Esposito v The Commonwealth - [2013] FCA 546

FEDERAL COURT OF AUSTRALIA
Esposito v The Commonwealth [2013] FCA 546

Citation: Esposito v The Commonwealth [2013] FCA 546

Parties: JUNE YVONNE ESPOSITO, MARGARET-ANNE HUTTON, DANIEL WALTER MASSAIOLI, SAM DE MARIA and BRIAN GEORGE EDWARD SMITH v COMMONWEALTH OF AUSTRALIA, STATE OF NEW SOUTH WALES, SHOALHAVEN CITY COUNCIL and FOUNDATION FOR NATIONAL PARKS AND WILDLIFE

File number: NSD 924 of 2013

Judge: GRIFFITHS J

Date of judgment: 31 May 2013

Catchwords: PRACTICE AND PROCEDURE – Part IVA proceedings - whether to grant interlocutory injunction – whether serious question to be tried on acquisition of property on unjust terms (s 51(xxxi) of the Constitution or s 519 of the Environment Protection and Biodiversity Protection Act 2004 (Cth) (‘EPBC Act’), unjust enrichment or false or misleading representations – whether acquisition of property required to be compulsory to offend Constitutional guarantee or to obtain s 519 EPBC Act relief – balance of convenience

Legislation: Civil Dispute Resolution Act 2011 (Cth) s 11
Environmental Protection and Biodiversity Conservation Act 2004 (Cth) ss 18, 18A, 26, 27A, 87, 130
Federal Court of Australia Act 1976 (Cth) Pt IVA
Judiciary Act 1903 (Cth) s 78B

Cases cited:
Bank of NSW v The Commonwealth (1948) 76 CLR 1
British Medical Association v The Commonwealth (1949) 79 CLR 201
Castlemaine Tooheys Limited v The State of South Australia (1996) 161 CLR 148
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140
J T International SA v Commonwealth (2012) 86 ALJR 1297
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513
P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382
The Commonwealth v Tasmania (1983) 158 CLR 1
Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175

Date of hearing: 31 May 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 56

Counsel for the Applicants: Mr P King

Solicitor for the Applicants: Whitfields Solicitors

Counsel for the First Respondent: Ms S Pritchard SC

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr E Muston

Solicitor for the Second Respondent: Legal Services Branch, Office of the Environment and Heritage

Counsel for the Third Respondent: The third respondent filed a submitting notice

Counsel for the Fourth Respondent: Mr S 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 Applicant

MARGARET-ANNE HUTTON
Second Applicant

DANIEL WALTER MASSAIOLI
Third Applicant

SAM DE MARIA
Fourth Applicant

BRIAN GEORGE EDWARD SMITH
Fifth Applicant

AND:
COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

SHOALHAVEN CITY COUNCIL
Third Respondent

FOUNDATION FOR NATIONAL PARKS AND WILDLIFE
Fourth Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

31 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Orders 2, 2A and 2B of the amended interlocutory application dated 29 May 2013 are dismissed.
2.The applicants to pay the costs of the first, second and fourth respondents in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCA 546
Decision Date

CaseChat Overview and Summary

Esposito and others filed an application against The Commonwealth and others, seeking an injunction to prevent the transfer of land. The matter was initially heard by the Federal Court on an interlocutory basis, with the primary issue being whether there was a serious question to be tried. The applicants argued that the collaborative arrangements between the respondents constituted a circumvention of the constitutional obligation under section 51(xxxi) of the Constitution, as well as potential claims for unjust enrichment and false or negligent misstatement. The applicants further contended that the representations made in the offers to sell the land were misleading and amounted to economic duress. The court considered whether these arguments presented a serious question to be tried.

The court examined the applicants' claims, including their argument that the collaborative arrangements involved a circumvention of the constitutional obligation. The court also considered the applicants' allegations of unjust enrichment and false or negligent misstatement. The applicants argued that the defendants had been enriched at their expense and that the enrichment occurred in unjust circumstances, such as duress and mistake. The applicants further alleged that the representations made in the offers to sell the land were false and misleading, and that the defendants had acted in an unconscionable manner by creating a panic or stampede effect. The court had to determine whether these claims presented a serious question to be tried.

In determining whether there was a serious question to be tried, the court considered the merits of the applicants' claims. The court noted that the applicants had yet to file a statement of claim and that the alleged causes of action were raised for the first time during the oral hearing. The court also considered the evidence filed by the Commonwealth and the Foundation, as well as the applicants' arguments. The court concluded that the applicants had raised arguable claims that, if proven, would entitle them to relief. The court found that there was a serious question to be tried and that the applicants had satisfied the first limb of the test for interlocutory relief.

