Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act

Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832; Carl-Zeiss-Stiftung v Herbert Smith and Co [1968] 2 All ER 1002; CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601; Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657; Fensom v Cootamundra Racecourse Reserve Trust & Ors [2000] NSWSC 1072; Gann v Free Fishers of Whitstable (1865) 1 HLC 192; 11 ER 1305; Georgeski v Owners Corporation SP 49833 & Ors (2004) 62 NSWLR 534; Mayor of Colchester v Brooke (1845) 7 QB 335; 115 ER 518; CASES CITED: National Real Estate and Finance Co Ltd v Hassan [1939] 2 KB 61; Ostrowski v Palmer (2004) 218 CLR 493; Radstock Co-operative Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch. 605; Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594; State of New South Wales v Scharer (2003) 131 LGERA 208; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149

APPLICANT J C Kelly SC and A McAvoy SOLICITORS LEGAL REPRESENTATIVES: Clayton Utz RESPONDENT J Waters SOLICITORS Crown Solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT Respondent

JUDGMENT Jagot J: Introduction

1. This is an appeal under s 36(6) of the Aboriginal Land Rights Act 1983 ("the ALRA") against the Crown Land Minister's refusal of the applicant's claim made on 8 April 2002 to "the whole of the land and waters described as Pittwater".
2. The Crown Lands Minister refused the claim on 8 July 2004. The Minister was "satisfied that the whole of the lands and waters were not claimable Crown lands" under the provisions of the ALRA on six grounds. The grounds included, as ground (2), that the land and waters were "lawfully used by the general public under the common law right to passage, navigate and anchor in tidal waters". The Minister's letter notifying the applicant of refusal of the claim explained this ground further, stating: To assist the Land Council to understand my decision in this matter I would invite your attention to the decision of the Land and Environment Court in Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act 1989 72 LGRA 149. In that decision the Court considered the public's right to lawfully use navigable waters and held that certain submerged lands in Port Stephens were not claimable on that basis. The circumstances and reasoning in the Worimi case are directly applicable to Pittwater.
3. In Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 161, Stein J refers to a concession made by counsel for the applicant, referring to Mayor of Colchester v Brooke (1845) 7 QB 335; 115 ER 518 and Gann v Free Fishers of Whitstable (1865) 1 HLC 192 at 208-210; 11 ER 1305 at 1312, that "the waters of Port Stephens are subject to the public right of passage" and that the "rights of navigation and of anchorage belongs to the public".
4. In this matter, the applicant contends that any common law right the general public may have had to use or occupy Crown land, including any common law right to passage, navigate and anchor in tidal waters, was abrogated by statute upon the commencement of s 6 of the Crown Lands Act 1989 ("the CLA").
5. By notice of motion filed on 21 December 2005, the applicant seeks an order, pursuant to Pt 31 r 2 of the Supreme Court Rules 1970 (which continue to apply to these proceedings by Pt 6 r 1(1) and Pt 6 r 1(5) of the Land and Environment Court Rules 1996), that the following question be determined prior to determination of all other questions in the proceedings: Were the common law rights of passage and to navigate and anchor in inland tidal waters in New South Wales abrogated by section 6 of the Crown Lands Act 1989 (NSW)?
6. The notice of motion is accompanied by an affidavit in support of John Frederick Howard Collins sworn 21 December 2005. Mr Collins is the solicitor for the applicant in these proceedings. In paragraph 8 of his affidavit, Mr Collins states that if the question is decided adversely to the applicant, "it will be determinative of the application in its entirety and render further evidence in relation to the Pittwater area redundant".
7. The respondent opposes the order for determination of this question prior to other questions in the proceedings. The respondent's opposition principally arises from the potential operation of s 7 of the CLA. Sections 6 and 7 of that Act are in the following terms: 6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. 7 Relationship with other Acts This Act shall not be construed so as to affect the operation of a provision of any other Act which: (a) makes special provision for any particular kind of Crown land, or (b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.
8. Section 6 of the CLA is in terms different from its predecessor provision in s 6 of the Crown Lands Consolidation Act 1913. In particular, s 6 of the 1913 Act did not refer to land not being "occupied, used" or "otherwise" dealt with. The applicant contends that these differences evince a legislative intention to expand the previous prohibitions "in such a manner as to abrogate any and all common law rights to occupy or use Crown lands and render any use or occupation unlawful unless that occupation or use is" authorised by the CLA or the Crown Lands (Continued Tenures) Act 1989. Is a separate question appropriate?
9. The applicant submits that the question is apt for separate determination in that the question is one of law and does not require any facts to be agreed. The applicant nevertheless offers to agree certain facts, including that the waters the subject of the claim are tidal waters which, as at the date of the claim, were used by the public "in purported exercise of a common law right to passage, navigate and anchor in tidal waters". In submissions, the applicant observed that it was prepared to concede that the whole of the waters were being used at the claim date to the full extent of such common law rights; the applicant's challenge is to the existence of those rights as at the claim date (a date after s 6 of the CLA came into force) and hence the lawfulness of those uses. With respect to the latter issue, the applicant refers to an observation of Barrett J in Georgeski v Owners Corporation SP 49833 & Ors (2004) 62 NSWLR 534 at [90] that use of Crown land by the public in the absence of specific authority under the CLA is "at best, use at the sufferance of the Crown".
