respect to s 137 cannot be visited on MAPA.

189 Further, I am comfortably satisfied that the entire debacle would not have even begun to develop had MAPA not, by its assurances, lulled the Department into refraining from consulting the commercial fishers (and others) whose known interests were said by MAPA not to be at risk.

190 In any event, it is not the case that the conduct of persons in the position of the Minister cannot give rise to in personam rights enforceable against a registered proprietor.

191 To understand why, it is useful first to deal with Bahr v Nicolay. Senior counsel for the plaintiffs in oral submissions said that was the 'main case' on which the plaintiffs relied.[188]

192 Bahr v Nicolay concerned land in Cervantes, a coastal town in Western Australia. The plaintiffs, the Bahrs, purchased land known as lot 221, a business conducted on the land, and a Crown licence to occupy a further parcel of land, known as lot 340. The terms of the Crown licence over lot 340 granted the Bahrs a right to call for a Crown grant of lot 340 once they had erected commercial premises on it. To raise money for the construction of the premises, the Bahrs sold lot 340 to the defendant, Nicolay, on terms including a lease-back arrangement under which Nicolay agreed to lease lot 340 back to the Bahrs for a period of three years. The term provided that, at the conclusion of the lease, the Bahrs would have an option to enter into a contract with Nicolay under which the Bahrs would buy lot 340 back from Nicolay for $45,000, paid by way of a 10% deposit on entry into the contract, and the balance being payable 30 days after the deposit.

193 After the Bahrs had transferred lot 340 to Nicolay, but before the end of the lease-back period, Nicolay sold lot 340 to a third party, the Thompsons, for $40,000. The Thompsons registered the transfer under applicable Torrens legislation. Nicolay's contract with the Thompsons acknowledged Nicolay's obligation to sell lot 340 back to the Bahrs at the end of the lease-back. In addition, in solicitors' correspondence around the time of the sale to the Thompsons, the Thompsons acknowledged the obligation to sell lot 340 back to the Bahrs at the conclusion of the lease-back period. At the end of the lease-back period, the Bahrs paid the deposit and sought to exercise their right to buy back lot 340. The Thompsons refused to transfer the land back to the Bahrs, relying on indefeasibility.

194 The Bahrs commenced proceedings in the Supreme Court of Western Australia against Nicolay and the Thompsons, seeking orders that the land vest in the Bahrs on payment of the balance of the purchase price and, alternatively, specific performance of their contract with Nicolay and damages. The trial judge dismissed the application, and the Full Court dismissed an appeal.

195 On appeal to the High Court, Mason CJ and Dawson J held that the provision in the contract by which Nicolay sold lot 340 to the Thompsons evidenced that the parties to that contract, Nicolay and the Thompsons, intended to create or protect an interest in favour of the Bahrs and, thereby, created an express trust by which the Thompsons held lot 340 subject to the Bahrs' option to buy lot 340 back.[189] Even if their Honours had not reached that conclusion, though, they would have held that Nicolay's repudiation of his obligation to sell lot 340 back to the Bahrs constituted fraud within the meaning of the statutory fraud exception.[190]

196 Wilson and Toohey JJ found that the evidence fell short of the statutory fraud exception.[191] Their Honours found, however, that, the Thompsons, by acknowledging their obligation to sell lot 340 back to the Bahrs in their contract with Nicolay and in the correspondence to the Bahrs, became subject to a constructive trust in favour of the Bahrs.[192] As a result, their Honours held, the Bahrs held an equitable interest or personal equity enforceable against the Thompsons.[193] The applicable indefeasibility provisions did not preclude the Bahrs' enforcement of that interest or equity.[194]

197 Brennan J held that the Thompsons had given an undertaking to hold their title subject to the Bahrs' interest by acknowledging that interest in their contract with Nicolay or, if not, the undertaking was to be found in a collateral agreement arising out of that acknowledgement.[195] By reneging on that undertaking, his Honour held, the Thompsons committed equitable fraud and, thereby, became subject to a constructive trust in the Bahrs' favour.[196] His Honour said:[197]

A registered proprietor who has undertaken that his transfer should be subject to an unregistered interest and who repudiates the unregistered interest when his transfer is registered is, in equity's eye, acting fraudulently and he may be compelled to honour the unregistered interest. A means by which equity prevents the fraud is by imposing a constructive trust on the purchaser when he repudiates the unregistered interest. That is not to say that the registration of the transfer to such a proprietor is affected by such fraud as may defeat the registered title: the fraud which attracts the intervention of equity consists in the unconscionable attempt by the registered proprietor to deny the unregistered interest to which he has undertaken to subject his registered title.

and then later in his Honour's reasons:[198]

Therefore, although a purchaser who secures registration of a transfer of the fee simple merely with notice of a third party's right to purchase acquires on registration of his transfer a title freed of any obligation to the third party which equity would otherwise impose, a purchaser who has undertaken - whether by contract or by collateral undertaking - to hold his title subject to a third party's right to purchase remains bound by his undertaking after registration of his transfer. If he should repudiate the third party's right to purchase, equity imposes a constructive trust so that the registered proprietor holds his title on trust for the third party to the extent of the third party's interest.

198 The relevant Torrens legislation, his Honour held, did not stand in the way of the Bahrs' enforcing the undertaking.[199]

199 The plaintiffs expressly relied on the principles stated in Bahr v Nicolay and by way of analogy with the facts.

200 Before coming to those matters, it is necessary to deal with one significant point of distinction between this case and Bahr v Nicolay. In Bahr v Nicolay, the plaintiffs, the Bahrs, alleged that the conduct of the registered proprietor, the Thompsons, fell within the statutory fraud exception. The plaintiffs in this case did not rely on the statutory fraud exception, although, as I explain further below, they asserted an in personam claim arising out of equitable fraud. The distinction between equitable fraud and fraud for the purposes of the statute is important. Equitable fraud is difficult to define. It does not adhere to a strict set of elements or criteria,[200] though particular species of equitable fraud may do so.[201] Rather, equitable fraud involves conduct that is abhorrent to the good conscience on which the principles of equity are based.[202] As such, equitable fraud includes, as well as actual or common law fraud, species of 'constructive fraud' that arise where conduct falls short of deceit but imports a breach of a duty to which equity attaches its sanction.[203]

201 That distinguishes equitable fraud from common law fraud, and, more relevantly for present purposes, from fraud within the meaning of s 43 of the Transfer of Land Act 1958. Statutory fraud covers a much narrower field of conduct. The statute has been said to require 'actual fraud', 'moral turpitude' and 'something more than mere disregard of rights of which the person sought to be affected had notice'.[204] Accordingly, leaving aside areas where statutory fraud and equitable fraud overlap,[205] statutory fraud (which the plaintiffs in this case did not argue) requires actual fraud or moral turpitude, where equitable fraud (which the plaintiffs did argue) does not. No doubt the fact that statutory fraud requires the plaintiff to meet a higher bar explains the plaintiffs' not relying on the statutory fraud exception in this case.

202 Returning, then, to Bahr v Nicolay, it should be clear from the summary set out above that to say that in personam rights cannot arise out of the conduct of third parties in the position of the State defendants in this case is, at least, to fail to tell the whole story. As the transferor in the impugned transaction, the State defendants sit in a similar position to Nicolay in Bahr v Nicolay.

203 As well as being the transferor in the impugned transaction, the State defendants, like Nicolay, also owed the plaintiffs a duty. In Bahr v Nicolay, the relevant duty was Nicolay's contractual duty to sell lot 340 back to the Bahrs at the end of the lease-back period. In this case, as indicated above, the State defendants owed the plaintiffs a duty of procedural fairness and a duty to act without legal unreasonableness, at least. No doubt, as the State defendants and MAPA submitted, the content of the duty owed by Nicolay to the Bahrs was different from the content of the duties the State defendants owed to the plaintiffs in this case. The plaintiffs did not contend otherwise. But for present purposes it is sufficient to note that the State defendants and Nicolay stand in a broadly equivalent relation to the registered proprietors (the Thompsons and MAPA) and those seeking to impugn registered title (the Bahrs and the plaintiffs in this case). As well, in this case, as in Bahr v Nicolay, the transferor breached their duties to the plaintiffs. Below, I deal further with the question of whether the qualitative difference in the content of the duties matters.

