Haliotis Fisheries Pty Ltd (ACN 061 835 452) & Ors v MAPA Pearls Pty Ltd (ACN 604 308 821) & Ors

[2023] HCATrans 172

[2023] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 2023

B e t w e e n -

HALIOTIS FISHERIES PTY LTD (ACN 061 835 452)

First Applicant

STRAUSS ABALONE PTY LTD (ACN 156 363 996)

Second Applicant

THIRTEENTH MOUNT COPE PTY LTD (ACN 005 804 697)

Third Applicant

CHRISTOPHER CHARLES DANIEL

Fourth Applicant

VANESSA INGRAM DANIEL

Fifth Applicant

SURCHIN PTY LTD (ACN 119 232 192)

Sixth Applicant

and

MAPA PEARLS PTY LTD (ACN 604 308 821)

First Respondent

THE STATE OF VICTORIA

Second Respondent

THE HON. LILY D’AMBROSIO, MINISTER FOR ENERGY, ENVIRONMENT AND CLIMATE CHANGE

Third Respondent

REGISTRAR OF TITLES

Fourth Respondent

Application for special leave to appeal

GAGELER CJ
GORDON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 21 NOVEMBER 2023, AT 1.28 PM

Copyright in the High Court of Australia

____________________

GAGELER CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. BATT, KC appears with MS E. NADON for the applicants.  (instructed by Strongman & Crouch)

MS G.A. COSTELLO, KC appears with MR J. WRIGHT for the first respondent.  (instructed by Carbone Lawyers)

MR P.G. WILLIS, SC appears with MR D.W. FOSTER for the second and third respondents.  (instructed by MinterEllison)

GAGELER CJ:   There is a submitting appearance for the fourth respondent.  Mr Batt.

MR BATT:   Thank you, your Honour.  Your Honours, the first error of the Court of Appeal on which we propose to address orally concerns their Honours’ treatment of section 8 of the Transfer of Land Act and is the subject of proposed ground of appeal 3(a).   Your Honours will find section 8 at page 186 of the application book.  As your Honours will see there recorded, section 8(1) provides:

All unalienated lands of the Crown shall, when alienated in fee or by way of perpetual lease or for years, be under the operation of this Act.

That provision, your Honours, sits within Part II of the Act, entitled “Bringing land under the Act”.

GAGELER CJ:   You say that land here was never alienated.  Is that right?

MR BATT:   Precisely so, your Honour.  The purported grant was void and a nullity; there was no alienation.  As a result, the land never came to be under the Act and, therefore, could not – or could not efficaciously – be registered such as to attract indefeasibility.  That is the nub, your Honours, of the argument on ground 3(a).  If accepted, necessarily, the argument would have compelled dismissal of the appeal to the Court of Appeal, not allowance of the appeal, as was the result before their Honours.   

Can we take your Honours, please, to where it is in the judgment of the Court of Appeal that section 8 is addressed.  I am referring to paragraph 232, which is found at page 157 of the application book, a passage, your Honours, which in our respectful submission is redolent with error.  If your Honours have that passage to hand, your Honours will see that the judgment in that paragraph commences with the proposition that:

Section 8(1) of the TLA does not affect the above analysis.

The “above analysis”, your Honours, is an allusion to the preceding four paragraphs, in particular, to paragraph 229, which your Honours will observe is a paragraph directed to whether land under the Act can upon registration, even of a void instrument, lead to indefeasibility – that is to say, a scenario where the land is already the subject of the Act.  Picking up 232 further without reading it, your Honours will see that, having referred to the potential circumstances of a void instrument, their Honours say in about line 3, if that instrument is set aside, it:

will not legally alienate an interest in land –

Two lines down:

In such a case, that interest will not fall ‘under the operation of’
the TLA –

Then, critically, their Honours continue:

However, if the instrument is registered, the interest with which it deals will be alienated according to the terms of the instrument and that interest will fall ‘under the operation of’ the TLA, and constitute the initial Crown grant.

