Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974

CITATION : Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974 [2003] NSWLEC 69 APPLICANTS Warren Halloran and Sealark Pty Ltd and Ors PARTIES : RESPONDENT Minister Administering National Parks and Wildlife Act 1974 FILE NUMBER(S) : 30282 of 1998 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- question of law determined by a judge- interlocutory judgment - new question of law arising related to the issue already determined Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 15 r 9, Pt 15 r 4 Real Property Act 1900 Blair and Others v Curran and Others (1939) 62 CLR 464; Carr and Another v Finance Corporation of Australia Limited (1980-1981) 147 CLR 246; Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630; CASES CITED: Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974 [1999] NSWLEC 268; Licul and Others v Corney (1975-1976) 180 CLR 213; Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589; Re Harrison's Share Under a Settlement, In re Williams' Will Trusts, In re Ropner's Settlement Trusts [1955] 1 CH 260; 13/03/2003 DATES OF HEARING: 04/04/2003 11/04/2003 DATE OF JUDGMENT: 04/30/2003

APPLICANTS Mr S D Rares SC

SOLICITORS Blake Dawson Waldron

LEGAL REPRESENTATIVES: RESPONDENT Mr A H Slater QC Dr H R Sorenson (Barrister)

SOLICITORS Crown Solicitor

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30282 of 1998

30/04/2003 Warren Halloran and Sealark Pty Ltd and Ors Applicants v Minister Administering the National Parks and Wildlife Act 1974 Respondent Judgment

History of the proceedings 1 The applicants comprising 770 claimants seek compensation from the respondent pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the "Just Terms Act"). Such claims ("the principal proceedings") arise out of the compulsory acquisition of certain lands at Nowra ("the subject land"). 2 As a result of a notice of motion filed on 7 August 2002 ("the notice of motion") the Court is required to determine a question of law concerning the standing of the applicants to maintain their claims for compensation pursuant to the Just Terms Act. However, the Court must first determine an important question of procedure, namely whether the Court as presently constituted should decide the question of law or whether it should be referred to Talbot J who has already delivered an interlocutory judgment upon a related issue.

3 The parties to these proceedings came before Talbot J in 1999 to decide the following question of law ("the first question of law"):- 1. Has the Applicant, Pacinette Pty Limited established on the admissible evidence tendered at the hearing of this question, that Pacinette Pty Limited is an owner of an interest in land the subject of the notice of acquisition and published in the Government Gazette dated 19 June 1998, ("Notice") entitled for the purposes of these proceedings to maintain its claim under section 37 of the Land Acquisition (Just Terms Compensation) Act 1991? Note that the respondent admits that the following parcels of land were wholly within the land the subject of the Notice, namely: (a) Lot 140 DP11388 (part of Auto Consol 3409-116) being land contained within Lot 7 DP877899; (b) Lot 1629 DP11386 (part of Auto Consol 3409-69) being land contained within Lot 7 DP877899; and (c) Lot 1063 DP11387 (part of Auto Consol 3409-65) being land contained with Lot 7 DP877899.

4 On 9 December 1999 Talbot J delivered judgment: see Halloran and Sealark Pty Ltd and Ors v Minister Administering National Parks and Wildlife Act 1974 [1999] NSWLEC 268. Talbot J determined that Pacinette and the remaining applicants held interest in the subject land which entitled them to maintain their claims pursuant to the Just Terms Act. Talbot J observed at par 10 of his judgment:- The answer to the Question of Law in so far as it relates to the land alleged to be held by Pacinette Pty Ltd will enable the parties to proceed to the final hearing with a proper understanding of the rights and interests held by those applicants who claim to be beneficiaries under the 770 trust deeds.

His Honour made the following orders:- Orders 149. The Court is now in a position to determine the separate question set out at [9] of these reasons.

150. The Court is satisfied that the applicant Pacinette Pty Ltd has established that it is an owner of an interest in land the subject of the notice of acquisition and published in the Government Gazette dated 19 June 1998 entitled for the purposes of these proceedings to maintain its claim under s 37 of the Land Acquisition (Just Terms Compensation) Act 1991, at least in respect of the nominated lots 140, 1629 and 1063.

