(1996) 186 CLR 541
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28
(2014) 86 NSWLR 1
Ex parte McGavin
Re Berne (1945) 46 SR (NSW) 58
Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162
Hogan v Australian Crime Commission [2010] HCA 21
(2010) 240 CLR 651
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19
Source
Original judgment source is linked above.
Catchwords
(1996) 186 CLR 541
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28(2014) 86 NSWLR 1
Ex parte McGavinRe Berne (1945) 46 SR (NSW) 58
Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162
Hogan v Australian Crime Commission [2010] HCA 21(2010) 240 CLR 651
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19(2010) 241 CLR 1
John Cooke & Co Pty Ltd v Commonwealth [1922] HCA 60(1922) 31 CLR 394
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Lamb v Moss [1983] FCA 264(1983) 76 FLR 296
Leach v The Queen [2007] HCA 3(2007) 230 CLR 1
Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCA 91(2023) 298 FCR 57
Mitchell v The Queen [1996] HCA 45(1996) 184 CLR 333
Montgomery v Foy, Morgan & Co [1895] 2 QB 321
Newmarch v Atkinson [1918] HCA 53(1918) 25 CLR 381
Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108(2022) 108 NSWLR 503
Rosenbaum v Minister for Public Works [1965] HCA 65(1965) 114 CLR 424
Ross v Lane Cove Council [2014] NSWCA 50(2014) 86 NSWLR 34
Samad v District Court of New South Wales [2002] HCA 24
Gill v Liverpool City Council; Beningna Pty Ltd v Liverpool City Council [2024] NSWLEC 133 | Case summary | Zoe
The Acquiring Authority Seeks to Join the Former Registered Proprietor of Acquired Land
By amended notices of motion filed on 11 October 2024, the respondent in two sets of Class 3 compulsory acquisition proceedings, Liverpool City Council ("the Council"), sought an order that Abu. Tony Pty Ltd ("Abu Tony") be joined as a respondent to the proceedings.
Initially the Council had sought to join Abu Tony as an applicant, but in light of r 6.25 of the Uniform Civil Procedure Rules 2005 ("UCPR") which states that "a person is not to be joined as a plaintiff in any proceedings except with his or her consent" (the term "plaintiff" in s 3 of the Civil Procedure Act 2005 ("CPA") is defined to mean any person by who proceedings are commenced, and therefore, includes an applicant in Class 3 proceedings), and in the absence of any consent having been obtained from Abu Tony, it amended its application at the hearing to join the company as a respondent.
Upon the amendment having been made, the applicants in both sets of proceedings, Beningna Pty Ltd ("Beningna") (in matter 2023/315389) and Dennis Gill, Resup Pty Ltd, and Mernew Pty Ltd (together, "the Gill parties") (in matter 2023/315225), did not oppose the joinder application, subject to their costs thrown away occasioned by the amendment and the costs of the motion being paid by the Council. The Council agreed to the payment of these costs.
The Council relied upon the power contained in s 25(2) of the Land and Environment Court Act 1979 ("the LEC Act") as the statutory basis for the joinder. That provision states (emphasis added):
(2) In the exercise of its jurisdiction under subsection (1), the Court may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party to the proceedings and may then proceed to determine the nature of the estate or interest of that person and the amount of compensation (if any) to which the person is entitled.
Notwithstanding that Abu Tony was present when the matter was last before the Court (Amal Taouk, a director of Abu Tony, attended by AVL) and Taouk was informed by Clara Fernandez (a solicitor employed by Maddocks, who represented the Council) that the motion was listed for hearing on 3 December 2024, there was no appearance by Abu Tony. Satisfying myself that Abu Tony, through Taouk, was properly notified of the date and time of the hearing of the applications to join it as a party to both sets of proceedings, the hearing continued in its absence.
At the conclusion of the hearing of the amended notices of motion the Court made orders joining Abu Tony as the second respondent in the proceedings, together with consequential costs orders, and relisted the matter before the Registrar for further directions, with written reasons to follow. These are those reasons.
[5]
Abu Tony is Deemed to Have Accepted a Statutory Offer Made by the Valuer-General
For the purposes of the hearing of the two notices of motion, the parties (excluding Abu Tony) agreed on the facts below.