That is to say, your Honours, the Court of Appeal treats registration under the Act as productive of alienation.  It, in our respectful submission, fails to understand the essential purport of section 8, which is a gateway provision to the very operation of the Act.  I will not read the rest of the paragraph.  But our essential submission, as your Honours will, we trust, appreciate, is that the Court of Appeal misunderstood and misapplied section 8.  Section 8 fastens, in our respectful submission, upon the act of alienation, whether that be by grant of a lease or grant of interest in fee simple, not the act of registration.  That is plain, necessarily, from the terms of the provision to which I took the Court reading:

shall, when alienated –

Your Honours, upon Crown land being alienated by grant of a lease or in full, it comes under the operation of the Act, and, as such, the relevant instrument may be registered and indefeasibility thereby engaged.  But conversely, having regard to section 8, in the case of Crown land, the Act has no application unless and until there has been an alienation, whether by fee or by lease.  Plainly, in our submission, that means alienation in a manner that is legally effective, as opposed to a purported alienation which is a nullity in law.

GAGELER CJ:   Mr Batt, has this point ever been argued before?

MR BATT:   Your Honour, it was argued in this case both before the primary judge and on appeal ‑ ‑ ‑

GAGELER CJ:   I understand.

MR BATT:   But we are not aware of any authority apart from the decision the subject of this application which has considered section 8 or the equivalent provisions that exist in three other States and one territory.

GAGELER CJ:   Thank you.

MR BATT:   So a part of our submission on the importance of the grant of leave is that if the decision is left undisturbed, the result will occur that, erroneously, Crown land will be apt to fall under private ownership and attract indefeasibility upon there being, in a given case, a void grant, where, quite plainly, that is contrary to the operation of the enactment by means of section 8.  And so, your Honours, having advanced the submission that alienation for the purpose of section 8 surely cannot extend to invalid alienation, which is no step known to the law and is a nullity.  We remark briefly that here in the present matter, there was a course – a purported lease – that was a nullity.  It was made in jurisdictional error, and it was void.  That is not in dispute.

Hence, there was no alienation for the purpose of section 8, and the land was not bought under the Act.  Sections 40 to 44 never assumed operation in respect of the instant land; the prerequisite for that to have occurred was never satisfied.  In treating alienation as occurring upon and by virtue of registration, in our respectful submission, their Honours in the Court of Appeal proceeded contrary to the terms of section 8 and contrary to the structure of the Act, which finds section 8 in Part II entitled, “Bringing land under the Act”, compared to Part III entitled, “The Register”, which contains sections 40 to 44 and the registration provisions.  And as such ‑ ‑ ‑ 

GORDON J:   Mr Batt, how then do you deal with the decision of this Court in Breskvar v Wall and with the structure of an Act which provides for the primacy of registration and then very limited exceptions in order to address those circumstances where registration is not to be taken as having that primacy?

MR BATT:   Thank you, your Honour.  We do not seek to cavil with the holding in Breskvar v Wall or the principles or propositions to which your Honour has alluded.  Our submissions fasten on the anterior point of analysis under the Act not previously explored in authority so far as we have been able to ascertain, as I said to his Honour the Chief Justice.

Our submission, to put it in other words, your Honour Justice Gordon, is not antithetical to anything to which your Honour referred.  It does not stand to undermine indefeasibility where indefeasibility ought be available.  What it does do is seek to prevent dispositions of Crown land which are nullities or void erroneously bringing land within the purview of the Act, leading then to the potential engagement of the provisions to which your Honour referred.

BEECH-JONES J:   Mr Batt, your argument would therefore – would it not – apply if another purchaser had bought the land or acquired the leases from the respondents, would it not?

MR BATT:   Correct, your Honour.  The argument ‑ ‑ ‑

BEECH-JONES J:   And any subsequent purchaser or acquirer of those interests would always be defeasible to a contention that the alienation under section 8 was void, would that be right?

MR BATT:   Your Honour, we would not necessarily accept that.  That would be its own further enquiry, which does not arise in the facts of this matter.  We would not wish to embrace that conclusion, but we, if we may say, understand the proposition that if the Act has not been engaged, that circumstance may continue.  That would be part of the argument on appeal, we would rather suspect, your Honour Justice Beech‑Jones.  So, we submit, your Honours, to put it in another fashion, that the approach of the Court of the Appeal deprived section 8 of any work.  That section is a precondition of registration, rather than a consequence of it.

Briefly, if we may remark upon two other provisions of the Act that we say corroborate or are consistent with and support the submission.  First, section 40, which your Honours do not need to go, but it is again at application book, page 186, in Part III, entitled “The Register”.  Section 40, one of the indefeasibility provisions, in terms addresses land, that it is already:

under the operation of this Act –

further speaking to the structure of the Act under which section 8 sits at an anterior point.  And then, your Honours, we remark upon section 28, which I am afraid we are advised has not been reproduced in the materials, but has been referred to in written submissions.  May we deal with it briefly in this fashion.  Section 8(2), the first section to which I took your Honours, requires the Crown grant to be delivered to the Registrar following alienation.  That provision having been observed, section 28(1) in Part III – “the Register” Part of the Act – then provides a Crown grant:

in fee or by way of perpetual lease or a lease for years, received in accordance with section 8, is registered by the creation of a new folio of the Register.

