William Hollier for the Holliers of Bass Strait Islands & Anor v Minister for Workplace Relations & Small Business [1998] FCA 429 (27 April 1998)

Last Updated: 30 April 1998

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Dismissal of claim to proprietary interest in land - Appeal to Full Court - Application for injunction pending appeal restraining owner from ejecting applicants - Concurrent application for order that Minister direct owner not to eject applicants - Land originally owned by Commonwealth - Transferred to statutory authority - Minister empowered to transfer "obligation" to authority where Commonwealth bound by "obligation" immediately before transfer - Whether claimed interest an "obligation" of Commonwealth - Mandatory interlocutory injunction - Principles applicable to grant - Whether court must feel high degree of assurance that applicant will succeed at trial.

Australian Maritime Safety Authority Act 1990 , ss 8, 31, 32, 36

Shepherd Homes Ltd v Sandham [1971] Ch 340 considered

Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562; (1985) 59 ALR 243 mentioned

Midland Milk Pty Ltd v Victorian Dairy Industry Authority (1987) 82 ALR 279 mentioned

Australian Airlines Commission v The Commonwealth (1986) 17 FCR 445 mentioned

Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 considered

Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 considered

A V Jennings Ltd v First Provincial Building Society Ltd (1996) ATPR 41-494 mentioned

Bales & Partners Pty Ltd v Law Book Co Ltd (1994) 29 IPR 11 mentioned

Active Leisure (Sports) Pty Ltd v Sportman's Australia Ltd [1991] 1 Qd R 301 mentioned

Racecourse Totalizators Pty Ltd v Totalisator Administration Board [1995] FCA 1405; (1995) ATPR 41-426 mentioned

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 mentioned

WILLIAM HOLLIER FOR THE HOLLIERS OF THE BASS STRAIT ISLANDS and THE ENGEN INSTITUTE (ARBN: A25398A) v MINISTER FOR WORKPLACE RELATIONS AND SMALL BUSINESS

VG 716 OF 1997

SUNDBERG J

27 APRIL 1998

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 716 of 1997

BETWEEN:	william hollier for the holliers of the bass strait islands First Applicant the engen institute (arbn: a25398a) Second Applicant
AND:	minister for workplace relations and small business Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	27 APRIL 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

. The motion notice of which was filed on 31 March 1997 be dismissed.

. The applicants pay the respondent's taxed costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 716 of 1997

BETWEEN:	william hollier for the holliers of the bass strait islands First Applicant the engen institute (arbn: a25398a) Second Applicant
AND:	minister for workplace relations and small business Respondent

JUDGE:	SUNDBERG J
DATE:	27 APRIL 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

ORDER OF REVIEW

On 16 December 1997 the applicants applied under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") to review what they describe as

the failure of the respondent to decide:

1. The written Ministerial Determination required under section 32 Australian Maritime Safety Authority Act 1990 regarding obligations of the Commonwealth to the Applicants with respect to Deal Island, Bass Strait.

2. The interests of the Applicants in Deal Island, Bass Strait under Section 31(4) of the Australian Maritime Safety Authority Act 1990 and the extent to which Section 32 may be validly applied to Deal Island.

The grounds of the application are expressed as follows:

1. The Applicants were induced to enter into processes and contracts through which a legal or, in the alternative, an equitable interest in Deal Island, Bass Strait was established.

2. The Minister is required by the Australian Maritime Safety Authority Act 1990 Sections 31 and 32 to consider and determine such rights prior to describing that interest or publishing by notice such description or causing to be lodged such description or seeking to register an interest in Deal Island, Bass Strait.

The applicants claim an order that the respondent ("the Minister") "consider the estate, rights or title ... of the Applicants and produce a written determination" under s 32. They also claim orders, pursuant to s 8(1), that the Minister direct the Australian Maritime Safety Authority ("AMSA") not to give effect to a notice requiring the applicants to vacate the Island, not to evict or forcibly remove them from the Island, and not to transfer, convey, grant or deal with "any (claimed) interest or title to Deal Island". No affidavit was filed in support of the application.

VG 667 OF 1997

Prior to the making of the application for the order of review the applicants had commenced a proceeding against AMSA and the State of Tasmania in which they claimed a proprietary interest in the Island (VG 667 of 1997). The Minister was later joined as a respondent so that in the present proceeding he would be bound by any findings of fact made in VG 667 of 1997. On 6 March 1998 I dismissed that application. The facts relating to the applicants' occupation of the Island and their dealings with AMSA and the State are set out in my reasons for decision. The applicants have appealed to the Full Court against the dismissal of their application.