[6]
The Land
Lot 11 in Deposited Plan 1263762 ("Lot 11") is known as 11 Drinkwater Lane, Edmondson Park ("the acquired land"). It is situated in Edmondson Park, a suburb of Sydney approximately eight kilometres southwest of Liverpool and approximately 47 kilometres southwest of the Sydney CBD. It is within the Council's local government area.
On 25 February 2021 a plan of subdivision was registered which created Lots 10, 11, 12 and 13 in Deposited Plan 1263762. Lot 11 has an area of approximately two hectares or 20,110 m2.
[7]
Ownership of the Land
On and immediately prior to the acquisition on 11 November 2022 ("acquisition date"), the registered proprietor of Lot 11 was Abu Tony.
On 8 September 2022 Lot 10 in Deposited Plan 1263762 was subdivided and became:
1. Lots 21 and 22 in Deposited Plan 1250284; and
2. Burrows Avenue and Drinkwater Lane, which were then dedicated to Council as a public road.
On 4 November 2022 Lot 21 was subdivided and became Strata Plan 105520.
As at the acquisition date, the acquired land formed part of a landholding owned by Abu Tony, which comprised Lots 1 to 28 in Strata Plan 105520, Lot 22 in Deposited Plan 1250284 and Lots 11, 12 and 13 in Deposited Plan 1263762.
[8]
The Mortgages
On 25 October 2021 Abu Tony, as mortgagor, granted a legal mortgage in registrable form with the following particulars ("the Gill mortgage"):
1. the co-mortgagees were the Gill parties; and
2. the land secured was CT11/1263762, including real and chattel property, privileges, and rights relating to that land.
On 15 December 2021 the Gill mortgage was registered against the title of Lot 11.
On 15 December 2021 Abu Tony, as mortgagor, granted a legal mortgage in registrable form with the following particulars ("the Beningna mortgage"):
1. the mortgagee was Beningna;
2. the land secured was the whole of the land and improvements in Lot 11, Deposited Plan 1263762, including fixtures, crops growing on the land, and any licences or any rights attached to that land; and
3. incorporating the terms of registered memorandum AC398658.
On 16 December 2021 the Beningna mortgage was registered against the title of Lot 11.
Each of the Gill mortgage and the Beningna mortgage was expressed as securing the repayment by Abu Tony to the respective mortgagees of all sums advanced by them and outstanding from time to time, together with interest at agreed rates and any costs incurred by the mortgagees in enforcing their respective mortgages.
On 16 December 2021 Abu Tony, Beningna and the Gill parties entered into a deed, namely, the "Deed of Priority". By this Deed they agreed that the security provided by the Beningna mortgage ranked first in priority up to a sum of $6.2 million inclusive of interest and costs. They further agreed that the security provided by the Gill mortgage ranked next in priority without being limited as to amount (that is, up to the full amount of the debt, including interest and costs, secured by the mortgage at any time).
[9]
The Acquisition
In 2022 Abu Tony applied to the Council under Div 3 of Pt 2 of the Land Acquisition (Just Terms Compensation) Act 1991 ("Just Terms Act") to seek to require the Council to acquire Lot 11 on the basis of hardship.
On 27 July 2022 the Council resolved to acquire the land by compulsory process pursuant to that Act.
On the acquisition date the Council acquired Lot 11 by publication of a Notice of Compulsory Acquisition in the NSW Government Gazette ("notice of acquisition").
The acquisition excluded certain specific interests in Lot 11 as set out in the notice of acquisition. It did not exclude the Gill or the Beningna mortgages.
[10]
The Claims and the Proceedings
Each of Abu Tony, Beningna and the Gill parties made a claim for compensation arising from the compulsory acquisition of Lot 11.
On 8 August 2023 the Valuer-General ("VG") determined compensation payable to the former registered proprietor, Abu Tony, and the mortgagees in the single aggregate sum of $3,055,529.71, comprising $2,990,000 for market value and $65,529.71 for disturbance.
On 25 August 2023 the Council made a single offer, expressed to be made under s 42 of the Just Terms Act, addressed to Abu Tony, Beningna and the Gill parties collectively, in the total amount determined by the VG.