We submit as an incremental consideration that such verbiage is necessarily consistent with the submissions we advance and inconsistent with the Court of Appeal’s analysis.

GAGELER CJ:   So, you read section 8(2), when it refers to “Crown grant”, as meaning only a valid Crown grant, do you?

MR BATT:   It would only have work to do in respect of a valid Crown grant, your Honour.  It is a section which is, perhaps putting it differently, really premised on there not being a circumstance of voidness in the alienation which is the subject of subsection (1).

GAGELER CJ:   I mean, another way of reading it is a grant in fact.

MR BATT:   We say that is not the – I understand that, your Honour.  We say that would be erroneous, to read the section, whether in subsection (2) in its reference to “grant” or in subsection (1) in its reference to alienation, referring to an alienation or grant “in fact”, we say, would be erroneous.

GAGELER CJ:   They are referring to the same thing, are they not?  A grant is an alienation.

MR BATT:   Yes, your Honour.

GAGELER CJ:   Yes.

MR BATT:   Yes, I did not mean to suggest differently.  We say in either use of a particular noun, it surely cannot be the case that the Act is alluding to a measure actually existing but unknown to the law and of no legal effect.  We say, your Honours, finally, as to the Court of Appeal’s treatment of the issue, going back to paragraph 232, that their Honours said at the end of that paragraph that two cases to which they referred, Palais and Canada Bay Council, supported their analysis.

With respect to their Honours, neither of those cases concerned land which was not already under the Torrens system.  Neither of those cases involved any issue of a provision in the nature of section 8.  So, in short, your Honours, we submit under this ground that the leased land here in question never came under the operation of the Act, and hence the appeal should have been dismissed.

We submit, your Honours, that this ground raises a question of more public importance that renders the matter suitable for a grant of special leave, the question being:  what is it that effects or achieves alienation of Crown land for the purposes of section 8(1)?  In our respectful submission, the following considerations support the suitability of this question for special leave.  First, a number of other jurisdictions have an equivalent provision:  Queensland, South Australia, Tasmania and the Northern Territory.

Second, on the basis of the Court of Appeal decision, if not disturbed – and as we have said, there is no other relevant authority of which we are aware – void grants of interest in public land will wrongly stand to be brought under the operation of the Act, or its equivalence in other jurisdictions, and resort in indefeasible title to private interest.  In our submission, your Honours, it is a matter of intrinsic public importance to ensure that invalid grants of land resources of the State are not wrongly afforded the shield of invalidity.

Your Honours, having made those remarks about ground 3(a), we would wish to move to propose ground of appeal 1, making the final submission as to ground 3(a), that the suitability of this matter to special leave is further emphasised by the issues raised by the other proposed grounds of appeal.  With that having been said, we turn, if we may, to ground 1.

Ground 1 is the ground relating to whether an in personam exception arises, or stands to arise, upon the invalid grant of Crown land.  The special leave question raised by the ground may be expressed, if your Honours please, as follows:  where a person has a right, against the grantee of an interest in Crown land, to declaratory relief establishing the grant to be void, upon the interest being registered under the Transfer of Land Act, does that person have an in personam equity against the grantee?        We submit that the question is plainly one of law of public importance, of itself, and all the more so in conjunction with the first question on which we have already addressed, and warrants a grant of special leave. 

In that regard, we point, if we may, to the following.  First, the fact that the question concerns dispositions of interest in public land; indeed, ex hypothesi, invalid dispositions of interest in public land.  Second – trite though it may be to say, it is important – the significance of a Torrens system, and in particular, motions of indefeasibility both as a matter of law in all jurisdictions in Australia and also in day-to-day practical terms for Australians.  Third, the uncertain nature and extent of the in personam equities that may arise against persons holding indefeasible titles, noting, your Honours, that it is some 35 years since Bahr v Nicolay, in which this Court addressed the erring in detail.  And fourthly, the fact that the question raises the interaction of indefeasibility considerations with public law considerations and thereby is doctrinally significant.

BEECH-JONES J:   Mr Batt, can I ask you this:  Is it really correct, when you are talking about public law remedies, to say you have a right to seek that kind of declaratory relief?  And could you just explain, just briefly, how your capacity to get this relief does translate to an equity.

