Analed Pty Ltd v Roads Corporation M103/2000 [2001] HCATrans 262 (22 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M103 of 2000

B e t w e e n -

ANALED PTY LTD

Applicant

and

ROADS CORPORATION

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001, AT 10.23 AM

Copyright in the High Court of Australia

MR S.R. MORRIS, QC: If your Honours please, I appear with my learned friend, MR C.W. PORTER, for the applicant. (instructed by Deacons)

MR C.J. DELANY: If the Court pleases, I appear on behalf of the respondent. (instructed by Garland Hawthorn Brahe)

GUMMOW J: Yes, Mr Morris.

MR MORRIS: If the Court pleases, the key issue that arises in this application is whether the Pointe Gourde principle applies in the assessment of - - -

GUMMOW J: What is the Pointe Gourde principle? Everyone says it but I have never quite understood it.

KIRBY J: It is a mystery.

GUMMOW J: It is only understood by a small group of - - -

MR MORRIS: Perhaps the best way of doing it precisely is if I ask if this short outline be handed to the Court because I set it out in paragraph 2 and if - - -

GUMMOW J: It is an English decision on some other legislation, is it not?

KIRBY J: In Canada, I think.

GUMMOW J: In Canada, yes.

MR MORRIS: It is but it has become a convenient label and - - -

GUMMOW J: I know. That is what we are saying.

MR MORRIS: - - - it is a label that, in our submission, stands for the principle in paragraph 1.2 of what I have provided to the Court.

GUMMOW J: Just stopping for a minute. Now, has Pointe Gourde ever been applied in this Court?

MR MORRIS: Yes, it has. It has been referred to in the San Sebastian Case but it has also been applied in the Melwood Units Case which is a decision of the Privy Council concerning Queensland.

GUMMOW J: Yes. I am worried about this Court at the moment. Has it ever been applied in this Court, apart from being mentioned?

MR MORRIS: It has been - - -

GUMMOW J: Assumed, has it?

MR MORRIS: - - - assumed to be correct in cases such as San Sebastian, yes.

GUMMOW J: All right.

MR MORRIS: Now, the principle, we say, is that in assessing compensation any increase or decrease in the value of the affected land arising from the proposal to carry out the purpose for which the land is required shall be disregarded. Now, it is common ground that that is a principle that applies in resumption or compulsory - - -

CALLINAN J: Mr Morris, accepting that to be so for present purposes, is not your best point what you can say about paragraph 35 in the judgment at first instance at page 16. I am not talking too much about principle now, accepting the principle, but at about line 26:

While Analed relies on the refusal of the permit on 20 October 1996 as giving rise to a claim for compensation, that refusal was known to be inevitable . . . That view of VicRoads -

that is as to its intention -

was well known to Analed at the time of the purchase of the whole property, and was clearly taken into account in the calculation of the amount tendered -

If you read that and then you go back to application book page 5 and look at the term of the contract, what it shows was that it was contemplated by both parties that there would be a claim for compensation and that was no doubt a factor in the price. So, that seems to contradict - and there seems to be no evidence to the contrary and the primary judge does not refer to it if there is - the notion that there was a discount, or, more importantly, what the discount was because of the imminent resumption.

MR MORRIS: Yes.

CALLINAN J: Indeed, we can only speculate, but no doubt the vendor in fixing the price or accepting the price wanted an allowance for the likelihood or the real possibility that the purchaser would recover compensation.

MR MORRIS: Indeed, your Honour, and, further, there was a condition in the contract which is set out at the bottom of page 4 and the top of page 5 to the effect that to the extent that it was legally permissible to do so the vendors assigned their compensation rights to the purchaser.

CALLINAN J: That is the point I am making.

MR MORRIS: Yes, and that is the very point that is emphasised in Melwood Units and in Chapman v Minister for Lands.