Abu Tony did not respond to that offer. Each of Beningna and the Gill parties objected to the total amount of compensation offered and commenced separate proceedings in the Court under s 66 of the Just Terms Act ("the proceedings").
The proceedings have not yet been set down for hearing.
[11]
Principle Issues for Determination in the Proceedings
Although at a nascent stage, the principal issues identified by the parties to the two sets of proceedings have been articulated in the proceedings as follows. According to Beningna and the Gill parties they are:
(a) The highest and best use of the Acquired Land.
(b) The area of the Acquired Land that is:
(i) Developable land and
(ii) Riparian/Creek land.
(c) Any mitigation and management measures available to address any identified opportunities and constraints to facilitate the future development of the Acquired Land.
(d) The appropriate comparable sales and adjustments to those comparable sales to be adopted for the purposes of direct comparison valuation method.
(e) The applicants' entitlement to compensation for items of disturbance loss.
The Council admits that the issues to be addressed will include these matters, but also relevantly pleads by way of defence:
(a) having regard to section 25 of the Land and Environment Court Act 1979 (LEC Act), the nature of the Former Mortgagees' interest in the Acquired Land;
(b) having regard to the operation of sections 56(2) and 65 of the Just Terms Act, whether the Applicants and the First Mortgagee are entitled to claim compensation that exceeds the amount of compensation payable to the former registered proprietor (which is denied).
(c) having regard to sections 45, 65 and 66 of the Just Terms Act whether the Court is able to now determine the compensation payable to the former Registered Proprietor (which is denied)…
[12]
Legislative Framework
Section 45 of the Just Terms Act deems acceptance of the VG's offer of compensation if after 90 days a person who receives a compensation notice does not lodge an objection with the Court to the amount offered:
45 Deemed acceptance of offer of compensation
(1) If a person entitled to compensation under this Part does not, within 90 days after receiving a compensation notice -
(a) accept the amount of compensation offered by the authority of the State, or
(b) lodge with the Land and Environment Court an objection to the amount of compensation offered,
the offer of compensation is taken to have been accepted.
(2) Such an acceptance is subject to any decision of the Land and Environment Court on an objection lodged after the 90-day period.
(3) The authority of the State must, on such an acceptance taking effect, pay the amount of money concerned into a trust account kept under this Part and pay the money to the person entitled to it on receipt of a claim for compensation, deed of release and indemnity (duly completed) and any relevant documents of title.
Section 66 of that Act deals with objections against the amount of compensation offered by the VG in the compensation notice:
66 Objection against amount of compensation offered
(1) A person who has claimed compensation under this Part may, within 90 days after receiving a compensation notice, lodge with the Land and Environment Court an objection to the amount of compensation offered by the authority of the State.
(2) If any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation.
(3) A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person's claim for compensation unless satisfied that there is good cause for the person's failure to lodge the objection within that period. …
Section 54(1) of the Just Terms Act gives rise to the entitlement to be awarded compensation in such amount as will justly compensate the person for the acquisition of the land.
In determining the amount of compensation a person is entitled to, regard must be had to the matters contained in s 55 of the Just Terms Act. For present purposes, these matters include the market value of the land as at the date of acquisition (s 55(a)) and any loss attributable to disturbance (s 55(d)).
[13]
Abu Tony Must be Joined as a Party to the Proceedings
Resolution of the interaction between ss 45, 56 and 65 of the Just Terms Act in the context of these proceedings will, as the parties agreed, be a matter for the trial judge and is not to be determined in this application.
Suffice it to say that it is likely, on either case, that Abu Tony's interests will be impacted. In short, depending on the position of the mortgagees, there is the potential for the compensation payable to Abu Tony as the former registered proprietor to either be reduced or increased. It follows that because the interests of Abu Tony are directly affected by the issues for determination in the Class 3 appeals, it is necessary to join it as a party to the proceedings.
[14]
Basis of Abu Tony's Joinder
As discussed with the parties, there are several bases enabling the Court to join Abu Tony as a respondent to the proceedings:
1. s 25(2) of the LEC Act;
2. r 6.24 of the UCPR; and
3. at common law.
It is convenient to deal with s 25(2) of the LEC Act last given the centrality of that provision to the Council's submissions.