MR BATT:   Thank you, your Honour.  Taking the first part of that first, in the present matter we have an established right to declaratory relief.  Of course, in a given matter, it would be a matter for analysis whether there is indeed such a right, subject always to discretionary considerations.  Here we have, by force of the findings that have been made, an established right to such relief, and we do not take that to be in contest.  As to how, your Honour, it is then said that the existence of – if there be such existence – an established right of that nature leads to the conclusion that there be, on registration, an equity against the registered order, we make a number of submissions.

We say, first, that there is no authority against the proposition.  We say that the Court of Appeal centrally relied upon a distinction between relief arising from public law considerations and the existence of personal rights, which in our submission is vexed, uncertain and warranting a consideration by the Court.  We observe that a public law remedy can be sought to safeguard a private interest and have that effect, as here.  We make the submission that it is important for the analysis that what is in issue is dispositions of interest in public land, which, for policy reasons, ought to be able to be protected in the manner we submit. 

Thirdly, your Honour, and really by way of elaboration of the foregoing, we say this:  given the public interest in play, an individual who applies for an interest in Crown land, conferred under an Act such as the Land Act, subjects himself or herself not only to the statutory conditions and obligations under the Land Act but also to the possibility of judicial review of the administrative actions that led to the conferral of the Crown land interest.  If the grant of that interest is vitiated by jurisdictional error, and a Court exercising supervisory jurisdiction would have granted relief in the form here of declaratory relief, that right to relief should survive, notwithstanding registration under Torrens legislation.

The in personam claim, your Honours, we submit is a necessary incident of an individual contracting with a government entity to acquire State resources.  The basis for the equity is that the general law ought to recognise it in order to protect the misapplication of public resources.  The relief operates against the beneficiary of the government’s decision, here MAPA Pearls, precisely because of the fact that that entity, the initial grantee, only, of course, was involved in the application process and the beneficiary of the grant.

In our submission, your Honours, the equity would not encroach in any problematic fashion, as the respondents submit, upon indefeasibility.  Firstly, it is not a qualification on indefeasibility but a personal right, but it is circumscribed heavily in its ambit.  It relates only to an initial Crown grant, which is void, applicable only to the initial grantee, which by definition has not proceeded on the faith of the register who was involved in the application process, and in respect of which there is an established right to relief, and thereby a standing exists.

That, in our submission, is more than ample to satisfy any requirement that an in personam equity be based on a non‑legal or equitable course of action, and there is no requirement that the applicant or claimant have a proprietary interest in the subject land.  Your Honours, those are the submissions in the time available on ground 1, and we otherwise rely upon our additional materials.

GAGELER CJ:   Thank you, Mr Batt.  Ms Costello and Mr Willis, we will need to hear from you only in relation to ground 3(a), the first ground argued by Mr Batt.  Ms Costello.

MS COSTELLO:   May it please the Court.  At the outset, we submit that there is no reason to doubt the correctness of the Court of Appeal’s reasons for decision in relation to ground 3(a) or any of the grounds.  In respect of ground 3(a), we submit that the leases were capable of registration even if it later became apparent that was not a valid alienation as a matter of public law.  We respectfully adopt the premise in your Honour Chief Justice Gageler’s question, where your Honour drew attention to the understanding of an alienation as an alienation in fact.

We submit that the Transfer of Land Act and the Land Act, in respect of Crown grants, can be easily and harmoniously reconciled when considering that the capacity to set aside an invalid administrative Act prior to registration exists, but then once registration in fact has occurred, that right is no longer available.  That registration covers a Crown land grant that was invalid at a prior or anterior time.

The submission by our learned friend Mr Batt that indefeasibility should be available when it ought to be available urges upon the Court a construction of well‑established indefeasibility principles that is at the whim of discretion, rather than maintaining the status quo in which persons who wish to know what property interest exists in a piece of land can search the Register and be confident as to its accuracy.  We submit that ground 3(a) was addressed in detail and correctly by the Court of Appeal – in particular, at paragraphs 231 to 233 of the judgment.

In summary, the Court of Appeal correctly, in our submission, found that the language of the Land Act did not indicate language that would prevent the Transfer of Land Act conferring indefeasibility upon registration – that, before registration, an instrument buoyed on administrative law grounds can be set aside and its registration restrained, but that after registration, the lease falls under the Transfer of Land Act; that there is no basis to distinguish between a Crown lease that is invalid for a failure to comply with the Land Act – specifically, section 137 – or a lease that is invalid for some other basis; and that the provisions of the Land Act and the Transfer of Land Act operate harmoniously, and have done so for several decades, having come into existence at the same time.

