Carlewie Pty Ltd v Roads and Maritime Services

[2018] NSWCA 181

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Carlewie Pty Ltd v Roads and Maritime Services [2018] NSWCA 181

Hearing dates:

12 and 13 June 2018

Decision date:

15 August 2018

Before:

Basten JA at [1];
Payne JA at [56];
White JA at [57]

Decision:

(1)   Direct that the appellant file and serve within 7 days the amended notice of appeal, in the form contained in the orange appeal book.
(2)   Allow the appeal and set aside the judgment and orders made on 30 June 2017 in the Land and Environment Court.
(3)   Order that the respondent pay the appellant’s costs of the appeal.
(4)   Direct that the costs of the first trial be determined by the Land and Environment Court at the determination of the proceedings before it.

Catchwords:

ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – Commissioners – court constituted by a judge assisted by a Commissioner – language of judgment indicative of joint decision-making – Commissioners not to adjudicate – whether judgment invalid on basis that Commissioner adjudicated on matter

 

ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – Commissioners advising and assisting judges – scope and limits of Commissioners’ role

WORDS AND PHRASES – “may assist and advise the Court, but shall not adjudicate on any matter” – Land and Environment Court Act 1979 (NSW), s 37

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), s 81; Sch 2, Pt 3B, cl 4
Civil Procedure Act 2005 (NSW), s 63; Sch 1
Courts and Crimes Legislation Further Amendment Act 2008 (NSW), s 2; Sch 14
Courts Legislation Amendment Act 2007 (NSW), Sch 2, [9]; Sch 3, [27]
Criminal Appeal Act 1912 (NSW), s 6
Equity Act 1901 (NSW), s 7
Interpretation Act 1987 (NSW), s 52
Land and Environment Court Act 1979 (NSW), ss 4, 12, 19, 24, 34A, 34C, 36, 37, 38, 57, 68; Div 4, Pt 4
Land and Valuation Court Act 1921 (NSW), ss 8, 9, 9A
Medical Practice Act 1992 (NSW), s 147
Navigation Act 1912 (Cth), s 359; Pt IX
Patents Act 1990 (Cth), s 217
Supreme Court Act 1935 (SA), s 71
Supreme Court Act 1935 (WA), s 56
Supreme Court Act 1986 (Vic), s 77
Supreme Court Civil Procedure Act 1932 (Tas), s 37

  Land and Valuation Court Rules, r 71
Navigation (Courts of Marine Inquiry) Regulations, cl 14
Uniform Civil Procedure Rules 1999 (Qld), r 500

Cases Cited:

Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261
Beecham Group Ltd v Bristol-Myers Co (No 2) [1980] 1 NZLR 192
Beecham Group Ltd v Bristol-Myers Co [1980] 1 NZLR 185
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Construction Engineering (Aust) Pty Ltd v Adams Consulting Engineering Pty Ltd (Ruling No 2) [2016] VSC 209
F Hoffman-La Roche AG v New England Biolabs Inc [1999] FCA 1424; (1999) 47 IPR 105
Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368
Matthews v SPI Electricity Pty Ltd (Ruling No 32) [2013] VSC 630
Re MV “TNT Alltrans” Grounding (1986) 83 FLR 416
SS Australia (Owners) v SS Nautilus (Cargo Owners; the Australia) [1927] AC 145
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
The Beryl LR (1884) 9 PD 137
The Magna Charta (1871) 1 Aspinall’s Maritime Law Cases 153 (PC)
Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6

Texts Cited:

A Dickey, “The Province and Function of Assessors in English Courts” (1970) 33 MLR 494

 

N Meeson and J A Kimbell, Admiralty Jurisdiction and Practice (5th ed, Routledge, 2018)

 

W A Parker, Practice in Equity (NSW) (Law Book Co, 1930)

  Second Reading Speech, New South Wales Parliamentary Debates, Legislative Assembly (Hansard), 25 November 1998, pp 10720

Category:

Principal judgment

Parties:

Carlewie Pty Ltd (Appellant)
Roads and Maritime Services (Respondent)

Representation:

Counsel:
Mr I Hemmings SC / Mr M Seymour (Appellant)
Mr N Eastman / Ms J McKelvey (Respondent)

  Solicitors:
Addisons (Appellant)
Norton Rose Fulbright (Respondent)

File Number(s):

2017/219608

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 3

Citation:

[2017] NSWLEC 78

Date of Decision:

30 June 2017

Before:

Sheahan J; Maston AC

File Number(s):

2016/159288

headnote

[This headnote is not to be read as part of the judgment]

On 13 July 2015, property owned by the appellant was compulsorily acquired as part of the WestConnex motorway project. The parties failed to agree on an amount by way of compensation for the acquired land; accordingly, the appellant brought valuation proceedings in the Class 3 jurisdiction of the Land and Environment Court.

The Court was constituted by a judge assisted by an Acting Commissioner. Judgment was delivered on 30 June 2016 in an amount of $23 million. The appellant was dissatisfied with the award and appealed on numerous grounds. The key ground considered on appeal was whether the decision was invalid, on the basis that the Commissioner had played an adjudicatory role in the proceedings.

Section 37 of the Land and Environment Court Act 1979 (NSW) provides:

37   Commissioners sitting with a Judge

(1) Where proceedings are pending in Class 1, 2, 3 or 4 of the Court’s jurisdiction before a Judge (other than proceedings that are being dealt with under section 34A), the Court may, in hearing the proceedings, or any part of the proceedings, be assisted by one or more Commissioners.

