Land and Environment Court New South Wales Medium Neutral Citation: Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 Hearing dates: 22 March 2022 Date of orders: 22 March 2022 Decision date: 22 March 2022 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [23] Catchwords: CIVIL PROCEDURE — Separate determination of question — Where appropriate — Class 3 application — Question of liability concerning nature and extent of interest in compulsorily acquired land — Question of quantum of compensation payable — Separate question ordered Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules (NSW), r 28.2 Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 City of Swan v Lehman Brothers Australia Ltd (2009) 73 ACSR 86; [2009] FCA 784 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Cruden v Sae-ung [2021] NSWSC 1070 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109 Category: Procedural rulings Parties: Dorothy Lawson (Applicant) Minister for Environment and Water (South Australia) (First Respondent) State of New South Wales (Second Respondent) Representation: Counsel: M T Sherman (Applicant) D F O'Leary SC (First Respondent) J Waters SC (Second Respondent) Solicitors: Gilbert and Tobin Lawyers (Applicant) Crown Solicitor's Office (SA) (First Respondent) Crown Solicitor's Office (NSW) (Second Respondent) File Number(s): 2021/00316612 Publication restriction: Nil Ex tempore Judgment 1. By notice of motion filed 9 February 2022, Dorothy Lawson, the applicant, sought the following orders: "1. The Applicant has leave to file and serve, within 7 days of this order: a. a Further Amended Application Class 3 in the form annexed to the affidavit of Anne Cregan affirmed 9 February 2022 and marked "A"; b. a Further Amended Claim and Abstract in the form annexed to the affidavit of Anne Cregan affirmed 9 February 2022 and marked "B"; and c. an Amended Points of Claim in the form annexed to the Affidavit of Anne Cregan affirmed 9 February 2022 and marked "C". 2. Pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), liability be determined separately and before quantum in the proceeding. 3. Costs. 4. Liberty to apply on 3 days' notice." 1. The hearing of the notice of motion was set down before me on 22 March 2022. At a pre-trial mention on 17 March 2022, the legal representatives indicated that the parties had reached agreement in relation to Orders 1(a), (b) and (c) of the motion by which the applicant sought leave to file and serve – a further amended Class 3 application; a further amended claim and abstract; and an amended points of claim. I made orders in accordance with that common ground. 2. The remaining matter presently before the Court is the application pursuant to r 28.2 of the Uniform Civil Procedure Rules (NSW) ('UCPR') for a question to be determined separately from any other question in the proceedings. 3. In support of the motion, the applicant relies upon the affidavit of Anne Elizabeth Cregan, the applicant's solicitor, affirmed 9 February 2022. 4. I have read the affidavit of Ms Cregan and have been provided with written submissions prepared by the applicant and the first respondent, the Minister for Environment and Water (South Australia), and I have been informed that the second respondent, the State of New South Wales, adopts the submissions of the first respondent. Based upon that material, I am prepared to make the orders sought. My reasons follow. Background 1. The following background is uncontentious. The substantive proceedings seek compensation for the resumption of an area of land and waters by the State of New South Wales on 1 December 1922. Although the land the subject of the claim is at this time not fully defined, the claim relates to land which includes the area of Lake Victoria in south-western NSW and a number of other parcels of land in the vicinity. 2. The claim for compensation arises under the Public Works Act 1912 (NSW) ('Public Works Act'). I note that the claim, in various guises, has a rich litigious history in which the applicant has, and I say it without any criticism, participated in not unrelated proceedings in the Federal Court, the Full Federal Court, the NSW Supreme Court and the NSW Court of Appeal, the details of which I will not recite. 3. In simple terms, the applicant makes her claim for compensation on two bases. First, she alleges that her grandmother, Mary Alice Mitchell, had a portion of a legal estate in the land, acquired through adverse possession which it is alleged ripened in 1848. Second, in the alternative, the applicant alleges that at the date of resumption, 1 December 1922, she was a member of a native title group, the "Maraura People", which held native title rights and interests in the land that are capable of being resumed, and thus compensated, under the Public Works Act. 4. The present application is for a separation of the questions of liability and quantum. The claim, as now pleaded, requires the determination of the claim in adverse possession which includes a determination as to the existence of alleged charitable and/or constructive trusts. 5. The respondents submit that separate determination is required as to whether there was a group of people identified as the Maraura People, whether they held native title rights and interests, and the precise nature of the native title rights and interests. 6. It is agreed between all parties that the determination of "liability" issues will require significant evidence including lay evidence, principally from the applicant and perhaps members of the Maraura People, on all aspects including native title rights and interests and, possibly, the alleged losses flowing from the resumption of land and the extinguishment of those native title rights and interests. 7. It is also agreed that the question of liability would require extensive expert evidence going to matters of history as well as matters of native title rights and interests in the relevant area in the period between 1788 and 1848, and may encompass evidence of acts inconsistent with the existence of such native title rights and interests, if any, between 1848 and the period immediately prior to the resumption in December 1922. This would include expert evidence from historians, anthropologists, genealogists, and land tenure experts. 8. As opposed to the above, the "quantum" evidence in relation to the compensation claim is likely to involve evidence from an expert land valuer. Applicable principles 1. A number of recent cases have summarised the considerations that apply in approaching the exercise of the discretion conferred by r 28.2 of the UCPR: Cruden v Sae-ung [2021] NSWSC 1070 ('Cruden') at [41] (Hallen J); 820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170 ('820 Cawdor') at [10] (Biscoe J); Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182 ('Allandale') at [87]-[97] (Ward JA). For the purposes of the present application the following propositions are of relevance: 1. It is ordinarily appropriate that all issues in proceedings should be disposed of at one time: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 ('Clune') at [5] (Johnson J); Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 ('Tallglen') at 141-142 (Giles CJ in Comm Div); Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5] (Brereton J). 