(4) Gzell J was able to and ought to have found that both Smith and Griffen had actual or imputed knowledge that there had been no compliance with LRA section 40D.
90 In its points of defence, KLALC had denied that Bill Smith was Chairman of Koompahtoo and simultaneously Director of KLALC at the time of the purported transfers of Lot 556 and Lot 11. However, as KLALC did not appear at the hearing, no evidence was submitted on this point.
91 LKM submits that it is irrelevant to it whether or not KLALC had notice of the contravention of s 40D(1). LKM did not have any knowledge or notice of the contravention and Gzell J so found at trial. This point is not under challenge on appeal.
92 However, it should be noted that if the transfers to KLALC were void, then, logically, the void state of KLALC's purported transfers necessarily means that KLALC had no interest which it could mortgage and thus, whilst LKM may have registered mortgages, there is no property over which the mortgages can be secured.
93 LKM submits that it and KLALC are entitled to rely on the certificate as conclusive evidence that s 40D(1) had been complied with, even though in fact it was not.
94 With regard to LRA s 40(2), LKM says that the word "void" cannot be understood in this context as meaning "void for all purposes and against the whole world". Rather, "void" in s 40(2) must mean "void as against any person who cannot rely on a certificate issued under s 40D(2)". This must be correct.
95 Indeed, as LKM submits, if "void" has the unqualified meaning of "void against all persons and for all purposes" then the result for innocent third parties, like LKM, would be unjust as those parties had relied upon the certificate. The inconvenience as giving "void" this meaning may result in the unravelling of an unlimited number of transactions for an unlimited time, and thus, it could not have been intended by the legislature.
96 LKM says that the legislature must have contemplated that a s 40D(2) certificate would be relied on by more than one person and this is demonstrated by the phrase in that section "any person (whether or not the person is the person to whom the certificate was issued)". In other words, it is not uncommon for the recipient of such a certificate to enter into other legal arrangements such as mortgages or leases and for those other parties to rely on the certificate.
97 Moreover, LKM submits that s 40D(2) denies the benefit of a certificate only to those persons who had knowledge of a contravention of the section and it was found at trial that LKM had no such knowledge.
98 On the appeal, Mr Coles QC put that what Ms Bailey signed was not a certificate under LRA s 40D at all. This was because of the italicised words in the following extract from the certificate, "does not contravene section 40D of the Aboriginal Land Rights Act, 1983 in that the land is not of cultural significance to Aboriginal people of the area." The italicised words, he puts, are qualificatory in nature.
99 These words, it was argued, meant that Veronika Bailey certified that LRA s 40D had not been contravened only in regard to the cultural significance of the land requirement and not in regard to any of the other requirements under the section.
100 Although no form for a certificate under the section had been prescribed, the submission was that the certificate must satisfy all three prerequisites since the word "and" is used to connect subsections (a) with (b) with (d). That is, the prerequisites are the resolution of the prescribed meeting AND the approval from the New South Wales Aboriginal Land Council AND notification to the relevant Ministers. Any certificate under s 40D must convey all the required information stated in s 40D. This is the gist of the provision. A recipient of a s 40D certificate must be able to rely on that certificate saying exactly what it purports to say.
101 The documents issued by Veronika Bailey in regard to the purported disposals of Lot 556 and Lot 11 were not s 40D certificates. They were mere statements or declarations by the Koompahtoo Local Aboriginal Land Council Incorporated, through its Secretary, that the lands in question were not of cultural significance to the Aboriginal people of the area.
102 Gzell J held that the essential quality of a certificate was the communication of "the specified information". Further his Honour said that a certificate answers the description under s 40D(2) of the LRA if it certifies the matters specified in that subsection.
103 However, Gzell J then went on to find that the certificate in question was indeed a certification under s 40D(2) and that it was substance and not form which was the crucial point such that the words "in that the land is not of cultural significance to the Aboriginal people of the area" were merely explanatory in nature and did not constitute a qualification upon Ms Bailey's certificate that no part of s 40D had been contravened.
104 His Honour held that Ms Bailey "must be taken to have had in mind the other requirements of s 40D(1)" (at 55).
105 LKM submits that given that the aim of LRA is "to restore certain lands to Aboriginal hands and control" and the insertion of ss 40A-40D in 1990 was to facilitate that aim, the purpose of s 40D(2) is to provide persons who engage in transactions with Local Aboriginal Land Councils involving land with protection and certainty regarding the validity of the transaction upon receipt of a certificate.
106 "In other words," counsel says, "it is to relieve persons who deal with Local Aboriginal Land Councils from the burden of having to inquire into the internal affairs of those Councils to determine whether the requirements of section 40D(1) have been satisfied." It is not the case, however, that the interpretation and operation of s 40D(2) could ever have been intended to have the effect that Local Aboriginal Land Councils could get away with not complying with s 40D(1) and then issue a s 40D(2) certificate regardless of that non-compliance.
107 His Honour said that it "must be assumed that in giving her certificate, the secretary was aware of the requirements of s 40D(1). In certifying that the disposal of Lot 556 did not contravene s 40D she must be taken to have had in mind the other requirements of s 40D(1)."
108 Mr Coles puts that conclusive evidence certificates, like estoppels, call out for clear statements. LRA s 40D(2) required the production of a certificate which certified that the disposal by the Local Aboriginal Land Council did not contravene s 40D. A certificate that this was so in that the land is not of cultural significance to Aboriginal people of the area, was invalid.
