Northern Australian Beef Limited v Bilba Capital Pty Ltd and Bilba Capital Pty Ltd v Jim Laouris in his capacity as the Registrar-General (NT) and Ors - [2021] NTSC 18

CITATION:Northern Australian Beef Limited v Bilba Capital Pty Ltd and Bilba Capital Pty Ltd v Jim Laouris in his capacity as the Registrar-General (NT) & Ors [2021] NTSC 18
PARTIES:NORTHERN AUSTRALIAN BEEF LIMITED (ABN 29 150 153 192)
v

BILBA CAPITAL PTY LTD
(ACN 623 007 787)

AND:
BILBA CAPITAL PTY LTD
(ACN 623 007 787)

v

JIM LAOURIS IN HIS CAPACITY AS THE REGISTRAR-GENERAL (NT)

and

ROBERT SARIB IN HIS CAPACITY AS THE SURVEYOR-GENERAL (NT)

and

NORTHERN AUSTRALIAN BEEF LIMITED (ABN 29 150 153 192)

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction

FILE NO:105 of 2019 (21934979) and
2020-03441-SC

DELIVERED:  23 February 2021
HEARING DATE:  16 December 2020
JUDGMENT OF:  Kelly J

CATCHWORDS:
PRACTICE AND PROCEDURE – application for consolidation of proceedings – order for consolidation of proceedings
PRACTICE AND PROCEDURE – application for separate trial of preliminary issue pursuant to Rule 47.04 of the Supreme Court Rules – outcome of trial of preliminary issue will not put an end to the proceeding – many issues in the proceeding may be resolved by the outcome of the trial of the preliminary issue – the evidence on many issues will be different depending on the outcome of the trial of the preliminary issue – separate trial of the preliminary issue likely to save inconvenience and expense – application for separate trial of preliminary issue granted
Supreme Court Rules 1987 (NT), Rule 47.04
5 Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47; Joondana Investments Pty Ltd v City of Palmerston & Anor [2014] NTSC 42; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Vlietstra v Ranger & Anor [2005] NTSC 6, referred to
REPRESENTATION:
Counsel – No. 105 of 2019 (21934979):
Plaintiff/Respondent:                  D Robinson SC with M Spain
Defendant/Applicant:                 D McConnel
Solicitors - No. 105 of 2019 (21934979):
Plaintiff/Respondent:                  Clayton Utz
Defendant/Applicant:                 Ward Keller

Counsel – No.2020-03441-SC:
Plaintiff/Applicant:  D McConnel with C Martel
First Defendant:  L Peattie
Second Defendant:  L Peattie
Third Defendant/Respondent:     D Robinson SC with M Spain
Solicitors - No. 2020-03441-SC:
Plaintiff/Applicant:  Ward Keller
First Defendant:  Solicitor for the Northern Territory
Second Defendant:  Solicitor for the Northern Territory
Third Defendant/Respondent:     Clayton Utz
Judgment category classification:    B
Judgment ID Number:  Kel2108
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Northern Australian Beef Limited v Bilba Capital Pty Ltd and Bilba Capital Pty Ltd v Jim Laouris in his capacity as the Registrar-General (NT) & Ors [2021] NTSC 18
No. 105 of 2019 (21934979) and 2020-03441-SC

BETWEEN:

NORTHERN AUSTRALIAN BEEF LIMITED (ABN 29 150 153 192)

Plaintiff/Respondent

AND:

BILBA CAPITAL PTY LTD
(ACN 623 007 787)

Defendant/Applicant

AND BETWEEN:

BILBA CAPITAL PTY LTD
(ACN 623 007 787)
Plaintiff/Applicant

AND:

JIM LAOURIS IN HIS CAPACITY AS THE REGISTRAR-GENERAL (NT)
First Defendant

AND:

ROBERT SARIB IN HIS CAPACITY AS THE SURVEYOR-GENERAL (NT)
Second Defendant

AND:

