The Jurisdiction to Order Repayment
57In Alinta LGA Ltd (formerly The Australian Gas Light Company) v Mines Subsidence Board [2008] HCA 17; (2008) 244 ALR 276, five judges of the High Court looked at the role and powers of this Court in class 3 matters generally. After setting out s 16 in the context of an observation that this is "a superior court but of limited jurisdiction", their Honours said (at [11]):
The powers of the LEC when hearing and disposing of appeals in Class 3 of its jurisdiction are described by s 39. They include the following. First, in accordance with s 39(3), the "appeal" is conducted by way of a de novo rehearing; fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision under appeal may be received. Secondly, for the purposes of hearing and disposing of the "appeal", the LEC has all the functions and discretions which the person or body whose decision is under appeal had in respect of "the matter the subject of the appeal" (s 39(2)). Thirdly, the decision of the LEC on the "appeal" is deemed, where appropriate, to be the final decision of the relevant person or body and shall be given effect accordingly (s 39(5)). Proceedings in Class 3 of the LEC's jurisdiction are conducted with as little formality and technicality as possible (s 38(1)). The LEC is not bound by the rules of evidence (s 38(2)) and may obtain the assistance of other persons (s 38(3)), such as an assessor.
58Determination of any objection lodged with this Court to a compensation notice from a resuming entity is clearly within the class 3 jurisdiction of this Court, under the specific terms of s66 of the JTC Act, and ss19(e), 24 and 25 of the Court Act, and s 22 of the Court Act provides (emphasis added):
22 Determination of matter completely and finally
The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
59In National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; (1990) 71 LGRA 286, the New South Wales Court of Appeal held that, despite the terms of s 22, this Court had no "pendent" jurisdiction.
60Section 16(1A) was inserted into the Court Act by the Local Government (Consequential Provisions) Act 1993, and commenced on 1 July 1993, and provides as follows (emphasis added):
16 Jurisdiction of the Court generally
...
(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
...
61It is to be noted that s 16(1A) expressly confers on this Court jurisdiction to hear and dispose of matters over which it would not have jurisdiction, but for their being ancillary to a matter within jurisdiction, whereas s 22 confers a power to grant an appropriate remedy, in respect of a "properly brought" claim, where that relief assists in achieving finality to the litigation. The distinction between the two concepts was noted by Spigelman CJ in Newcastle City Council v Caverstock Group Pty Ltd ("Caverstock") [2008] NSWCA 249; (2008) 163 LGERA 83 (at [48]), relying upon Gibbs J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 (at 489).
62The RTA argues in the present matter that this Court has jurisdiction to make an order for repayment, by virtue of s 48 (5) and (6) of the JTC Act, and s 16(1A) of the Court Act.
63The role and scope of s 16(1A) has arisen for discussion in a number of cases since its enactment in 1993, and it is appropriate to discuss, and quote in regrettable detail, the relevant line of authority established. The nuances in judicial reasoning on s 16(1A) are of some significance to this case.
64In NTL Australia Pty Ltd v Minister for Land and Water Conservation("NTL") [2001] NSWLEC 5; (2001) 112 LGERA 403, Pearlman Ch J noted some cases decided in the period 1993-2001, in these terms (at [27]):
Nelson v Ballina Shire Council (1993) 80 LGERA 271 - held that a council's contractual obligation to carry out certain roadworks was enforceable under s 16(1A) as a matter ancillary to the enforcement of a duty imposed on the council by s 94(3) of the Environmental Planning and Assessment Act 1979;
Figgis & Jefferson Pty Ltd v Mosman Municipal Council (1993) 81 LGERA 423 - held that, in a merit building appeal against a council's refusal of an application for approval of off-street parking, s 16(1A) did not enable the Court to exercise a primary administrative discretion to grant a permit under the Roads Act 1993 for a footpath crossing;
Mitchell v Waugh and Anor (1993) 82 LGERA 44 - held, in a claim for relief under the Encroachment of Buildings Act 1922, that s 16(1A) conferred jurisdiction upon the Court to make orders under the Dividing Fences Act 1991, but not to deal with claims based upon trespass and nuisance;
Butland v Cole (1995) 87 LGERA 122 - held that a claim for damages based upon trespass (as distinct from being based on an encroachment) was not ancillary to a claim for relief under the Encroachment of Buildings Act 1922, and s 16(1A) did not confer jurisdiction on the Court in respect of such a claim;
N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248 - held that s 16(1A) did not confer jurisdiction upon the Court to hear and dispose of a claim for damages under s 96 of the Public Works Act 1912 as ancillary to a claim for compensation under the Land Acquisition (Just Terms Compensation) Act 1991;
Duncan v Moore and Ors (1999) 103 LGERA 312 - held that s 16(1A) did not confer jurisdiction upon the Court to hear and dispose of claims for breaches of the Parliamentary Electorates and Elections Act 1912 and the Electricity Supply Act 1995 as ancillary to a claim for a breach of the Environmental Planning and Assessment Act 1979 by reason of a failure to obtain development consent.