109 Mr Coles referred to Hennessy v The Broken Hill Proprietary Company Limited (1926) 38 CLR 342 ("Hennessy's case"). In that case a medical board could issue a certificate that a worker who had been disabled by lead poisoning was physically fit to return to work. In the case under review, the Board issued a certificate that the appellant was physically fit so far as lead poisoning was concerned. The High Court held that this was not a valid certificate.
110 Mr Forster SC puts that one needs to distinguish certificates under LRA s 40D which are protective of and beneficial to the recipients from certificates such as those in Hennessy's case which curtail or abridge the recipient's rights. He puts that no narrow or pedantic approach should be taken with respect to such certificates.
111 I prefer Mr Forster's submission. However, even if this were an error on my part, even though the "in that …" words do grammatically weaken the certificate, I would agree with Gzell J's analysis of the certificate. It is sufficient on its face to qualify as a valid certificate under the section.
112 I now turn to the allegation that Gzell J denied Koompahtoo natural justice by concluding that it had not proven that KLALC had notice of a contravention of s 40D(1). That is, Gzell J should have given Koompahtoo the opportunity of addressing the Court if his Honour was intending to make that finding.
113 LKM submits that, in effect, what Koompahtoo is saying is that Gzell J should have exposed to Koompahtoo his mental processes or his provisional views on the issue of KLALC's notice of a contravention of s 40D(1). This, LKM says, would have amounted to requiring the trial judge to give a "running commentary" on the presentation by Koompahtoo of its case. Counsel for LKM thus refers to dicta of Gleeson CJ and Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69.
114 As a matter of principle, a judge of a superior court cannot deny natural justice so as to attract the sort of review that this Court exercises under the prerogative orders: Ex Parte Groot; Re Myers (1958) 75 WN (NSW) 496.
115 This Court, will, however, review a trial process and set aside a decision if it considers that something has happened at the trial which means that the result is such that it should not, as a matter of justice, stand.
116 Although modern judges may from time to time let counsel know what their current thoughts are which may prompt counsel to take a course, there is no obligation on a judge to do so. A fortiori where the parties are represented by experienced counsel of some seniority. Counsel are entitled to and are expected to present their clients' case as seems to them best.
117 There is nothing in the way in which the primary judge conducted the trial which would cause me to consider that the trial miscarried.
118 It should be noted that counsel for Koompahtoo has not identified any further evidence which it would have sought to adduce at trial.
119 The primary judge found that Rolf Koops, the solicitor for LKM, who gave evidence including evidence under cross-examination at the trial should be accepted as not perceiving any irregularity in the certificate and in considering he could act on it without further enquiry.
120 As to the knowledge of KLALC, Koompahtoo was alleging that the transactions were void because of s 40D of the LRA. It thus had to prove its case. The question, thus, is whether it needed to prove that KLALC did have notice of the defect, or whether it was for KLALC or LKM to establish that KLALC did not have notice.
121 LRA s 40(2) provides that a transaction to which the section applies is void if it is done in contravention of it. Koompahtoo thus had to prove a contravention. The certificate provided conclusive evidence that there was no contravention except where the person relying on the certificate had notice.
122 The general rule is that where there is an exception to a provision, the onus is on the person who alleges the provision has been breached. Although this rule hales from the criminal law, see Lord Mansfield in R v Jarvis (1756) 1 East 643n; 102 ER 249, it applies equally in civil cases, see Cross on Evidence, 5th Australian ed [7150].
123 Thus, the onus of proving that KLALC had notice was on Koompahtoo. It failed to establish notice to the satisfaction of the primary judge and that decision was within his mandate.
124 In view of my views of the issues on the appeal proper, it is unnecessary to consider the issues raised in the notice of contention or the cross-appeal.
125 However, it was urged on us that we should in any event deal with the important matter as to whether registration of a transaction that is made void under the LRA, can produce an indefeasible title.
126 This Court has considered the point recently in a case argued shortly after the present one: City of Canada Bay Council v F & D Bonaccorso, Pty Ltd [2007] NSWCA 351 ("Canada Bay case").
127 The reasoning in that case would produce the answer "Yes" to the question implicit in the previous paragraph bar one.
128 In view of the detailed reasoning given in the Canada Bay case, it is unnecessary to discuss the question in detail here: a brief summary will suffice.
129 As Mr Walsh submitted, the present case is governed by the principle in Breskvar v Wall (1971) 126 CLR 376.
130 The philosophy of the Torrens legislation adopted by the High Court in Breskvar v Wall, following the decision of the Privy Council in Frazer v Walker [1967] 1 AC 569, is that upon registration what occurs is virtually the same as if a new Crown Grant had issued.
131 Thus, if it be the fact the transfer upon which the Registrar General acted in bringing about the registration was forged or that the underlying transaction was a nullity, it is of no moment.
132 This philosophy has carried through to a number of situations where statutes have purported to vitiate certain transactions or documents. A recent example is Kogarah MC v Golden Paradise Corp (2005) 12 BPR 23,651.
133 Moreover, the Registrar General, generally speaking, ought not "to refuse registration of an instrument because he forms the view that in law it is a void instrument, unless by registration some validity could be given to the instrument which it would not otherwise have, or some estate or interest could by registration be created beyond that purported to be dealt with in the instrument itself" per Jacobs J in Re Lehrer and The Real Property Act (1960) 61 SR (NSW) 365, 376 and see also Beames v Leader [2000] 1 Qd R 347.
134 The fact that NSWALC now occupies the shoes of LKM could have had a bearing on the way the orders on the appeal were framed. However, in the event, I do not consider it does.
135 Thus in my view both appeals must be dismissed with costs. However as I am in the minority with respect to a major issue in proceedings 40581/06, I agree that the Court's orders should be as stated by Giles JA in paragraph 46.