…

(3)   A Commissioner assisting the Court as referred to in subsection (1) or (2) may assist and advise the Court, but shall not adjudicate on any matter before the Court.

Though the judgment began with an acknowledgment of the “assistance” provided by the Commissioner, the judgment was drafted almost exclusively in the first person plural. The judgment did not otherwise explain the scope of the assistance that had been provided by the Commissioner.

The Court (per Basten JA, Payne and White JJA agreeing), allowed the appeal and held:

1. Section 37(3) does not merely prohibit delegation of authority to the Commissioner; it prohibits the Commissioner’s participation in the adjudication process beyond the giving of assistance and advice. The purpose underlying the provision is to ensure the maintenance of a clear demarcation of function. The language used in the judgment prevents affirmative satisfaction that this demarcation was maintained: [38].

SS Australia (Owners) v SS Nautilus (Cargo Owners; the Australia) [1927] AC 145; The Beryl LR (1884) 9 PD 137; The Magna Charta (1871) 1 Asp MLC 153 (PC); Beecham Group Ltd v Bristol-Myers Co [1980] 1 NZLR 185; Beecham Group Ltd v Bristol-Myers Co (No 2) [1980] 1 NZLR 192; F Hoffman-La Roche AG v New England Biolabs Inc [1999] FCA 1424; (1999) 47 IPR 105; Construction Engineering (Aust) Pty Ltd v Adams Consulting Engineering Pty Ltd (Ruling No 2) [2016] VSC 209; Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368; Matthews v SPI Electricity Pty Ltd (Ruling No 32) [2013] VSC 630, referred to.

2. The contravention of s 37(3) rendered the judgment invalid. The requirement that the Commissioner not participate in the adjudication was an essential precondition to a valid exercise of the Court’s powers. As the parties’ rights were not determined by a correct process, the judgment must be set aside and the matter returned for rehearing by the Land and Environment Court: [52]-[53].

Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261; Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, applied.

3. How the matter should proceed at rehearing is for the Court below to determine: [54]. It is not appropriate for the Court to address the other grounds of appeal going to the merits of the claim.

Judgment

1. BASTEN JA: On 3 July 2015 a State Government authority, the WestConnex Delivery Authority (later replaced by the respondent), compulsorily acquired three adjoining properties owned by the appellant (Carlewie Pty Ltd) on the corner of Campbell Street and Burrows Road, St Peters. The public purpose of the acquisition was the construction of the St Peters interchange component of the WestConnex motorway project.

2. Upon the parties failing to agree an amount by way of compensation for the acquired land, proceedings were commenced by the appellant in the Land and Environment Court. The Court was constituted by Sheahan J, assisted by Acting Commissioner Maston. On 30 June 2017 the Court awarded compensation in an amount of $23 million. [1]

   1. Carlewie Pty Ltd v Roads and Maritime Services [2017] NSWLEC 78.

3. The valuation proceedings were brought in the Class 3 jurisdiction of the Land and Environment Court. [2] An appeal lies to this Court “against an order or decision … of the [Land and Environment] Court on a question of law.”[3] On 29 September 2017 the appellant filed a notice of appeal containing 10 grounds, although ground 1 itself contained 11 sub-grounds. The grounds included a degree of repetition and, in many cases, raised issues which did not obviously involve questions of law.

   2. Land and Environment Court Act 1979 (NSW), s 19(e) and s 24(1).

   3. Land and Environment Court Act, s 57(1).

4. The orange appeal book, filed on 16 May 2018, contained, in addition to the written submissions and chronologies, an amended notice of appeal containing a new ground 1A, in the following terms:

“1A. The decision of the Court below was made contrary to s 37(3) of the Land and Environment Court Act 1979 in that [the] decision of the Court was one jointly made by Justice Sheahan and Acting Commission Maston.”

5. The document had a footer on each page bearing the date 29 January 2018. However, no amended notice of appeal has been filed. Nonetheless, both parties dealt with ground 1A in written submissions and, as the appellant noted in its submissions in reply, the respondent indicated no opposition to the raising of ground 1A. That remained true at the hearing of the appeal. Accordingly, although the record should be rectified by the filing of the amended notice of appeal, the ground was fully argued and must be addressed.

6. Further, it should be addressed first. If the adjudication undertaken in the Land and Environment Court did not conform with the legislation constituting the Court, it would seem that there has been no valid adjudication and the appellant’s application is yet to be validly determined. If ground 1A were to be rejected, it will be necessary to address the other grounds, including by determining which involve questions of law and are thus permissible grounds of appeal. If ground 1A is upheld, there is a large issue as to whether the Court should address any other ground in circumstances where the matter will have to be redetermined.

7. For the reasons set out below, ground 1A should be upheld; the matter must be redetermined according to law and, in the circumstances, it is not appropriate to address the other grounds of appeal. Given that the matter has already involved an eight day hearing, it is also necessary to consider whether this Court should impose any constraints on the manner in which, and the constitution of the court by which, the redetermination is undertaken.

Role of Commissioners

8. Briefly put, the appellant’s claim was that the language of the judgment revealed that the Acting Commissioner had participated in the determination of the dispute in a manner which contravened the limits of his function under the statute. This submission raised two discrete issues. First, it is necessary to identify the scope of the function conferred on a Commissioner engaged under s 37 of the Land and Environment Court Act and, secondly, it is necessary to make a finding, based on the reasons of the Court, as to what precise function the Commissioner undertook. The submissions of both parties focused primarily on the way in which the Court should address the latter question. Nevertheless, it is necessary to commence by considering the jurisdictional structure by which the proper function of the Commissioner was identified.

