MINISTER ADMINISTERING THE HERITAGE ACT 1977 v HADDAD [1991] NSWCA 200

MINISTER ADMINISTERING THE HERITAGE ACT 1977 vy HADDAD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and CLARKE JJA

4 February 1991, 4 February 1991

[1991] NSWCA 200

Land and Environment; rehearing

Gleeson CJ This is an application for leave to appeal against a decision of Stein J in the Land and Environment Court upon a motion brought before that Court in certain proceedings. By consent the Court has dealt with the substance of the appeal at the same time as dealing with the motion for leave to appeal.

For reasons that I will mention shortly I am of the view that the claimant should have leave to appeal and that the appeal should be allowed. I will deal with the matter of leave and the merits of the appeal together.

Some years ago the opponent's land was resumed under the Heritage Act. In the proceedings in the Land and Environment Court to determine the compensation payable Stein J awarded $625,820 calculated on a certain amount. The claimant contended that his Honour erred in law in certain respects in his approach towards the determination of compensation and sought to make good that assertion in an appeal which was heard before this Court in September 1988 and determined in December 1988.

The claimant's submissions were accepted in this Court. The Court was of the view that his Honour had erred in law and allowed the appeal and made an order that the matter be returned to the Land and Environment Court for what was described as rehearing.

I have a strong impression that it is the expression "rehearing" that has been the source of some degree of confusion in the subsequent history of the matter. The expression "rehearing" is one that is sometimes used in connection with proceedings that are described as appeals. It is, for example, sometimes used in respect of certain proceedings in this Court. That is quite a different context from the context in which the expression was used in the order of this Court sending the matter back to Stein J. The proceedings in which the Land and Environment Court will be engaged pursuant to the order of this Court are in no way appellate proceedings.