Esposito v Commonwealth of Australia
[2015] FCA 3
•8 January 2015
FEDERAL COURT OF AUSTRALIA
Esposito v Commonwealth of Australia [2015] FCA 3
Citation: Esposito v Commonwealth of Australia [2015] FCA 3 Parties: JUNE YVONNE ESPOSITO, MARGARET-ANNE HUTTON, DANIEL WALTER MASSAIOLI, SAM DE MARIA, BRIAN GEORGE EDWARD SMITH and FRANCESCO JOHN TALARICO v COMMONWEALTH OF AUSTRALIA, STATE OF NEW SOUTH WALES, SHOALHAVEN CITY COUNCIL, FOUNDATION FOR NATIONAL PARKS AND WILDLIFE and THE MINISTER FOR THE ENVIRONMENT (CTH) File number: NSD 924 of 2013 Judge: FOSTER J Date of judgment: 8 January 2015 Catchwords: PRACTICE AND PROCEDURE – representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – whether, in light of the dismissal of the lead applicants’ cases, further orders should be made addressing the consequences of that dismissal for group members and, if so, what orders should be made Legislation: Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33Z, 33ZB
The Constitution, s 51(xxxi)Cases cited: Esposito v Commonwealth of Australia [2014] FCA 1440 Date of hearing: 21–25 October 2013 and 6 May 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicants: Mr PE King Solicitor for the Applicants: Whitfields Solicitors Counsel for the First and Fifth Respondents: Dr SE Pritchard SC and Mr CL Lenehan Solicitor for the First and Fifth Respondents: Australian Government Solicitor Counsel for the Second Respondent: Mr EC Muston Solicitor for the Second Respondent: Legal Services Branch, Office of the Environment and Heritage Counsel for the Third Respondent: The Third Respondent submitted save as to costs Counsel for the Fourth Respondent: Mr SJ Duggan Solicitor for the Fourth Respondent: Bartier Perry
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 924 of 2013
BETWEEN: JUNE YVONNE ESPOSITO
First ApplicantMARGARET-ANNE HUTTON
Second Applicant
DANIEL WALTER MASSAIOLI
Third Applicant
SAM DE MARIA
Fourth Applicant
BRIAN GEORGE EDWARD SMITH
Fifth Applicant
FRANCESCO JOHN TALARICO
Sixth Applicant
AND: COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
SHOALHAVEN CITY COUNCIL
Third Respondent
FOUNDATION FOR NATIONAL PARKS AND WILDLIFE
Fourth Respondent
THE MINISTER FOR THE ENVIRONMENT (CTH)
Fifth Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
8 JANUARY 2015
WHERE MADE:
SYDNEY
THE COURT:
1.DECLARES, pursuant to s 33ZB(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), that the group members who are affected by the Court’s judgment in Esposito v Commonwealth of Australia [2014] FCA 1440 and by the Court’s judgment in Esposito v Commonwealth of Australia (No 2) [2015] FCA 3 are all those persons or entities who owned land in Deposited Plans 8590, 8591, 8770, 8771 and 8772 as at 13 March 2009 and who still own that lot and have done so continuously at all times since 13 March 2009 or who owned that lot continuously from 13 March 2009 until transferring it to the second respondent via the voluntary tendering process managed by the fourth respondent in the period since about October 2012 other than those persons and entities who have opted out of this proceeding effectively the names of whom are listed in Schedule A to these Orders.
2.DECLARES, pursuant to ss 33J(2), 33Z(1)(a), (b) and (g) and 33ZB(b) of the FCA Act, that the persons and entities who opted out of this proceeding effectively are those persons and entities whose names are listed in Schedule A to these Orders.
3.ORDERS, pursuant to s 33Z(1)(a), (b) and (g) and s 33ZB(b) of the FCA Act, that the issues and questions set out below be determined as set out below:
Question 1:
Whether the Applicants are entitled to be paid compensation for the expropriation of their land or the sterilisation of their interests in the land specified in the schedule on just terms, and if so, on what basis.
Answer to Question 1:
No, none of the applicants or the group members is entitled to be paid compensation as claimed for the reason that there was no acquisition of the land held by them in the Heritage Estates (as defined in Esposito v Commonwealth of Australia [2014] FCA 1440) nor was there any sterilisation of their interests in that land in contravention or impairment of the Constitutional guarantee provided to the group members by s 51(xxxi) of The Constitution.
Question 2:
Whether but for Environmental Protection and Biodiversity Conservation Act 2004 [sic] [Cth] section 519 the direction specified in paragraph 1 of the Details of Claim is invalid to the extent that it has impaired the constitutional guarantee of the Applicants in Constitution s51(xxxi).
Answer to Question 2:
No, the decision made by the fifth respondent on 13 March 2009 under s 130 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) not to approve the proposed Heritage Estates Rezoning and Associated Public Infrastructure Works (EPBC2007/3448) which had been referred to the fifth respondent by the third respondent on 9 May 2007 pursuant to the said Act was not and is not invalid.