CALLINAN J: Mr Morris, the only difference, I think, between perhaps the situation here and the situation under other planning legislation - have you looked at planning legislation which gives a right sometimes to claim compensation when there has been a down-zoning, as it were, of land?

MR MORRIS: Yes. Well, that is mostly common in Queensland.

CALLINAN J: Exactly, and - - -

KIRBY J: I am sorry to interrupt this friendly conversation with Justice Callinan, but is this not simply a matter of interpreting Victorian statute where all that is involved is a question of causation: what was the cause of the loss? I mean, you went in with your eyes open in relation to this purchase and the suggestion is that such disadvantage or blight as occurs was a self-inflicted wound.

CALLINAN J: The purchaser in Melwood Units did, too, exactly the same thing.

MR MORRIS: That is exactly the same. You see, in Melwood Units, as we note in paragraph 1.4 of our - - -

KIRBY J: But that is not a decision of this Court; that is a decision of a foreign court.

MR MORRIS: Melwood Units was a decision of the then ultimate court in relation to - - -

KIRBY J: Do not rub that in.

CALLINAN J: Foreign or not, you say the reasoning is attractive.

MR MORRIS: Precisely.

CALLINAN J: Mr Morris, I was asking you about Queensland planning legislation and, indeed, I do not know whether there is other legislation to that effect, but it gives a right to compensation, does it not?

MR MORRIS: Yes, it does.

CALLINAN J: It does not use quite the same language as the Victorian Statute but it is to a similar effect.

MR MORRIS: That is right, your Honour. The Queensland legislation is the only legislation that applies to down-zoning, as such, but Tasmania and Victoria are similar in the sense of giving a right to claim compensation for restrictions that are designed for a pubic purpose.

CALLINAN J: If the resuming authority can, as it were, get away with this and every time, presumably, it proposes to resume, or it may want land for a purpose, it just puts an advertisement in the newspapers and makes sure that any potential purchaser of that land at any time knows that there is going to be a resumption and therefore defeats a claim for compensation.

MR MORRIS: Precisely, your Honour. Indeed, in this case, this proposal - and it has just been a proposal - has been such since 1976.

GUMMOW J: Where do we find that out? Where do we find the age of the proposal? I am not doubting your word; I am just wondering where it is.

MR MORRIS: I do not know whether it is in the decision, your Honour.

GUMMOW J: Now, that is why it struck me when you said it.

MR MORRIS: But what is clear from the decision that has been around since well before the contract to sell the land - that was in 1989 - and to the present day it is still a proposal. It has never been put in a reservation, let alone a resumption.

KIRBY J: Yes, but what do you say about the suggestion that it all turns on a determination of fact by the trial judge that you failed to prove any loss - the passage is at page 17 of the application book:

Any financial loss suffered by Analed was the direct result of the combined effect of the blight on the NAR land caused by VicRoads' view of that land, and Analed's purchase of land already blighted, which was effected with knowledge of the blight, and was a self-inflicted injury.

Now, why should you be passed on to the public purse to support your speculative endeavour when you knew of the blight? It is a self-inflicted injury.

CALLINAN J: Why should the public get a parcel of land for nothing?

MR MORRIS: Or, as we would put it, why should the public be able to sterilise land and prevent the effective use of the land whilst it makes up its mind for nothing? In this case - and this is the critical distinction from the decisions in the Studley Case - the vendor did not reserve the right to claim compensation, did not claim compensation and was not paid compensation, rather it sought, in line with authorities such as Melwood Units and Chapman v Minister for Lands, to pass on that right to the purchaser.

So, in answer to your Honour Justice Kirby's question, I reply by saying that begs the question of whether the assessment of loss is to assume or not assume the thing that has caused the right to make the claim.

KIRBY J: Yes, but do you attack the power of the authority to insulate the land, because if not, they are simply exercising their powers? That is a given.