NORTHERN AUSTRALIAN BEEF LIMITED (ABN 29 150 153 192)
Third Defendant/Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 February 2021)
Background

Bilba Capital Pty Ltd (“Bilba”) is the registered proprietor of Section 5544 Hundred of Strangways (“Lot 5544”). Northern Australian Beef Ltd (“NABL”) is the registered proprietor of the adjoining block, Section 5543 Hundred of Strangways (“Lot 5543”).
Lots 5543 and 5544 were previously owned by the same company, Suncode Pty Ltd (“Suncode”) – and were previously Sections 5410 and 5409. This land was consolidated and subdivided and Suncode sold Lot 5543 to NABL.
Suncode later sold Lot 5544 to a third party, who sold it to a fourth party who sold it to Bilba.
Lot 5544 has a right of way easement granted over Lot 5543 (“the easement”). The easement was granted as part of the original consolidation and subdivision when Lot 5543 was sold to NABL. The easement was created on the registration of that subdivision. It is the only means of access and egress from Lot 5544 to the Stuart Highway.
A dispute has arisen about the use of the easement by Bilba and NABL has initiated these proceedings seeking a permanent injunction restricting Bilba’s use of the easement (“the original proceeding”). In the original proceeding NABL claims (inter alia) that in allowing road trains to enter and exit Lot 5544 via the easement, Bilba is:
(a)encroaching on Lot 5543 outside the area of the easement; and
(b)crossing onto the inbound lane of the access to Lot 5543 from the Stuart Highway, causing potential backing up of road train traffic on both the inbound lane and the slip lane from the Stuart Highway immediately before the entrance.
NABL also claims that Bilba’s heavy vehicles on the easement risk damaging a sub-soil gas pipeline traversing the easement and complains of an unreasonable volume of traffic across the easement.
The width of the easement as registered is 12 metres. This is too narrow for the road trains entering Lot 5544 to turn on without encroaching onto parts of Lot 5543 not subject to the easement and also crossing over onto the wrong side of the shared access road as they turn onto the Stuart Highway.
Bilba has since discovered that the original drawing of the easement approved by the Development Consent Authority was 24 metres wide and has commenced proceedings (in proceeding no 2020-03441-SC) against the Registrar-General, the Surveyor-General and NABL seeking rectification of the land register for Lots 5544 and 5543 by way of registration of a corrected survey plan showing the easement as originally approved by the Development Consent Authority (“the rectification proceeding”).
The consolidation application
Bilba has made application to the Court by summons seeking orders that the original proceeding be consolidated with the rectification proceeding (“the consolidation application”).
The Surveyor-General and the Registrar-General have adopted a neutral position in relation to the consolidation application.
There is considerable agreement between Bilba and NABL in relation to the application. NABL does not oppose the consolidation application in principle and both parties agree that the issues that are in common in each proceeding should be heard together. Where the parties differ is whether the question of whether the register should be rectified (“the rectification question”) should be determined first as a preliminary issue before the other issues in the original proceeding pursuant to Rule 47.04 of the Supreme Court Rules 1987 (NT).
Mr Robinson SC for NABL contended that the rectification question is quite discrete; that the necessary witnesses do not overlap much, if at all, with the witnesses who will be needed for the original proceeding; that the rectification question will be determined largely on documentary evidence; and that it would be therefore convenient, and in the interest of justice for the rectification question to be determined as a preliminary issue in the consolidated proceeding.
Mr McConnel for Bilba opposed such a course of action. He pointed out that whichever way the rectification question is resolved, it will not put an end to the consolidated proceeding. There will still be remaining issues in the original proceeding to be determined. He pointed out that there are multiple bases upon which NABL seeks to restrain Bilba from encroaching onto Lot 5543 and onto the wrong side of the access road, and multiple defences. For example, Bilba claims that the easement carries with it the right to a reasonable occasional encroachment in cases of necessity.
Mr McConnel submitted that there will be a sufficient overlap of facts and issues in the two separate proceedings that the rectification question would not be a suitable vehicle for separate determination: there are related evidentiary issues and the same witnesses will need to be called in relation to the rectification question and in relation to issues that will arise in the original proceeding. However, on an examination of the submissions made on the hearing of the consolidation application, counsel for Bilba did not identify any issues in common between the two proceedings other than the rectification question itself.