Rule 6.24(1) of the UCPR provides that:
6.24 Court may join party if joinder proper or necessary
(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.
The rule reflects the well established common law proposition that all parties to disputes that relate to the same subject-matter should generally be dealt with at the one time (Montgomery v Foy, Morgan & Co [1895] 2 QB 321 at 324 and John Cooke & Co Pty Ltd v Commonwealth [1922] HCA 60; (1922) 31 CLR 394 at 411). This is to facilitate achieving finality in litigation (as reflected in ss 56 and 90 of the CPA, r 36.1 of the UCPR and s 22 of the LEC Act).
Usually joinder occurs where:
1. the person or entity ought to have been joined as a party; and
2. the person or entity is a necessary party.
The authorities indicate that if a person or entity's rights or liabilities in relation to the subject-matter of the litigation may be affected by orders made in the proceedings joinder ought to occur, it is not ordinarily a matter of discretion (John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131], [132] and [137]).
The test for joinder was set out in Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 (at [51]-[53] and [57]):
51 It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.
52 In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between "legal" and "commercial" interests. His Lordship said at 56:
"A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"
53 That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said:
"Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.
…
57 Contrary to Council's submission that "the line of authority from the Super League case must be read in the context of the overriding purpose set out in the Civil Procedure Act", nothing in ss 56-59 of the Civil Procedure Act undermines this principle, at least in its application to the present case. The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order. That is why the High Court referred to the position of the non-party Walker Corporation in John Alexander's Clubs at [153] as depending on "matters of right affecting non-parties which rest on general law principles of natural justice".
[15]
Orders
In conformity with the reasons given above, the orders made on 3 December 2024 were therefore as follows:
1. by consent, leave is granted to the first respondent to amend its notices of motion filed on 11 October 2024;
2. the first respondent is to pay the applicants' costs thrown away occasioned by the amendments;
3. Abu. Tony Pty Ltd is to be joined as the second respondent, pursuant to s 25(2) of the Land and Environment Court Act 1979 to both sets of proceedings;
4. the first respondent is to pay the applicants' costs of the notices of motion; and
5. both sets of proceedings are listed before the Registrar on 18 December 2024 for directions.
[16]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 December 2024
The term "market value" is defined in s 56 of the Just Terms Act. In particular, s 56(2) states that:
(2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.
The Just Terms Act makes specific provision for the effect of acquisition of land subject to one or more mortgages in s 65:
65 Effect of acquisition of mortgage interest
(1) If -
(a) land is compulsorily acquired under this Act, and
(b) the land is subject to one or more mortgages,
then, as a general rule, the compensation to which the owner of the land will be entitled in respect of the acquisition is to be determined as if the land had not been subject to the mortgage.
(2) However, if compensation is payable under this Part to a mortgagee in respect of a mortgage interest, the compensation payable to the owner of the land acquired is to be reduced by so much of the compensation as is payable to the mortgagee.
The interaction of ss 45(1), 65(2) and 66(3) of the Just Terms Act raised by the proceedings does not appear to have been the subject of judicial determination. It gives rise to several interesting questions.
According to the Council, the "owner of the land" referred to in s 65(1) of that Act is Abu Tony as the former registered proprietor, and therefore, under that provision the Court must determine the compensation payable to it as if the mortgages did not exist. Following this determination the compensation payable to Abu Tony must be reduced by the compensation payable to Beningna and the Gill parties. Section 65(1) therefore requires the Court to determine the compensation payable to Abu Tony who is not a party to these proceedings.
Complicating this assessment, however, is the effect of the operation of s 45(1) of the Just Terms Act and the consequential deemed acceptance by Abu Tony of the compensation offered in the compensation notice. If this has the effect of fixing the compensation payable under s 65(1) of the Just Terms Act, then arguably Beninga and Gill parties cannot receive compensation greater than the market value of the acquired land. That is, the deemed acceptance by Abu Tony of the statutory offer may operate as a form of cap preventing Beningna and the Gill parties from contending for a market value in excess of the statutory offer.
Beningna and the Gill parties, by contrast, argued that this proposition is directly contrary to the High Court's decision in Rosenbaum v Minister for Public Works [1965] HCA 65; (1965) 114 CLR 424, which states that each person having an estate or interest in land has a separate and independent claim to compensation for the value of the interest which is acquired by the land acquisition (at 425). Thus, Beningna and the Gill parties are entitled to be compensated independently of Abu Tony and their rights are limited only by the market value of the acquired land and the amounts secured by their respective mortgages.