Question 3:
Whether the funding by the First Respondent of the offer made to the Applicants by the Fourth Respondent benefitting the Respondents or one of them is pursuant to an informal arrangement which but for Environmental Protection and Biodiversity Conservation Act 2004 [sic] [Cth] section 519 has impaired the constitutional guarantee in Constitution s51(xxxi) of the Applicants.
Answer to Question 3:
No, the funding provided by the first respondent to the second respondent pursuant to the Funding Agreement between those parties dated 12 June 2012 which related to land in the Heritage Estates was not provided pursuant to some overarching informal arrangement which but for s 519 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) would have impaired or contravened the Constitutional guarantee provided to the applicants by s 51(xxxi) of The Constitution.
4.ORDERS that the folder of opt out notices referrable to this proceeding which have been filed with, lodged with or received by the Court be marked as MFI-6 and be kept with the Court file.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE A
NOTICES OF OPTING OUT
Esposito v Commonwealth of Australia – NSD 924 of 2013
SURNAME FIRST NAME 1. BAINBRIDGE L 2. BANKRUPT ESTATE FAWAZE ALLOUCHE 3. CHRUSICZ Jolanta 4. EID Jim and Jania 5. JAROSZEWSKI Stefania 6. OLNEY Virginia 7. PANOURAKIS Terry 8. ROUSSIS Evangelos 9. SCHEMBRI Brian 10. SEN Indra 11. SHOALHAVEN CITY COUNCIL 12. SWEENEY Sandra 13. TSATTALIOS Peter and Kathleen 14. WRAIGHT Paul and Margaret Ann
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 924 of 2013
BETWEEN: JUNE YVONNE ESPOSITO
First ApplicantMARGARET-ANNE HUTTON
Second Applicant
DANIEL WALTER MASSAIOLI
Third Applicant
SAM DE MARIA
Fourth Applicant
BRIAN GEORGE EDWARD SMITH
Fifth Applicant
FRANCESCO JOHN TALARICO
Sixth Applicant
AND: COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
SHOALHAVEN CITY COUNCIL
Third Respondent
FOUNDATION FOR NATIONAL PARKS AND WILDLIFE
Fourth Respondent
THE MINISTER FOR THE ENVIRONMENT (CTH)
Fifth Respondent
JUDGE:
FOSTER J
DATE:
8 JANUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 24 December 2014, I delivered Reasons for Judgment in this proceeding (Esposito v Commonwealth of Australia [2014] FCA 1440) and made orders dismissing the whole of the proceeding with costs.
This proceeding is a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). For that reason, as well as determining the applicants’ claims in their own right, the Court must also address particular matters relevant to the claims of group members. In the present case, those matters are:
(a)The statutory stipulation that, in a judgment given in a representative proceeding, the Court must describe or otherwise identify the group members who will be affected by that judgment (as to which, see s 33ZB(a) of the FCA Act);
(b)Whether the Court should set out in a formal order of the Court the names of those persons who have opted out of the proceeding pursuant to s 33J of the FCA Act (as to which, see s 33J(2), s 33Z(1)(a), (b) and (g) and s 33ZB(b) of the FCA Act); and
(c)Whether the Court should give specific answers to the common questions raised by the applicants so as to make clear the manner in which and the extent to which group members who have not opted out of the proceeding effectively are bound by the judgment (as to which, see s 33Z(1)(a), (b) and (g) and s 33ZB(b) of the FCA Act).
THE GROUP MEMBERS
In their Further Amended Originating Application filed on 15 October 2013, the applicants described the group members to whom this proceeding relates as:
(a)Those persons or entities who owned a lot in Deposited Plans 8590, 8591, 8770, 8771 and 8772 as at 13 March 2009; and
(b)(i) Who still own that lot and have done so at all times since 13 March 2009; or
(ii)Who owned that lot continuously from 13 March 2009 until transferring it via the voluntary tendering process being managed by the Foundation.
At [6] of the principal judgment, I recorded the fact that the applicants claimed to represent those persons so described in this proceeding for the purposes of Pt IVA of the FCA Act.
I will now make an order pursuant to s 33Z(1)(g) and s 33ZB(a) of the FCA Act specifying that the persons affected by the principal judgment and by the orders which I made to give effect to that judgment and the persons affected by the orders which I propose to make in order to give effect to these Reasons for Judgment are those persons and entities within the description of group members specified by the applicants in their Further Amended Originating Application other than those persons and entities who elected to opt out of this proceeding by the date ordered by the Court as the date by which such election was required to be made (viz 25 October 2013).
OPT OUTS
On 11 October 2013, I made the following orders dealing with the despatch and publication of notices concerning group members’ right to opt out of this proceeding:
THE COURT ORDERS THAT:
…
9.Pursuant to ss 33J, 33X(1) and 33Y of the Federal Court of Australia Act 1976 (Cth), as soon as practicable and, in any event, by 16 October 2013, the fourth respondent:
(a)Send by prepaid post a copy of the approved Opt Out Notice and accompanying Explanatory Memorandum to each landholder of privately owned lots within Deposited Plans 8590, 8591, 8770, 8771 and 8772; and
(b)Cause to be published a copy of the approved Opt Out Notice and Explanatory Memorandum on one occasion in The Australian newspaper.