204 A further similarity is that the transferor's claimed inability in this case to rectify the wrong it has done to the plaintiffs comes about because of the registered proprietor's reliance on its registered title. In Bahr v Nicolay, Nicolay was unable to discharge his obligation to arrange for sale of lot 340 back to the Bahrs because the Thompsons refused to comply with their obligation to sell back to the Bahrs.

205 It should be clear from the above that, in my view, the defendants' argument that an in personam right can never arise out of the conduct of a person in the position of the State defendants must fail. Bahr v Nicolay shows the contrary to be true. Of course, that is not sufficient to dispose of the case. It remains necessary to consider the content of the duties owed by the State defendants and MAPA, and their implications for the plaintiffs' in personam claims.

Can in personam rights arise out of failures to comply with statutory processes?

206 As mentioned above, the State defendants' second and remaining argument on in personam rights was to the effect that an in personam right enforceable against a registered proprietor of Torrens land cannot arise out of a failure to comply with a statutory process. At the outset, I observe that this argument suffers from the same fundamental flaw as the State defendants' first argument, as outlined above. The argument seeks to draw a generalisation about the class of in personam rights that are enforceable against registered proprietors. But the class of in personam rights enforceable against registered proprietors embraces all in personam claims that are available against registered proprietors and which are not precluded by the indefeasibility provisions of the Transfer of Land Act 1958. Once again, the generalisation can only hold if it is true of the entire class, or if it arises from the provisions of the statute. And, once again, I can see no basis for concluding, and the defendants have not established, that the generalisation meets either condition.

207 Nevertheless, it is necessary also to deal with the cases on which the State defendants relied in support of this argument to show why these cases do not stand for the proposition that the State defendants assert.

208 The plaintiff in Boyd v Mayor of Wellington[206] was the registered proprietor of land in Wellington on which there was a building. The Governor-General had power to take land for the purposes of building a tramway under s 4(2) of the Tramways Act 1908 and s 146(c) of the Municipal Corporations Act 1908. Section 367(1) of the Municipal Corporations Act 1908 provided that a Gazetted proclamation was conclusive evidence that all matters and things required by that Act to be done preliminary to the proclamation had happened and that the proclamation had been properly and lawfully made. Section 367(2) provided that no misnomer, inaccurate description or omission in a proclamation would suspend or impair the operation of the proclamation.

209 The Governor-General, by Gazetted proclamation, took Boyd's land, purporting to exercise a power to do so under the Tramways Act 1908, the Municipal Corporations Act 1908 and the Public Works Act 1908, and vested it in the Wellington Corporation. The Wellington Corporation registered the transfer under applicable Torrens legislation. However, s 15 of the Public Works Act 1908 provided that where land was occupied by a building, the land could be taken only with the consent of the Governor in Council or the written consent of the owner of the land. Neither Boyd nor the Governor had consented to the taking of the land.

210 Boyd sought declarations that the proclamation was void, that the registration was obtained by fraud or otherwise wrongfully, and that he was entitled to have the transfer removed from the register. He was unsuccessful at trial. By majority, the Court of Appeal dismissed Boyd's appeal. Stout CJ decided the case on the basis that, Boyd not having established fraud, the Corporation's title was conclusive.[207] Further, his Honour held, even if the Corporation did not obtain conclusive title on registration, s 367(1) of the Municipal Corporations Act 1908 rendered the taking of the land valid.[208] Sim J agreed, on the basis that, Boyd having failed to show fraud, the Corporation's title was indefeasible.[209] Adams J held that the Corporation's title was valid under s 367 of the Municipal Corporations Act 1908. Alternatively, his Honour held, if it was not, the Corporation's title was conclusive.[210]

211 This case does not support the argument that an in personam right enforceable against a registered proprietor cannot arise out of a breach of a statutory process. There was no such ruling in the case. Boyd is also distinguishable because, on the facts found, there was no conduct of the Wellington Corporation in becoming the registered proprietor that was a breach of any legal or other duty owed to anyone; and it had no knowledge of the mistake that had been made. On those findings, Boyd was, in effect, confined to reliance on the mere fact that he had previously been the registered proprietor of land which the new registered proprietor had acquired without any relevant wrong or fault on its part.

212 Accordingly, Boyd does not assist the State defendants or MAPA. A closer case from New Zealand is Tataurangi Tairuakena v Mua Carr ('Tataurangi')[211] which was decided three years after Boyd. In Tataurangi it was held by the Court of Appeal that a lease taken from a statutory body corporate by a director of the body, in breach of his fiduciary duty to the body, was not protected by registration. This case was referred to with approval by the Privy Council in Frazer v Walker [1967] 1 AC 569, 585.

213 Logue v Shoalhaven Shire Council_[212]_ concerned land sold pursuant to s 602 of the Local Government Act 1919 (NSW). Section 602 allowed the council to sell land in respect of which rates were overdue. To do so, the council was required to publish notices setting out, among other matters, the quantum of rates overdue. Section 604(2) of the Local Government Act 1919 (NSW) provided, relevantly, that a conveyance or transfer by the council purporting to have been made under that Act vested the land in the purchaser freed and discharged from all trusts, obligations, estates, interests, contracts, charges and rates, subject only to exceptions and reservations in the Crown grant, easements, restrictive covenants and public rights of way.

214 Logue died, leaving rates overdue on land. The council purported to issue a notice in respect of the property, but the notice contained a figure representing the overdue rates with interest, whereas s 602 required the notice to set out the amount of rates only. The council bought the land itself, and registered the transfer under applicable Torrens legislation.

215 Many years later, Logue's estate commenced proceedings seeking a declaration that the sale was invalid and an order that the land be transferred back to the estate. The trial judge held in Logue's favour. The council appealed.

216 By majority, the appeal was allowed. It was held by Hutley JA (with whom Reynolds JA agreed) that the purpose of the s 604 notice was to notify the owner of the possible loss of the property. The purpose was not to inform the owner of the amount that was required to be paid in order to stop the sale. Instead, to determine the amount that needed to be paid to stop the sale the owner had to make further inquiries with the council. That being the case, his Honour held, the inaccuracy did not affect the recipient of the notice in a material way. The inaccuracy, for that reason, did not constitute non-compliance with the notice requirements in s 602(2)(b) of the Local Government Act 1919. There being no failure of compliance, his Honour held, the sale was not invalid. That was sufficient to allow the appeal. However, his Honour went on to say that, in any case, the special provisions of s 604(2) of the Local Government Act 1919 would have rendered the sale valid.

217 Hutley JA also held that s 42 of the Real Property Act 1900 (NSW), a provision corresponding to s 42 of the Transfer of Land Act 1958 (Vic), protected the council's registered title. His Honour found that Logue had failed to establish an in personam right on the facts. He said (my emphasis):[213]

in my opinion, there is no personal equity existing here. The highest point at which the respondent's case can be put is that, because of want of care by the council in the exercise of its statutory powers, he has been improperly deprived of his land, which is vested in the council. It does not necessarily follow from this that he has a personal equity to have his land back. He may be merely entitled to take proceedings against the council for damages for deprivation of his land, because of the way it has exercised its statutory powers; or, indeed, he may have no remedy at all.

218 His Honour went on to say (my emphasis):[214]

However, I would not elevate the administrative blunders with which this sale was associated into a source of a personal equity binding the council, or regard the determination of the council after so many years to insist on retaining the land as a sign that at the time of the purchase there was any bad faith. That is the relevant time. If this is correct, the distinction between this case and Boyd v Mayor etc. of Wellington is without substance and s. 42 of the Real Property Act, on its own, provides a complete answer to the plaintiff's claim.

219 In my view, the above extracted passages go no further than to say that, on the facts, Logue failed to establish any in personam right. There is nothing in his Honour's reasons to indicate a broader principle that nothing arising from an administrative error could give rise to an in personam right against the registered proprietor. Further, the case was quite unusual, in that the council was both transferor and transferee and, as transferee, was protected by the special provisions of s 604(2) of the Local Government Act 1919, being provisions distinct from the provisions of the Real Property Act 1900 (NSW).

220 Further, Hutley JA and Reynolds JA ultimately decided the case on the basis that there was no non-compliance with the statute. The transfer was therefore, in their Honours' view, valid even absent the operation of the Torrens legislation. Their Honours' conclusions on the issue of in personam rights were therefore obiter.