Applying that test to the present case, it becomes apparent that, as explained above, Abu Tony is a necessary party which must be joined either at common law or pursuant to r 6.24 of the UCPR.
The Council sought, however, an order that Abu Tony be joined pursuant to the specific statutory power contained in s 25(2) of the LEC Act. This is because that provision is designed to deal with precisely the present situation, namely, where a non-claimant either had or may have had an interest in the acquired land as at the date of acquisition their joinder is ordered so that the nature of their interest and the amount of compensation payable to them is determined. Section 25(2) of the LEC Act makes it tolerably clear that the Court can make the relevant determination following joinder.
In my opinion, once joined as a party, the Court would have the same powers to determine the nature of the estate or interest held by Abu Tony in the acquired land and the amount of compensation to which it was entitled, whether the power contained in either s 25(2) of the LEC Act or r 6.24 of the UCPR is invoked. Nevertheless, given that both written and oral argument was devoted to the issue by the Council, I will separately consider the power of the Court to join Abu Tony as a party to the proceedings pursuant to s 25(2) of the LEC Act.
This gives rise to a question as to the proper construction of s 25(2) of the LEC Act and the nature of the power contained within that provision. The starting point is s 9(1) of the Interpretation Act 1987 which states that the word "may", if used to confer a power, indicates that the power can be exercised or not at discretion of the repository of the power, subject to a contrary intention (s 6 of the Interpretation Act and Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; (2014) 86 NSWLR 1 at [14]):
9 Meaning of may and shall
(1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.
Section 25(2) of the LEC Act is therefore prima facie permissive.
However, the word "may" can be used not to bestow a discretion, but to confer a power which must be exercised in certain circumstances, that is, it can create a power coupled with a duty (Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505-506 and Cain at [14]). In these circumstances "may" becomes "must" and is more than a mere duty to consider whether to exercise the power, the power must be exercised.
Whether the circumstances exist to combine a power with a duty will depend upon "the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power" (Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 235 per Lord Selbourne and 222-223 per Earl Cairns LC).
Thus in Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 the plurality of the High Court observed that (at [38], footnotes omitted):
38 It is true that s 19(5) says that the Court "may refuse to fix a non-parole period" if satisfied of the matters set out in the provision. But it by no means follows that, if the Court is satisfied of those matters, it then has to exercise a discretion. Rather, s 19(5) is a provision of the kind considered in Finance Facilities Pty Ltd v Federal Commissioner of Taxation and Mitchell v The Queen. The word "may" is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision. As Windeyer J said in Finance Facilities:
"This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 16[93]: R v Barlow. Today it is enough to cite Julius v Bishop of Oxford; and add in this Court Ward v Williams. But I select one other reference out of a multitude: Macdougall v Paterson. There Jervis CJ said in the course of the argument 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said:
'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.
As the learned authors Perry Herzfeld and Thomas Prince opine in Interpretation (3rd ed, Lawbook Co, 2024), the context is likely to be textual (see generally at [4.250]. To similar effect is the commentary from the learned author D C Pearce in Statutory Interpretation in Australia (10th ed, LexisNexis, 2024) at [11.5] and [11.6]).