65In Nix and Dunn v Pittwater Council ("Nix") (1994) 84 LGERA 199, there were proceedings in both classes 1 and 4, including a cross-claim for damage for nuisance. At the same time there was on foot in the Supreme Court a separate action in nuisance. Gleeson CJ said (at 203ff):
The question whether the narrower nuisance claim, as sought to be propounded in the proposed cross-claim, was a matter ancillary to the matters the subject of the class 4 and class 1 proceedings within the meaning of s 16(lA), is an artificial question by reason of the artificial nature of the narrower claim in nuisance.
...
The purpose of the legislature in enacting s 16(lA) was to reduce the number of cases which might give rise to a multiplicity of proceedings by amplifying, to some extent, the jurisdiction of the Land and Environment Court. However, the question of what might involve inappropriate multiplicity of proceedings, and the question of the extent of the intended amplification, give rise to an issue of the kind that was agitated in the present appeal.
...
The New South Wales legislature used, in s 16(lA), the word "ancillary" rather than "associated". In his Second Reading Speech, the minister introducing the amending legislation spoke of removing the necessity for "genuinely ancillary proceedings" to be removed to another court: (NSW, Legislative Assembly, Hansard, 11 March 1993, at 725).
The relationship between two matters referred to in s 16(lA) is clearly intended to be a narrower one than that of association. The relevant dictionary meanings given to "ancillary" are incidental, accessory, or auxiliary: Macquarie Dictionary. The word derives from the Latin "ancilla", a hand-maid: see the discussion in Koala Motels Ply Ltd v Chief Licensing Inspector (1977) 18 ALR 12.
The matter the subject of the equity proceedings in this case could not reasonably have been regarded as ancillary to the matters the subject of the Land and Environment Court proceedings. It may be that the narrowing of the issues in the proposed cross-application for nuisance, and the elimination of two parties, who in the equity proceedings were proper and arguably necessary parties, amounted to an attempt to overcome that problem. However that may be, Bannon J was right, on discretionary grounds, to refuse to permit the artificially and inappropriately narrowed nuisance claim to proceed before him.
66In Frank Calabro Pty Ltd v D & K Maaka ([1998] NSWLEC 11), at first instance, Bignold J found that the Court lacked jurisdiction to determine a challenge to a building approval on the basis of its lapsing. He observed:
Secondly I would note that no argument was advanced in the present case that the Applicant's claims properly fell within this Court's "ancillary jurisdiction" expressly conferred by s16(1A) of the Land and Environment Court Act 1979. Despite the absence of argument, and because I am conscious of the serious implications of a conclusion that, after the case has been fully presented, the Court lacks jurisdiction to entertain the case, I have myself examined the question. However in the light of the albeit limited judicial exposition of s16(1A) I do not think that it can be reasonably concluded that the Applicant's claims founded on the effect of s315 of the Local Government Act 1919 on the 1991 Building Approval, qualify as "a matter that is ancillary to a matter that falls within its jurisdiction" within the meaning of s16(1A). This conclusion, is I think, inevitable given my conclusion that the Applicant's claims are entirely (or fundamentally) founded upon s315 of the Local Government Act 1919. In these circumstances it would be a material misdescription to regard these claims as raising an "ancillary matter". They are, instead, the fundamental matter raised by the proceedings.