The court further considered the balance of convenience and other relevant discretionary matters. The court noted that the transfer of the land was imminent and that any delay could cause significant prejudice to the respondents. The court also considered the potential prejudice to the applicants if the injunction was not granted. The court concluded that the balance of convenience favoured granting the injunction and that the applicants had satisfied the second and third limbs of the test for interlocutory relief. The court granted the applicants' application for an interlocutory injunction, restraining the respondents from transferring the land until the substantive proceedings were resolved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The interlocutory application first came before me as duty judge on Tuesday, 28 May 2013. In view of the short notice given to the respondents and the fact that not all had been served with the relevant documents, I adjourned the hearing of the interlocutory application to 9:30 am on Friday, 31 May 2013. Prior to the matter resuming on that day, evidence was filed on behalf of the Commonwealth and the Foundation. I will refer to some of that evidence below. Consideration I shall deal first with the question whether there is a serious question to be tried before addressing the balance of convenience and other relevant discretionary matters. Is there a serious question to be tried? The applicants’ argument that there is a serious question to be tried may be summarised as follows. They say that the collaborative arrangements described above between the respondents involve a circuitous device to circumvent the constitutional obligation imposed by s 51(xxxi) of the Constitution. That constitutional requirement is then embodied in s 519 of the EPBC Act. They also raised the matters summarised in [18] and [19] above. During the course of the oral hearing today the applicants have also alleged that they have arguable causes of action for unjust enrichment and/or false or negligent misstatement. It is significant to note that no statement of claim has yet been filed in the proceedings. Those fresh alleged causes of action are perhaps most fully described in [6] and [7] of the applicants’ revised document headed “Outline of oral case of applicants: hearing of interlocutory application” which was handed up at the start of this morning’s hearing:6.Each Applicant and each class Applicant also has a claim against the Commonwealth’s fellow joint venturer State which takes the transfer of the land from the Foundation at the end of the ‘Project’ for unjust enrichment [see the transferee under the typical transfer: Bradshaw page 96]. The four elements of unjust enrichment are: [i] an enrichment; [ii] of the defendant [the State]; at the expense of the claimant; [iv] in unjust circumstances. Enrichment includes loss in value of land. Unjust circumstances include ‘duress’ [in this case induced panic funds] and ‘mistake’ [induced by the erroneous representations of the Fourth Respondent, with probable knowledge of the other Respondents]. 7.Each Applicant and each class Applicant also has a claim against the Foundation for false and negligent misrepresentation in relation to the whole ‘Acquisition’ Project:a.Whilst each ‘Offer’ is in similar form each is different to the next tranche and the representations were ramped up as the Offers progressed; in the first Offer dated 31 October 2012 [see Hutton at Tab 27], and repeated in the second Offer of 11 March 2013 [see Hutton at Tab 27] and third Offer of 14 May 2013 [see Esposito second affidavit](i)the course adopted for the “Project’ was unconscionable because not only is each Offer presented as a take it or leave it offer in a circumstance of economic duress [in an unlawful attempt to avoid paying just terms] but it is intended to create a panic or stampede effect by representing there are only limited funds and that first in best dressed [and May 2013 Offer page 1, condition 6 – see Esposito sw 24/5/13 Annex JYE – 2; see Bradshaw paragraph para 26];(ii)in addition, a false representation is made in each Offer [and repeated in subsequent Offers] that the invitation to sell at $5,000] is ‘a fair and reasonable price for the land’ [eg Question 5 in the first Offer] when the true position was that the fair and reasonable price for the land exceeded $21,500 for most blocks [eg Ms Esposito – see rating valuation at Esposito affidavit sworn 24 May 2013, annexure JYE – 2]; or at least $15,000 for Mr De Maria [see his Annex SDM – 5 page 27] – in other words 300% at least.

Citation:		Esposito v The Commonwealth [2013] FCA 546
Parties:		JUNE YVONNE ESPOSITO, MARGARET-ANNE HUTTON, DANIEL WALTER MASSAIOLI, SAM DE MARIA and BRIAN GEORGE EDWARD SMITH v COMMONWEALTH OF AUSTRALIA, STATE OF NEW SOUTH WALES, SHOALHAVEN CITY COUNCIL and FOUNDATION FOR NATIONAL PARKS AND WILDLIFE
File number:		NSD 924 of 2013
Judge:		GRIFFITHS J
Date of judgment:		31 May 2013
Catchwords:		PRACTICE AND PROCEDURE – Part IVA proceedings - whether to grant interlocutory injunction – whether serious question to be tried on acquisition of property on unjust terms (s 51(xxxi) of the Constitution or s 519 of the Environment Protection and Biodiversity Protection Act 2004 (Cth) (‘EPBC Act’), unjust enrichment or false or misleading representations – whether acquisition of property required to be compulsory to offend Constitutional guarantee or to obtain s 519 EPBC Act relief – balance of convenience
Legislation:		Civil Dispute Resolution Act 2011 (Cth) s 11 Environmental Protection and Biodiversity Conservation Act 2004 (Cth) ss 18, 18A, 26, 27A, 87, 130 Federal Court of Australia Act 1976 (Cth) Pt IVA Judiciary Act 1903 (Cth) s 78B
Cases cited:		Bank of NSW v The Commonwealth (1948) 76 CLR 1 British Medical Association v The Commonwealth (1949) 79 CLR 201 Castlemaine Tooheys Limited v The State of South Australia (1996) 161 CLR 148 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 J T International SA v Commonwealth (2012) 86 ALJR 1297 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 The Commonwealth v Tasmania (1983) 158 CLR 1 Waterhouse v Minister for the Arts and Territories (1993) 43 FCR 175
Date of hearing:	31 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	56
Counsel for the Applicants:	Mr P King
Solicitor for the Applicants:	Whitfields Solicitors
Counsel for the First Respondent:	Ms S Pritchard SC
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr E Muston
Solicitor for the Second Respondent:	Legal Services Branch, Office of the Environment and Heritage
Counsel for the Third Respondent:	The third respondent filed a submitting notice
Counsel for the Fourth Respondent:	Mr S 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

JUDGE:	GRIFFITHS J
DATE OF ORDER:	31 MAY 2013
WHERE MADE:	SYDNEY