NOTICE OF MOTION

On 31 March 1997 the applicants filed a notice of motion seeking orders "until further order" that the Minister direct AMSA not to act on the notice served on them on 12 December 1997 requiring them to vacate the Island, not to remove them from the Island, and not to transfer or deal with the title to the Island. An affidavit sworn by the first applicant ("Mr Hollier") disclosed the following matters:

* On 19 March 1998 AMSA commenced proceedings in the Supreme Court of Tasmania to recover possession of the Island

* On 23 March 1998 the applicants entered into an agreement with Darren Carmen to maintain a presence on the Island until 3 April 1998 while Mr Hollier and his family were in Melbourne

* Under the agreement Mr Carmen was entitled to bring his uncle, Mr Demido, on to the Island

* In proceeding VG 667 of 1997 counsel for AMSA undertook that the applicants could retain an agent to maintain a presence on the Island

* On 31 March Mr Northmore of AMSA informed Mr Carmen (who informed Mr Hollier) that Mr Demido had asked to be taken off the Island, and that AMSA would take him off by helicopter "as well as take possession of Deal Island" under the notice to vacate served on 12 December 1997

* Mr Hollier then contacted AMSA's solicitors seeking confirmation that AMSA intended to take possession, but obtained no such confirmation

* The applicants have acted to their detriment in providing services on the Island for no remuneration and will suffer loss if required to vacate.

AUSTRALIAN MARITIME SAFETY AUTHORITY ACT

AMSA is established by s 5 of the Australian Maritime Safety Authority Act 1990 ("the Act"). Its functions are set out in s 6(1). The principal functions are to combat pollution in the marine environment, provide a search and rescue service, and provide services to the maritime industry on a commercial basis. Section 6(3) provides that "Subject to section 8, the functions to provide services may be performed at the discretion of the Authority". Section 8(1) empowers the Minister to give AMSA written directions as to the performance of its functions. Section 31 deals with the transfer of land from the Commonwealth to AMSA. Sub-sections (2) to (4) are as follows:

(2) Where the Minister, by notice published in the Gazette for the purposes of this section:

(b) describes any land in which the Commonwealth holds an interest; and

(c) describes that interest;

the following provisions have effect.

(3) The interest is transferred to the Authority on the day specified in the notice, not being earlier than the day of publication of the notice.

(4) Where the interest of the Commonwealth is of such a kind that it is not held from another person, the transfer has effect as a grant to the Authority of an estate in fee simple.

The Minister must lodge with the Registrar General, Registrar of Titles or other appropriate officer of the relevant State or Territory a certified copy of the notice: sub-s (5). The officer may register "the transfer" as nearly as possible as if it were a dealing in land, and may deal with and give effect to the copy as if it were a grant or conveyance duly executed under the laws in force in the relevant State or Territory: sub-s (6). On 16 October 1991 a notice under s 31 describing Deal Island and the Commonwealth's interest in it was published in the Gazette.

Sub-sections (2) to (5) of s 32 apply where "any assets are transferred from the Commonwealth to AMSA: sub-s (1). Sub-s (2) provides that the Minister

(a) must, for the purposes of subsection (3) and section 36, determine the value of the assets as on the day of the transfer or as on such day or days prior to the transfer as the Minister determines; and

(b) may determine an amount, not exceeding that value, for the purposes of subsection (3).

If an amount is determined under sub-s (2)(b), the Commonwealth is taken to have made, on the day of the transfer, a loan to AMSA equal to that amount, the terms and conditions of which are to be determined by the Minister for Finance: sub-ss (3) and (4). Sub-section (5) provides:

Where, immediately before the transfer:

(a) a right of the Commonwealth arising out of a debt, liability or obligation of any other person in favour of the Commonwealth existed in respect of the assets; or

(b) a debt, liability or obligation of the Commonwealth existed in respect of the assets;

the right, debt, liability or obligation, as the case may be, of the Commonwealth is transferred to the Authority to the extent determined by the Minister.

The word "assets" is defined in s 3(1) as "property of any description other than rights referred to in sections 32 and 35".

INTERLOCUTORY MANDATORY INJUNCTION

The orders the applicants seek on their motion are that, until further order, the Minister direct AMSA not to enforce the notice to vacate, not to remove the applicants from the Island, and not to transfer or deal with the title to the Island. They thus seek mandatory interlocutory relief. It was submitted for the Minister that before granting such relief the Court must have a high level of assurance that the applicants will necessarily succeed at trial. Reliance was placed on Shepherd Homes Ltd v Sandham [1971] Ch 340 where at 351 Megarry J said:

... on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.

That passage was approved by Gibbs CJ in Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562; (1985) 59 ALR 243. His Honour refused to grant an interlocutory injunction requiring Telecom to provide maintenance services to the State's PABX telephone system because, although he was satisfied that there was a serious question to be tried, he lacked a "high degree of assurance" that the State would necessarily succeed: at 563 and 245 respectively. See also Midland Milk Pty Ltd v Victorian Dairy Industry Authority (1987) 82 ALR 279 at 291 and Australian Airlines Commission v The Commonwealth (1986) 17 FCR 445 at 452.