67On appeal ([1999] NSWCA 132), Stein JA (Meagher and Powell JJA agreeing without comment) found that the case was "squarely within the jurisdiction of the court" and said (at [16]-[17]):
16. ...In considering the issue within jurisdiction, I cannot appreciate how it can be concluded that the question of whether the pre-existing approval under the 1919 Act had lapsed was not a matter that is ancillary to a matter that falls within its jurisdiction', s 16(1A) of the Land and Environment Court Act. It is clearly ancillary. Again, it may be that his Honour was lead into error by his mistaken catagorisation of the proceedings as entirely founded on s 315 of the Local Government Act 1919. 17 Even before the inclusion of s 16(1A) in the Land and Environment Court Act, it was open to the Land and Environment Court to determine matters which were incidental to matters within the court's jurisdiction, see for example, Tweed Byron Aboriginal Land Council v The Minister (1990) 69 LGRA 269 at 272 - 273. Although the decision was reversed on appeal, the question of jurisdiction of the court to determine matters incidental to a matter within jurisdiction was never doubted. 68In NTL, Pearlman Ch J adopted (at [28]) the following propositions, drawn from the authorities she had summarized (in [64] above): (a) This Court has jurisdiction to decide all questions of law and fact which it needs to decide in order to deal with a claim which is properly within its jurisdiction (National Parks v Stables Perisher); (b) That jurisdiction extends to all matters that are a step in the cause of action which this Court does have jurisdiction to determine, in the sense that those matters are incidental to the matter in which the Court has jurisdiction (Minister for Minerals and Energy v Vaughan-Taylor [(1991) 73 LGRA 115]); (c) Although s 16(1A) amplifies to some extent the jurisdiction of this Court (Nix and Dunn v Pittwater Council), it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix and Dunn v Pittwater Council). I respectfully adopt, in this connection, the statement of Talbot J in Duncan v Moore at p 319 that "... the matters brought within the Court's jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction"; (d) Section 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction, such as a claim for damages for tort or trespass (eg Mitchell v Waugh). 69In Scharer v New South Wales ("Scharer") [2001] NSWCA 360; (2001) 53 NSWLR 299 (10 October 2001), Stein JA (Hodgson JA agreeing) held that a claim for damages was clearly ancillary to the enforcement of a right of way (under the National Parks and Wildlife Act 1974). His Honour said (at [46]-[52]): 46 This leaves for consideration the claim for damages sought in order D. In this respect, I am unable to see why it cannot be concluded that it is also part of the enforcement of the same right. Thus the Land and Environment Court would have jurisdiction. It is not deprived of jurisdiction by reason of the majority decision in Stables Perisher. The ratio of that decision (Gleeson CJ and Meagher JA) is that the Land and Environment Court does not have jurisdiction to hear a claim in tort for general damages, see 580G - 581A. In Stables the main claim in the proceedings was in negligence for general damages (see 575B-C). 47 Further, the introductory words in s 20(2) that the Land and Environment Court has the same civil jurisdiction as the Supreme Court would, but for section 71' must be given cognisance. If it were not for the LEC Act, the Supreme Court would undoubtedly have jurisdiction to make all of the orders sought, including damages.
48 There is a further reason why the Land and Environment Court could entertain the subject damages claim. The enactment of s 16(1A) of the LEC was the legislative response to Stables Perisher. This provides:
The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
49 Assuming for the moment that the Land and Environment Court does not have the power in these proceedings to award damages as part of the relief available to enforce the right, it seems to me that s 16(1A) fills the void. Damages are plainly ancillary to the matters which fall within jurisdiction; the existence of the right and its enforcement by injunctive orders or declaratory relief.
50 Nothing in Nix persuades me from this conclusion. Nix was decided in the Land and Environment Court as a matter of discretion, which the Court of Appeal held was open to the trial judge. In obiter Gleeson CJ indicated that the claim based in nuisance sought to be filed as a cross-claim in the Land and Environment Court, could not reasonably be regarded as ancillary. That conclusion is understandable when one examines the facts involved in Nix. They are a far cry from the present situation.