221 Mahoney JA delivered a dissenting judgment which, at least in part, has since attracted favourable attention in the High Court.[215] Mahoney JA held that the incorrect notice did not comply with the requirements of s 602(2)(b) of the Local Government Act 1919, properly construed. That non-compliance, his Honour found, rendered the sale invalid. More importantly, his Honour found that the sale was invalid because the council breached its statutory duty to issue a compliant notice. His Honour also found that the council knew of the matters which caused the invalidity, namely, the correct amounts that should have been contained in the notice and the fact that the notice included different, incorrect amounts. In those circumstances, his Honour held, the council's reliance on s 604(2) of the Local Government Act 1919 constituted equitable fraud, as did its reliance on the Real Property Act 1900. That fraud gave rise to a personal equity enforceable against the council, as registered proprietor of the land, despite the effect of s 604(2) of the Local Government Act 1919 and despite the Real Property Act 1900.

222 As to the finding of equitable fraud in relation to the council's particular reliance on s 604(2), Mahoney JA said:

In the present case, the council relies upon s 604(2) to convert what was a nullity into an effective conveyance, and to free itself from the rights which otherwise the plaintiff would have against it. There are, in my opinion, at least two things which together make insistence upon the subsection fraud: first, the fact that the transaction was a nullity resulted from the council's failure to carry out its duty under the Act and, by use of the subsection, it seeks to retain the advantage of the transaction notwithstanding that breach; and, second, when it achieved registration of the transfer to itself, it had such notice of the relevant facts as is appropriate for a finding of fraud.

223 Dealing with the relevance of the council's knowledge of the facts giving rise to the invalidity of the grant, his Honour said:

In relation to equitable fraud of the present kind, the cases, in considering of what facts there must be notice, have been concerned with notice of facts relating to the existence of a prior interest. It has not been seen as necessary that it should have been realised that that interest would be defeated by registration of the subsequent interest. The facts relating to the prior interest of which there had to be notice were not said to be confined only to facts constituting direct knowledge of that interest: facts from which the existence of the interest should be concluded have been held to be sufficient, at least, if they show 'the wilful shutting of the eyes to documents or to facts' or 'a desire or fixed purpose to avoid knowing more': Kettlewell v Watson[216]. Whether notice of a different or lesser kind is sufficient I need not, for present purposes, consider.

...

What, then, of the council's notice of nullity? It is not necessary that it be conscious that what had occurred was a nullity. It had notice of, and in fact knew of, all of the primary facts from which, without more, it followed that the sale and transfer were a nullity. It failed to draw the conclusion that the advertisement was defective and that, therefore, the following steps had no effect under the statute. If the council had deliberately, though mistakenly, failed to give notice to interested parties under s 602(2)(c), it could not, in my opinion, plead that it had no notice of the nullity because it did not realise the effect of what it had done or failed to do. I do not think its position is different in the present case.

In my opinion, therefore, for the council to have the advantage of registration given by s 604(2) would be equitable fraud.

If this be so, then it is open to this Court to hold that, though it holds the title to the land, the council holds it subject to the rights in equity which arise from that fraud. In this, as in Bulkley v Wilford,[217] the council holds the land subject to the right of the plaintiff to have the transfer set aside.

224 In concluding that the plaintiff's equity was similarly untouched by the relevant provisions of the applicable Torrens legislation, his Honour said:

Here, the fact that the sale and transfer were a nullity arose because of the breach of the duty which the statute imposed upon the council. The council knew of the matters from which the consequence of nullity flowed; and, in addition, it owed to the person in the position of the plaintiff a duty to observe, in dealings with him, a high standard. These facts, I think, give rise to a personal equity of the relevant kind.

225 Mahoney JA was, of course, in dissent in the result in that case. However, as the plaintiff pointed out in written submissions, Mason CJ, Wilson, Dawson and Toohey JJ all referred to his Honour's judgment with apparent approval in Bahr v Nicolay.[218] Mason CJ and Dawson J said:

Neither the two sections nor the principle of indefeasibility precludes a claim to an estate or interest in land against a registered proprietor arising out of the acts of the registered proprietor himself: Breskvar v Wall[219]. Thus, an equity against a registered proprietor arising out of a transaction taking place after he became registered as proprietor may be enforced against him: Barry v Heider[220]. So also with an equity arising from conduct of the registered proprietor before registration (Logue v Shoalhaven Shire Council[221]), so long as the recognition and enforcement of that equity involves no conflict with ss 68 and 134. Provided that this qualification is observed, the recognition and enforcement of such an equity is consistent with the principle of indefeasibility and the protection which it gives to those who deal with the registered proprietor on the faith of the register.

226 Their Honours' citation of Logue v Shoalhaven Shire Council in the extracted passage is to a passage in Mahoney JA's judgment.

But, equally, they do not protect a registered proprietor from the consequences of his own actions where those actions give rise to a personal equity in another. Such an equity may arise from conduct of the registered proprietor after registration: Barry v Heider.[222] And we agree with Mahoney JA in Logue v Shoalhaven Shire Council[223] that it may arise from conduct of the registered proprietor before registration.

228 In my view, there is much to commend Mahoney JA's judgment in Logue. It will be necessary to return to it shortly.

229 Palais Parking Station Pty Ltd v Shea_[224]_ was a compulsory acquisition case. In 1940, the Director-General of Medical Services was proclaimed to hold certain powers under the Lands for Public Purposes Acquisition Act, 1914-1953 (SA), including a power to acquire land. In 1971, by a further proclamation, the Minister for Works was granted those same powers. Two years later, Shea, as Director-General of Medical Services, gave notice of his intention to acquire land from Palais Parking, caused a notice to be published in the Gazette and caused a copy of the notice to be served on the Registrar-General. The Registrar-General then registered the transfer, purporting to vest the land in Shea. It was later established that, from the 1971 proclamation onwards, only the Minister for Works (and not the Director-General of Medical Services, the office Shea held when he purported to acquire the relevant land) could acquire land under the relevant power. There was no suggestion of fraud or lack of good faith on Shea's part.

230 The trial judge referred questions of law to the Full Court. King CJ delivered the leading judgment. His Honour analysed Logue v Shoalhaven Shire Council and concluded that all three members of the Court in that case agreed that mere retention of the land with knowledge that the notice was a nullity would not give rise to an equity that would defeat registered title.[225] His Honour also found on the facts that there was no question that Shea had engaged in fraud, oppression, bad faith or a breach of duty as considered by Mahoney JA in Logue v Shoalhaven Shire Council. Indeed, his Honour found:

There is no doubt about the power of the State of South Australia to acquire the land compulsorily. The entire error lay in acquiring the land through the wrong officer of State. Although the registered proprietor is the Director-General, whose name now appears on the title, the proprietor is in reality the State of South Australia.

When the arguments are analysed, it appears that the case for the plaintiff can be put no higher than the proposition that in utilizing the machinery of the Land Acquisition Act and in procuring himself to be registered as the proprietor, the Director-General has incurred an obligation in equity enforceable in personam to restore the land to the dispossessed owner, or, to put the matter another way, holds the land as constructive trustee for the dispossessed owner. In my opinion, this proposition stands in plain contradiction of the principle of indefeasibility of the Torrens system title as authoritatively expounded by the cases to which I have referred. It is really an assertion of a claim in equity based upon nothing more than the previous ownership. The basis of such a claim is destroyed by the indefeasibility provisions in ss 69 and 70 of the Act.

232 Williams J agreed with the Chief Justice. Wells J dissented.

233 Again, nothing in King CJ's judgment stands for the proposition that an in personam right enforceable against the registered proprietor of land could never arise from a breach of a statutory process. The basis for his Honour's judgment was, instead, the proposition that mere notice of a prior unregistered interest cannot impugn registered title. Section 42 of the Transfer of Land Act 1958 on its clear terms would preclude such a claim. The plaintiffs in this case made no argument to the contrary.

234 Tyre Marketers[226] is a case to which I have already referred on another issue. The plaintiff company was a wholly owned subsidiary of Pacific Dunlop Olympic Ltd, which had formerly been called Dunlop Olympic Ltd. In 1986 it took a lease of certain land from the Crown and registered the lease. In 1987 the defendant company, Alstergren, purchased the freehold of the land from the Crown. Alstergren sought to evict the tenant on the basis that the tenant's lease was void because it had not complied with s 137 of the Land Act 1958 in 1986 in the course of applying for the Crown lease. The alleged non-compliance was that, in the notice published under s 137, the proposed lessee was wrongly referred to as 'Dunlop Olympic Limited' rather than as Tyre Marketers (Australia) Pty Ltd.