10.Pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth), 25 October 2013 is fixed as the date by which group members may opt out of this proceeding.
11.Copies of the applicants’ Further Amended Originating Application, their Amended Statement of Claim, all Defences filed in answer to those pleadings and all orders made in the proceeding be made available on the Court’s website on the page headed “Court Documents filed in Representative Proceedings”.
12.Pursuant to s 33Y(3)(d) of the Federal Court of Australia Act 1976 (Cth), the applicants pay to the fourth respondent the invoiced cost (inclusive of GST) of the printing and mailing out of the Opt Out Notice and accompanying Explanatory Memorandum to each landholder referred to in order 9(a) above and of the publication of those documents in The Australian newspaper, such payment to be made within fourteen (14) days of service by the fourth respondent upon the applicants’ solicitors of a true copy of the invoice or invoices from the third party provider or providers of the mail out service and of a true copy of the invoice or invoices from The Australian.
13.Pursuant to s 33J of the Federal Court of Australia Act 1976 (Cth), the parties have leave to commence the hearing fixed to commence on 21 October 2013 notwithstanding that that date is before the opt out date (25 October 2013).
Fourteen landowners returned a completed opt out notice by 25 October 2013. A further eight landowners filed opt out notices which were not received by the Court by 25 October 2013. Those late notices were received on various dates between 29 October 2013 and 31 December 2013. Most were received on 29 October 2013 or on 31 October 2013. Two opt out notices were returned to the Court because the persons or entities to whom they were addressed were not known at the address to which the notices had been sent.
All of the opt out notices returned to the Court have been placed in a folder. That folder will be marked as MFI-6 and kept with the Court file.
I propose to allow only those fourteen landowners who opted out by 25 October 2013 by returning a duly completed opt out notice to the Court by that date to opt out of this proceeding. I do not propose to vary the orders which I made on 11 October 2013 in order to allow latecomers to opt out. I see no reason to do so. The ongoing efforts by landowners to have the allotments in the Heritage Estates rezoned to permit residential development and the existence and subject matter of this proceeding have been matters of considerable notoriety. I have no doubt that the landowners were all well aware of their right to opt out and of the deadline for doing so imposed by the Court in the Orders which I made on 11 October 2013. The main hearing of this proceeding was concluded on 25 October 2013, which was the last day for the filing of opt out notices. In those circumstances, landowners not only had fourteen days prior to 25 October 2013 to consider their position and to decide what to do but also had the opportunity to attend the hearing and/or to ascertain what happened at the hearing before finally committing themselves.
ANSWERS TO THE COMMON QUESTIONS
In their Further Amended Originating Application, the applicants specified the questions which they regarded as common to the claims of all group members as:
1.Whether the Applicants are entitled to be paid compensation for the expropriation of their land or the sterilisation of their interests in the land specified in the schedule on just terms, and if so, on what basis.
2.Whether but for Environmental Protection and Biodiversity Conservation Act 2004 [sic] [Cth] section 519 the direction specified in paragraph 1 of the Details of Claim is invalid to the extent that it has impaired the constitutional guarantee of the Applicants in Constitution s51(xxxi).
3.Whether the funding by the First Respondent of the offer made to the Applicants by the Fourth Respondent benefitting the Respondents or one of them is pursuant to an informal arrangement which but for Environmental Protection and Biodiversity Conservation Act 2004 [sic] [Cth] section 519 has impaired the constitutional guarantee in Constitution s51(xxxi) of the Applicants.
In light of the principal judgment, those questions should be answered:
(1)No, none of the applicants or the group members is entitled to be paid compensation as claimed for the reason that there was no acquisition of the land held by them in the Heritage Estates nor was there any sterilisation of their interests in that land in contravention or impairment of the Constitutional guarantee provided to the group members by s 51(xxxi) of The Constitution.
(2)No, the decision made by the fifth respondent on 13 March 2009 under s 130 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) not to approve the proposed Heritage Estates Rezoning and Associated Public Infrastructure Works (EPBC2007/3448) which had been referred to the fifth respondent by the third respondent on 9 May 2007 pursuant to the said Act was not and is not invalid.
(3)No, the funding provided by the first respondent to the second respondent pursuant to the Funding Agreement between those parties dated 12 June 2012 which related to land in the Heritage Estates was not provided pursuant to some overarching informal arrangement which but for s 519 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) would have impaired or contravened the Constitutional guarantee provided to the applicants by s 51(xxxi) of The Constitution.
I will make an appropriate order specifically answering those questions in the manner set out at [11] above. Those answers will bind all group members other than those group members who opted out of this proceeding effectively on or prior to 25 October 2013.
While it might be possible for the Court in the present circumstances to make one or more negative declarations pursuant to s 33Z(1)(c) of the FCA Act in order to give effect to the answers which I have given to the common questions raised by the applicants (a matter about which I express no final view), I consider that it is neither necessary nor desirable for the Court to go that far. It is sufficient for present purposes for the Court to make its answers to the common questions clear by formal order so that those group members who have not opted out of this proceeding are bound by those answers.
There will be orders accordingly.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 8 January 2015
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