51 Here the damages issue can plainly be seen as ancillary', or, to use the words of Gleeson CJ, as incidental', accessory' or auxiliary', (Nix at 205). In NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] 112 LGERA 403 at 411-413 Pearlman J comprehensively refers to the authorities on the provision.
52 It follows, in my opinion, that Santow J was correct to transfer the proceedings to the Land and Environment Court. His Honour did not need to reserve leave to the appellant to apply (in the Supreme Court) to deal with any outstanding claim for damages following adjudication in the Land and Environment Court. This was unnecessary and, on one view, not available to him.
70In Neighbourhood Association DP 285121 v Murray Shire Council ("Murray") [2001] NSWLEC 247; (2001) 117 LGERA 95 (29 October 2001), Pearlman Ch J, sitting in class 4, noted (at [18] - [22]):
18. It was held in National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 71 LGRA 286 that the resolution of a claim for general damages in negligence is beyond the jurisdiction of this Court, or, in other words, the jurisdiction to hear and dispose of such a claim is not conferred upon this Court by s 20(2).
19. Since National Parks v Stables Perisher, the Court Act has been amended by the insertion of s 16(1A) which provides as follows:
16(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
20. The precise ambit of jurisdiction conferred by s 16(1A) has been the subject of a number of decisions of this Court and of the Court of Appeal since the section was enacted in 1993, many of which are referred to in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 412 and 413. The position seems to be that s 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction (Mitchell v Waugh and Anor (1993) 82 LGERA 44). Thus, in obiter remarks in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 205, Gleeson CJ stated that a claim for damages for nuisance could not reasonably be regarded as ancillary to class 4 proceedings alleging the carrying out of unauthorised earthworks in breach of the Environmental Planning and Assessment Act 1979. On the other hand, in Scharer v State of New South Wales [2001] NSWCA 360, it was held by Stein JA with whom Hodgson JA agreed (Davies AJA dissenting) that a claim for damages for obstructing a right of way in a national park was ancillary to proceedings to be taken in this Court in its exclusive jurisdiction to enforce that right of way.
21. In this case, the applicant claims damages for negligence arising out of the installation of the sewerage system. In my opinion, this claim as framed is a general claim for damages in tort, and it is not ancillary to the applicant's second claim, which arises out of alleged breaches of the development contract, and which, by virtue of s 20(2) of the Court Act, falls within the jurisdiction of the Court. Moreover, the extended jurisdiction of this Court conferred by s 16(1A) need not be relied upon by the applicant to base its claim for damages for breaches of the development contract, because the power to award such damages is expressly provided for in s 20(2)(d) of the Court Act.
22. Hence, I conclude that, so far as the class 4 application comprises a claim for damages for negligence, it should be struck out, and it will be necessary, if the whole claim is not otherwise summarily dismissed, to consider precisely what parts of the class 4 application and the points of claim fall into that category.
71In N & S Oliveri Pty Ltd v Fairfield City Council [2002] NSWLEC 35, 121 LGERA 90 (8 May 2002), Cowdroy J summarised the relevant authorities on damages thus (at [34] - [37]):
34. The decisions referred to above fall within two distinct categories. First, there are those cases where an applicant takes action to recover damages arising out of a common law claim which does not flow directly from the breach of the relevant environmental or planning law. The authorities establish that such a claim is not within the jurisdiction of this Court nor within its ancillary jurisdiction as conferred by s 16(1A) of the EP&A Act because it constitutes a separate claim. Thus in Nix the obiter remarks of Gleeson CJ (at p 203-204) relating to the limit of the Court's jurisdiction were made in reference to a cross claim for nuisance. In Neighbourhood Association DP 285121 the Chief Judge made her finding that this Court had no jurisdiction in respect of a claim for tort. In each of these authorities the claims arose out of the common law and was not ancillary to the breach of the environmental or planning law.