MR MORRIS: In a sense, what has sterilised the land is their mere announcement, not the exercise of any statutory power at all. Then what has happened is that when a permit has been applied for to subdivide residentially-zoned land for residential purposes, that has been refused on the ground that the land will be required for a public purpose. Section 98(2) then gives a right to claim compensation for loss, the consequence of that refusal. Now, it is an essential principle, we would submit, in assessing whether that loss arises and what assumption you make about the proposal that has given rise to the refusal. That is the essence of the principle known as the Pointe Gourde principle.

The High Court in the San Sebastian Case did approve the decision in Chapman v Minister for Lands where Justices Jacobs and Asprey at page 428, line 5 of the decision, expressed the matter by referring to the fact that a vendor of land that is affected by some proposal sells it with "a right to compensation" and the purchaser buys it with a right to compensation with the net result that it is to be valued as unaffected by the proposal.

CALLINAN J: Mr Morris, her Honour thought she was bound by an earlier decision, did she not, a Court of Appeal decision?

MR MORRIS: That is so.

CALLINAN J: It was not simply a finding of fact by her. She thought that a finding of this kind, that is of knowledge, which would almost always be inevitable if a purchaser is properly advised by solicitors because they will make this inquiry and get this information - so that her Honour seemed to think that once you had that fact it necessarily and inevitably, on the basis of Halwood Corporation, defeated any claim for compensation.

MR MORRIS: That is precisely right, and what is important is that the Halwood decision was decided in 1995 and turned on its head what had been the practice in relation to these matters which before that time, perhaps under the tutelage of Mr Justice Gobbo, had been based on the Chapman principle, that is that a purchaser buys land with a right to compensation and, provided the vendor has not claimed compensation, the assessment of compensation in relation to the purchaser is to be undertaken disregarding the proposal.

CALLINAN J: Have you not got another point? Her Honour found, even so, that there were two causes. That is at application book 17. Her Honour found that "Any financial loss" was caused by "the combined effects of the blight" and the "purchase of the land". Her Honour thought that there were two causes, but, I do not know, there might possibly be an argument that, although the section refers to "the ground" or "upon the ground", if you have another ground that might be available anyway.

MR MORRIS: Yes, well, I would adopt that.

KIRBY J: Is that within your grounds of appeal at the moment?

MR MORRIS: No, it is not specifically. The grounds of appeal at the moment are principally based on the fact that the Pointe Gourde principle has not been taken into account, but if leave is granted - - -

KIRBY J: Yes. Justice Callinan's ingenuity might have given you another ground, in a very friendly conversation between you and his Honour.

MR MORRIS: Yes. Well, if leave is granted, we would obviously would seek, as in the present case, the opportunity to - - -

KIRBY J: You will never have such a dream run in an application.

MR MORRIS: Well, occasionally one's dreams come true.

GUMMOW J: Well, it is only at the beginning of a long night.

MR MORRIS: Now, unless there is anything - - -

CALLINAN J: It is a Court of three, Mr Morris.

GUMMOW J: You would need to revise your grounds of appeal, would you not?

MR MORRIS: Yes, your Honour.

GUMMOW J: In what respects would you seek to do so?

MR MORRIS: Firstly, by articulating that the principle ground is the fact that the court failed to give effect to the Pointe Gourde principle.

KIRBY J: I think you are going to have to express that, if you are given special leave, in terms of a principle, not in terms of a case.

MR MORRIS: I agree with that, your Honour.

KIRBY J: Because, speaking for myself, you are not going to help me if you come up here talking about the Chapman principle and the Melwood principle and the Pointe Gourde principle. I do not live in that world, so, you are going to have to articulate the - - -

GUMMOW J: And they are going to have to be connected to the words of this statute.

MR MORRIS: Yes.

GUMMOW J: But that being said, what are the revisions you would seek to make, in outline?

MR MORRIS: The first revision is that we would seek to contend that in assessing compensation pursuant to section 98(2) of the Planning and Environment Act, financial loss is to be assessed disregarding the proposal which gives rise to the refusal to grant the permit on the ground that the land will be needed for a public purpose.