10. The applicant also makes the following submissions: 10.1 If the question is answered against the applicant, the appeal will be at an end, yielding considerable savings of time for the Court and costs to the parties. 10.2 If the question is answered in favour of the applicant, although the appeal will not be at an end, the ambit of the issues in dispute will be considerably reduced. 10.3 If, as has been foreshadowed by the Minister, a certificate under s 36(8)(b) of the ALRA is issued, the answer to the question will be relevant to and possibly dispositive of the question of the validity of any such certificate. 10.4 The question is one of considerable public importance (a proposition not disputed by the respondent) as s 6 (and its predecessor provision) has been described as "the core provision" of Crown lands legislation in New South Wales ( Georgeski at [87]) and as laying down a "constitutional principle for New South Wales" ( Fensom v Cootamundra Racecourse Reserve Trust & Ors [2000] NSWSC 1072 at [5] per Bryson J). The effect of the section in curtailing the prerogative of the Crown to create interests in Crown land other than in accordance with the Crown lands legislation has long been recognised ( State of New South Wales v Scharer (2003) 131 LGERA 208 at [59] and [60] per Tobias JA, with whom Sheller and Ipp JJA agreed). 10.5 Section 7 of the CLA is not an impediment to the separation of the question identified by the applicant. Properly construed, that section concerns the operation in law of the provision of any other Act and no more. The section does not permit reference to regulations or to the minutiae of licences granted pursuant to regulations. Hence, properly analysed, there cannot be overlap between any matter of fact relevant to determination of the separate question and the evidence on which the respondent may wish to rely in the balance of the proceedings should the question be answered adverse to the applicant's interests.
11. The respondent acknowledges that a central consideration to the exercise of the discretion is the opportunity for some real saving in convenience and expense, consistent with the overriding purpose of the Land and Environment Court Rules 1996 in their application to civil proceedings to facilitate the "just, quick and cheap resolution of the real issues in such proceedings" (Pt 1 r 5A(1)). The respondent, however, submits that the potential savings in time and expense identified by the applicant, in effect, are illusory and that separation of the question may preclude the respondent from putting before the Court all matters it considers relevant to the construction of s 6 and lengthen the proceedings inadvertently. In particular, the respondent submits that: 11.1 Although the respondent will contend that words of such general import as in s 6 would not be construed as abrogating rights recognised by the common law, the respondent also wishes to submit that, having regard to s 7, the language in s 6 should be construed by reference to the operation in fact of the provisions in a potentially wide range of Acts and regulations (not all of which the respondent has presently identified). 11.2 The observations of Santow J in Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832 at [24] - [29] are relevant (including at [27] that, although the meaning of a contract is primarily a question of law, the factual matrix of the contract will be relevant to the interpretive process). By analogy, the operation of provisions of Acts of the kind referred to in s 7 will not always be ascertainable by an inquiry which is limited to matters of law. The making of regulations, for example, involves proof of facts ( Ostrowski v Palmer (2004) 218 CLR 493 at [3]). As another example, the Management of Water and Waterside Land Regulations - NSW, made pursuant to s 38 of the Maritime Services Act 1938, forms part of a statutory regime which operates to enable the grant of mooring licences. That scheme and the terms and conditions of the licences granted pursuant to it assume the existence of common law rights of navigation. Consideration of the "operation of" the provisions of the Maritime Services Act 1938, within the meaning of s 7, extends to consideration of these matters of fact, which may in turn impinge upon the construction of s 6. 11.3 The respondent cannot be satisfied that it has identified the operation of all relevant provisions of Acts until it has completed its evidence generally. 11.4 The respondent's evidence will not be limited to demonstrating the lawful occupation and use of the claimed area at the relevant date for passage, navigation and anchorage, but will extend to other common law rights such as to fish. Further, the respondent's evidence will not be limited to occupation and use pursuant to common law rights. Finally, there will be significant overlap between the evidence relevant to the applicant's proposed preliminary question and the balance of the evidence on which the respondent wishes to rely. Hence, answering the separate question has the potential to prolong rather than shorten the proceedings. The applicable principles
12. The principles that guide the exercise of the discretion to order the decision of any question separately from any other question in proceedings are not in issue. (1) Generally speaking, all issues should be tried at the same time ( Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142). If an issue of law or fact is raised which, if decided in one way, will dispose of the claim then a separate determination of that issue may be appropriate. There is no requirement that the issue sought to be separated be decisive whichever way it is answered. ( Carl-Zeiss-Stiftung v Herbert Smith and Co [1968] 2 All ER 1002 at 1004). (2) Care must be taken to ensure that any such question is "ripe" for separate and preliminary determination. This will be so where the matter "is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy" ( CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 606 C-D). (3) Where the issue sought to be separated involves a question of law, there should be " a clear definition of what the point of law raised is" ( National Real Estate and Finance Co Ltd v Hassan [1939] 2 KB 61 at 77) and the facts upon which that question has to be considered should