35. The second category of cases are those in which damages arise directly as a consequence of the breach of a statute in respect of which this Court has jurisdiction. In Scharer Stein JA held that this Court had jurisdiction to hear such a claim on two possible grounds. The claim could be determined because it constituted "...part of the enforcement of the same right..." (i.e. within s 20(2) of the LEC Act) arising in consequence of the breach of the environmental statute, or alternatively because it was ancillary within the terms of s16 (1A) of the LEC Act. It should be noted that in Stables Perisher, the Court of Appeal was then of the opinion that s 22 of the LEC Act could not extend the jurisdiction of the Court to award damages.
36. Sharer thus clarifies the power of this Court to award damages. If a claim can be categorised as one which constitutes part of the enforcement of the right arising out the breach of a planning law or if such claim is ancillary to such breach, the Court possesses the requisite jurisdiction to hear the claim.
37. The imposition of an invalid condition in a planning consent constitutes a breach of the EP&A Act (see: Building Owners and Managers Association of Australia at p 72), and the claim for damages arises directly in consequence of such breach and is incidental thereto. The circumstances are indistinguishable from Scharer but distinct from NTL, Nix and Neighbourhood Association DP 285121. The Court therefore determines that the claim for damages is one which may be entertained only by the Court pursuant to s 16(1A) of the LEC Act.
72In Wollong Pty Ltd v Shoalhaven City Council ("Wollong")[2002] NSWLEC 164; (2002) 122 LGERA 331 (4 October 2002), Talbot J, in dealing with a claim for interest on the amount of a compensation advance to be refunded, held that this Court could not order payment/repayment, because it had decided, within jurisdiction, the amount properly payable, under s 66 of the JTC Act. His Honour said (at [28]-[32]):
28. Section 16(1A) of the Land and Environment Court Act 1979 ("the Court Act") provides no assistance in the present case as the Court, having finally disposed of all questions of compensation, is deprived of any capacity to determine a matter ancillary to an outstanding matter that falls to be determined within jurisdiction. 29. In the Court's view, the terms of s 48(6) of the Just Terms Act provide the most persuasive authority for determining that the intention of the legislature was to enable an authority of the State to recover an overpayment as a debt in another court of competent jurisdiction. The jurisdiction given to the Land and Environment Court under the Just Terms Act is, as stated earlier, to hear and dispose of the person's claim for compensation. No express jurisdiction is given to the Court whereby it may enforce any determination of compensation by ordering recovery against the resuming authority. Section 68 provides that payment of compensation in respect of matters before the Court is to be made in accordance with decision of the Court. Once the Court has made its decision it has disposed of the person's claim for compensation within jurisdiction. Enforcement of payment, or any other rights which arise as a consequence of the decision of the Court, do not, therefore, fall within jurisdiction of this Court.30. The Court is not satisfied it has jurisdiction to make an order for recovery of the overpayment. Hence it follows that there is no jurisdiction to order the payment of interest on that overpayment. In reaching this conclusion the Court has had regard to s 19(e), s 24, s 25 and s 69A of the Court Act. None of these provisions take the matter any further. They reinforce the limited extent of the Court's jurisdiction. 31. Section 66(2) of the Just Terms Act merely authorises the Court to hear and dispose of the person's claim for compensation. It is, therefore, doubtful that the Court can enforce an order for payment of compensation. It is not necessary for me to decide this point. However, the Court does not have inherent jurisdiction to make such orders as it deems fit, unless there is an express statutory authority to do so (DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226). 32. The application for payment of interest on the amount of compensation overpaid by the respondent to the applicant cannot be entertained in this Court. Even if the claim is within jurisdiction, the Court is not satisfied that there is a statutory or common law right for recovery of interest in the circumstances.
73In Grant v Brewarrina Shire Council [2003] NSWLEC 41 (11 November 2002), Lloyd J dealt with claims in class 4 for two declarations and an award of damages, concerning orders under s 121B of the EPA Act. His Honour (at [7]-[10]) recited what s 16(1A) provides, and what Scharer, Murray and Oliveri had decided, before saying (at [11]-[13]):
11 In applying the above-mentioned authorities to the present case, it is clear that the claim for declaratory relief falls fairly and squarely within this Court's jurisdiction described in s 20(2) of the Land and Environment Court Act; that is, it is a claim to make declarations of right in relation to a right, obligation or duty in the exercise of a function conferred or imposed by planning or environmental law. By sub-s (3) of s 20 of the Land and Environment Court Act the provisions of the EP&A Act 1979 are a planning or environmental law.12 The actions of the council in purported reliance on its powers under s 121ZJ of the EP&A Act which in turn are dependent upon a purported exercise of its powers under s 121B of that Act, are therefore matters that fall fairly and squarely within s 20(2) of the Land and Environment Court Act, so that the present claim for damages is ancillary to a matter falling within the Court's jurisdiction.13 In other words, I hold that the Court has jurisdiction to hear and determine the claim for damages arising from the council's breach of the Act.