GUMMOW J: All right, that is point one. What was the other one?

MR MORRIS: The other one was the point suggested by his Honour Justice Callinan which, as I understand it, is to the effect that - - -

GUMMOW J: You do not have to accept it.

MR MORRIS: I am sorry?

GUMMOW J: Gifts can be dangerous, sometimes, but how do you understand it?

CALLINAN J: I think you come close to it in 2.41 of your grounds, do you not, at page 36?

KIRBY J: Essentially, it is that notwithstanding that there may be two causes, that if one of them is an operative cause, that is enough for you to recover under the Act.

MR MORRIS: Precisely.

KIRBY J: That is the essence of it, but you would have to word it in an appropriate way.

MR MORRIS: Yes, your Honour.

GUMMOW J: Now, do you also seek to challenge the decision of the Victorian Court of Appeal which you say disturbed the previous understanding in that State?

MR MORRIS: I would contend that the Court of Appeal's decision in Halwood was wrong and - - -

GUMMOW J: Do you do that at the moment in your - - -

MR MORRIS: Not specifically, and the reason we have not done it - - -

GUMMOW J: I am not taking blame; I am just trying to make it clear. So, you would need to specify that as well, would you not?

MR MORRIS: Yes, we would.

GUMMOW J: So, that would be three matters.

MR MORRIS: Although I do want to point out that it is not essential that that succeed in order to win the appeal.

GUMMOW J: I am not forcing you to do anything; I just want to know what you want to do.

MR MORRIS: Yes, we want to do that, your Honour.

GUMMOW J: All right.

CALLINAN J: You would want to preserve 2.6, would you not, in your grounds of appeal, at application book 37?

MR MORRIS: Yes, your Honour.

CALLINAN J: And 2.5?

MR MORRIS: But, in a sense, 2.6 is, I would say, fundamentally the same as the principle that I have labelled, perhaps regrettably, the Pointe Gourde point.

GUMMOW J: All right.

KIRBY J: Just tell me this - I agree with Justice Callinan's view that the mere fact that it is dealing only with a State statute is not a reason for refusing special, but does this raise questions of relevance to other compensation statutes in other States?

MR MORRIS: The Queensland and Tasmanian legislation is similar in the sense that in Tasmania one can make a similar type of claim. In Queensland the right to make a claim is even more extensive. There it involves not only where land is needed for a public purpose but what I will call down-zoning or back-zoning. In New South Wales they have a different system. The system there is that if a person has land identified as needed for a public purpose, they can compel the authority to compulsorily acquire their land if they can establish hardship.

KIRBY J: I think if you are granted special leave you will have to provide us with the detail of the other States and Territories.

MR MORRIS: Yes, and in relation to that - - -

GUMMOW J: And the Commonwealth Act, too. What does the Commonwealth Act do?

MR MORRIS: I am not aware of any system with the Commonwealth Act.

KIRBY J: The Lands Acquisition Act has a different scheme, I think.

MR MORRIS: Yes, I am not aware that this - - -

CALLINAN J: Well, the Commonwealth is not a planning authority, so that is why it does not arise.

MR MORRIS: That is right.

KIRBY J: Yes. I do not want you to elaborate that now. I just make the point that if you are granted special leave we would need analogies with other jurisdictions.

MR MORRIS: The point I would make is it does go beyond Victoria, but the more important point is that it is a fundamental issue in Victoria because it regulates - the Halwood decision and the Analed decision had been fundamental in regulating the relationship between public authorities and land owners and it will have significant ramifications for the nature of that relationship and the fairness of it.

GUMMOW J: All right. We will hear from Mr Delany, I think.

MR MORRIS: As your Honour pleases.

