Deckana Pty Ltd v Northern Territory

[2004] HCATrans 389

[2004] HCATrans 389

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2004

B e t w e e n -

DECKANA PTY LTD

Applicant

and

THE NORTHERN TERRITORY OF AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 OCTOBER 2004, AT 1.36 PM

Copyright in the High Court of Australia

MR A.S. MacFARLANE appeared in person.

MR M.P. GRANT:   May it please your Honours, I appear with my friend, MR P.J. TIMNEY, for the respondent.  (instructed by Solicitor for the Northern Territory)

GUMMOW J:   Yes.  Mr MacFarlane, you appear for yourself?

MR MacFARLANE:   Yes, your Honour.  Well, I am not too sure about that.  It depends on whether I get leave of the Court, I suppose.  I might have to address that question first. 

GUMMOW J:   Is it the position that Deckana is now in liquidation? 

MR MacFARLANE:   Well, it is, but it is part of the argument.  It was retired as trustee in 1999.  That is part of the argument.  The other thing is, I have got my own business, I have got a wife and three kids.  As I said, I am representing Deckana, but it has been retired as a trustee of a family trust in 1999 and a new trustee was appointed, the same three directors as Deckana.  It is actually in ‑ ‑ ‑

GUMMOW J:   Let us get to the ‑ ‑ ‑

MR MacFARLANE:   It is best if you ask me the questions because, you know, it is a pretty open thing, this compulsory acquisition.

GUMMOW J:   Just a minute, Mr MacFarlane.  Is there some affidavit you are relying on, Mr Grant?

MR GRANT:   Your Honour, there is an affidavit sworn by Philip John Timney on 6 October 2004.  We would seek leave to file that in Court.

GUMMOW J:   Just a minute.  Has it been shown to Mr MacFarlane?

MR GRANT:   Your Honours, only just before Court for this reason.  Mr MacFarlane’s address for service is care of the post office in Toowoomba.  As your Honours will see…..

GUMMOW J:   What does the affidavit…..

MR GRANT:   …..sworn 6 October.  It was not possible to serve and file it at that address…..

GUMMOW J:   I will take a short adjournment to get this sorted out. 

AT 1.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.43 PM:

GUMMOW J:   I think we should start again.  Mr MacFarlane, you appear for yourself?

MR MacFARLANE:   Yes, your Honour.

GUMMOW J:   Mr Grant and Mr Timney, you appear for the Territory?

MR GRANT:   That is so, your Honour.

GUMMOW J:   Mr Grant, you want to rely on an affidavit?

MR GRANT:   Yes, your Honour, the affidavit of Philip John Timney, sworn on 6 October 2004.

GUMMOW J:   What will the affidavit show?

MR GRANT:   It will go to two matters, your Honour.  The first is the authority of Mr MacFarlane to appear for the applicant in circumstances where there are receivers and managers appointed.  Insofar as we understand it, your Honour, the company is not in liquidation.  The second issue it goes to is the fact that one of the issues sought to be agitated on the appeal is now moot, and that is the order made by Justice Angel on 16 March 2000 restraining the applicant from selling its real property.  That property has since been sold by the receiver and manager and any appeal from the decision would be otiose, in our submission, your Honours.

GUMMOW J:   Yes, thank you.  Yes, Mr MacFarlane.  You have heard what the substance of it is.  You tell us what you want to say orally.  Can I raise this with you also, this is an application brought from a single judge in the Supreme Court of the Territory. 

MR MacFARLANE:   That is right.  I have been to the Court of Appeal.

GUMMOW J:   Just a minute.  Normally, almost universally, we would only get involved if the appeal has gone through the next step, which is the Full Court or the Court of Appeal of the Territory.

MR MacFARLANE:   It has.  It has, your Honour, I am sorry.

GUMMOW J:   Yes, go on.

MR MacFARLANE:   So you want to get involved, we are going to have to sort that problem out, first.  It has been through the Court of Appeal of the Territory twice.  At page 31 of this, there is an affidavit from Mr Ward ‑ ‑ ‑

GUMMOW J:   What do you say about page 27 of the application book?