74In Hawkesbury City Council v Dundler [2005] NSWLEC 662 (1 August 2005), Cowdroy J had to consider making "ancillary orders" requiring sale of the property the subject of "clean up" proceedings. His Honour, in the context of s 16(1A), referred to Scharer, NTL, and Nix, and said (at [41]-[44]):
41 The above authorities demonstrate that despite the existence of s 16(1A), the Court is not invested with broad powers to make orders relating to ancillary matters. There must be a step in the cause of action for s 16(1A) to apply. Section 16(1A) does not operate to confer jurisdiction on the Court in respect of a separate and independent matter.42 In these proceedings compliance with the first order and second order will be achieved by a restraining order prohibiting occupation of the premises until the premises are fit for occupation and, secondly, by a clean up of the premises. A sale of the premises is not a necessary step in that process. That is, such sale is not a step in the cause of action in which this Court has jurisdiction. 43 It might be convenient for the first respondent to have this Court make an order for the sale of the premises and it might be convenient for the Council to recoup its costs resulting from such sale. However those considerations are insufficient to render a sale of the premises a matter which is ancillary to the essential proceedings before the Court. In any event the costs of the Council in cleaning up the premises are recoverable by statute: see 678(6) of the Local Government Act 1993. The first respondent retains the power to sell the property at any time. That power should be exercised if she considers this to be the appropriate course. It is not, however, a matter within the ancillary jurisdiction of the Court.44 Section 20(2) of the Court Act similarly does not vest jurisdiction of the Court since it is not necessary for a sale of the property to be effected to enforce the obligation conferred by an environmental planning law. For these reasons the Court determines that it does not possess the jurisdiction to make an order for the sale of the premises.
75In Woollahra Municipal Council v Baranov [2006] NSWLEC 97; (2006) 114 LGERA 96 (2 March 2006), Jagot J relied in part on s 16(1A) when considering a claim that the respondent pay the applicant an amount of money on account of the costs the applicant incurred in carrying out some orders of the court regarding sanitisation of a property (see [27]).
76In Arnold v Minister Administering the Water Management Act 2000 & Ors [2007] NSWLEC 531; (2007) 157 LGERA 379 (21 December 2007), Lloyd J dealt with a number of claims including for declarations and orders for compensation (see, e.g., [15]). The parties were in dispute about the effect of s 16(1A) on the subject claims, and his Honour said (at [81]-[86]):
81 The case of Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 concerned an appeal against an interlocutory decision of the Land and Environment Court dismissing a motion to add a cross-claim, and against a final judgment determining injunction proceedings and a development appeal. The background to the appeal is as follows. The Council commenced injunction proceedings in the Land and Environment Court to restrain the appellants from carrying out unauthorised earthworks. The appellants sought leave to file a cross-claim against the Council alleging common law nuisance. Such a claim had already been raised in proceedings commenced in the Equity Division of the Supreme Court at a time before s 16(1A) was inserted into the Land and Environment Court Act 1979. That section provides that the Court has jurisdiction to hear and dispose of any matter not falling within its express statutory jurisdiction, being a matter ancillary to a matter that falls therein. In asserting that the Land and Environment Court had jurisdiction to hear and dispose of the proposed cross-claim the appellants relied principally on s 16(1A) of the Land and Environment Court Act. The Land and Environment Court dismissed the motion on the ground that the main proceedings were commenced before the date when s 16(1A) came into force and on other discretionary grounds.