9. As noted above, the Court was exercising its Class 3 jurisdiction. Division 4 of Pt 4 of the Act is headed “Special provisions respecting Class 1, 2 or 3 proceedings”. The critical provision for present purposes is s 37, which, since May 2015 (a date prior to the filing of the present application) has read:[4]

37   Commissioners sitting with a Judge

(1) Where proceedings are pending in Class 1, 2, 3 or 4 of the Court’s jurisdiction before a Judge (other than proceedings that are being dealt with under section 34A), the Court may, in hearing the proceedings, or any part of the proceedings, be assisted by one or more Commissioners.

…

(3)   A Commissioner assisting the Court as referred to in subsection (1) or (2) may assist and advise the Court, but shall not adjudicate on any matter before the Court.

(4)   A Judge before whom proceedings referred to in subsection (1) … are pending may commence or continue the hearing of the proceedings, or any part of the proceedings:

(a)   without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings, and

(b)   without the assistance of Commissioners generally if, in the opinion of the Judge, the proceedings or part of the proceedings concern or concerns a question of law only.

4. Although s 37 was amended by the Courts and Crimes Legislation Amendment Act 2015 (NSW), which commenced on 15 May 2015, to include a reference to Class 4 proceedings in s 37, the heading to Pt 4 was not amended.

10. Three aspects of this section are significant for present purposes. First, both subs (1) and (3) refer to the Commissioner assisting the Court; in subs (3) that language is expanded to include assistance and advice. The function of the Commissioner is thus differentiated from the function of the Court. Secondly, subs (3) imposes a constraint on the function of assisting and advising by declaring that it shall not include adjudicating on any matter before the Court. Thirdly, it may be inferred from subs (4)(b) that a Commissioner is not intended to give assistance or advice on questions of law, although there is no express exclusion of that role and it is by no means clear that such an inference would be correct. (The point is not presently relevant.)

11. Taken in isolation, the practical effects of constraining the functions of a Commissioner are less than clear. On one view, the adjudication of a matter before the Court (which is not to be done by the Commissioner) may encompass only the final determination as to the outcome and the making of orders. On the other hand, it may also encompass the evaluation of expert evidence, the determination of questions of credit, the making of findings of fact, and the preparation of reasons. On the assumption that a Commissioner may have particular expertise (including legal expertise) it is clear that the Commissioner is entitled, and indeed obliged, to bring that expertise to bear on questions which would otherwise turn upon the assessment of expert evidence. There is a question as to how that is to be done.

12. Under the Land and Environment Court Act, one area of expertise qualifying a person to be a Commissioner is special knowledge and experience in the law and practice of land valuation; [5] however, since April 2009 any person may be appointed as a Commissioner if he or she is an Australian lawyer. [6]

    5. Land and Environment Court Act, s 12(2)(d).

    6. Land and Environment Court Act, s 12(2AA), introduced by the Courts and Crimes Legislation Further Amendment Act 2008 (NSW), Sch 14 [1]-[2]. The section commenced on 7 April 2009 (see s 2(2) of the amending Act and Commencement Proclamation 112 of 2009).

13. At least in this jurisdiction, and no doubt elsewhere, where the resolution of a dispute requires specialised knowledge or expertise, it is possible to characterise the mechanisms adopted in four broad groups. These are (a) a judicial officer, who will decide the matter with the assistance of expert evidence proffered by the parties (the adversarial model); (b) a tribunal of experts, often with a judicial officer presiding (the expert tribunal model); (c) a judicial officer sitting with assessors (the assessor model), and (d) referral of issues to an expert for determination (the referee model).

14. There are, of course, variations on these major themes. Thus, the adversarial model may encompass expert evidence from a court-appointed expert, rather than, or in addition to, experts called by the parties. The assessor model may rely upon a panel of assessors appointed by the executive government (as with the Commissioners under the Land and Environment Court Act) or may rely upon ad hoc assistance obtained by the judicial officer constituting the court, as was the case with the predecessor to the present legislation, the Land and Valuation Court. [7] In other cases matters may be referred by a judicial officer to a referee, although not necessarily because specialised expertise is required.

    7. Land and Valuation Court Act 1921 (NSW), s 8 (final proviso) and s 9A; Land and Valuation Court Rules, r 71 (dealing with appointment of assessors).

15. In functional terms, the primary difference between the assessor model and the expert tribunal model is that the assessors are not decision-makers. As will be noted, this point of distinction has a long history. The primary functional difference between the assessor model and the other models is that with assessors the nature of the expertise relied upon may not be transparent, because the assistance and advice will not all be given in open court. There may also be limited transparency with an expert tribunal in that the reasons may not reveal how the expertise was relied upon in reaching a decision. An example may be seen within a system of professional discipline for medical practitioners where the statute created a tribunal consisting of a judicial officer, a lay person and two medical practitioners. [8]

    8. See, eg, Medical Practice Act 1992 (NSW), s 147 (repealed).

16. Judgments in the Land and Environment Court, where an assessor has sat with a judge, commonly commence with the Court acknowledging the assistance received from the Commissioner. Such an acknowledgement was contained in the present judgment at [2]. Conventionally, no further indication is given of the nature of the assistance received. The judgment is usually read as if it were a judgment given in exercise of the adversarial model, by reference to the expert evidence called by the parties. A finding not referable to relevant expert evidence might well be challenged on appeal. Nevertheless, there is nothing in the statute to preclude reasons as to the nature of the assistance provided and how it was relied upon by the judge.