235 Marks J expressed doubts as to whether the error could have invalidated the lease, but proceeded on the assumption that it did.[227] On that assumption, his Honour held that the lease was not invalidated by the mistake for two reasons. The first was that a Crown lease could not be attacked other than at the instance of the Crown or, at least, in proceedings to which the Crown was a party. The Crown not having been joined, his Honour held, the lease could not be impugned. Of course, the present case is different from Tyre Marketers in that respect.

236 The second reason the lease was not invalid, in his Honour's view, was that the lease was registered and indefeasible. After expressing the view that the references to Mahoney JA's dissent in Logue v Shoalhaven Shire Council by the High Court in Bahr v Nicolay did not go so far as to overrule the majority in Logue, his Honour said of Alstergren's in personam rights claim:

It is true, I think, that in his dissenting judgment in Logue Mahoney JA found the appellants had an 'equity' arising from what he held was a defective statutory notice to pay rates leading to forfeiture of the land and its subsequent registration in the name of the transferee. But even such a circumstance has no parallel with those with which I am here concerned because it might at least be thought that what transpired in Logue was between the parties themselves, the forfeiture being a consequence of the nature and content of written communication by the respondent to the appellants with defective notice (according to Mahoney JA but not the majority) of the rates owing.

The invalidity in this case is said to have stemmed solely from failure to comply strictly with a statutory requirement which did not in any way bear on the agreement comprised by the lease, its terms or any understanding, arrangement or communication between the parties. Moreover, the non-compliance relied on was of very little consequence to anyone as the principal object of s 137 is to ensure notice to the public, particularly those likely to be interested, of the dealing in Crown land. The particulars actually published substantially met that object, the only defect of consequence being that Dunlop Olympic Ltd was said to be the proposed lessee rather than the plaintiff, its subsidiary.

In my opinion, the circumstances here are analogous with those of Assets Company, Boyd, Frazer v Murphy [sic: Walker], and Breskvar which held title of the registered proprietor was indefeasible notwithstanding the registration was consequent on void instruments or invalidity of procedure.

237 Yet again, as is clear from the above, the proposition that statutory non-compliance could not give rise to an in personam right against Tyre Marketers formed no part of his Honour's reasoning. Rather, Alstergren's claimed right in personam failed because it amounted, in effect, to an assertion that the lease was invalid, and no more. That is to say, Alstergren simply failed to make out a recognised basis for an in personam claim.

238 Neither the State defendants nor MAPA relied on Canada Bay Council v Bonaccorso Pty Ltd ('Bonaccorso')[228] in their written arguments on in personam rights. But senior counsel for the plaintiffs addressed the case in oral submissions.[229] So it is desirable for me to deal with it.

239 In that case, a council sold land and the purchaser registered the transfer under Torrens legislation. Section 45(1) and cl 6 of Sch 7 to the Local Government Act 1993 (NSW) together had the effect that the council lacked power to dispose of 'community land'. The owners of nearby land, Bonaccorso, sought orders amending the Register to show that the council remained the registered proprietor of the land. Bonaccorso succeeded before the Land and Environment Court. The council appealed.

240 The Court of Appeal held that the land was 'community land', and the transfers invalid. Nevertheless, the council submitted, registration of the land despite the invalidity of the transfer rendered the titles indefeasible.

241 The Court of Appeal considered the critical question was whether the Local Government Act 1993 prevailed over the Real Property Act 1900 (NSW). That is, on the proper principles, did the transfer of land in breach of s 45(1) of the Local Government Act 1993 deny the conclusive nature of the transferee's title to the land? The Court considered that, on a proper application of the principles of implied repeal, it did not.[230] The Court said:

Thus although the appellant acknowledged that s 45(1) of the Local Government Act had the effect of invalidating the transaction between it and the third respondent, it submitted that any person could have moved the Land and Environment Court for orders restraining the third respondent as transferee from registering the transfer from the appellant and otherwise setting the transaction underlying the transfer aside. However, once the Registrar-General registered the transfer, the indefeasibility provisions of the Real Property Act were engaged and prevented that occurring.

In our view this submission should be accepted. The authorities are clear that a court should read statutes together if it possibly can. Thus we can accept the word 'sequential' adopted by Kirby J in Hillpalm insofar as the statutes do have effect sequentially, that is, that up until registration the transaction or transfer is null and void but on registration, as Breskvar v Wall holds, there is virtually a new Crown grant of the fee simple in the land, so that from that moment the transferee obtains a new clean title (see at 438 [45] supra). The result is that the transferee's title is wholly derived from the act of registration by the Registrar-General and not upon the transfer or the antecedent transaction which gave rise to the transfer.

242 There is a sense in which Bonaccorso does not lock horns with the arguments of the State defendants with which I am presently dealing. The Court, in that case, was not asked to decide whether Bonaccorso (or anyone else) had a right in personam against the transferees as registered proprietors. That question could not have arisen, because the party challenging the transferees' registered title did not claim entitlement to any private law interest in the land at all. The case concerned only whether statutory non-compliance alone was sufficient to defeat indefeasibility. In that regard, it falls to be considered with certain other cases including Travinto Nominees Pty Ltd v Vlattas,[231] Hillpalm Pty Ltd v Heaven's Door Pty Ltd,[232] and Horvath v Commonwealth Bank of Australia.[233]

243 As mentioned above, the plaintiffs in the present case did make an argument to the effect that non-compliance with s 137 alone was sufficient to defeat MAPA's registered title. They said, in written submissions filed before the hearing:[234]

If the decisions to grant the Crown Leases were beyond power or affected by jurisdictional error, the decisions are a nullity and the Crown Leases are void. If there is no valid lease granted under s 134, no interest in land has been created that is capable of being brought under the Transfer of Land Act. The purported leases cannot be transformed into valid leases and made indefeasible simply by the registration of a void instrument. The stream cannot rise higher than its source. Any other conclusion would potentially raise significant constitutional questions.

The position can be illustrated by some examples. If a statute conferred power on a Minister or other agent of the Crown to grant a lease only for a maximum term of 2 years, and the Minister or agent purported to grant a lease for a term of 99 years, it cannot be seriously suggested that the registration of the purported 99-year lease would confer an indefeasible title on the grantee.

...

There are several possible approaches to avoid such unsatisfactory (and possibly unconstitutional) outcomes. One direct approach is to treat the absence of power to grant the lease as going to the root of the interest in respect of which registration is sought, and as an anterior issue to the application and effect of any provisions of the Transfer of Land Act. The operation of the Transfer of Land Act in relation to the initial registration of a purported Crown grant can be distinguished from the application of the indefeasibility provisions to the registration of subsequent dealings in a validly granted title.

244 As I have foreshadowed, I consider the plaintiffs in this case have an in personam right enforceable against MAPA. That finding is sufficient to dispose of the case. Accordingly, it is not necessary that I decide this point, though I confess that I find the plaintiffs' submissions on this point to have at least some superficial attraction. Whether or not the relevant provisions of the Land Act 1958 could be said to effect an implied repeal of the indefeasibility provisions of the Transfer of Land Act 1958 would, of course, fall to be determined on a close analysis of the interaction between those statutes, on their proper construction.

245 So too with the plaintiffs' argument, also indicated in the passage from the pre-hearing submissions extracted above and pursued orally and in further written submissions, to the effect that an invalid original grant of Crown land, without more, may not be protected by the Torrens provisions,[235] although an invalid transfer of already-registered Crown land may be protected. It is not necessary for me to deal with that argument, either, although the drastic consequences such a finding might have for the conclusiveness of the Register would seem to tell against it.

246 For present purposes, it is enough to observe that nothing in Bonaccorso stands or could stand for the proposition which the defendants sought to pursue, namely, that a statutory failure can never give rise an in personam right enforceable against the registered proprietor of land.

247 It follows that I can find no basis in the provisions of the Transfer of Land Act 1958 or the cases on which the defendants relied that would support the defendants' contention that an in personam right enforceable against the registered proprietor of land can never arise out of a statutory breach.

248 It might perhaps be said that, so far, the analysis above has been unduly narrow in that it has focussed mainly on the State defendants' conduct, rather than MAPA's conduct. But that is because it has been necessary to deal with the State defendants' arguments that the State's conduct, being conduct of a third party, could not create a right in personam in the plaintiffs against MAPA's registered interest, and that no such claim could arise out of a breach of statutory duty. As discussed above, in my view, neither of those arguments can succeed.

