UPPER HUNTER TIMBERS PTY LTD v FORESTRY COMMISSION OF NSW [1999] NSWSC 1252

New South Wales Supreme Court CITATION : UPPER HUNTER TIMBERS PTY LTD v FORESTRY COMMISSION OF NSW [1999] NSWSC 1252 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3609/97 HEARING DATE(S) : 10/12/99 JUDGMENT DATE : 17 December 1999

PARTIES : Upper Hunter Timbers Pty Limited v. Forestry Commission of NSW JUDGMENT OF : Bryson J at 1

COUNSEL : DJ Hammerschlag for Plaintiff JE Griffiths for Defendant SOLICITORS : Deacons Graham & James for Plaintiff Crown Solicitor of NSW for Defendant CATCHWORDS : CONTRACT - Forestry Commission - effect of need for Minister's Approval under s.11(1)(m)ii) of Forestry Act 1916 - no power without Minister's approval - detailed consideration of facts after remitter by Court of Appeal [1999] NSWCA 125 Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 116 CLR 454 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 CASES CITED : Alghussein Establishment v Eton College [1988] 1 WLR 587: see too Suttor v.Gundowda Pty Ltd (1950) 81 CLR 418 at 441. The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, Sellars v. Adelaide Petroleum NL & Ors (1994) 179 CLR 332 DECISION : See para.39

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

FRIDAY 17 DECEMBER 1999

3609/97 UPPER HUNTER TIMBERS PTY LTD v. FORESTRY COMMISSION OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: These reasons deal with the determination of the matter remitted to the Equity Division by order 3 of the orders of the Court of Appeal of 21 May 1999. These reasons should be read with my reasons of 17 August 1998 and the judgment of Sheller JA in the Court of Appeal [1999] NSWCA 125. The matter remitted relates to the Mount Royal claim referred to in paras 4 to 9 of the Further Amended Statement of Claim. The Court of Appeal ordered: "3. remit the matter to the Equity Division for the determination of the extent, if any, to which the [Forestry Commission] was in breach of the agreement made on 14 November 1988 during the period on and from 14 August 1991 to 31 December 1996 and the damages, if any, the result of such breach for which the [Forestry Commission] is liable having regard to the provisions of the Frustrated Contracts Act". 2 In my understanding Order 3 of the Court of Appeal's order refers to breaches on and from 14 August 1991 to 31 December 1996, and does not refer to breaches committed before that period which had continuing effects. 3 When the proceedings came before me for determination of the matter remitted the plaintiff's counsel told me that he proposed to read two further affidavits on the issue of liability; these affidavits, which have been filed are those of Mr Bromley sworn 23 June 1999 and Mr R.J. Sims sworn 22 July 1999. Defendant's counsel opposed this course. I did not allow the affidavits to be read because the trial of the proceedings took place earlier and the parties' evidence on the issue of liability was heard then, the appeal did not involve fresh evidence and the evidence proposed to be read could not have been fresh evidence, no ground was advanced on which leave to re-open the evidence ought to be given, and the order of the Court of Appeal did not order a new trial but ordered only the determination of stated questions, in terms which require determination in relation to the issues and the evidence as they already are. While there is power to re-open a hearing and allow further evidence after judgment has been reserved, that power is only to be exercised where there is some substantial ground for exercising it. I refused the application and embarked on determining the question of liability under the Court of Appeal's order on the evidence at the earlier hearing. I did not embark on hearing or determining any question of quantum, as I earlier decided that quantum would be decided separately. Nothing has happened which limits the evidence which parties may read on quantum. 4 The agreement and the breach alleged appear from paras 4,5 and 8 of the Further Amended Statement of Claim and are to the effect that by the agreement of 14 November 1988 the Forestry Commission agreed