82 The Court of Appeal held that as a matter of discretion the decision of the Land and Environment Court was one that was both open to it and appropriate. The Court also noted, at 205, that the matter the subject of the Equity proceedings could not reasonably be regarded as ancillary to the matters the subject of the Land and Environment Court proceedings.
83 There is nothing in the language of the Land and Environment Court Act which shows an intention of the New South Wales Parliament confer jurisdiction to determine the claims made by the applicants against the Commonwealth in these proceedings. None of the claims against the Minister or the State are in any way contingent upon the claims made or the relief sought against the Commonwealth. Resolution of the claims against the Commonwealth is not a necessary step to the determination of the claims against the Minister or the State.
84 Moreover, the Achieving Sustainable Groundwater Entitlements ("ASGE") Joint Programme made between the Commonwealth and the State on 4 November 2005, which was tendered during argument shows that the Commonwealth's role is to provide funding for the implementation of the NWI. The State's role is, inter alia, to help achieve the program by its contribution and conduct of the ASGE project; and the Commonwealth's role is to support the project by funding. But it is only the Minister Administering the WM Act who can make a management plan under that Act.
85 Even if s 16(1A) of the Land and Environment Court Act did confer jurisdiction on this Court to hear the claims, that provision would be invalid in so far as it was said to confer federal jurisdiction on this Court. Any such jurisdiction must be found in s 39(2) of the Judiciary Act 1903, which I have already determined in par [79] to be of no assistance to the applicants in this matter. It follows that the Land and Environment Court Act does not confer jurisdiction on this Court to determine claims made against the Commonwealth in these proceedings.
86 As I have rejected all of the grounds of jurisdiction put forward by the applicants in these proceedings, it follows that this Court lacks the power to hear the claims made against the Commonwealth.
77In Caverstock (10 October 2008), it had been common ground ([49]) among the parties involved that this Court could not order repayment of overpaid s 94 contributions in the event of a class 1 appeal against the amount succeeding, but in a judgment, with which Bell JA and Handley AJA concurred without comment, Spigelman CJ said (at [50] - emphasis mine):
50 The situation that has arisen is somewhat unusual in that payment has been made pursuant to a condition before its content has been finally determined. It is clearly desirable, in the interests of avoiding further proceedings, that the Land and Environment Court should be able to determine whether or not a person who has made a payment pursuant to a condition of a consent which is challenged is entitled to a refund and, if so, how much. Although the legal principles involved in such proceedings are not within the usual jurisdiction of that Court, such an issue is so clearly related to the issues before the Court that they should be resolved together. It may be that the requisite jurisdiction is conferred by s 16(1A) of the Land and Environment Court Act, but that section was not relied upon in these proceedings. I note that in Frevcourt [Frevcourt v Wingecarribee Shire Council [2005] NSWCA 107; (2005) 139 LGERA 140] the issue of jurisdiction under s 16(1A) was not raised.
78In Gray v Macquarie Generation (No.3) [2011] NSWLEC 3 (1 February 2011), Pain J, in deciding an application for leave to amend the claim, said on the question of jurisdiction (at [88]-[90]):
88The Respondent argues that the Court has no jurisdiction under s 16(1A) (set out in par 19 above) or s 20 of the Court Act (set out in par 20 above) and cites Arnold in particular to support its submission. The Applicants assert that the Court has jurisdiction. Section 16(1) of the Court Act states that the Court has the jurisdiction vested in it by or under this or any other Act. Section 16(1A) states that the Court has jurisdiction to hear matters not falling within its jurisdiction under any other provision of the Court Act, or any other Act, if ancillary to a matter that falls within jurisdiction under the Court Act or under any other Act. Under s 20 the Court has jurisdiction to hear cases under Pt 8.4 of the PEO Act. Section 252, on which the Applicants rely, is in this part. Section 20(2) sets out the Court's powers to dispose of proceedings before it in relation to any planning or environmental law. Such laws include the PEO Act in s 20(3)(a).