249 MAPA's additional argument, that it could not be held responsible for the State defendants' administrative law failures, was really another version of the State defendants' first argument that the Crown was a third party. It also fails as outlined above.

250 To fully assess whether the plaintiffs can raise an in personam claim enforceable against MAPA's registered title, it is necessary to examine MAPA's conduct more closely, in the context of the State defendants' (now admitted) administrative law failures.

251 In my view, taken in this way, MAPA's conduct does give rise to a good in personam claim in the plaintiffs. In particular, in my view, the facts fall within the principles set out by Brennan J in Bahr v Nicolay.[236] I have already extracted relevant portions of his Honour's judgment in that case above, but they bear repeating. His Honour said:

A registered proprietor who has undertaken that his transfer should be subject to an unregistered interest and who repudiates the unregistered interest when his transfer is registered is, in equity's eye, acting fraudulently and he may be compelled to honour the unregistered interest. A means by which equity prevents the fraud is by imposing a constructive trust on the purchaser when he repudiates the unregistered interest. That is not to say that the registration of the transfer to such a proprietor is affected by such fraud as may defeat the registered title: the fraud which attracts the intervention of equity consists in the unconscionable attempt by the registered proprietor to deny the unregistered interest to which he has undertaken to subject his registered title.

252 MAPA made and pursued its application to the Department acknowledging that the plaintiffs and other persons in the position of the plaintiffs held rights and interests in relation to the Gabo and Tullaberga sites that would be adversely affected if MAPA were to acquire exclusive possession and MAPA assured the Department that, for that very reason, it did not claim an interest conferring exclusive possession.

253 The fact that the plaintiffs were not afforded an opportunity to be heard was, at least in substantial part, due to MAPA's failure to discharge its statutory obligation under s 137. That the State may have indicated that it would discharge MAPA's obligation for MAPA, but failed to do so, is neither here nor there. By its failure to comply with a statutory obligation owed to the public at large (including to persons in the plaintiffs' position), MAPA acquired an interest to which it would never have become entitled had it discharged the obligation. And, as already mentioned, I am comfortably satisfied, as a matter of factual causation, that MAPA would not have been granted CMA consent without those assurances; and that, without CMA consent, MAPA would not have been granted the purported leases.

254 In my view, MAPA's own acts and omissions amount to a sufficient undertaking by MAPA to the Department not to take the Crown leases without proper notice having been given to parties in the position of the plaintiffs, to fall within the principle described in the extract from Brennan J's judgment in Bahr v Nicolay extracted above. If it is necessary to find that MAPA's undertaking involved an obligation on MAPA vis-à-vis the plaintiffs and persons in their position to publish the notices required by s 137, then, as already indicated, I would find that, by force of the statute, such an obligation existed. In my view, it makes no difference that the relevant undertaking has a statutory basis. Equity regards MAPA's repudiation of the undertaking as unconscientious nevertheless. Certainly, none of the cases to which I was referred by the parties form a basis for saying that the plaintiffs' in personam claim cannot arise in this way.

255 That is sufficient to dispose of the remainder of this proceeding. However, some further observations seem to be in order.

256 Whilst it is often difficult to characterise the different categories of equitable fraud, and equitable principles are by their nature and design flexible,[237] the passage extracted above from Brennan J's judgment in Bahr v Nicolay appears to align most closely with what has been called the 'fourth category' of equitable fraud mentioned in Earl of Chesterfield v Janssen,[238] namely:

A 4th kind of fraud may be collected or inferred in the consideration of this court from the nature and circumstances of the transaction, as being an imposition and deceit on the other persons not parties to the fraudulent agreement.

257 Although other passages in Brennan J's judgment appear to suggest that his Honour relied, at least in part, on other categories of equitable fraud, including the one mentioned below, the following passage is to similar effect:[239]

Therefore, although a purchaser who secures registration of a transfer of the fee simple merely with notice of a third party's right to purchase acquires on registration of his transfer a title freed of any obligation to the third party which equity would otherwise impose, a purchaser who has undertaken - whether by contract or by collateral undertaking - to hold his title subject to a third party's right to purchase remains bound by his undertaking after registration of his transfer. If he should repudiate the third party's right to purchase, equity imposes a constructive trust so that the registered proprietor holds his title on trust for the third party to the extent of the third party's interest.

258 In my view, MAPA's conduct also falls within another recognised category of equitable fraud. In particular, I consider that the conduct falls within that category of equitable fraud associated with unacceptable use of a statute, and on which Mahoney JA appeared to rely in Logue v Shoalhaven Shire Council.[240] His Honour said, in that case:

The basis for the application of the principles of equitable or constructive fraud in such a case as the present was, in my opinion, stated by Fry J in Kettlewell v Watson[241] ... Fry J, in stating the relevant principles, said;[242]

The ground upon which the Courts have relieved against registered conveyances, or even against a prior legal title, seems to me to be fraud. The Court will not allow a man to avail himself of a legal estate which he has recovered, or of the right which he may have under a registered conveyance, when he, at the time he took the legal estate, or at the time of the registration of the conveyance, knew a fact which made it unconscionable for him to take the legal estate or to effect the registration. That unconscionable act requires, of course, the coincidence in the same person of the knowledge and of the act, because, if A knows a thing, and B does something inconsistent with A's knowledge, there is nothing fraudulent in the Act; but, if A knows something which renders it unconscionable for him to do the act, and he does it, then there is fraud.

259 Here, MAPA knew, at least, that it had an obligation to notify under s 137 of the Land Act 1958. Hence, MAPA knew that persons in the position of the plaintiffs had, at least, a legal right to be provided with the requisite statutory notice before any Crown lease could legally be granted to it. Knowing what it did, MAPA's insistence on the rights it acquired on registration of the lease, was unconscientious and even unconscionable. That conduct was equitable fraud, and gave rise to a constructive trust in favour of the plaintiffs.

260 The following additional observations of Mahoney JA in Logue, in my view, are apposite. His Honour said:[243]

Coke's maxim that a man may not take advantage of his own wrong: see Broom's Legal Maxims, 10th ed, p 191, bears on this question. It is fully recognized in courts of law and of equity. It is not so much a principle of law as a principle which informs the law, and assists in determining how the principles of law are to be applied in an instant case. It may, in particular, affect the operation or, at least, the interpretation of a statute, and lead to the imposition of rights in equity which, on the face of them, are inconsistent with the right which otherwise would be produced by the statute. In Molton v Camroux[244] the grantee of an annuity sued for the consideration paid for it and alleged, inter alia, that the grant was void. She relied on a statute which provided that, if the annuity was not enrolled, it was void. This was rejected. Patteson J, giving judgment in the Exchequer Chamber, said:[245] 'The first ground was, that no memorial of the annuity had been enrolled. The case of Davis v Bryan[246] decided, that it was the duty of the grantee to procure the memorial, and that he cannot take advantage of his own neglect to treat the grant as void.

261 Here, of course, the plaintiffs rely upon, and have proved, much more than neglect on the part of MAPA. Equity, a fortiori, will not allow them to take advantage of their own wrong.

262 The practitioners for the parties are invited to consult with each other and to provide to the Court, within 14 days, an agreed form of judgment or order to give effect to these reasons for judgment, and to dispose of the proceeding, including in relation to costs. If full agreement is not reached and communicated to the Court within 14 days, the matter will be listed for a short oral hearing to deal with the outstanding matters.

[1] Transcript of proceedings 16 and 17 March 2020 ('T') 256; Transcript of proceedings 18 March 2020 ('T 18 March 2020') 30-32. See also T 157-158, 162; T 18 March 2020, 17; post-hearing submissions of the first and fourth defendants dated 1 April 2020, [8(d)]. Unfortunately, the transcript for the third and final day of hearing on 18 March 2020 is not numbered consecutively with the transcript of the hearing on 16 and 17 March 2020. Accordingly, it is necessary to refer separately to the transcript of the final day.

[2] See, eg, outline of submissions of the plaintiffs dated 10 January 2020 ('plaintiffs' 10 January 2020 outline'), [13], where the plaintiffs say that 'MAPA Pearls commenced its aquaculture operation in approximately 2005 ...'. Similarly, see, eg, the outline filed on 5 February 2020 on behalf of the first and fourth defendants ('the State defendants') ('the State defendants' 5 February 2020 outline') where, in [1], the (corporate) fifth defendant is designated 'MAPA' and where, in [43], 'MAPA' is referred to in relation to matters pre-dating its incorporation in 2015. Similarly, see, eg, the outline of submissions of the fifth defendant itself dated 12 February 2020 ('MAPA's 12 February 2020 outline') in which, in [1], the fifth defendant designates itself 'MAPA Pearls' and in which, in [7], it says that 'MAPA Pearls commenced its aquaculture operations in 1996, when it was granted its first aquaculture licences'. See also T 49.