MR DELANY: If the Court pleases, can I deal first with the question of the general application, or otherwise, of this concept of compensation for financial loss. The Victorian statute and the Tasmanian statute are the only ones that make provision for financial loss. The Queensland statute does make provision for compensation but not for financial loss. Now, really the question the statute raises is not so much whether or not the Pointe Gourde principle, or the idea that one should disregard all steps in the process in assessing compensation - that is not really raised by this statute.

What it raises is whether or not financial loss has been sustained by this claimant and that is really what the statute raises and also what the facts of the case raised and that is why it is my submission that the issues raised in the proceeding are not of general application.

KIRBY J: Yes, but the judge has to have a theory of the operation of the Act in order to test the causation question.

MR DELANY: Yes, I accept that, your Honour.

KIRBY J: The suggestion is that the judge and the Court of Appeal confirming her decision have had a theory of the Act which in law is incorrect.

MR DELANY: Can I perhaps deal with that by stepping sideways for a moment and saying that we have two statutes that are relevant in Victoria. One is the Planning and Environment Act with which this case was concerned, and under that Act one has to establish financial loss in order to obtain compensation for planning blight. There is then the Land Acquisition and Compensation Act. Under that Act one is entitled to compensation upon the acquisition of the same land, disregarding any step in the acquisition process.

Now, what happened here is that there was an application for a planning permit that was refused and it was asserted that financial loss was sustained. Notwithstanding that the planning permit application was refused, if the land is acquired, the claimant will still be in a position to recover compensation upon the acquisition of land, disregarding any consideration that it might have paid a lower price when it purchased. So that the scheme that her Honour was operating within, or the background to her Honour's decision, was that there is one statute providing for financial loss for planning blight, there is another statute providing for compensation upon the acquisition of land and in that second instance, under that next step, if you like, there would have been compensation payable and it would have disregarded the price paid at purchase.

So that when his Honour Justice Callinan said they seem to have lost their rights to compensation, in my submission, that is not right. What they have done is they are in exactly the same position after the refusal as they were in when they bought the land. They bought blighted land, with a right to claim compensation, if acquired. They still had that after the permit refusal.

CALLINAN J: And you say that is the subject of specific provision in the contract that I referred to before, the term - - -

MR DELANY: Well, it gives effect to the provision in the contract that your Honour - - -

CALLINAN J: At page 5 it says:

All compensation paid for the said lots required by the Road Construction Authority shall be the property of the Purchaser.

MR DELANY: That is so, your Honour.

CALLINAN J: That contemplates the operation of the other statute.

MR DELANY: In my submission, that is so.

CALLINAN J: Yes.

MR DELANY: So it is not that they have lost the right to compensation. If one looks at this case then and says, "Well, should the Pointe Gourde principle", as it has been referred to, "apply to the assessment of loss under this statute?", one has to then ask, in my submission, two questions. The first is, "How does that fit with the language of the statute?" The second is, "Is this case a suitable vehicle for consideration of the question?" If I can deal with the second point first, because, in my submission, this case is utterly inappropriate, as - - -

CALLINAN J: Just before you come to that - and I understand what you have just been saying. But say, for example, the resuming authority does not resume for another 30 years. The value of the land will have been diminished, effectively, throughout that period.

MR DELANY: Yes, I accept that that is so, your Honour, and that is why the question in this case really then turns on a question of fact, whether the particular person affected by such a course of conduct in fact sustains a loss. Now, what her Honour found, as a question of fact, was that looking at the circumstances of the purchase they had not sustained a loss. If I had land which I owned before any proposals and then I applied for a permit and it were refused, I do not think anyone could argue that I would not have sustained a loss, but this case really turned on its peculiar facts.

Your Honour raised the issue of the Halwood decision previously and suggested that her Honour might have applied that on the basis she was bound. What Halwood was about was where land was actually reserved, which is a different statutory provision giving rise to compensation, and under that provision the refusal of the permit merely acts as the trigger to the entitlement to compensation and compensation is assessed for the reservation.