A more flexible view has however been taken in some recent cases. In Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Hoffmann J pointed out that Megarry J did not purport to lay down any fundamental principle applicable to interlocutory mandatory injunctions. Rather his Lordship was making useful generalisations about the way in which the normal run of cases falling within the particular category ought to be dealt with. Megarry J had, after all, used the words "In the normal case ...". The whole of Hoffmann J's discussion at 680 to 682 repays careful reading, but the following extract contains the substance of his reasoning:

The passage quoted from Megarry J ... is another way of saying that the features which justify describing an injunction as "mandatory" will usually also have the consequence of creating a greater risk of injustice if it is granted rather than withheld at the interlocutory stage unless the court feels a "high degree of assurance" that the plaintiff would be able to establish his right at a trial. I have taken the liberty of reformulating the proposition in this way in order to bring out two points. The first is to show that semantic arguments over whether the injunction as formulated can properly be classified as mandatory or prohibitory are barren. The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term "mandatory" to describe the injunction, the same question of substance will determine whether the case is "normal" and therefore within the guidelines of "exceptional" and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a "high degree of assurance" about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction.

These observations were approved by Gummow J in Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499. See also A V Jennings Ltd v First Provincial Building Society Ltd (1996) ATPR 41-494 at 42,188 and Bales & Partners Pty Ltd v Law Book Co Ltd (1994) 29 IPR 11 at 15. However in Active Leisure (Sports) Pty Ltd v Sportman's Australia Ltd [1991] 1 Qd R 301 the Full Court of the Supreme Court of Queensland followed the "traditional test" in Shepherd Homes in preference to that in Films Rover and Business World. See also Racecourse Totalizators Pty Ltd v Totalisator Administration Board [1995] FCA 1405; (1995) ATPR 41-426 at 40,804 - 40,805. Because of the conclusion I have reached on the "serious question" issue, I need not decide whether the mandatory interlocutory relief claimed in the present case invites the application of the traditional test or that applied in Films Rover and Business World.

SERIOUS QUESTION TO BE TRIED?

In order to obtain interlocutory relief, whether mandatory or prohibitory, an applicant must establish that there is a serious question to be tried.

(a) Section 32(5)

The applicants seek an order that the Minister "consider" their "estate, rights or title ... and produce a written determination under s 32". Sub-section (5)(b) is relied on. A determination is made under s 32(5) only if a right, debt, liability or obligation is transferred to AMSA. Thus, what the applicants want is a decision by the Minister that, immediately before the transfer to AMSA, they had an interest in the Island, namely the right to occupy it for so long as they wish to carry out scientific experiments there, and that this "obligation of the Commonwealth" should be transferred to AMSA.

The interest the applicants claim in the Island is not an "obligation" for the purposes of s 32(5). That is made clear by s 36. It will be recalled that s 32(2) requires the Minister to determine the value of the assets transferred to AMSA for the purposes of sub-s (3) and s 36. Section 36 describes AMSA's "capital" as the sum of various amounts, including the value of the transferred assets as determined under s 32, less amounts taken to be loans under s 32, any amounts of capital repaid to the Commonwealth by AMSA, and "debts, liabilities and obligations of the Commonwealth transferred to the Authority by subsection 32(5)". That shows that an "obligation" in the phrase "debt, liability or obligation of the Commonwealth" in s 32(5)(b) is one that sounds in money, and not one such as that to which the applicants claim the Commonwealth was subject, namely the obligation to allow the applicants to remain on the Island as long as they wish to carry out scientific experiments there. The concluding words of s 32(5) - "to the extent determined by the Minister" - point in the same direction. They are not apt to apply to an obligation such as that asserted.

Putting the "money" obstacle to one side, the question to which s 32(5) is directed is whether rights arising out of debts, liabilities and obligations of any other person in favour of the Commonwealth, and debts, liabilities and obligations of the Commonwealth, are to be transferred to AMSA along with the assets in respect of which they exist, or are to remain with the Commonwealth. If the Minister makes no determination, the rights etc remain with the Commonwealth. If the Minister makes a determination, the rights etc are transferred to AMSA to the extent appearing in the determination. Sub-section (5)(b) thus deals with debts, liabilities and obligations that can stay with the Commonwealth or pass to AMSA. The proprietary interest claimed by the applicants is not something that can stay with the Commonwealth. It must run with the land.

The application for review contemplates that the Minister will first decide whether the Commonwealth had an obligation to the applicants, and if he decides it had, will then determine that it be transferred to AMSA. Section 32(5) does not confer power on the Minister to decide whether rights, debts, liabilities or obligations existed. Indeed the power to decide disputed property rights would be judicial power. Rather, the sub-section assumes that a right etc existed at the relevant time. Accordingly, a determination by the Minister will not of itself establish whether the Commonwealth had an obligation to the applicants.