[4] See also s 34 of the Land Act 1958 relating to the public hearing of objections to proposed Crown grants.

[5] MAPA's outline of submissions on interlocutory relief dated 18 December 2019, [4].

[6] Transcript of proceedings 20 December 2019 ('T 20 December 2019') 114, 133; T 18 March 2020 22-23, where senior counsel for the plaintiffs squarely raised that MAPA had not adduced any evidence to substantiate its earlier assertion that its business operations would be at risk if it were no longer entitled to exclusive possession. Cf MAPA's post-hearing submissions dated 8 April 2020, which did not address the question of whether MAPA would suffer any loss if it were no longer to be entitled to exclusive possession over the sites. MAPA did not adduce any evidence on this question at any stage of the proceedings.

[9] That is, the plaintiffs' 10 January 2020 outline.

[10] The information that the corporate plaintiffs' businesses are in the nature of family businesses is information that I was told by counsel for the plaintiffs from the Bar table, without objection or contradiction. T 18 March 2020, 20.

[12] Without demur from the defendants, and in a fashion that appears to me to be accurate, counsel for the plaintiffs, in footnote 3 of their written outline of submissions dated 10 January 2020, summarised the legal framework of the plaintiffs' commercial fishing as follows:

Access licences are dealt with by s 38 of the Fisheries Act. The Abalone Fishery (Eastern Zone) Access Licence is a class of licence created by reg 12(c) of the Fisheries Regulations 2009 (Vic) (Fisheries Regulations), which authorises the activity specified in reg 248, including the taking and possession of abalone for sale. Section 38 of the Fisheries Act provides that it is an offence to take fish for sale unless authorised under the Act. Quota units are dealt with largely under ss 65A and 65B. Pursuant to the Fisheries Act, an annual quota for the relevant species is declared by the Minister or delegate for each zone in Victoria (known as the 'quota order' or 'total allowable commercial catch' (TAC)): see generally Fisheries Act, ss 64, 64A, s 64AB and s 64B; see also s 66C in respect of abalone. Persons holding access licences or quota units in the given zone are permitted to fish the same proportion of the TAC as they hold units of in that zone: see eg Fisheries Act, s 66.

Mr Daniel deposes, at [19] of the First Daniel affidavit, and I accept, that the sea urchin industry is regulated in a fashion that is broadly similar to the way in which the abalone industry is regulated. And see, generally, my judgment in Port Phillip Scallops Pty Ltd v Minister for Agriculture [2018] VSC 589 [30]-[42]; cf Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 584-585.

[13] See cl 3.2.5, which requires that boundary markers must 'not pose a risk to people or marine vessels'. Email from Paul Menke enclosing Aquaculture Licence CLA8 dated 16 January 2017, CB 793.

[15] Second Daniel affidavit [21]-[23], [26]-[32]. See also [54].

[16] It is not altogether clear that permits existed for the Gabo site at the commencement of the Menke family's culturing operations: cf affidavit of Paul Menke filed 26 February 2020, [13].

[17] Affidavit of Sarah Crute filed 4 December 2019, [10]-[11].

[18] SKC-4 to the affidavit of Sarah Crute filed 4 December 2019: Coastal Consent, CB 236.

[20] SKC-5 to the affidavit of Sarah Crute filed 4 December 2019: Application to use Crown land and letter from the Department to Gerardus Menke dated 30 November 2011, CB 249-250.

[21] Subdivision 1 includes the abovementioned ss 134 and 137 of the Land Act 1958. Subdivision 2 includes the abovementioned ss 138 and 140 of the Land Act 1958.

[22] SKC-5 to the affidavit of Sarah Crute filed 4 December 2019: Application to use Crown land and letter from the Department to Gerardus Menke dated 30 November 2011, CB 238-257.

[24] SKC-7 to the affidavit of Sarah Crute filed 4 December 2019: Emails between Timothy Shepherd and Darryl Burns, CB 263.

[28] SKC-8 to the affidavit of Sarah Crute filed 4 December 2019: Application for consent for proposed use and development of coastal Crown land, CB 280-287.

[31] SKC-9 to the affidavit of Sarah Crute filed 4 December 2019: Memorandum from Rob Stewart to Grange Jephcott dated 5 May 2014, CB 289.

[32] SKC-10 to the affidavit of Sarah Crute filed 4 December 2019: Letter from Grange Jephcott to Gerardus Menke enclosing subsequent coastal consent dated 9 May 2014, CB 291-292.

[33] But see above and see further below.

[34] SKC-10 to the affidavit of Sarah Crute filed 4 December 2019: Letter from Grange Jephcott to Gerardus Menke enclosing subsequent coastal consent dated 9 May 2014, CB 291-292.

[35] SKC-14 to the affidavit of Sarah Crute filed 4 December 2019, Emails between Timothy Shepherd and Andrew Clarke: CB 313.

[36] SKC-13 to the affidavit of Sarah Crute filed 4 December 2019: Emails between Timothy Shepherd and Damian Clarke, CB 307.

[39] SKC-14 to the affidavit of Sarah Crute filed 4 December 2019: Emails between Timothy Shepherd and Andrew Clarke, CB 312-315.

[44] SKC-15 to the affidavit of Sarah Crute filed 4 December 2019: Letter from the Department to Damian Clarke dated 3 March 2015, CB 317-318.

[45] Affidavit of Paul Menke filed 16 December 2019, [8].

[46] PWM-3 to the affidavit of Paul Menke filed 16 December 2019: Email exchange with Phil Collins and Jeremy Neilson dated between 1 March 2016 and 24 March 2016, CB 603-604.

[47] Affidavit of Paul Menke filed 16 December 2019, [9].

[48] PWM-3 to the affidavit of Paul Menke filed 16 December 2019: Email exchange with Phil Collins and Jeremy Neilson dated between 1 March 2016 and 24 March 2016, 602-603.

[49] Affidavit of Paul Menke filed 16 December 2019, [12].

[50] SKC-18 to the affidavit of Sarah Crute filed 4 December 2019: Emails between Daniel Dyson and Andrew Clarke, CB 327.

[51] SKC-19 to the affidavit of Sarah Crute filed 4 December 2019: Emails between Daniel Dyson and Paul Menke, CB 330-331.

[53] SKC-15 to the affidavit of Sarah Crute filed 4 December 2019: Letter from the Department to Paul Menke dated 23 February 2016.

[54] PWM-4 to the affidavit of Paul Menke filed 16 December 2019: Email exchange with Daniel Dyson dated between 17 January 2017 and 27 February 2017, CB 608.

[56] PWM-6 to the affidavit of Paul Menke filed 16 December 2019: Email exchange with Daniel Dyson dated between 26 April 2017 and 11 May 2017, CB 619.

[58] SKC-21 to the affidavit of Sarah Crute filed 4 December 2019: Letter from Robert Marsh to Phil Collins dated 28 July 2017, CB 339-341.

[59] SKC-22 to the affidavit of Sarah Crute filed 4 December 2019: Letter from Robert Marsh to Jo Creswell dated 28 July 2018, CB 343-345.

[60] SKC-23 to the affidavit of Sarah Crute filed 4 December 2019: Approval in principle, CB 347-351.

[61] Hand-marked amendments to the typed document appear in the quote in underlined and struck-through text as relevant.

[62] PWM-7 to the affidavit of Paul Menke filed 16 December 2019: Email and letter from Daniel Dyson to Paul Menke dated 23 October 2017, CB 624-627.

[63] See affidavit of Paul Menke filed 6 December 2019, [26].

[64] See affidavit of Sarah Crute filed 4 December 2019, [47].

[65] PWM-8 to the affidavit of Paul Menke filed 16 December 2019: Email exchange with Daniel Dyson dated between 13 November 2017 and 17 January 2018, CB 629-632.

[66] Affidavit of Paul Menke filed 16 December 2019, [27].

[69] Amaca Pty Ltd v Cleary [2022] NSWSCA 151, [33]-[38] and cases there cited.