17. When established in 1979, the Land and Environment Court took over the jurisdiction of more than one existing court or tribunal. Relevantly for present purposes it took over the jurisdiction of the Land and Valuation Court, which heard claims for compensation resulting from compulsory acquisitions of land. [9] The provisions in that Act already noted allowing for expert assistance were framed in the following terms:

    9. Land and Valuation Court Act, s 9(1).

8   Jurisdiction of court

The court shall have jurisdiction to hear and determine –

…

(b) objections to or appeals against valuations under the Valuation of Land Act, 1916, including objections and appeals which are pending at the passing of this Act;

…

Provided that upon the hearing under this section of any objection or appeal against any valuation of land, … or upon the determination under the next following section of any claim for compensation, the court may elect to sit with two assessors, who shall be appointed by the court in the manner prescribed from persons nominated as prescribed. Such assessors shall have power to advise, but not to adjudicate in any proceeding before the court. The assessors shall be paid such fees and allowances as are prescribed.

9A   Assistance of scientific persons

(1)   The court may in every case obtain the assistance of conveyancing counsel, accountants, engineers, actuaries, or other scientific persons the better to enable it to determine any matter at issue in any proceeding before it and may act upon the certificate of any such person.

The marginal note to the latter provision referred to the Equity Act 1901 (NSW), s 7. However, the Rules of the Court suggested that that provision was used to appoint ad hoc referees, who would provide a document (certificate) setting out the answer to a specific question. As explained in Parker’s Practice in Equity, the expert’s report (or certificate) was not treated as an award, but as furnishing material for the information and guidance of the court. [10] That power is now found in the Land and Environment Court Act, separately from the appointment of assessors under s 37, in s 38(3), which provides for the Court in Class 1, 2 or 3 proceedings to “obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and … receive in evidence the certificate of any such person.”

10.    W A Parker, The Practice in Equity (NSW) (Law Book Co, 1930) p 9, referring to Ford v Tynte 2 De GJ & S 127.

18. In the Land and Environment Court Act, as enacted, an assessor was described as a person appointed “as a conciliation and technical assessor of the Court”. [11] This language was abandoned and the language of “Commissioner” adopted only with the commencement of the Courts Legislation Further Amendment Act 1998 (NSW). The extrinsic materials for the bill indicated that this was a name change which was not accompanied by any substantive change of significance in relation to the functions to be exercised. [12]

    11. Land and Environment Court Act, s 4(1), “assessor”.

    12.    Second Reading Speech, New South Wales Parliamentary Debates, Legislative Assembly (Hansard), 25 November 1998, pp 10720.

19. Historically, the principal use of assessors in common law jurisdictions has been found in the use of nautical assessors in collision claims in Admiralty. [13] The distinction between giving advice and assistance, on the one hand, and adjudicating, on the other, also has a long history. Sir Joseph Napier, describing the role of assessors in the High Court of Admiralty, stated in The “Magna Charta”: [14]

“[The judge] is advised and assisted by persons experienced in nautical matters, but that is only for the purpose of giving him the information he desires upon questions of professional skill, and having got that information from those who advise him, he is bound in duty to exercise his own judgment, and it would be an abandonment of his duty if he delegated that duty to the persons who assisted him. The assessors merely furnish the materials for the court to act upon, and, for convenience sake, they are allowed to hear all the evidence.”

13.    N Meeson and J A Kimbell, Admiralty Jurisdiction and Practice (5th ed, Routledge, 2018), [7.82].

14.    (1871) 1 Aspinall’s Maritime Law Cases 153 (PC) at 154.

20. Some years later, the same theme was articulated in “The Australia”[15] by Lord Sumner in the following terms:

“Authority for the proposition that assessors only give advice and that judges need not take it, but must in any case settle the decision and bear the responsibility, is both copious and old. It is for them to believe or to disbelieve the witnesses, and to find the facts, which they give to their assessors and which must be accepted by them. If they entertain an opinion contrary to the advice given, they are entitled and even bound, though at the risk of seeming presumptuous, to give effect to their own view…. Such being the position of the judges, what is that of the assessors? In Admiralty practice they are not only technical advisers; they are sources of evidence as to facts. In questions of nautical science and skill, relating to the management and movement of ships, a Court, assisted by nautical assessors, obtains its information from them, not from sworn witnesses called by the parties … and can direct them to inform themselves by a view or by experiments and to report thereon.”

Lord Sumner continued (at 153):

“What is, however, the function of a Court of Appeal is to urge upon Courts below and to impose upon itself the duty of making up its own mind, alike on questions of nautical skill and on the value of the advice given upon them. I have seen such phrases as these in judgments that have come before us. ‘I do not find myself in matters of seamanship competent to differ from the assessors below or the assessors in this Court, but the assessors in this Court are provided to advise me on matters of pure seamanship, and I feel it my duty to follow them without expressing an opinion, whether they are right or wrong,’ or ‘That being the advice given us by the gentlemen, who are sent by Parliament to advise us, I feel bound to follow it. … I think we are bound … to follow the advice of our assessors, without expressing any opinion of our own,’ or ‘without this skilled assistance, I am not at all sure what conclusion I should come to, if I had to decide these matters for myself’: The Artemisia; The Llanelly. With great respect they seem to me to be quite contrary to authority. If, as may happen, a judge cannot decide in his own mind whether or not the advice he receives is sound, his position is simply that the point is not proven, and the loss falls on the party, who bears the burden of proof on that issue. It is just as if necessary proof had failed.”