Counsel for Bilba did identify a range of issues in the original proceeding that will not be finalised by a decision on the rectification question and it may be accepted that a determination of that question will not finally dispose of the proceeding. However, the power to order separate determination of an issue in a proceeding under Rule 47.04 is not limited to the circumstances where determination of that issue in a particular way will definitely dispose of the entirety of the proceeding.
That is, however, a factor to be taken into account when exercising the discretion under Rule 47.04, and the authorities counsel caution in making such an order.
In Tepko Pty Ltd v Water Board[1] Kirby and Calinan JJ said:
The attraction of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
The second and related comment is this. A party whose whole case is knocked out on a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather that the parties’ interests.
Thirdly, there is additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here where this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single issue trials should, in our opinion, only be embarked upon when their utility, economy and fairness to the parties are beyond question.
These concerns were echoed by Southwood J in Vlietstra v Ranger & Anor[2] in which his Honour confirmed that as a general rule it is only appropriate to order the separate determination of a preliminary issue where the determination of the issue in favour of a party will either put an end to the action or where there is a clear demarcation between the issues and the determination of one issue in isolation from the other issues is likely to save inconvenience and expense.[3] In that case, Southwood J set out the relevant considerations in considering an application for separate trials of discrete issues taken from the judgment of McKechnie J in 5 Carlo Nobili SpA Rubinetterie v Militaire Nominees Pty Ltd[4] as follows:[5]
·A separate trial of issues is only appropriate in clear and simple cases.
·Separate trials of issues should only be embarked on when the utility, economy and fairness is beyond question.
·The fact that the separate trial may determine the litigation is relevant.
·Separate trials of issues may be appropriate where it is likely to save expense and inconvenience.
·There is a focus in the Rules of the Supreme Court on the expedition of determination of matters before the Court and separate trials of issues may advance the expedition.
·A possibility that the determination of issues tried separately may lead to settlement should be taken into account even though the issues may not finally dispose of the action.
·In many cases the formulation of specific questions to be tried separately, from and in advance of other issues, will assist in the resolution of the matters in issue if the questions are capable of final answer in accordance with the judicial process.
·Separate trials are inappropriate where the result depends on complex issues of fact or when a preliminary question is one of mixed fact and law.
·The procedure should be confined generally to cases where facts are complicated (sic)[6] and the legal issues are short, otherwise it can be a treacherous short cut.
·Separate trials may be productive of delay, extra expense and uncertainty of outcome, which they are intended to avoid. Saving sometime is often illusory when the parties have the necessity of making full preparation and factual matters relevant to one issue are relevant to others which overlap.
·There is potential for further appeals
Counsel for Bilba helpfully identified a number of the issues in the original proceeding and described in general terms the evidence that is likely to be necessary for their resolution.
Counsel advised that the issue of the physical encroachment of road trains onto the servient tenement may fall away if the rectification application is successful and the easement is found to be 24 metres wide. Likewise, NABL’s claim to prevent vehicles from Bilba’s land going onto the wrong side of the access road within the boundaries of the easement may fall away in that case. Whether or not these issues are resolved by resolution of the rectification question will depend on expert evidence that has not yet been obtained. If either or both of the issues remain live issues after the resolution of the rectification question, the expert evidence necessary in relation to those questions will be different if the easement is found to be 12 metres wide than it will be if the easement is found to be 24 metres wide.
An example given by counsel for Bilba is the question of whether or not a traffic design solution can be found for the encroachment onto the servient tenement and/or the vehicles going onto the wrong side of the access road when turning. The traffic design solution (if there is one) will be different depending on whether the easement is found to be 12 metres or 24 metres wide.