151. The question of costs of the Notice of Motion is reserved.

5 The notice of motion now before the Court raised the following questions:- 1. There be heard and determined separately and before any other issue in the proceedings, the following questions: (a) is any, and if so which, applicant (other than Pacinette Pty Limited) an owner of an interest in land the respective subject of one or both of the notices of acquisition published in the Government Gazette dated 19 June 1998 and 18 September 1998? (b) if yes to question (a) is the interest in land of each such applicant that identified in respect of it in the schedule being DOC 8 in Ex C2? (c) if no to question (b), in respect of each such applicant what is its respective interest in land? (d) if yes to question (a) is that applicant entitled, for the purposes of these proceedings, to maintain its claim under section 37 of the Land Acquisition (Just Terms Compensation) Act 1991?

6 Subsequently the parties have refined the questions for determination as follows:- (a) Whether each or any (and if so which) of the Beneficial Owners has established on the admissible evidence tendered at the hearing of the Motion is an owner of an interest in the Land entitled for the purpose of these proceedings to maintain its claim under section 37 of the Land Acquisition (Just Terms Compensation) Act 1991. (" the new question of law ") (b) Whether in respect of any document pleaded or given in evidence, or admitted to be good, useful, or available in law or equity for the purpose of proving that a change in beneficial ownership to which the Transaction relates occurred, (i) any instrument to effect that transaction and which is not stamped, is an instrument upon which stamp duty is payable in New South Wales; or (ii) a statement is required to be lodged under section 44A of the Stamp Duties Act 1920 in respect of the Transaction or any part of the Transaction.

7 The new question of law was argued before the Court on 13 March 2003. The Court heard the parties' submissions and reserved its judgment. The claim

8 The applicants' entitlement to make their respective claims under the Just Terms Act arose out of a series of complex legal transactions. The finding of Talbot J to the first question of law established that the applicants were entitled to pursue their claims because they held an interest in the subject lands. 9 The applicants' entitlement to claim compensation originated in ownership of the subject land by Warren Halloran and by three companies. The new question of law concerns only the land owned by the three companies. On 12 December 1997 orders were made by the Federal Court of Australia ("the Federal Court orders") which implemented Schemes of Arrangement in respect of each of the three companies ("the Scheme of Arrangement companies"). On the 19 May 1997 the Federal Court orders were entered and on 23 December 1997 the Australian Securities Commission ("ASC") was notified of such orders. 10 Between 25 February 1998 and 5 March 1998 memoranda of transfers ("the transfers") under the provisions of the Real Property Act 1900 were executed in respect of the parcels of land owned by the Scheme of Arrangement companies ("the company parcels"). The transfers were signed by the director and secretary of each of the Scheme of Arrangement companies and the common seals of those companies were thereunto affixed. On 27 February 1998 the respondents served on the applicants a notice to compulsorily acquire the company parcels.

11 The new question of law asks the Court to determine the validity of the transfers which form a vital stage in the conclusion of Talbot J that Pacinette (and therefore the remaining 769 claimants) possesses an interest in the subject lands which entitles them to maintain their claims for compensation. 12 The respondent submits that Talbot J was not informed of the notification of the orders to ASC. Nor was His Honour told that by virtue of s 576 of the Corporations Law the ownership of the company parcels vested in ASC from the date of the Federal Court orders and that the office of director and secretary ceased to exist from the date of the orders. The respondent therefore submits that the memorandum of transfers were invalid and that in consequence Pacinette and the remaining applicants have no legal interest in the company parcels. 13 The applicants submit that the respondent is estopped in accordance with the principle referred to in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589.

14 In reply the respondent submits that no estoppel arises because the consequences of creating the Schemes of Arrangement were not determined by Talbot J: see Blair and Others v Curran and Others (1939) 62 CLR 464. 15 The new question of law therefore challenges the very basis of the applicants' entitlement to maintain their claims for compensation. If answered in the respondent's favour, such finding would be inconsistent with Talbot J's decision. 16 The issue therefore arises of the status of Talbot J's judgment.

Interlocutory Judgment 17 In Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Diplock LJ at p 642 stated:- Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues.