15. SS Australia (Owners) v SS Nautilus (Cargo Owners; The Australia) [1927] AC 145 at 152.

21. The scope of the function, when limited to advice and assistance has been controversial. For example, in The Beryl,[16] Brett MR stated:

“The assessors who assist the judge take no part in the judgment whatever; they are not responsible for it, and have nothing to do with it. They are there for the purpose of assisting the judge by answering any question, as to the facts which arise, of nautical skill. They have nothing to do with the credibility of witnesses, unless that credibility depends upon a knowledge of nautical affairs specially. They have nothing to do with whether the evidence proves that vessels were at one distance or another at any given time. That is not their function. All that is to be decided upon the responsibility of the judge, and upon the evidence before him, and upon his view of that evidence.”

16. (1884) 9 PD 137 at 141.

22. As explained by Anthony Dickey in 1970: [17]

“Assessors do not, in the modern sense of the word, assess anything. The title of the office derives directly from the Latin assessor, meaning one who sits with another, or an assistant, and in English law denotes a person who, by virtue of some special skill, knowledge or experience he possesses, sits with a judge during judicial proceedings in order to answer any questions which might be put to him by the judge on the subject in which he is an expert.”

Dickey further suggested that the role of assessors was not confined “to the interpretation and elucidation of technical evidence” but extended to being “sources of evidence as to facts.” [18]

17.    A Dickey, “The Province and Function of Assessors in English Courts” (1970) 33 MLR 494 at 501.

18.    Dickey at 502, quoting Lord Sumner in “The Australia”.

23. The highly constrained view of the role of assessors in Admiralty, expressed by Brett MR, may have turned in part upon the scope of their expertise. Under the Land and Environment Court Act, one area of expertise, noted above, is special knowledge and experience in the law and practice of land valuation; however, any person may be appointed as a Commissioner if he or she is an Australian lawyer. Given the nature of the skill and expertise which is thus made available, it is difficult to imply any particular constraint on the nature of the advice and assistance which may be provided in a valuation case.

24. The problem in the present case is not so much a question of delegation, rejected in “The Australia”, as a question of co-adjudication. The reasons for judgment (further discussed below) indicate a degree of unanimity, not disagreement, between the judge and the Acting Commissioner. Had the judgment stated, in addition to the acknowledgment of great assistance in [2], words to the effect, “With respect to each material finding identified below my views coincided with the advice given by the Acting Commissioner”, it is doubtful that any objection could have been raised. Nevertheless, that was not the language used and it is necessary to determine where the line is to be drawn between assistance and advice, on the one hand, and adjudication on the other.

25. The legislature has from time to time sought to achieve a higher level of transparency in matters involving assessors. Thus, the Navigation (Courts of Marine Inquiry) Regulations made under the Navigation Act 1912 (Cth) provided, in cl 14:

14.   Form of decision of Court on inquiry

…

(3)   Each assessor assisting a Court shall, if he concurs in the decision of the Court, sign the decision, and if he dissents from the decision he shall state in writing to the Minister his dissent and the reasons therefor.

26. Part IX of the Navigation Act 1912 included s 359, providing for the court to be assisted by assessors “who shall advise the Court but shall not adjudicate on the matter before the Court.” (Doubt has been expressed as to the validity of the Regulation, although that need not be explored here. [19] )

    19. See Re MV “TNT Alltrans” Grounding (1986) 83 FLR 416 at 420 (Sheppard J).

27. The role of assessors in other jurisdictions, particularly in relation to intellectual property, such as patents, was carefully explained by Barker J in the Supreme Court of New Zealand (now the High Court) in Beecham Group Ltd v Bristol-Myers Co,[20] and in a later judgment, explaining how the Court had used an independent scientific advisor to explain basic concepts of stereochemistry. [21]

    20. [1980] 1 NZLR 185.

    21. Beecham Group Ltd v Bristol-Myers Co (No 2) [1980] 1 NZLR 192.

28. The modern case law now contains a number of considered explanations by experienced trial judges as to how they have used scientific advisors in the course of proceedings. [22] Three elements may be noted. First, generally assessors have been encouraged to articulate reactions to particular submissions or evidence in open court, so as to allow such views to be exposed and considered. Secondly, to the extent that alternative views were expressed to the judge in chambers, these too were conveyed to the parties for their comments. Thirdly, in each case the judge appears to have been at pains not merely to reiterate that the issues for determination rested with the judge alone, but also to explain that the expert assessors, who appear to have been appointed on an ad hoc basis in each case, understood their limited role. By these means, the distinction between assistance and adjudication was maintained and, further, a reasonable degree of transparency was achieved for the purposes of what was otherwise an adversarial hearing. Although the statutory schemes for the appointment of Commissioners in the Land and Environment Court differ from the provisions in various Supreme Court Acts or rules,[23] and in s 217 of the Patents Act 1990 (Cth), that approach could be adopted in the Land and Environment Court.

    22. Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368 at 370-371 (Heerey J); F Hoffman-La Roche AG v New England Biolabs Inc [1999] FCA 1424; (1999) 47 IPR 105 at [8] (Emmett J); Matthews v SPI Electricity Pty Ltd (Ruling No 32) [2013] VSC 630 at [27] (Forrest J); Construction Engineering (Aust) Pty Ltd v Adams Consulting Engineering Pty Ltd (Ruling No 2) [2016] VSC 209 at [35] (Vickery J).

