Thiessen v Minister Administering the Lands Resumption Act 1957

[1991] TASSC 163

Serial No B49/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:      Thiessen v Minister Administering the Lands Resumption Act 1957 [1991] TASSC 163; B49/1991

PARTIES:  THIESSEN, Peter Henric
  v
  MINISTER ADMINISTERING
  THE LANDS RESUMPTION ACT 1957

FILE NO/S:  30/1984
DELIVERED ON:  16 September 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B49/1991
Number of paragraphs:  12

Serial No B49/1991
List "B"
File No 30/1984

PETER HENRIC THIESSEN v THE MINISTER ADMINISTERING
THE LANDS RESUMPTION ACT 1957

REASONS FOR JUDGMENT  ZEEMAN J

16 September 1991

1. On 9 March 1984 the Master ordered, with the consent of the parties, that judgment be entered for the plaintiff against the defendant for compensation to be assessed under the Lands Resumption Act 1957 ("the Act"). Such judgment was duly entered. The assessment of compensation pursuant to that judgment came before Nettlefold J in October 1985. The hearing proceeded over nine sitting days. His Honour gave judgment on 30 September, 1986, when he made the following orders:

"(1)Compensation is assessed as at the relevant date at $37,000.

(2)Liberty to apply generally reserved to both parties in respect of the following claims:–

(a)replacement cost of the bridge to "The Bluff";

(b)sum to provide $750.00 per annum in perpetuity for ploughing a fire break around the perimeter fencing."

1. The matter did not come back before his Honour prior to his retirement as a judge of this court on 25 May 1990. The plaintiff sought to have the matter relisted pursuant to the "liberty to apply" reserved by order (2)(b). A number of pretrial conferences were conducted, at the last of which I made an order that there be determined, as a preliminary issue, what matters, if any, remain to be determined in the action, and as to any such matter, to give directions as to the trial thereof.

1. In order to understand why Nettlefold J made the orders referred to, it is necessary to make some reference to the nature of the claim for compensation and the conclusions reached by his Honour as to various component parts thereof, to the extent that such matters appear from his Honour's reasons for judgment (No B28/1986).

1. The defendant compulsorily resumed the plaintiff's estate in fee simple in 351 hectares of land, being portion of the land described in Indenture of Conveyance registered No. 651755. The resumed land formed part of two adjoining properties owned by the plaintiff which had a total area of some 4,380 hectares. In determining the amount of compensation payable, his Honour was required to have regard to the matters referred to in s31(1) of the Act. There was no suggestion that the provisions of par(c) of that subsection had any application. The case was conducted upon the basis that the plaintiff claimed compensation made up of the value of the land acquired and the damage caused to the balance of the plaintiff's land by severance of the land acquired. In the course of his reasons for judgment, Nettlefold J tentatively attributed the sum of $25,922.00 to the value of the land acquired. The severance claim was quantified by the expert valuer called by the plaintiff. That valuer's quantification was summarized by his Honour as follows:

"(1)Replacement cost of the bridge to 'The Bluff' assessed

as at the relevant date  $6,000.00

(2)Cost of two waterholes to be constructed  5,500.00

(3)Assessed sum to provide $750.00 per annum in perpetuity

for ploughing a fire break around the perimeter fencing                6,000.00

(4)Assessed cost of construction of replacement access

to 'The Bluff' at the southwest end of the lake  10,500.00"

1. His Honour was not persuaded that the first of those items should be allowed as a component of the severance claim, provided that the Crown provided an appropriate form of access to the plaintiff. No such access had then been provided. His Honour said that he would reserve to the parties liberty to apply generally as to this item. Having said that it was of course a matter for the Crown to determine whether or not it would provide such access, his Honour went on to indicate that if access were not to be provided he would be prepared to consider this particular item further. In the events which have happened, access has been provided and the plaintiff now does not claim to be entitled to pursue this item any further. His Honour did not allow anything in relation to the second item. He allowed the whole of the fourth item as being a proper component of the severance claim. As to the third item, his Honour had this to say:

"Liberty to apply generally in respect of item three is reserved to both parties. Counsel for the plaintiff stated during the hearing that the parties were in dispute about the issue of boundary fencing with the result that the issue would go to arbitration. This claim should await the result of the arbitration. It is only then that it will be possible to consider this particular claim adequately."

1. I was told that at the time of the trial the parties were in dispute as to whether or not a boundary fence ought to be erected, and that, at least on one view, a fire break was necessary only if in fact there was a fence. I was told that an arbitrator made an award some time last year requiring the construction of a boundary fence, so that the event referred to by his Honour as being relevant to the third item has now occurred.

1. The amounts assessed by his Honour for the purposes of s31(1)(a) of the Act and the amount assessed in respect of the fourth component of the severance claim totalled $36,422.00. His Honour said that that amount would be rounded off to $37,000.00. That explains the first of the orders made by him. The plaintiff claims to be entitled to a further sum by way of a severance allowance having its origin in the third of the components referred to by the valuer. His counsel submitted that it was open to me or some other judge to assess the appropriate amount of such allowance and to award that by way of a further sum of compensation.

1. In its normal context, the expression "liberty to apply" has a well–established meaning, namely that where an order in its working out may involve matters on which it may be necessary to obtain a decision of the court, a party is entitled to go back to the court to seek orders required for such purposes. Prima facie those words do not confer any right to ask the court to vary its order (see Cristel v Cristel [1951] 2 KB 725, approved in Gatenby v Gatenby and Wall No 68/1975, and see also In re Edgar [1962] Tas SR 145).