2. The exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of care or caution, as "[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid": Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] (Callinan J); Tallglen at 141-142. 3. Since the passage of the Civil Procedure Act 2005 (NSW) ('CP Act), it has also been observed that "the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously": Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6] (Brereton J); Clune at [6]. 4. It is for the party seeking the order to show to the Court that separate decision of a question is appropriate: 820 Cawdor at [10(b)]. 5. An order is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings, so as to give effect to s 56 of the CP Act: 820 Cawdor at [10(c)]; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] (Einstein J). 6. The factors that have previously been found to support the making of an order for the resolution of a separate question include where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and cost by narrowing the issues in dispute; and third, the potential settlement of the litigation. 7. By contrast, an order for a separate question is unlikely to be appropriate in circumstances where first, there are intertwined issues of fact or law, and the separate question is likely to result in fragmentation of the proceedings; second, there is likely to be significant overlap between the evidence adduced on the separate question and any residual questions; and third, the determination of a separate question is likely to involve issues as to the credibility of witnesses, whose evidence is likely to be material to the remaining issues in dispute. 8. Where the facts upon which the decision depends are contentious, confidence in the utility of the separate question process may be less likely. 9. One instance where it may be appropriate to determine a separate question even if it will not resolve all the issues in dispute is where there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd (2009) 73 ACSR 86; [2009] FCA 784 at [27] (Rares J). 1. While the decision to order separate questions is ultimately one for the Court, the attitudes of the parties are relevant to the exercise of the discretion to make an order: Cruden at [41(p)]; TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109 at [8] (Toohey J). Consideration 1. Considering the above principles and the evidence now before the Court, for the reasons that follow, it is appropriate to make an order for the separation of the liability and quantum issues. 2. First, there is unlikely to be an overlap between the evidence to be called on liability and quantum. The issues that are likely to arise in determining whether or not one or both respondents are liable to pay compensation to the applicant in her capacity as administrator ad litem of the estate of Mary Alice Mitchell (on either of the bases she now pleads) are separate and distinct from the issues that would be resolved by separate question identified. As such, it is likely that the separate question will be determinative of the manner in which any valuation evidence is marshalled in that the quantum issue, if it were to proceed to hearing, would likely involve evidence from an expert land valuer compared to the extensive evidence required to be marshalled for the liability issue. 3. Secondly, when there are, as is the case here, a number of alternative claims which are advanced by the applicant, the question of liability, as I have indicated, is somewhat novel and certainly not without some legal and factual questions of nicety. As such, the resolution of liability in advance of quantum is likely to facilitate the just, quick and cheap resolution of proceedings because, in order to determine the liability issues in the proceedings, the Court must make findings in relation to discrete aspects including first, the precise boundary of the resumption area; second, the extent of any interest in the land held by Mary Alice Mitchell, if any, in the resumption area as at 1 December 1922; and third, subject to those findings, the tenure history of the parcels of land comprising the resumption area and the impact of that tenure history on Mary Alice Mitchell's rights and interests, if any, in those parcels at the date of acquisition. 4. Thirdly, having regard to the applicant's advanced years (she is now 85 years old), there is likely to be benefit in separating the issues of liability and quantum. As stated in the affidavit of Ms Cregan, the applicant will give evidence in relation to liability, but her evidence is not required in relation to quantum. 5. Fourthly, there is, at least, a possibility as raised by the first respondent, that the determination of the question of liability in advance of quantum, if it were to be determined in favour of the applicant, it may facilitate the early settlement of the matter or the resolution of the proceedings one way or the other. 6. Fifthly, I have taken into account the fact that I have received detailed submissions from experienced practitioners all of whom maintain that it is appropriate for the matter to proceed by way of separation of liability and quantum issues and have now agreed as to a form of the separate question. While the Court needs to form its own view in that regard, I take those matters into account. 7. The order which I now make pursuant to r 28.2 of the UCPR is that the following is to be determined separately from any other question in the proceedings: "All questions other than the determination of the monetary value of compensation, if any, payable under the Public Works Act 1912 (NSW), to the applicant in her capacity as administrator ad litem of the estate of Mary Alice Mitchell be determined separately from and before the determination of the monetary value of compensation." Orders 1. The Court orders: 1. Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court orders that the following is to be determined separately from any other question in the proceedings: "All questions other than the determination of the monetary value of compensation, if any, payable under the Public Works Act 1912 (NSW), to the applicant in her capacity as administrator ad litem of the estate of Mary Alice Mitchell be determined separately from and before the determination of the monetary value of compensation." 1. The parties are to confer and prepare draft Short Minutes of Order for preparation for hearing (including all directions regarding the provision of expert and lay evidence, objections and the provision of written submissions) which, if appropriate, will be made in chambers. If agreement is not reached or the Court does not accept the parties' draft Short Minutes of Order, the matter will be listed for further directions. 2. The matter is set down for Hearing for 12 days (10 days hearing and 2 days in reserve) commencing Monday, 13 February 2023. 3. Liberty to apply on 3 days' notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022