    23. See Uniform Civil Procedure Rules 1999 (Qld), r 500; Supreme Court Act 1935 (SA), s 71; Supreme Court Civil Procedure Act 1932 (Tas), s 37(1); Supreme Court Act 1986 (Vic), s 77; Supreme Court Act 1935 (WA), s 56.

29. As already explained, the issues upon which a Commissioner may provide assistance and advice are not expressly constrained by the terms of the Land and Environment Court Act and, at least in the present case, there is no reason to imply a constraint. Nevertheless, the functional distinction between advice and assistance on the one hand, and adjudication on the other, is expressly stated and must be adhered to. Thus, there is no doubt that if the judge deferred to the opinion of the Commissioner without being persuaded that it was correct, the exercise of the jurisdiction would have miscarried. On the other hand, if the judge has formed an independent opinion with respect to each material issue, there can be no complaint that those opinions were shared by the Commissioner.

30. The application of these principles in the present case is not without difficulty. Two factors militate against any assumption of error. First, the experience of both the judge and the Acting Commissioner as to the operation of the Land and Environment Court Act would readily allow a conclusion, absent indications to the contrary, that the distinction between assistance and advice on the one hand and adjudication on the other, as set out in s 37(3), was well understood and would have been applied. The adoption of this inference is an application of the presumption of regularity. Further, that assumption finds express support in [2] of the judgment which stated:

“I gratefully acknowledge the great assistance I received from Acting Commissioner John Maston in the determination of this claim.”

31. Nevertheless, there are contrary indications. First, with one apparent exception, the judgment is formulated either in terms of the first person plural (“we” or “our”) or by reference to “the Court”. In some passages, [24] “the Court” is used in circumstances in which it might properly be inferred that a distinction was being drawn between the Court constituted by the judge, and the Commissioner. However, there are an equal number of examples in which findings are expressed in the first person plural and, in critical passages, the two expressions are interspersed in a way which suggests that “the Court” was used as a variation on the theme of collaborative decision-making, rather than by way of distinction. Four critical passages should be identified.

    24.    Judgment at [58], [84], [136] and [178].

32. First, there is an outline of the judgment at [6] in the following terms:

“The structure of this judgment is as follows:

●   In section B ([7] to [10]), we will summarize, as best we can, the contentions, … which we will describe in section C ([11] to [17]).

●   In section D ([18] to [64]), we will describe in some detail the Acquired Land (and its ownership).

●   In section E ([65]), we will set out the key provisions of the legislation.

●   In section F ([66] to [207]), we will deal with the issues touching upon the valuation task, under the following headings –

….

●   In section G ([208] to [236]), we will deal with the disturbance claims, before coming to our determination of the compensation payable and the Court’s orders, in section H ([237] to [239]).”

The reference in the final point to how “we will deal with” disturbance claims, before coming to “our determination” and the Court’s orders is significant.

33. Secondly, in dealing with a major issue as to the existence and significance of certain underground storage tanks (UST’s) which provided a potential source of contamination and therefore remediation costs, the judgment concluded in the following terms:

“[163]   Given the number of UST’s which were reported to exist on the site at some time, and the rather adamant evidence provided by Mr Clay, we are not convinced by the Applicant’s submissions that a hypothetical purchaser would be ‘comforted’ by Mr Foxe’s evidence, at least not to the extent of ‘accepting’ that no USTs were present on the site at the date of acquisition.

[164]   The Applicant seeks to rely on the Queensland decision in Caltex Oil (Australia) Pty Ltd v Chief Executive, Department of Lands … to submit that the significance of contamination of a site is considered only when a change in use to one which conflicts with an existing use is contemplated, and is most likely limited to a change to residential use ….

[165]   We reject any such contention. …

[166]   Mr Clay’s evidence satisfies the Court that there is at least one non-decommissioned UST on the subject land. There remains some risk that there are others.

[167]   We prefer the Respondent’s submission that a hypothetical purchaser would consider this risk to be real, and would deduct an amount from the price it would otherwise be willing to pay for the land, on account of the need to provide for resolution of such uncertainty.

[168]   We would allow $250,000 in this regard.”

This passage uses both “we” and “the Court” in a manner which clearly involves no distinction between the two formulations.

34. Thirdly, in addressing the valuation of two specific areas of land, the judgment expressed the findings in the following terms:

“[203]   We do not accept Mr Blackwell’s evidence ….

[204]   We conclude that it would not have been possible or viable to develop the NE or SW surplus areas on the date of acquisition, without obtaining DC, and incurring the costs of compliance and delay associated with the Fire Safety Order, the heritage works, and the contamination works.

[205]   Accordingly, we adopt the rental value agreed by the valuers ….

[206]   It is not clear to the Court where Mr Lunney draws final areas of hardstand to be leased …. His numbers do not appear to remain consistent throughout the scenarios he posited. We have, therefore, preferred the areas provided by Mr Blackwell …. Further, we adopt the figures most likely to be leased out for the continued IN1 use, as opposed to figures used when considering development of these portions for other uses.

[207]   The total area of the hardstand available to be leased at the agreed $80/m² is calculated by adding to the area of existing hardstand … the areas of the NE and SW portions …. Therefore, we adopt a total area of 7,846m² as land available to be leased ….”

Again, the use in [206] of “the Court” does not suggest that it is used in contradistinction to the first person plural, “we”.

35. Fourthly, in dealing with a claim for disturbance, the reasons concluded:

“[235]   We find that, as at the date of acquisition, the actual use of the acquired land by the Applicant was holding it and leasing it to tenants.