Now, his Honour Justice Batt, at first instance in that case, held that it would not be open to a court to find that a purchaser of reserved land had suffered a loss. He said that was a matter of law, and your Honours may consider that in those circumstances her Honour, the trial judge here, felt bound by it. But her Honour really, in essence, still had to consider a question of fact and that is what she considered here.

Perhaps the way the case was conducted is instructive in that regard because the permit that was refused was for a plan for, I think, 130-something units on a plan of subdivision, but the way the case was conducted before her Honour had no reference to that plan. It was conducted by reference to a 23-lot plan of subdivision that had never been put to the council and had never been refused. What the statute provides is compensation for financial loss suffered as the natural, direct and reasonable consequence of the refusal.

Leaving aside any other points, it could not possibly have been open to the claimant to establish that financial loss because the plan it relied on had never been submitted to the council.

CALLINAN J: And you say that what was decided here really does not touch or in any way diminish what was said in Pointe Gourde or in Melwood Units. If and when the land is resumed no regard will be had to the fact that it may not have been approved - no regard will be had to the fact of the resumption itself or the use to which the land is going to be put, that is as a road. It will be treated as if it had all the potential that it would have had but for the resumption. That, therefore, does not touch Melwood Units.

MR DELANY: That is so, your Honour. There are specific provisions in 43(1)(a) and (d), I think it is, of the Land Acquisition and Compensation Act. It gives statutory effect to that requirement and in a practical sense, in this case, it would mean that the fact that the claimant bought this affected part of the land at a reduced price would be disregarded, so that the entitlement to the compensation is still there. What this section is concerned with is financial loss. In the decisions in Studley Developments Justice Gobbo, at first instance, and then approved of by the Court of Appeal in Victoria, said that it was essential as a starting point that you first establish a loss.

What was sought to be argued in that case was that you first of all take a before and after value of the land, that is an unaffected value and an affected value, deduct them and, there you are, you have a loss, and then you just fix the compensation. What was held in that case was that was really putting the cart before the horse. It was assuming - - -

CALLINAN J: Do you say that the cases in this jurisdiction establish that if a purchaser buys with knowledge that purchaser can never recover under this section?

MR DELANY: Yes, I think that is generally a fair statement.

CALLINAN J: That is fairly far reaching, is it not?

MR DELANY: They might recover if, factually, for some unusual reason they could establish that the refusal was the cause of the loss, but if they were fully informed, based on the decision in Halwood, which was approved in the Victorian Court of Appeal, they could not recover and that is a question that really raises issues of the commonsense approach to assessment of loss, if you like.

If you take those series of cases that this Court has dealt with over the last few years and you apply them to the factual circumstances here, as a matter of commonsense, if I buy land that is blighted and with the full knowledge of the blight, in the knowledge that if it is acquired I will get compensation later, how can it be said that I suffer a loss when I put in a permit application to trigger a compensation claim, or, taking your Honour's other point as to whether there might be two causes, the statute, in my submission, is quite specific, that it has to be the cause of the loss and that issue was considered by Justice Tadgell in the Victorian Court of Appeal in the Halwood Case.

So, in my submission, the case does not, first of all, raise questions of general importance because the statute is of particular language. Secondly, that because of the particular facts here, it is not a suitable case for the grant of special leave and that merely the Pointe Gourde principle, which is the main issue sought to be raised by the applicant is concerned, there is no question that it applies to resumption law, which is the issue that is identified as the special leave issue, and, in my submission, different considerations apply to the assessment of financial loss.

CALLINAN J: And you have, you say, a statutory provision which is quite unique?

MR DELANY: Yes, in my submission. The Tasmanian provision is similar, your Honour, I should say in fairness, but they are the only two provisions. The other States either do not have a provision, or the Queensland provision that was mentioned earlier does not deal with financial loss.

CALLINAN J: But you would construe the statute. You do not look at Pointe Gourde; you would construe the statute here.

MR DELANY: In my submission, that is so, your Honour, yes. If your Honours please.

