Leppington Pastoral Company Pty Ltd v Commonwealth of Australia

[1997] FCA 299
76 FCR 318

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(Judgment by: LEHANE J)

Between: Leppington Pastoral Company Pty Ltd - Applicant
And: Commonwealth of Australia - Respondent

Court:

Judges: JENKINSON J
BEAUMONT J

LEHANE J

Judgment date: 29 APRIL 1997

SYDNEY

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Judgment by:
LEHANE J

I have had the advantage of reading, in draft, the judgment of Beaumont J. I agree that the Court should make the orders which his Honour proposes and I agree substantially with his reasons. There are, however, a few comments which I wish to make, by way of supplement and, perhaps, slight qualification.

The proceeding in which the Court is engaged, and in the course of which the questions with which this appeal and cross-appeal are concerned have been separately determined, is a claim for a determination, under s 82 of the Lands Acquisition Act (the Act), of "the amount of compensation to which [Leppington] is entitled". The words which I have quoted refer to s 55 which provides, in subs (1), that the amount of compensation to which [Leppington]

... is entitled under this Part in respect of the acquisition of an interest in the land is such amount as, having regard to all relevant matters, will justly compensate [ Leppington ] for the acquisition .

Subsection (2) repeats that the assessment is to be made having regard to all relevant matters and then proceeds to specify some matters which are to be taken as relevant.

The deed between Leppington and the Commonwealth says, in subcl 5(a), that what it is concerned with is the payment of compensation "in accordance with Part VII of the Act" and, in the opening words of subcl 5(b), that the assessment of compensation is to take place subject to the Act: that is, that what is to be ascertained is the amount of compensation which, having regard to all relevant matters, will justly compensate Leppington for the acquisition.

Subclause (b) then proceeds to list three particular matters which the Commonwealth is to take into account in assessing the amount of compensation payable to Leppington, presumably in formulating an offer to be made by the Minister under para 70(1)(b) of the Act. In addition to imposing that obligation on the Commonwealth by its express terms, no doubt the opening words of subcl (b) can and should be read as indicating that the matters listed in paras (i), (ii) and (iii) are relevant matters to which regard is to be had in applying s 55.

I greatly doubt that subcl 5(b), in any relevant respect, gives rise to an estoppel: it is not easy to identify any particular state of facts which either party might be obliged to accept, in this proceeding, as true. For similar reasons, even apart from difficulties of construction, I find it difficult to see how, in any relevant way, the deed could operate as an admission by either party. But it does give rise to reciprocal rights and obligations, the obligation of the Commonwealth under subcl 5(b) being to have regard to the matters listed in assessing the compensation it will offer, as representing Leppington's entitlement. The subclause may also (as I have said) be taken as an acknowledgment by both parties that the matters listed are relevant and important matters to be taken into account in assessing compensation. There is nothing repugnant to the Act in that, and it is appropriate that the Court should give effect to the agreement between the parties, in performing its function under s 82, by having regard to the three matters listed as relevant and important considerations. But they are no more than that, and it follows that the Court should not answer questions 1, 2 and 3 in any more specific way than Beaumont J proposes.

Questions 4, 5 and 6 raise issues which, as Beaumont J says, go beyond the construction of the deed and which cannot appropriately be dealt with at this (interlocutory) stage in the proceeding. I agree, accordingly, that in the form in which they are posed they should not be answered. One of the matters with which the questions, particularly questions 4 and 6, are concerned is, however, the true construction of subcl 5(c) of the deed. A good deal of argument was directed to that question, and in my view it is appropriate to say something about it. Subclause (c) is rather different from subcl (b) in one respect: it opens with an acknowledgment by Leppington that it has a particular intention: it is possible that that acknowledgment is an admission by Leppington and that it gives rise to an estoppel against Leppington. At all events, clearly enough the subclause is cast as one which imposes a burden on Leppington, assumed in consideration of the Commonwealth varying the Pre-Acquisition Declarations and "making the acknowledgments" in subcl (b). The effect of the provision seems to me reasonably plain: whether or not Leppington in fact relocates its buildings and plant and whether or not it continues its operations on the remaining land, compensation is to be assessed on the footing that it has done so and has not, for example, either closed down its business altogether or moved it elsewhere. I do not think it follows, however, that the Commonwealth is to be regarded as bound by a reciprocal assumption of fact (and one which does not reflect what has actually happened), that Leppington had, by the date on which the acquisition took effect, incurred the expense of relocation and reconstruction. I cannot see how the subclause can be conclusive, as a matter of agreement between the parties, of the question whether any (or what) discount is appropriate, even if (as I doubt) the Court could properly give it that effect in making the assessment which ss 82 and 55 require.