[236]   We accordingly, decline to allow any of the ‘replacement property costs’ …, namely stamp duty, conveyancing costs, and other financial costs.

H:   Determination and Orders

[237]   For the reasons we have set out above, we find the appropriate calculation of the market value of the Acquired Land, pursuant to s 55(a) of the JTC Act, is as follows:”

There immediately followed a table setting out the amounts allowed under the separate heads of compensable loss.

36. Finally at [239], the reasons concluded:

“The Court, therefore, makes the following orders ….”

37. The question raised by the use of this language may be identified as follows: in circumstances where it is clear that the judge did “adjudicate” the issues before the Court, does it matter that the Commissioner appears also to have formed opinions which, if they had legal force, would have constituted an adjudication?

38. Whilst the answer to the question is by no means beyond doubt, the better view is that it does matter. The prohibition in s 37(3) is not merely upon a delegation of authority to the Commissioner; it is a prohibition on participation by the Commissioner in the adjudication process, beyond the giving of assistance and advice. It is possible that, content in the knowledge that his tentative views were those of the Commissioner, the judge did not form an independent view involving the acceptance of full responsibility for the decision. It is clear from the historical use of the prohibition on adjudication that the purpose underlying the prohibition is to ensure that a clear demarcation of function is maintained. Whilst there is a good chance that the judge did form an independent view, the language in which this judgment was expressed prevents an affirmative satisfaction that the appropriate demarcation was maintained. It follows that ground 1A should be upheld.

Consequence of error

39. On the basis that the Commissioner, in contravention of the terms of s 37(3), played an adjudicatory role in the proceeding, the next question is whether that contravention rendered the judgment of the Court invalid.

40. A similar issue arose in an analogous statutory context in Attorney General of New South Wales v World Best Holdings Ltd. [25] That case concerned a decision of the Retail Leases Division of the Administrative Decisions Tribunal. The legislation provided that the Tribunal was to be constituted by a Division member, who was to be assisted by two other members “in an advisory capacity only”; the relevant provision also stated that “[a] member assisting the Tribunal under this clause is not to adjudicate on any matter before the Tribunal.”[26]

    25. (2005) 63 NSWLR 557; [2005] NSWCA 261 (Spigelman CJ, Mason P and Tobias JA).

    26. Administrative Decisions Tribunal Act 1997 (NSW), Sch 2, Pt 3B, cl 4(2) and (3).

41. Based on an assessment of the reasons of the Tribunal, which were written in the first person plural and included unequivocal statements such as “as commercial people, we consider…” and “based on our respective experience of commercial dealings”, [27] Spigelman CJ concluded:

“[78]   With respect to the involvement by the two non-judicial members in the decision-making process, in my opinion, Patten AJ was correct for the reasons he expressed. The Tribunal proceeded on the basis that all three members were entitled to, and did, involve themselves in every aspect of the decision-making process. The express statement as to the constitution of the Tribunal, and the numerous references to each relevant decision being taken in the name of all three members of the Tribunal, … is quite sufficient to establish the proposition and to discharge the onus of proof that World Best had as a plaintiff to overcome the presumption of regularity. Indeed, it does so overwhelmingly.

[79]   There was no attempt by Mr Sarker, nor by the Attorney, after he was joined as a party, to establish, by means of adducing evidence from the Tribunal that the words of the decision did not accurately reflect the decision-making process. In the absence of any attempt to adduce such evidence, there was no basis for the submission made by the Attorney that the numerous statements, in clear and unambiguous terms, about the involvement of non-judicial members of the Tribunal were in some sense made in error, by oversight or involved the use of a rhetorical royal plural. If the clear, indeed overwhelming, implications of the reasons for decision were to be contested, then direct evidence needed to be adduced. There was none.”

27.    World Best at [76]-[77].

42. In defence of the validity of the decision, despite the factual finding, the Attorney General relied upon two statutory provisions. The first, s 52(1)(e) of the Interpretation Act 1987 (NSW) should be referred to, although it was not relied upon by the respondent in the present matter. That provision states:

52   Proceedings of statutory bodies

(1)   Any act or proceeding of a statutory body shall not be called into question merely because of:

…

(e)   the presence or participation at any meetings of the body of any persons not entitled to be present or to participate at those meetings.

43. In World Best, the Chief Justice held that adjudication contrary to the statutory terms of the Administrative Decisions Tribunal Act was not “participation at a meeting” of the Tribunal, because the proceeding was not a “meeting”, “but the formal exercise of a statutory power by a person not entitled to exercise the power.”[28]

    28. World Best at [82].

44. The second provision relied upon in World Best was s 81(3) of the Administrative Decisions Tribunal Act. That provision stated:

81   Amendments and irregularities

…

(3)   If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings.

45. An equivalent provision, albeit in slightly different language, is found in s 68(2) of the Land and Environment Court Act. However, as provided in s 68(4), the section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction. That appears to be because s 63 of the Civil Procedure Act 2005 (NSW), to similar effect, applies. [29] Section 63 was not relied on in this case, perhaps because it only catches failures to comply with the Civil Procedure Act itself and rules of court. It would not cover a contravention of s 37(3).

    29. Civil Procedure Act, Sch 1, introduced with s 68(4) by the Courts Legislation Amendment Act 2007 (NSW), Sch 2, [9] and Sch 6, [27].

46. So far as the exclusion applies with respect to class 1, 2 and 3 proceedings, s 38 nevertheless operates:

38   Procedure

(1)   Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3)   …

(4)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.