[70] PWM-9 to the affidavit of Paul Menke filed 16 December 2019: Email from Daniel Dyson to Paul Menke dated 16 April 2018, CB 364.

[71] Affidavit of Paul Menke filed 16 December 2019, [30].

[72] SKC-26 affidavit of Sarah Crute filed 4 December 2019: Decision brief signed by the delegate (Gabo Island), CB 374-375.

[73] Affidavit of Sarah Crute filed 4 December 2019, [51]. The registered Gabo Island lease is Exhibit SKC-27 to the affidavit, CB 377-417.

[75] PWM-10 to the affidavit of Paul Menke filed 16 December 2019: Email from Cameron McKenzie to Paul Menke dated 8 January 2019, CB 679.

[76] Affidavit of Paul Menke filed 16 December 2019, [32].

[77] SKC-27 to the affidavit of Sarah Crute filed 4 December 2019: Decision brief signed by the delegate (Tullaberga island), CB 419-420.

[78] See SKC-29 to the affidavit of Sarah Crute filed 4 December 2019: Registered Tullaberga Island lease, CB 458.

[81] Plaintiffs' 10 January 2020 outline, [4]-[5].

[83] Plaintiffs' 10 January 2020 outline [91].

[84] [1975] HCA 58; (1975) 135 CLR 337.

[85] Plaintiffs' 10 January 2020 outline [91].

[87] For example, Port MacDonnell Professional Fishermen's Association Inc v South Australia [1989] HCA 49; (1999) 168 CLR 340; Lavender v Director of Fisheries Compliance, Department of Industries Skills & Regional Development [2018] NSWCA 174; Alcock v Commonwealth of Australia [2009] FCA 820; Alcock v The Commonwealth [2013] FCAFC 36; (2013) 210 FCR 454; Jones v State of Queensland [1997] QSC 209.

[88] Plaintiffs' 10 January 2020 outline, [92].

[90] See State defendants' 5 February 2020 outline [6(1)], [7(d)], [8(a)], [10]-[16].

[91] MAPA adopted the submissions of the State defendants in this regard: see MAPA's 12 February 2020 outline [33].

[92] Citing Imperial legislation of 1842 (An act for regulating the sale of waste lands belong to the Crown in the Australian colonies) Act 5 and 6 Vict, c 36; and citing also, among other cases, Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71-73; Cudgen Rutile (No 2) v Chalk [1975] AC 520; Victoria v Rossignoli [1983] VicRp 73; [1983] 2 VR 1; Palalow Pty Ltd v Minister for Property and Services (1988) V Conv R 54-322, 64,086 (Marks J); Victoria v Bradto [2006] VCAT 22 99 (McNamara DP). See also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232.

[93] Plaintiffs' 10 January 2020 submissions [93].

[94] State defendants' 5 February 2020 outline [21]. The parties' post-hearing submissions included reference to the then very recent decision of the High Court in Western Australia v Manado [2020] HCA 9, now reported at [2020] HCA 9; (2020) 270 CLR 81.

[95] See, generally, Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819.

[96] See, generally, D Pearce, Statutory Interpretation Australia (LexisNexis Butterworths, 9th ed, 2019) [3.38]-[3.41].

[97] See State defendants' 5 February 2020 outline, [6(2)], [8(b)], [31]-[42]; MAPA's 12 February 2020 submissions, [33].

[98] See State defendants' 1 April 2020 written submissions, [8], [16]; MAPA's 8 April 2020 written submissions, [21]. See also plaintiffs' further submissions in reply dated 15 April 2020, [2], where the concessions are noted.

[99] See plaintiffs' 10 January 2020 outline, [9(a)], [35]-[60] and plaintiffs' pre-trial submissions in reply filed 19 February 2020, [2(a)], [3(b)], [11]-[22].

[100] Plaintiffs' 10 January 2020 outline.

[102] On the other hand, as will be seen in due course, I do not see it as important to the success of the plaintiffs' in personam claim to establish a more sinister state of mind on the part of anyone within the Department: compare plaintiffs' 10 January 2020 outline, [41] (n 29).

[103] Plaintiffs' 10 January 2020 outline, [41] (n 29).

[104] Plaintiffs' 10 January 2020 outline, [42].

[105] See ss 135 and 136 of the Land Act 1958.

[106] For other provisions regulating the administration of applications for leases and licences under Part I of the Land Act 1958, see ss 27, 28 and 29 thereof.

[107] Plaintiffs' 10 January 2020 outline, [43].

[109] Plaintiffs' 10 January 2020 outline, [45].

[110] Here the plaintiffs cited, appropriately, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[111] Plaintiffs'10 January 2020 outline, [47].

[113] State defendants 5 February 2020 outline, [31]-[42]. MAPA adopted these submissions too: MAPA's 12 February 2020 outline, [33].

[114] Rightly so in particular for the reasons set out in the plaintiffs' submissions in reply filed 19 February 2020, [17]-[18].

[115] Plaintiffs' 10 January 2020 outline, [47], citing, appropriately, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, 319 [73], 321-322 [77] (McHugh J), 337 [136] (Gummow J), 345-346 [173] (Kirby J), 354-355 [207]-[208] (Hayne J).

[116] Ibid [48], citing, appropriately, Wei v Minister for Immigration and Boarder Protection [2015] HCA 51; (2015) 257 CLR 22, 33-34 [26]-[29]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-391.

[118] Compare Wei v Minister for Immigration and Boarder Protection [2015] HCA 51; (2015) 257 CLR 22 at 33-34 [27] (Gageler and Keane JJ).

[120] Forrest v Wilson [2017] HCA 30; (2017) 262 CLR 510, 529 [64], referring to Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, 533.

[121] [2017] HCA 30; (2017) 262 CLR 510, 529 [64]-[65] (citations included but renumbered).

[122] Cudgen v Rutile (No 2) Pty Ltd v Chalk (1975) AC 520, 533.

[123] Nicholas v Western Australia [1972] WAR 168, 172, 174.

[124] Williams v Attorney-General for New South Wales [1913] HCA 33; (1913) 16 CLR 404, 455-456; Wik Peoples v Queensland (1996) 187 CLR 1, 172-174; Western Australia v Ward (2002) 213 CLR 1, 117-122 [157]-[168].

[125] [2016] NSWLEC 157.

[126] Plaintiffs' 10 January 2020 outline, [52].

[127] [2016] NSWLEC 157, [71]-[75].

[128] Plaintiffs' 10 January 2020 outline, [55].

[129] [2016] NSWLEC 157, [80].

[130] [2009] NSWLEC 46; (2009) 166 LGERA 137, [71]-[77].

[131] Ibid [72]. As the plaintiffs further point out there is a more recent decision of the Supreme Court of New South Wales (Hammerschlag J) to similar effect, namely Desane Properties Pty Ltd v State of New South Wales [2018] NSWSC 553.

[132] (Supreme Court of Victoria, Marks J, 10 March 1989).

[133] Plaintiffs' 10 January 2020 outline, [57]-[58].

[134] Tyre Marketers (Aust) Ltd v Martin Alstergren Pty Ltd (Supreme Court of Victoria, Marks J, 10 March 1989) [12].

[135] Plaintiffs' 19 February 2020 submissions.

[136] Plaintiffs' 19 February 2020 submissions, [2(a)].

[137] [1975] AC 520, 533.

[138] Plaintiffs' 19 February 2020 outline, [22].

[139] Plaintiffs' 10 January 2020 outline, [61] and following.

[140] Citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, 352 [74].

[141] Citing, again, Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, 352 [74], and Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396_._

[142] Plaintiffs' 10 January 2020 outline, [62].

[143] See my judgment in Port Phillip Scallops Pty Ltd v Minister for Agricultural [2018] VSC 589, [95], referring to ICM Agriculture v Commonwealth [2009] HCA 51; (2009) 240 CLR 140, 201 [147]; cf Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567, 584-585.

[144] Plaintiffs' 10 January 2020 outline, [63].

[146] State defendants 5 February 2020 outline, [6(3)].

[147] MAPA's 12 February 2020 outline, [33].

[149] The plaintiffs cited, appropriately, Minister for Immigration and Boarder Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [38], [45], [49] (Bell, Gageler and Keane JJ); cf [77]-[78], [90], [94], [117] (Nettle and Gordon JJ) and certain previous High Court cases.

[151] MAPA's 8 April 2020 submissions, [21].