Counsel for Bilba also advised that there is an issue in the original proceeding as to whether there are ancillary rights necessary for the enjoyment of the easement. Such rights may include occasional encroachment into the servient tenement outside the bounds of the easement. That will require evidence from an expert traffic engineer in relation to the exact area of land on which vehicles need to traverse to be able to make the relevant turning manoeuvre. I understand this to be the same expert expected to be called in relation to the physical encroachment issue and the problem of vehicles going onto the wrong side of the access road when turning.
Counsel for Bilba advised that it may or may not be necessary for the Court to determine whether such ancillary rights exist if the rectification question is determined in favour of Bilba. As with the physical encroachment issue and the problem of vehicles going onto the wrong side of the access road, the answer to whether this will remain a live issue will depend on expert evidence which has yet to be obtained. As with those other two issues, if the issue of ancillary rights remains a live one, the evidence in relation to that issue will be different according to the answer to the rectification question.
I was informed that there are issues in the original proceeding relating to the existence of a gas pipeline under the Stuart Highway that was constructed after the grant of the easement; how the existence of that pipeline affects the use of the easement; and what design solutions may be appropriate to rectify any adverse effects. Counsel for Bilba advised that some of the issues around the gas pipeline may fall away if the rectification question is answered in Bilba’s favour and a design solution can be constructed wholly within the boundaries of the easement, and so the evidence in relation to the gas pipeline issues will also differ depending on the answer to the rectification question.
There are other issues in the original proceeding which will be unaffected by the determination of the rectification question, for example NABL’s complaint about the volume of traffic over the easement. However, there appear to be more issues which will either fall away if the rectification question is answered in Bilba’s favour, or in relation to which the evidence will differ according to the way in which the issue is determined, than otherwise.
Bilba’s preference is for all of the issues to be determined in a single trial and for the expert which it intends to brief to be asked to provide an opinion in relation to all of the issues on the basis of two separate scenarios. Presumably NABL would be obliged to take the same course. That, it seems to me is wasteful of time and costs.
In my view, it would be preferable in the interest of convenience and cost for the rectification issue to be determined as a preliminary issue.
(a)The rectification issue is a discrete issue. It does not overlap with the issues in the original proceeding. It is likely to be determined largely on the basis of documentary evidence.
(b)That is to say, there is a clear demarcation between the issue in the rectification and the balance of the issues in the proceeding and the determination of that issue in isolation from the other issues is likely to save inconvenience and expense.
(c)A separate trial of the rectification question will not finally put an end to the litigation but it has the potential to put an end to a number (perhaps most of) the issues in the consolidated proceeding. This is likely to save expense and inconvenience.
(d)Whether or not the determination of the rectification question has the effect of putting an end to those issues, whichever way the question is determined, a preliminary determination of the issue will save the cost and inconvenience of the experts having to prepare reports based on two alternative scenarios. They will know the width of the easement and can provide their opinions on the basis of the easement as it has been determined to be.
(e)This is not a case in which the parties have the necessity of making full preparation and factual matters relevant to one issue are relevant to others which overlap. Rather the reverse. The parties will be saved the cost of double preparation of expert evidence by having the width of the easement determined before such evidence has to be finalised.
(f)There is, of course, always the potential for an appeal against the decision on the rectification question which has the potential to delay the final determination of the proceeding. However, should that occur, it does not seem to me that the delay would be great: the issues on the rectification issue are discrete, the evidence is not likely to be extensive, and any appeal could be heard expeditiously.
ORDERS:
(a)This proceeding be consolidated with the rectification proceeding (No 2020-03441-SC).
(b)The rectification question be tried before the trial of the consolidated proceeding.
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[1] (2001) 206 CLR 1 at 55

[2] [2005] NTSC 6

[3] See also Joondana Investments Pty Ltd v City of Palmerston & Anor [2014] NTSC 42 at [4] – [5]

[4] [2004] WASC 47

[5]at [10]

[6] I suspect that this is a typographical error and the intended expression was “not complicated”.