1. Counsel for the plaintiff submitted that the effect of his Honour's judgment was that he concluded that the plaintiff was entitled to have included as part of his award for compensation a capital sum sufficient to provide $750.00 per annum in perpetuity in the event that the arbitrator, by his award, determined that the whole of the fencing contended for by the plaintiff was required. He further submitted that the arbitrator having so awarded, it was appropriate to now award the plaintiff the relevant capital sum by way of further compensation in the exercise of the jurisdiction reserved by way of the liberty to apply reserved by his Honour. I do not consider that his Honour so determined. He made no determination at all beyond concluding that a determination of this component of the severance claim should not occur until the arbitration had been concluded.

1. I do not consider that when his Honour used the expression "liberty to apply" he used it in the normally accepted sense. Where the task of the court is to give judgment in the form of awarding a monetary sum, whether in respect of a liquidated claim, damages, statutory compensation or otherwise, it is difficult to conceive of circumstances where it would be appropriate to reserve liberty to apply in the normal sense. By the very nature of such a judgment nothing will be required to be worked out. Whilst it appears that it would never be open to a plaintiff in an action for compensation under the Act to enter judgment in default of appearance or defence for compensation to be assessed, in that a claim for compensation is not a claim for pecuniary damages for the purposes of O14, r5(1) or O30, r4 (and I do not read the decision in Crisp & Gunn Co–operative Ltd v Hobart Corporation (1963) 110 CLR 538 as leading to a contrary conclusion), the judgment entered was authorised by O43, r7(2). It does not appear as though any particular rule applied to the assessment in that O39, r49 is limited in its application to cases where the interlocutory judgment has been entered in default of appearance or defence. The expression "interlocutory judgment" means that such a judgment is interlocutory only as to amount, but final as to the right of the plaintiff to recover compensation, the plaintiff having the right to enter final judgment for the amount found due after assessment as a matter of course. Statements to that effect have appeared in successive editions of the Annual Practice for many years in terms suggesting that the right to have such a final judgment entered upon the assessment having occurred and without further order prevailed prior to the Judicature Acts. The task which fell to his Honour was to assess the sum of money representing the compensation to which the plaintiff was entitled pursuant to s30 of the Act. The meaning of the word "compensation" in the present context is well established. "It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived." (Per Dixon J in Nelungaloo Pty Ltd v The Commonwealth (1947–1948) 75 CLR 495 at p571). It was the task of Nettlefold J to assess the amount of that "full money equivalent", but bearing in mind the matters to which he was required to have regard pursuant to the provisions of s31 of the Act. It was only when his Honour had completed that task that any right of the plaintiff to enter final judgment could arise.

1. His Honour did not complete that task. When his Honour expressed himself as reserving liberty to apply, he was in reality doing no more than saying that he had not formed any final conclusion as to whether certain components of the severance claim ought to be taken into account in assessing the final amount of compensation. He did not assess compensation in the sum of $37,00.00, or in any other sum. He did no more than indicate that $37,000.00 was the least amount of compensation to which the plaintiff was entitled. It is plain that his Honour had in mind that if certain events occurred, he might award no sum in excess of $37,000.00, but that if other events occurred, he might be minded to award a sum greater than $37,000.00. If his Honour was intending to suggest that it was possible to assess the plaintiff's compensation on a piecemeal basis by giving him an immediate entitlement to $37,000.00, leaving it open to him to come back to the court with a view to obtaining an entitlement to further compensation, then with the greatest respect to his Honour, I do not consider that such a course was open to him. His Honour's task was to assess an amount which, once and for all, would provide to the plaintiff the compensation to which he was entitled under the Act. His Honour did not assess such an amount and did not purport to do so. What his Honour did do was insufficient to entitle the plaintiff to enter final judgment. In the context in which he reserved liberty to apply, his Honour did no more than leave it to the parties to come back before him so that he could complete the assessment by finally determining the amount of compensation. Nettlefold J, not having assessed the compensation to which the plaintiff is entitled, and not being able to complete the assessment which he commenced, the whole of the assessment remains to be determined and is capable of being determined. Accordingly, the order I will make is that the assessment be relisted so that it may be heard de novo.

1. Having said that, I acknowledge the submissions made on behalf of both parties as to the undesirability of having the whole matter reheard. However, I see no alternative to that, although the length of such a rehearing is capable of being shortened substantially if the parties are prepared to agree matters or adopt, by way of agreement, certain of the findings made and/or conclusions reached by Nettlefold J One possibility discussed during argument was that the matter be reheard upon the basis that the trial judge deals with the matter upon the basis of the evidence which was before Nettlefold J and such other evidence (if any) as a party might be permitted to adduce. I see some difficulty about doing that, as it appears that the exhibits tendered before his Honour were in due course released to the parties and at least some of them have now been lost. It may not be possible for the trial judge to have before him all the material which was before Nettlefold J One course which the parties may wish to consider adopting is to put before the trial judge as an agreed matter that the plaintiff is entitled to compensation of $37,000.00, together with such other sum, if any, as the trial judge may assess as being appropriate by way of a severance allowance by reason of the third of the severance items referred to by the plaintiff's expert valuer. That would inevitably have the effect of very significantly reducing the hearing time. I mention these matters only so that the parties may give consideration to them.