[152] Plaintiffs' 10 January 2020 outline, [65], citing, appropriately Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 348-349 [23] (French CJ); Shrimpton v Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 629 (Dixon J); R v Anderson; Ex Parte Ipec-A Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189 (Kitto J); Minister for Immigration and Boarder Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713.

[153] Plaintiffs' 10 January 2020 outline, [66].

[156] Plaintiffs' submission in reply filed 19 February 2020, [29].

[157] And, possibly, also the requirements of s 34 of the Land Act 1958.

[158] See Supreme Court Act 1986 (Vic) ss 29, 36, 37 and 38.

[159] See Frazer v Walker [1967] 1 AC 569, 580, where the Judicial Committee described indefeasibility as 'a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which [the registered proprietor] is registered, which a registered proprietor enjoys. This conception is central in the system of registration'.

[160] Kelvin Low, 'The Nature of Torrens Indefeasibility: Understanding the Limits of Personal Equities' 33(1) Melbourne University Law Review 205, 208.

[161] Ibid, 223. See also Lyria Bennett Moses and Brendan Edgeworth, 'Taking it Personally: Ebb and Flow in the Torrens System's In Personam Exception to Indefeasibility' [2013] SydLawRw 5; (2013) 35(1) Sydney Law Review 107, 114.

[162] State defendants' 5 February 2020 outline, [49].

[163] Breskvar v Wall (1971) 126 CLR 376, 381 (Barwick CJ); Westfield Management Ltd v Perpetual Trustee Co [2007] HCA 45; (2007) 233 CLR 528, [39].

[164] State defendants' 5 February 2020 outline, [57], citing Frazer v Walker [1967] 1 AC 569, 585; Breskvar v Wall (1971) 126 CLR 376, 384-385; Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 613 (Mason CJ and Dawson J), 637-638 (Wilson and Toohey JJ). See also MAPA's 12 February 2020 outline, [34]; T 264; Barry v Heider [1914] HCA 79; (1914) 19 CLR 197, 213.

[165] Brendan Edgeworth, Butt's Land Law (Lawbook Co, 7th ed, 2017) 874-875; Lyria Bennett Moses and Brendan Edgeworth, 'Taking it Personally: Ebb and Flow in the Torrens System's In Personam Exception to Indefeasibility' [2013] SydLawRw 5; (2013) 35(1) Sydney Law Review 107, 108; Kelvin Low, 'The Nature of Torrens Indefeasibility: Understanding the Limits of Personal Equities' 33(1) Melbourne University Law Review 205, 208.

[166] Frazer v Walker [1967] 1 AC 569, 585

[167] Lyria Bennett Moses and Brendan Edgeworth, 'Taking it Personally: Ebb and Flow in the Torrens System's In Personam Exception to Indefeasibility' [2013] SydLawRw 5; (2013) 35(1) Sydney Law Review 107, 117.

[169] See and compare Grgic v ANZ (1994) 33 NSWLR 202, 222

[170] Plaintiffs' 10 January 2020 outline, [110]-[112].

[172] [1988] HCA 16; (1988) 164 CLR 604.

[174] Plaintiffs' further submissions dated 25 March 2020, [12]-[13].

[175] Plaintiffs' 10 January 2020 outline, [100].

[176] Plaintiffs' further submissions dated 25 March 2020, [12].

[177] Ibid. See generally, Lukacs v Wood (1978) 19 SASR 520; Tutt v Doyle (1997) 42 NSWLR 10; Citigroup Pty Ltd v Wernhard [2019] NSWSC 132. See also S Robinson, Transfer of Land in Victoria (Law Book Company, 1979) 40-41.

[178] Plaintiffs' post-hearing outline of submissions dated 15 April 2020, [17]. Some support for this contention is to be found in a passing observation of French CJ, Gummow, Crennan and Bell JJ in Mandurah Enterprises Pty Ltd v Western Australia (2010) 240 CLR 409, 425 [43] albeit that the corresponding legislation was somewhat different.

[179] State defendants' 5 February 2020 outline, [57] citing Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, 564 (Mahoney JA); T 162-163.

[180] State defendants' 5 February 2020 outline, [58].

[182] MAPA's 12 February 2020 outline, [33].

[184] State defendants 1 April 2020 submission, [8].

[185] Citing Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, 564 (Mahoney JA); Jefferson v Shirlaw [2006] QSC 153; (2006) 24 ACLC 848, [20]-[24].

[186] MAPA's 12 February 2020 outline, [37].

[187] See, eg, Nathan v Dollars and Sense Finance Ltd [2007] NZCA 177; [2007] 2 NZLR 747, [108] (Glazebrook and Robertson JJ) discussed in GE Dal Pont, Law of Agency (LexisNexis Butterworths, 2nd ed, 2008) [22-59].

[189] Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604, 618-619.

[200] See, eg, Bell Group Ltd v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1, 556 (Owen J).

[201] See generally, Andrew Phang, 'Equitable fraud - Some personal reminiscences and reflections' (2019) 13(1) Journal of Equity 114, 119. Arguably, an example of the development of equity in the manner indicated by Justice Phang can be seen in Argyle Building Services Pty Ltd v Franek [2020] VSCA 196, especially at [55]-[57] and [185]-[190].

[202] Bell Group Ltd v Westpac Banking Corp (No 9) [2008] WASC 239; (2008) 225 FLR 1, 556 (Owen J).

[203] Nadinic v Drinkwater [2017] NSWCA 114; (2017) 94 NSWLR 518, 524 (Leeming JA) citing Nocton v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932, 953-954.

[204] Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 630; Butler v Fairclough [1917] HCA 9; (1917) 23 CLR 78, 97; Wicks v Bennett [1921] HCA 57; (1921) 30 CLR 80, 91.

[205] See Brendan Edgeworth, Butt's Land Law (Lawbook Co, 7th ed, 2017) where the learned author suggests that the existence of overlap remains uncertain, citing Bank of South Australia Ltd v Ferguson [1998] HCA 12; (1998) 192 CLR 248, 255.

[206] [1924] NZGazLawRp 58; [1924] NZLR 1174.

[211] [1927] NZGazLawRp 73; [1927] NZLR 688.

[212] [1979] 1 NSWLR 537.

[216] [1882] UKLawRpCh 25; (1881) 21 Ch D 685, 706-707.

[217] [1834] EngR 112; (1834) 6 ER 1094.

[218] Plaintiffs' 10 January 2020 outline, [112].

[220] [1914] HCA 79; (1914) 19 CLR 197.

[221] [1979] 1 NSWLR 537, 563.

[222] [1914] HCA 79; (1914) 19 CLR 197.

[223] [1979] 1 NSWLR 537, 563.

[224] (1980) 24 SASR 425.

[226] (Supreme Court of Victoria, Marks J, 10 March 1989).

[228] [2007] NSWCA 351.

[230] City of Canada Bay Council v F&D Bonaccorso Pty Ltd [2007] NSWCA 351, [75].

[231] [1973] HCA 14; (1973) 129 CLR 1.

[232] [2004] HCA 59; (2004) 220 CLR 472.

[233] [1998] VSCA 51; [1999] 1 VR 643.

[234] Plaintiffs' 10 January 2020 outline, [97]-[99].

[235] The plaintiffs relied in particular on s 8 of the Transfer of Land Act 1958, which provides that '[a]ll unalienated land of the Crown shall, when alienated in fee or by way of perpetual lease or for years, be under the operation of this Act'. The plaintiff's suggestion was that, because of s 8(1), the other provisions of the Transfer of Land Act 1958 only apply to land that has been validly alienated by the Crown.

[236] And see, generally, William Gummow, 'The In Personam Exception to Torrens Indefeasibility' (2017) 91 Australian Law Journal 549.

[237] See generally, Andrew Phang, 'Equitable fraud - Some personal reminiscences and reflections' (2019) 13(1) Journal of Equity 114.

[238] [1750] EngR 119; (1751) 28 ER 82, 100-101. This principle was recently applied by the Court of Appeal in Argyle Building Services Pty Ltd v Franek [2020] VSCA 196, [55]-[57], [185]-[190].

[239] Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 655.

[240] [1979] 1 NSWLR 537, 553-565.

[241] [1882] UKLawRpCh 25; (1882) 21 Ch D 685, 704.

[243] Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537, 557. This principle is quite commonly applied to the construction of legislation: see D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [2.61] and the cases there cited.

[244] [1849] EngR 659; (1849) 4 Exch 17.

[246] [1827] EngR 48; (1827) 108 ER 591.