The making of a determination under s 32 (5) is discretionary. In judicial review proceedings the Court cannot direct the Minister to make a determination. All it could do, if the applicants were otherwise entitled to relief, would be to order that the Minister exercise his discretion.

Even if s 32(5)(b) could be read as requiring the Minister to make a determination that the applicants had a proprietary right as against the Commonwealth which should be transferred to AMSA, there is no material that shows that the obligation asserted burdened the Commonwealth immediately before the transfer to AMSA. The grounds of the application for review assert that the applicants "were induced to enter into processes and contracts through which a legal or, in the alternative, an equitable interest in Deal Island, Bass Strait was established". The transfer took place on 16 October 1991. The conversations relied on in VG 667 of 1997 as constituting representations by AMSA, which formed the basis of the applicants' claim to a proprietary interest, were alleged to have occurred between February and June 1992. All that had happened prior to the transfer, while the land was owned by the Commonwealth, was that Mr Hollier had expressed interest in purchasing or leasing the Island. On 31 May 1989 he wrote to the Commonwealth Department of Transport and Communications expressing interest in obtaining a long-term lease of the Island with a view to operating a stone masonry business there. On 13 June the Department wrote to Mr Hollier informing him that it was not in a position to initiate or recommend arrangements for the leasing of property on the Island. AMSA came into existence on 22 October 1990, when the Act received the Royal Assent. On 24 July 1991 the second applicant wrote to AMSA confirming its interest in the purchase or lease of the Island when it became available as a consequence of the decommissioning of the light station. Nothing else of relevance happened before the transfer. In those circumstances the Minister could not proceed on the basis that immediately before the transfer the applicants had a proprietary interest in the Island. When it became apparent that the evidence in VG 667 of 1997 (which the parties agreed I should treat as evidence in the present case) did not support the "obligation" relied on, Mr Hollier sought an adjournment to enable him to file further material. I ruled that if my decision on the motion were to turn on whether the evidence supported the "obligation" relied on, I would give him leave to file further material, but if the matter were to be disposed of on some non-factual ground, the additional evidence would not be necessary.

For the reasons I have given, s 32(5)(b) will not avail the applicants even if they could establish the necessary factual basis to establish that the Commonwealth was under the claimed obligation to them at the relevant time. Accordingly there is no occasion to receive further evidence on that issue.

(b) Section 31(4)

The applicants also rely on s 31(4). They complain of the Minister's failure to decide their "interests ... in Deal Island" under s 31(4). But that provision confers no power on the Minister to decide anything. Its function is to deal with land which is not held "from another person". The Commonwealth might have an interest in land under a lease. It holds that interest from the lessor. But where the Commonwealth is the registered proprietor of land, as it was of the Island, the land is not held "from another person", and the transfer has effect as a grant in fee simple.

(c) Section 8

The applicants also seek orders that the Minister direct AMSA not to act upon the notice to quit, remove the applicants or transfer the land. They rely on s 8(1) as the source of the power to give those directions. Assuming in favour of the applicants that a power to give written directions as to the performance of AMSA's functions listed in s 6(1) would enable the Minister to give the directions sought, and that the relief the subject of pars 2, 3 and 4 of the application is relief the Court can grant under the ADJR Act were the applicants to succeed in their review, there is no prospect that the Court would grant the relief. Putting all other obstacles aside, the directions would only be given if the applicants established their primary claim that they are entitled to an order that the Minister decide that they had an interest in the land as against the Commonwealth which should be transferred to AMSA. As I have said, I can see no prospect of such an order being made. Further, the Court has no power within the ambit of the order of review to make a determination as to the existence and extent of the Commonwealth's obligations to the applicants in respect of the Island (ie whether they had a proprietary interest).

CONCLUSION

There is no prospect of the applicants' obtaining the relief sought in their application. They have not established that there is a serious question to be tried. They fall so far short of establishing the existence of a serious question that there is no point in my considering the balance of convenience. See American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 at 408. The dispute between the applicants and AMSA as to their right to remain on the Island has been resolved in favour of AMSA. The applicants have appealed, and in due course the Full Court will decide whether the decision appealed from should stand. In the meantime a Judge has power to restrain AMSA from enforcing its rights pending the outcome of the appeal, and the applicants have sought that relief in another proceeding. In those circumstances it would, in any event, be inappropriate for the Court to attempt indirectly to preserve the status quo by making the orders sought in pars 2, 3 and 4. The application for interlocutory relief is dismissed.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg

Associate:

Dated: 27 April 1998

The first applicant appeared for himself and the second applicant
Counsel for the Respondent:	W Harris
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3, 8 April 1998