MR MacFARLANE:   About – sorry?

GUMMOW J:   Page 27 at 1.8.

MR MacFARLANE:   What do I say about page 27?

GUMMOW J:   At 1.8.

MR MacFARLANE:   At 1.8:

The application is made in relation to orders of a single judge –

I am just going to – that is what I am going to tell you about.  Actually, it is page – I will just find the page, your Honour.

GUMMOW J:   I think the Court of Appeal, looking at page 19, they refused you leave to appeal, did they not?

MR MacFARLANE:   That is right, but I am just going to ‑ ‑ ‑

GUMMOW J:   So what you are really seeking is us to reverse their refusal of your leave to appeal.

MR MacFARLANE:   Yes.  If you go to page 42, you will see:

In the proceeding number AP 31 of 1999 . . . Justice Angel –

It tells you that Justice Angel sat in the Court of Appeal on his own.  I was appealing his decision, which is a discretionary power of the court.  That is all the decision is, that I cannot represent the company.  It is not a law.  It is a discretionary power of the court. 

GUMMOW J:   Yes.

MR MacFARLANE:   And what I say is that the land acquisition ‑ ‑ ‑

GUMMOW J:   Now, what do you say about this other point, about the land having been sold?

MR MacFARLANE:   Well, the land has been sold prior to compensation, so it has been sold in its devalued state.  It is actually worth nothing to Deckana, that land that was sold, and the fraud is that the receiver said it is 1.2.  He has kept 800,000 and he has got 300,000 or 380, whatever the figure is, in a bank account, not in Deckana’s name.  He has not put the residue of the sale into the Deckana account, which is the mortgage he said, you know, that he closed on.  He has got it in a separate account, saying, “Now, if you come along and sign for it, we will give it to you”.

But the other point is that it all goes to the gazettal of land without the offer, your Honour, the procedure for compulsory acquisition.  We go to page 3 and you read the letter there.  This is what the guts of it is on:

compulsory acquisition of NT Portion 5034 –

We do not even know what that it is, but it is part of my property that subdivides my pastoral lease.  I had a 50 year lease on a pastoral lease.  Now, they took this bit by adding it up.  In other words, I was contracted to lease that bit of land off the government, if I fulfilled my side of the deal, for the next 50 years and had the right to apply for perpetuity, which I had already applied for.  Now, the government comes along here – this is how he did it:

On 28 July –

Wait a while.  You can read it for yourself:

The compulsory acquisition of NT Portion 5034 pursuant to section 43 of the Lands Acquisition Act was achieved by the publication of a Notice of Acquisition for the land in the Northern Territory Government Gazette . . . on 23 June 1997. 

So he took the land on 23 June.  I had to surrender my lease for the taking of land.  That must have extinguished the mortgage, but it did not extinguish the mortgage.  The receivers foreclosed on that mortgage.  Righto.  He took the land on 23 June by gazettal.  No offer. 

The following offer of compensation –

was made –

pursuant to section 50 –

A month later, he is offering to pay money.  That is the irregularity.  Normally, compulsory acquisition is:  the proposal, you have got the right to object, which I did object, not to the government, I objected to the court, which is the page before that.  There is the objection under section 36(2)(a).  That means that I did not want to have my land subdivided, but the government had already applied to subdivide it in 1994.  And this is what he referred to the court:

I now refer the matters –

He has referred the matter that he took the land by gazettal on 23 June.  He did not offer me money prior to the taking of land.  He had referred the matter on this date, the 11^th of the 8^th:

On 28 July –

he says –

Mr MacFarlane lodged a Notice of Dispute claiming $500,000 approx –

That is untrue, 500,000 is what he owed me for lease improvements.  That is itemised in here by a government report.  A full government report on actually what is, you know.  Starting at page 76 is the government report stating what I did and what the lease is entitled to, et cetera, et cetera.  It also states there the market value of the lease, which was $140,000, and when I got it valued prior to the receiver selling it, it was valued at 2.1. 