GUMMOW J: Yes, thank you, Mr Delany. Well, Mr Morris, what do you say to that?

CALLINAN J: I do not know whether you have me now, Mr Morris.

KIRBY J: The dream has evaporated.

MR MORRIS: If your Honours would have a look at page 5 of the application book and the terms of the contractual provision, you will see, at line 5, that is says:

So far as is legally permissible the Vendors on signing of this Contract . . . assign to the Purchasers [sic] all their rights (if any) to continue the appeal No 88/1497 to the Administrative Appeals Tribunal in the names of the Vendors at the expense of the Purchaser. All compensation paid for the said lots required by the Road Construction Authority shall be the property of the Purchaser.

The whole purpose of pursuing the appeal was to create a right to claim compensation under the Planning and Environment Act. At that time, it was thought that the refusal of the permit by the Tribunal would trigger such a right. As her Honour notes on page 7 in paragraph 9, it subsequently came out in the case of City of Nunawading v Day [1992] that such a right would only arise if "the responsible authority" refused and not the Tribunal.

So, there can be no question that the intent of the contractual provision was not just to preserve to the purchaser rights for compensation on ultimate compulsory acquisition, but also rights to claim compensation during the long period of sterilisation before acquisition, being a right to claim compensation under the Planning Act. It is true that ultimately if - and that might be 30 years hence - the land is acquired, then the land will be valued for compensation purposes, disregarding the blight caused by the road proposal. But that is little comfort to a landowner who must hold the land for 20 or 30 years. It effectively robs the landowner of the value of that land and that is the - - -

CALLINAN J: But there is a competing consideration and that is that it is desirable that public authorities make their intentions known as far ahead as possible so that people will not be misled when they buy land.

MR MORRIS: That is true but - - -

CALLINAN J: There is a competing beneficial public policy, as it were.

MR MORRIS: But the scheme of the legislation is that landowners in that situation be able to obtain compensation and when the land is ultimately acquired any compensation paid under the Planning Act is taken into account in assessing the compensation for compulsory acquisition. The principle that one disregards the proposal in planning compensation cases has been acknowledged as a principle of the common law by Mr Justice Gobbo.

GUMMOW J: Common law?

MR MORRIS: It has been said to be a principle of the common law by Mr Justice Gobbo.

GUMMOW J: All of this is rooted in statute. You can have a common law in the statute, I suppose, in some loose sense. Pointe Gourde is an example, really, but I will not - - -

KIRBY J: Statute or mythology.

GUMMOW J: Anyway, I am holding you up.

MR MORRIS: It is a judge-made development of principles that are embodied in general terms in a statute. The general terms here are loss that is caused by a refusal. Based on that general statutory provision that is commonly found in statutes, a judge-made development of that is a principle for applying those words and assessing loss when those circumstances arise and, in our submission - - -

KIRBY J: There are recurring situations which judges have seen and they have developed principles to save time so that people know where they stand.

MR MORRIS: That is right, and not only that but in the Planning and Environment Act - it is section 104 - there is a specific provision which is designed to express the maximum amount that can be paid under section 98, including under section 98(2), and that is expressed to be measured by a "before" and "after" method, and in the "before" situation one is commanded to disregard the circumstance that gives rise to the refusal. If the Court pleases.

GUMMOW J: Yes, thank you, Mr Morris. We will take a short adjournment.

AT 10.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

GUMMOW J: Having regard to the particular facts of this case and to the statute in question, there is no reason to doubt the correctness of the conclusion of the primary judge, confirmed by the Court of Appeal, from which the application for special leave comes. Nor, on those findings, would this be a suitable vehicle for the High Court to consider the authority of Pointe Gourde. However, this rejection of the special leave application should not be taken as an affirmation of any principle that knowledge must, of necessity, in every case defeat a claim for compensation.

Special leave is refused and refused with costs.

AT 11.04 AM THE MATTER WAS CONCLUDED