We submit that it is not in the public interest to disturb the long line of settled authority about the effect of title by registration, even where an instrument is voidly created.  As the Court held in Breskvar v Wall (1971) 126 CLR 376, which her Honour Justice Gordon has referred to in her question:

a registration which results from a void instrument is effective according to the terms of the registration.  It matters not what the cause or reason for which the instrument is void.

Even if the grant of the leases was void for non‑compliance with the requirements of the Land Act, those leases amounted to factual alienation and the Crown grants were in fact given to MAPA conclusively at the moment of their registration.

We submit, moreover, that this case is not an appropriate vehicle for the Court to explore the issues around section 8 and its equivalents in circumstances where, in this case, the licensees do not hold equitable or proprietary interests in the land that was granted, and MAPA did not make any agreement or undertaking towards them.  At the highest, all that can be said here is that MAPA took the leases knowing that the applicants had licences.

I will just check that I have addressed only – I think all the rest of our matters were in respect of other aspects of the appeals, your Honour, but I will check that.  Yes, your Honours, unless you have any other questions, I will not address the balance of the matters I prepared for, I stand on our ground 3(a).

GAGELER CJ:   Thank you, Ms Costello.  Mr Willis, do you have anything to add on ground 3(a)?

MR WILLIS:   Your Honour, no, there are four points, really, that I would make.  I had four points, the bulk of them have been made by Ms Costello. 

I think the first – only to add – as a matter of text, there is no requirement when turning to registration matters under Part III of the Act that there have been delivery of title or of any of that kind of matter under Part II.  That is, section 8 is not a prerequisite to the operation of section 40 of the Transfer of Land Act.  The wording of section 40 is apt to effect all that is necessary for an alienation, in particular, section 40(1):

upon registration the estate or interest or encumbrance shall be created . . . in the manner and subject to the covenants and conditions specified in the instrument –

In those terms, the submission made by my learned friend Mr Batt that there is a better word that should be read in that qualifies section 40 and the following sections as applying only to land which has otherwise been validly alienated, in our submission, this does violence to the language of the Transfer of Land Act as a whole and to those settled principles to which her Honour Justice Gordon referred and to the passage that my learned friend has read from Breskvar v Wall, the words:

It matters not what the cause or reason for which the instrument is void.

Answers the case.  Lastly, your Honour the Chief Justice would be well aware, as the author of the passage, but in NSW v Kable, sometimes called Kable (No 2), your Honour provided the telling, and we would say apt description of the capacity for matters which are subsequently declared to be void to have an effect even when the Act itself subsequently is invalidated.

That, we would submit, equally aptly can apply here, where a registration has occurred, and the whole system of the Transfer of Land Act is that one does not look behind the registration to investigate the validity of the transactions or the chain of title back to the root of title.  The registration creates the interest and then enables it to be conveyed and dealt with by subsequent dealings.

If your Honours please, those are additional observations or submissions we would make.

GAGELER CJ:   Thank you, Mr Willis.  Mr Batt, do you have anything in reply?

MR BATT:   Three very short points, if your Honours please.  With all respect to our learned friends, in essence, the oral submissions for the respondents relate to later stages in the analysis and fail to meet the issue of whether the gateway which section 8 erects in the case of Crown land is

satisfied or not, and accordingly such submissions, in our respectful contention, are . . . . . the point.

Second, if the issue is whether section 8 is to be taken, particularly subsection (1), in its reference to alienation, to be referring to the fact of the execution of an instrument as opposed to an alienation with legal effect, in our respectful submission, the presence of such an issue is of itself a proper basis for the grant of special leave in order that that important question may be resolved.

Thirdly, the matter before your Honours is, in our submission, an appropriate vehicle.  The issues we raise were raised at trial and on appeal, were determined on appeal and are dispositive of the result that ought apply to the given proceeding.

If your Honours please.

GAGELER CJ:   Thank you, Mr Batt.  In relation to the novel ground 3(a), we consider there to be insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant the grant of special leave.  In other respects, the decision involved an orthodox application of settled principle.  Special leave to appeal is refused with costs.

The Court will now adjourn until 2.30 pm.

AT 2.00 PM THE MATTER WAS CONCLUDED