That tells you what the improvements to the lease were, but it was devalued.  We had a qualified valuer to say it was devalued by 2 million.  So the 140 was devalued by 2 million and he sold it and said it was worth 1.2.  It is not worth anything to Deckana.  But we are sort of getting away from the point there.  We are getting away from the point as to whether I have got the right to represent all that and that is a discretionary power of the court, no discretion on the government whatsoever.  They should not even be heard on it.

GUMMOW J:   We like to hear both sides.

MR MacFARLANE:   But, your Honour, the land was taken by gazettal.  He had extinguished his right to court determination to it to hear any further.  He took it by gazettal.  He ignored all the compulsory land acquisition rules.  He had refused to make me an offer that I could accept or dispute prior to taking the land – prior to acquisition.  If you want me to take you through those things in he Lands Acquisition Act I can.  Section 36(2)(a) is the form that I disputed him taking the land.  Now, if I dispute him taking my land he shall refer it to the Tribunal.  Then we go to section 45:

Subject to this section, if the proposal has been referred to the Tribunal under section 36(1) –

which is the objection –

the Minister shall not acquire land the subject of the proposal under section 43 unless –

(a)      all affected persons who referred the proposal to the Tribunal have withdrawn from the pre‑acquisition hearing; or
(b)      the Tribunal has made a recommendation –

to the Minister.  None of that has happened.  The other irregularity in it is on page 3.  He makes the offer one day: 

Notice of Acquisition for . . . Northern Territory –

Yes, there is an irregularity there, but the notice of acquisition was not signed.  That was explained to Justice Angel.  What was not explained to Justice Angel was that I disputed it and he still has not paid the money, you know.  When he takes my land and I say I want $500,000, that is what he has got to pay, otherwise it is theft.  That is what he has done.  He is having some hope, now, and if I do not represent the company he has got away with my land for nothing.

The other thing that goes hand in hand with compulsory acquisition is representation and costs.  They oppose costs all the way to the High Court and Justice Kirby did not allow the company costs and on the same token, you know, that means that I am the only fellow that can represent.  They are not giving money for a lawyer.  Now he is saying that I cannot represent as well.  

The other point there is that if I represent the corporation out of my costs they lose their property rights to me, the same as a lawyer would.  The big difference there, your Honour, in costs is if the Court orders the government to pay my costs, I have got protection of the Court, and if they do not, I am blackmailed by these fellows because the land is taken off me on behalf of every other Australian.  At the moment it costs me $10 million.  There is 20 million of them and they have not paid $1 each.

GUMMOW J:   Yes, Mr MacFarlane, is there anything more you want to add?

MR MacFARLANE:   I beg your pardon?

GUMMOW J:   We have read the written materials, but is there anything more you want to add?

MR MacFARLANE:   Yes.  The question of law that we have got to answer is whether the gazettal without an offer – the question of law is whether the gazettal extinguishes the discretionary power the court has got to withdraw my representation and the gazettal without an offer extinguishes the right he has to court determination.  The confusion now is that because he has not followed the Lands Acquisition Act, all the procedures – he just jumped straight gazettal and then offered money afterwards – is what I am entitled to. 

It is whether I am entitled to a pastoral lease – seeing I have already applied for a lease in perpetuity – entitled to a pastoral lease, eligible for perpetuity, or seeing, you know, that has cost me all of the lease.  Am I entitled to one lease, the special value of one lease?  There is not only me here.  I reckon in these sorts of cases where land is taken by gazettal and I am sitting out there and they are denying representation and costs – there is another bloke in the Territory in the same position as I am.  I reckon that, you know, when land is taken on behalf of all other Australians that fellow should be brought to the court.  At the moment he is being played with by lawyers, the same as these blokes.

GUMMOW J:   Now, can you just at the application book at page 26?

MR MacFARLANE:   Page 26, yes, your Honour.

GUMMOW J:   Yes, please.  That is a summary in short form of what the Territory says against your application here today.  Just take a moment to look at it again and tell us orally anything you want to put in opposition to what they are saying there.  It is a rather specific and technical matter, I am afraid, but that is the way the system is, I am afraid.