(5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.

47. Section 38 does not assist the respondent in this matter. It identifies proceedings before “the Court”, and addresses the manner of exercise of the Court’s powers. In the present matter, the Court was constituted by the judge alone. Thus, s 37(1) envisaged that “the Court may, in hearing the proceedings, … be assisted by one or more Commissioners”; subs (3) refers to a Commissioner “assisting the Court”, and subs (4) envisages the judge proceeding without the assistance of Commissioners. This was not a case in which a Commissioner was exercising the jurisdiction of the court pursuant to s 36 by direction of the Chief Judge. There is no reason to read s 38 as directed to some relaxation of provisions regarding the constitution of the Court.

48. In the course of oral submissions, counsel for the respondent relied upon the fact that this matter might have been determined by a Commissioner pursuant to s 36 as demonstrating that, if the Commissioner played an adjudicatory role, it should not be treated as a vitiating error. [30] That point was relied upon to distinguish the statutory scheme considered in World Best, where Parliament had made clear that the jurisdiction to determine unconscionability claims in relation to retail leases was deliberately vested solely in a presiding member having substantial judicial experience or qualifications.

    30.    Tcpt, 13/06/18, p 72(10)-(30).

49. While the point of distinction from World Best may be accepted, it provides little support for the conclusion that the constitution of the Court would not invalidate its decision because the Commissioner might have been given, but was not given, an adjudicatory role. While it is true that Commissioners may be directed to hear and dispose of class 3 proceedings, it is also true that whenever the Court is constituted by a judge and a Commissioner the Commissioner is limited to advice and assistance. [31] The latter consideration demonstrates a coherent scheme; the fact that Commissioners may sit alone is of little consequence.

    31. See s 34C(1)(c)(ii) and (4)(c), dealing with proceedings in Class 1 jurisdiction identified in s 34A.

50. In World Best it was held that, were the statutory defences not made out, a decision of the tribunal not constituted in accordance with the statute would be invalid. [32] The present legislation contains a similar emphatic rejection of an adjudicatory role for the Commissioner. Where the Commissioner exceeds the legal limits of his or her powers in a material respect, the judgment is attended by legal error. Arguably, applying Stead v State Government InsuranceCommission, [33] unless this Court is satisfied that the excess of jurisdiction could not have affected the outcome, the appeal must be upheld and the judgment set aside. But that case involved an appeal by way of rehearing where the error at trial involved a denial of procedural fairness, with respect to a particular issue. That is not this case.

    32.    World Best at [110]-[126] (Spigelman CJ), [156] (Mason P), [183] (Tobias JA).

    33. (1986) 161 CLR 141 at 145; [1986] HCA 54.

51. The better approach in this case is to proceed by analogy with criminal appeals, where, error being established, the appeal will be upheld, unless it can be said there has been no substantial miscarriage of justice. [34] Thus, in Wilde v The Queen [35] Brennan, Dawson and Toohey JJ stated:

“The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.”

34. Criminal Appeal Act 1912 (NSW), s 6(1).

35. (1988) 164 CLR 365 at 373, [1988] HCA 6.

52. In civil proceedings a similar distinction is drawn between “irregularities so fundamental as to create an unconditional right … to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion.”[36] The Land and Environment Court is a superior court of record, but it is a court of limited jurisdiction. The subject-matter of the proceeding lay within the jurisdiction of the Court, but the proceedings were not, on the factual finding made above, determined in accordance with the statutory requirements for the exercise of its jurisdiction set out in Part 4 of the Land and Environment Court Act. The requirement that the Commissioner not participate in the adjudication of the matter was an essential precondition to a valid exercise of the Court’s powers. The rights of the parties have not been determined by a correct process. The judgment is therefore procedurally flawed and must be set aside.

    36. Cameron v Cole (1944) 68 CLR 571 at 591 (Rich J); [1944] HCA 5.

53. It follows that, as ground 1A is upheld, the judgment of the Land and Environment Court must be set aside. There then remains an unresolved dispute as to the compensation payable for the acquisition of the appellant’s land. That matter must be resolved by the Land and Environment Court, appropriately constituted, without reliance upon the findings made at the earlier hearing.

54. How the matter should proceed at a rehearing is for the Land and Environment Court and the parties to determine. One aspect of the dispute at the first hearing involved a complaint by the respondent that the applicant had departed from its pleaded case. It is clear that there may be further procedural rulings required. It is also to be hoped that, in circumstances where the witnesses and particularly the experts had committed themselves to particular propositions and had been extensively cross-examined, a further hearing may be significantly shorter than the first hearing. However, that is a matter for the parties and the Court and there is no call for this Court to give directions as to how the matter should proceed at any rehearing.

Orders

55. The Court should make the following orders:

1. Direct that the appellant file and serve within 7 days the amended notice of appeal, in the form contained in the orange appeal book.

2. Allow the appeal and set aside the judgment and orders made on 30 June 2017 in the Land and Environment Court.

3. Order that the respondent pay the appellant’s costs of the appeal.

4. Direct that the costs of the first trial be determined by the Land and Environment Court at the determination of the proceedings before it.

56. PAYNE JA: I agree with Basten JA.

57. WHITE JA: I agree with Basten JA.

**********

Endnotes

Amendments

13 May 2019 - [21] - Deleting "LR" after "The Beryl".

[28] - Amending "differs" to "differ" in last sentence.

[50] - Inserting "or her" after "of his" in third sentence.

Decision last updated: 13 May 2019