Without purporting to be exhaustive, the following contextual indicia arising from the authorities may assist in determining Parliament's intention when approaching the interpretative task:
1. the existence of a duty may be negated by an express provision that amplifies the discretion by the use of the words "if he thinks fit" (Newmarch v Atkinson [1918] HCA 53; (1918) 25 CLR 381 at 387) or "in its discretion" (Lamb v Moss [1983] FCA 264; (1983) 76 FLR 296 at 312);
2. by contrast, if the power is conditional upon the formation of a view as to whether something is "appropriate" or "necessary", this suggests that once the state of satisfaction is formed, there is no further discretion and the power must be exercised (Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [32]-[33]);
3. similarly, where a statute uses the word "may" and confers a power on a court to act if particular criteria are met, it will usually be the duty of the court to exercise that power (Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 at 345-346);
4. if the use of the word "may" is used in contrast to "shall" or "must", this is indicative of a permissive discretion (Ward at 506);
5. if a permissive construction of the word "may" would render the provision redundant, this speaks in favour of the existence of a duty (Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCA 91; (2023) 298 FCR 57 at [19]);
6. if the conferral of the power upon a public officer is to be used for the benefit of specifically identified persons this tends towards the existence of a duty (Ward at 505-506);
7. where a statute confers rights and entitlements it is easier to conclude that the legislature did not intend that these could be taken away by the exercise of a discretion (Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at [36]);
8. likewise, consideration should be given to whether any anomalous or harsh consequences will follow if the provision is construed permissively (Samad at [33] and [37]);
9. where an authority to exercise jurisdiction is reposed in a court, that power generally must be exercised even if expressed in discretionary terms (Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 60-61 but cf Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 at [48]);
10. having said this, while provisions vesting jurisdiction in a court will usually be treated as obligatory, once the court has jurisdiction the powers afforded to it are usually treated as discretionary (for example, the power to grant extensions of time to commence proceedings: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 546); and
11. also in contrast to provisions concerned with assumptions of jurisdiction, the conferral of power upon courts to grant relief of a specific kind (for example, injunctive relief) are not treated as imposing an obligation to exercise that power (Ward at 507).
Turning to the context in which the words "may order" appear in s 25(2) of the LEC Act, s 25(1) of that Act states:
25 Determination of estate, interest and amount
(1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled.
Section 24 of the LEC Act, to which s 25 of the LEC Act refers, relevantly provides that:
24 Claim for compensation in compulsory acquisition cases
(1) If -
(a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and
(b) no agreement is reached between the claimant and the authority required to pay the compensation,
the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise.
(2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation.
The objects of the Just Terms Act are relevant to the construction exercise insofar as that Act forms part of the statutory matrix within which s 25(2) of the LEC Act must be considered. Section 3(1) of the Just Terms Act describes the purposes of the enactment as follows:
3 Objects of Act
(1) The objects of this Act are -
(a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and
(b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and
(c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and
(d) to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and
(e) to encourage the acquisition of land by agreement instead of compulsory process.
Section 24 of the LEC Act confers upon the Court the exclusive jurisdiction to hear and determine claims for compensation by reason of the compulsory acquisition of land pursuant to the Just Terms Act. In order to properly exercise the jurisdiction, the Court must ("shall") determine the nature of the estate or interest a claimant has in the acquired land (s 25(1) of the LEC Act).
Having had this jurisdiction conferred upon it, is the Court obliged to order that any other person who claims that they had or who may have had an interest in the acquired land be joined as a party pursuant to s 25(2) of the LEC Act?
Having regard to the authorities referred to above, the preferable view is that once the Court is satisfied that there is "any other person" who either claims to have had, or who may have had, an interest in the subject land as at the date of acquisition, the Court is obliged to join that person to the proceedings. In other words, s 25(2) of the LEC Act contains a power coupled with a duty.
In forming this opinion, I acknowledge, however, that there are factors that militate against this conclusion. For example:
1. unlike s 25(2), mandatory language is used in s 25(1) of the LEC Act ("shall"), which suggests that the discretion contained in the former provision is permissive in nature; and
2. because jurisdiction to hear and determine compulsory acquisition matters is vested in the Court by ss 24 and 25(1) of the LEC Act, the power contained in s 25(2) is more likely to be discretionary.
But these matters are not sufficient to outweigh the preponderance of contextual indicia that denote that the proper construction of s 25(2) of the LEC Act is that of a power coupled with a duty. This is because, first, in exercising its jurisdiction, which is to determine the amount of compensation to which a claimant is entitled under the Just Terms Act, the Court must ascertain all relevant interests and estates in the land at the time of acquisition. This can only be achieved if all persons who had, or may have had, an interest in the property at the date of acquisition are joined as parties. Put another way, s 25(2) of the LEC Act confers a power on the Court to act if particular criteria, namely, the existence of a person who claims to have had, or who may have had, an interest in the acquired property, are met.