MR MacFARLANE:   But I think the technicalities  ‑ ‑ ‑

GUMMOW J:   That is the way the system has to operate.

MR MacFARLANE:   Yes, I understand that clearly, your Honour.  But, then, if you go to his chronology, it is all wrong.  He does not mention the notice of proposal and he does not mention that I opposed him taking my land.  He does not mention that he took the land by gazettal without making me an offer that I could accept or refuse.  That is the biggest point.  If I want to come and take something off you, surely I have to make you an offer that you can either accept it or refuse it, and if you have not got those rights, it is theft, because I can take if off you at my value.  That is, you know, the biggest point in compulsory acquisition.  You want me to look at this page that is 26?

GUMMOW J:   Yes.

MR MacFARLANE:  

WHY SPECIAL LEAVE SHOULD NOT BE GRANTED –

Well, you hear that he talks that there is still an appeal in the Territory in here.  No? 

GUMMOW J:   I am just asking you to respond to page 26, Mr MacFarlane. 

MR MacFARLANE:   Page 26, righto. 

GUMMOW J:   If you wish to do so. 

MR MacFARLANE:   Well, it also says there that, you know, Justice Angel stayed the proceeding.  When land is taken off us in compulsory acquisition that affects all of our business, and if he stays a proceeding, surely he has to stay the interest rate at the bank.  Well, it just denies me the right to continue with my – as I told you, the land was taken by gazettal and there was no money paid.  It is no longer his business, it is the court’s business.  It was referred to the court that the land was taken off me.  Now it is the court’s business.  Is there anything particular there, your Honour, on that page that you are pointing to me at?

GUMMOW J:   No, Mr MacFarlane.  Is there anything more you want to add, orally?

MR MacFARLANE:   Well, yes, that in compulsory acquisition we should not have to apply to special leave.  That is another thing I say.  There has been representation and I have paid $2000.

GUMMOW J:   I am afraid that is not the law, so there it is.

MR MacFARLANE:   Even in compulsory acquisition, your Honour?

GUMMOW J:   What you have just said is not the law.  You need special leave. 

MR MacFARLANE:   I see. 

GUMMOW J:   If it were the other way around and if the Territory were upset by what had happened, they would need special leave.  Everybody needs special leave. 

MR MacFARLANE:   The fact that the land was taken by gazettal and they have not paid any money demands that I have special leave. 

GUMMOW J:   Yes, very well.  Sit down, if you would.  We will take a short adjournment. 

AT 2.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.06 PM: 

GUMMOW J:   Yes, Mr MacFarlane. 

MR MacFARLANE:   One thing I did not mention was the fee waiver.  I am sorry, your Honour, can I?

GUMMOW J:   Yes, Mr MacFarlane.

MR MacFARLANE:   I forgot about mentioning the fee waiver today.  The Registrar – you know, what I can see in compulsory acquisition the Court addresses costs.  I have had to pay a fee waiver, you know.  I have had to pay $2000‑odd for the application today.  I have had my land taken and I have still had to come here and pay another 2000 on top of that, plus my own costs of coming here today, all because the Northern Territory government wanted to take land off me. 

Surely, it costs me that I do not get burdened with it, how it affects my family, the rest of it, but surely not the fee waiver.  I cannot see how the Registrar addresses the fee waiver and asks the permission of the receiver

whether or not I can proceed with this proceeding.  Registrars should be silent on compulsory acquisitions. 

GUMMOW J:   There is no special privilege about compulsory acquisitions, Mr MacFarlane, as I have tried to explain to you.

The Court has heard the oral submissions of Mr MacFarlane and has read the written submissions of both sides.  Having done so, we need not call on counsel for the respondent.  We are not satisfied that there are any prospects of success in an appeal to this Court.  We would grant the extension of time which is required to institute the application but, accordingly, we would dismiss the application with costs.

The Court will adjourn until Monday, 25 October 2004 at 10.15 am in Perth.

AT 2.08 PM THE MATTER WAS CONCLUDED