18 In Licul and Others v Corney (1975-1976) 180 CLR 213 Gibbs J (as he then was) said at p 225:- The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex & Co. v Ghoush ([1971] 2 QB 597) - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant ((1966) 117 CLR 423) , should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? …The order is therefore not final in nature whatever its practical effect may be. 19 Gibbs CJ later held in Carr and Another v Finance Corporation of Australia Limited (1980-1981) 147 CLR 246 at p 248:- In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain that it is at present.

20 The issue determined by Talbot J in Halloran was not decisive of the suit. Paragraph 10 of Halloran, which is extracted in par 4 of this judgment, clearly indicates that the question of law to be decided by His Honour was "an issue separately determined". Accordingly His Honour's judgment is an interlocutory judgment. Court's power to set aside an interlocutory judgment 21 The Court's power to set aside Talbot J's judgment is found in Pt 15 r 9 of the Land and Environment Court Rules 1996 ("the Court Rules"). Part 15 r 9(b) and Pt 15 r 9(d) of the Land and Environment Court Rules 1996 relevantly permits the Court to set aside or vary an order:- (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4; (d) if the order is interlocutory.

22 No order of Talbot J has been issued by the Registrar pursuant to Pt 15 r 4 of the Court Rules. Accordingly, any party to the proceedings could apply pursuant to Pt 15 r 9(b) or Pt 15 r 9(d) to re-open the matter litigated before Talbot J. The appropriate judge to determine the new question of law 23 In Re Harrison's Share Under a Settlement, In re Williams' Will Trusts, In re Ropner's Settlement Trusts [1955] 1 CH 260 the extent of a judge's control over a matter once an order is given was discussed. Roxburgh J said at p 268:- The question is really whether the judge who has tried a case retains sufficient control over it, until the order has been perfected by entry, to enable him to recall the order which he has pronounced and to require further argument. Roxburgh J at p270 cited various authorities relating to the permissible actions judges may undertake with respect to their orders, as follows:- In In re Suffield and Watts ((1888) 20 QBD 693, 697(C.A.)) the order had been perfected; but in the course of his judgment Fry L.J said: "So long as the order has not been perfected the judge has a power of re-considering the matter, but, when once the order has been completed, the jurisdiction of the judge over it has come to an end." This was a dictum, but a weighty dictum; and it is to be noted that the power of reconsidering the matter is not made to depend upon any appeal or application, but simply upon the circumstance that the jurisdiction of the judge which has been invoked by the parties to the suit does not pass away from him until the order has been perfected. Later cases in the Court of Appeal endorse this dictum. Thus in Preston Banking Co. v William Allsup & Sons ([1895] 1 CH 141, 144-5) A.L.Smith LJ said: "Fry L.J put the law on the right foundation when he held, In Re Suffield and Watts (20 QBD 693), that so long as the order has not been perfected, the judge has a power of reviewing the matter, but when once the order has been completed the jurisdiction of the judge over it has come to an end"…In my judgment it now has been settled for a long time. 24 Jenkins LJ in Re Harrison's confirmed a judge's power to review the decision before its orders are entered into. His Lordship stated at p 276:- We think that an order pronounced by the judge can always be withdrawn, or altered, or modified by him until it is drawn up, passed and entered.

25 The applicants do not oppose the notice of motion being referred to Talbot J. The respondent opposes such course and submits that the Court as presently constituted should first determine whether it is estopped from seeking a determination of the new question of law. If not estopped, the respondent would consent to the notice of motion being referred to Talbot J.

26 The notice of motion raises two distinct issues. The first issue is whether the respondent is Anshun estopped from seeking to raise the issue concerning the effect of the Federal Court orders. The second issue is whether such orders have the effect for which the respondent contends. If the Court as presently constituted determines that there is no estoppel and that the respondent's submissions in relation to the new question of law are correct, the judgment would conflict with that of Talbot J. 27 Since Talbot J's decision is interlocutory and can be set aside by him if necessary, it is expedient that he should determine the new question of law and the issue of estoppel. It would be contrary to the interests of all parties if the conduct of these proceedings were fragmented in the manner proposed by the respondent. Orders

28 The Court orders that the notice of motion dated 7 August 2002 be referred to Talbot J for determination.

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