Second, in light of the power contained in r 6.24 of the UCPR and the obligation to join all necessary parties to proceedings pursuant to that rule, were s 25(2) of the LEC Act to be read permissively it would render the latter provision all but redundant. Any party who had or who claimed to have an interest in the acquired land is a person whose rights and liabilities are likely to be affected by orders made in the proceedings and will therefore be a necessary party for the purpose of r 6.24 of the UCPR. If a Court were to exercise its discretion under s 25(2) of the LEC Act to refuse joinder in these circumstances, the aggrieved person or party could simply seek recourse to the joinder power contained in r 6.24 of the UCPR, thereby rendering the power contained in s 25(2) of the LEC Act otiose.
Third, the conferral of power upon the Court is used for the benefit of specifically identified persons, namely, those who claim to have had or those who may have had an interest in the property at the time of acquisition.
Fourth, a person who had or may have had an interest or estate in land at the time that the land was acquired, has a right under the Just Terms Act to have their claim for compensation determined by the Court. It is unlikely, that Parliament intended that this right could be judicially abrogated by the excise of a discretion pursuant to s 25(2) of the LEC Act. Unjust consequences could result if the section is construed permissively and joinder was not permitted.
Fifth, to read the power contained in s 25(2) of the LEC Act permissively would be inconsistent with the objects of the Just Terms Act, especially s 3(1)(b), namely, to ensure compensation on just terms for the owners of land that is acquired by an authority of the State.
Having said this, the power conferred upon the Court by s 25(2) of the LEC Act is not plenary. The necessary precondition of the existence of a person who claims to have had or may have had an interest in the subject land at the date of acquisition must be met before the power is exercised. While the threshold is low ("or may have had an interest"), it should nevertheless be remembered that not all interests are compensable under the Just Terms Act. An "interest" in land does not, in this statutory context, extend to interests that are dependent upon the personal relationship between occupier and owner, such as a bare licence or permission to occupy land terminable at will by the owner (Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108; (2022) 108 NSWLR 503 at [43]-[46] and [76]-[78]).
In the present case, the former registered proprietor, Abu Tony, is both an entity who claims to have had an interest in the land at the date of acquisition and a person who did in fact hold such an interest, that is, an interest in fee simple. Whereas the nature of the interest is not in dispute, the amount of compensation to which Abu Tony may be entitled is, given the manner in which the Council has pleaded its case. Because the relevant precondition to the exercise of the power contained in s 25(2) of the LEC Act has been met, the Court must join Abu Tony as a party to the proceedings.
Even if, contrary to the conclusion arrived at above, the power in s 25(2) is wholly discretionary, there are nevertheless compelling reasons why the Court would exercise its discretion to join Abu Tony to the proceedings in the circumstances of the case:
1. first, Abu Tony's interest in the acquired land is more than speculative, it is as the owner of an estate in fee simple. If not joined, all relevant parties affected by s 65(2) of the Just Terms Act would not be before the Court and Abu Tony would be denied procedural fairness;
2. second, joinder is necessary to resolve the issue as to the proper compensation payable to Abu Tony, and the consequential effect on the entitlement of the mortgagees;
3. third, absent joinder there is a risk of the Council paying compensation to an incorrect entity or entities; and
4. fourth, as explained above, on the Council's case the compensation payable to Abu Tony may also be affected by the determination of compensation payable in respect of the mortgagees' interests by reason of the operation of ss 45, 56(2) and 65(2) of the Just Terms Act. Whether or not the deemed acceptance by Abu Tony of the amount stipulated in the compensation notice pursuant to s 45 of the Just Terms Act acts as a cap on the amount of compensation payable to Beningna and the Gill parties is a matter to be determined by the trial judge. The joinder of Abu Tony to the proceedings will facilitate finality of litigation by enabling all of the issues raised by the current parties to the proceedings to be ventilated and resolved at the one time.
It was for all these reasons that the Court ordered the joinder of Abu Tony to both sets of proceedings at the conclusion of the hearing of the motions.
Finally and for the sake of completeness, during the hearing the Court refused to make the order sought by Beningna and the Gill parties that the joinder of Abu Tony be conditioned upon the Council undertaking not to seek to recover from Beningna or the Gill parties any costs that it may be required to pay Abu Tony. To make such an order would have been premature. It is not known, for example, if Abu Tony will take an active role in the proceedings (it may file a submitting appearance).