be "clearly ascertainable" ( Radstock Co-operative Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch. 605 at 632, referred to in Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657 at [9] to [12]). (4) It has been said that "special problems" can arise where the question sought to be separated is one of mixed fact and law: - As Brooking J pointed out in Jacobson v Ross, it is necessary in that situation that there be precision both in formulating the question and in specifying the facts upon which it is to be decided. His Honour added: "Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable ... as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful." Quite apart from rendering the "order for preliminary determination unfruitful", the failure to identify the relevant facts or the means by which they are to be ascertained may result in procedures which do not conform to the judicial process. (Bass v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334 at [53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). (5) In order to dispose of what may first appear to be a pure question of law, the inquiry might "range round questions of fact and the proper inferences to be drawn from the primary facts" ( Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594 at 599 per Walters J). Hence, it should be able to be seen "with clarity" that the determination of the separate question will be beneficial to the conduct of the proceedings and resolution of the dispute ( Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 142. See also the observation of Young CJ in Eq in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 345 that "… separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense" and of Giles JA in the same matter at 325). Absent that clarity, an "obvious danger with quarantining what are claimed to be the only relevant facts is that others may later turn out to be relevant. Then the court is in danger of impermissibly exceeding its proper judicial function, by deciding hypothetical rather than real questions in reliance on incomplete facts or facts not all found or agreed" ( Allstate Explorations NL and Ors v Beaconsfield Gold NL and Ors [1999] NSWSC 832 at [24]. See also Rogers v Baillieu Bullock Wilkinson Pty Ltd (1981) 28 SASR 594 at 599-600). Resolution of the applicant's motion
13. The question framed by the applicant prima facie satisfies a number of the factors relevant to the exercise of discretion in that the question is clearly articulated and is a critical or central matter in the sense that, if answered in one way, the question is potentially determinative of the proceedings. The difficulty which confronts the applicant on the motion, however, is that the respondent's approach to the operation of ss 6 and 7 of the CLA cannot be dismissed as not representing a "fairly arguable view". On that basis, there is a real contest between the parties about the scope of the facts relevant to the resolution of the question.
14. The effect of making an order at this time for the separate determination of the question proposed may be to preclude the respondent from putting to the court all matters that the respondent sees as relevant to the construction of s 6 of the CLA. Moreover, if the question is determined adversely to the respondent's interests (in which event it is agreed that there would remain for determination the balance of the matters in issue), the respondent may then be precluded from calling all of the evidence it sees as relevant to those matters because the respondent would be bound in the proceedings by the answer to the separate question which has been given. The "utility, economy, and fairness" of that course is not immediately apparent (see Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [170] per Kirby and Callinan JJ).
15. The potential utility offered by separation of the question thus in part depends upon the respondent's approach to the construction of s 7 of the CLA, and its interaction with s 6 of that Act, being rejected as incorrect. That matter, however, will form part of the contest between the parties on the meaning of those sections. For the purposes of determining the notice of motion, I am not prepared to accept that the respondent's approach to the construction of ss 6 and 7 is untenable. It appears to me that there is a real and fairly arguable dispute between the parties with respect to the scope of s 7, its interaction with s 6 and the material which may be relevant thereto. It necessarily follows that I cannot be assured that the proposed question does not involve a factual inquiry in circumstances where all relevant facts, at least on the respondent's approach to construction, are not presently known and cannot be known until the respondent has completed its evidence.
16. In these circumstances, I do not have the requisite degree of confidence that the determination of the proposed question prior to deciding all other issues in the proceedings will be beneficial to the conduct of the proceedings and resolution of the dispute between the parties. Depending on the view ultimately taken with respect to the meaning of ss 6 and 7 of the CLA, the answer to the question posed may or may not lead to real savings in time and costs (as those savings will depend upon the ultimate degree of overlap between the evidence going to that question and other questions in the proceedings). That is an insufficient basis upon which to make an order as sought by the applicant having regard to the principles I have identified. Further, and for the same reasons, I am not satisfied that the making of the order will or is likely to facilitate the "just, quick and cheap resolution of the real issues" in the proceedings, consistent with Pt 1 r 5A(1) of the Land and Environment Court Rules 1996.
17. It follows that the applicant's notice of motion should be dismissed. My conclusion on the notice of motion leaves open for consideration the question whether there might be utility in deciding the question (or some similar question) on a separate basis in the final hearing when all material and evidence relevant to that question is available. Subject to hearing any submissions to the contrary, the question of costs on the motion, in my view, should be reserved.

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