89I have found that an arguable cause of action is pleaded in relation to whether there is an implied limitation in a licence condition or under the PEO Act. The FAPOC alleges an implied breach of s 115 and s 64 of the PEO Act, a statute referred to in s 20(3) as a planning and environmental law and arguably seeks to enforce an obligation or duty imposed by the PEO Act by implication, as provided for in s 20(2)(a). Alternatively whether there is a limit on statutory authority conferred by a licence is a matter essential to the determination of the primary issue of whether the Respondent has lawful authority to emit unrestricted amounts of CO 2 . I consider the Court does have jurisdiction to consider the Applicants' claim.
90The Respondent referred to Arnold where the Court of Appeal considered the extent to which the Court could exercise federal jurisdiction because of the operation of s 39(2) of the Judiciary Act 1903 (Cth) in the context of a challenge to a water sharing plan made under NSW legislation. At [75] Spigelman CJ held "that where the determination of a legal issue constitutes an essential step in the course of determining an issue that is within the jurisdiction of a court, then determination of the former will be "ancillary" to the determination of the latter." I have not determined the question of jurisdiction on the basis of whether the issues raised are ancillary to a matter within jurisdiction but note that his Honour refers to National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 where Gleeson CJ stated at 582 that the Court has the power and duty to decide questions of fact or law that need to be determined in order to resolve a matter properly brought before it.
79In Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292 (15 October 2008), Biscoe J summarized (at [13]) the above line of authority, as follows:
13 Section 16(1A) was enacted following National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) in which the Court of Appeal held that the Land and Environment Court has no jurisdiction to deal with a claim in tort for general damages. It has been held that "ancillary" is to be read as "incidental", "accessory" or "auxiliary": Scharer v State of New South Wales (2001) 53 NSWLR 299 (CA) at 308 [51] quoting Gleeson CJ in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 205. Thus, there must be a "matter" falling within jurisdiction, in relation to which the s 16(1A) matter is incidental, accessory or auxiliary. In Nix, Gleeson CJ stated that a claim for damages for nuisance could not reasonably be regarded as ancillary to Class 4 proceedings alleging the carrying out of unauthorised earthworks in breach of the Environmental Planning and Assessment Act 1979. In Scharer, Stein JA (Hodgson JA agreeing) held that a claim for damages for obstructing a right of way in a national park was ancillary to proceedings in this Court in its exclusive jurisdiction to enforce that right of way. In Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95 at [21], Pearlman J held that a claim for damages for negligence arising out of the installation of a sewerage system was not ancillary to a claim for alleged breaches of a development contract within the Court's jurisdiction. There is also a line of authority in this Court that before s 16(1A) can be invoked there must be a matter "pending before the court" to which another matter in the same proceedings can be said to be ancillary: Porter v Hunters Hill Council (2003) 131 LGERA 144 at [60], [63], [64] and the cases there cited (Pain J). ...
80Biscoe J went on to quote par [50] of Caverstock, and I note that he did not include, in his customary exhaustive but concise survey of authority, Talbot J's decision in Wollong, to which I referred (in [72] above), and to which I now return.
81There is a consistency throughout this line of authority, but Wollong presents as anomalous.
82As that decision was heavily relied upon by counsel for the applicant, in resisting any order for repayment, it calls for closer examination.
83The respondent submits that it should not be followed, as it focused on the role of s 16(1A), and did not take into consideration the more broadly based provisions of s 22, when reading narrowly the width of the Court's jurisdiction and/or powers in such matters.
84With great respect to Talbot J, I do not believe this Court should follow his decision on Wollong. For a start, I do not believe that one can dogmatically assert that the Court's work in these cases is always at an end once a figure for compensation is arrived at. There may still be work to do, which may involve "ancillary matters" to attend to, not least costs, a question usually reserved.
85Prior to the passage which I quoted above (at [72]), from his Honour's judgment in Wollong, Talbot J had dealt with three relevant decisions of Handley JA, which, in my respectful opinion, derogate powerfully from the conclusion Talbot J reached in Wollong, which conclusion is of relevance in the present matter, and, in any event, given Wollong concerned a subsidiary question, namely interest on a refund, should be seen as obiter.
86In Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659, Handley JA (with Mahoney and Priestley JJA agreeing) concluded that the common law right of restitution meant that the courts had no residual discretion to refuse an order for repayment of moneys paid under a judgment subsequently reversed. In Haig v Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1996) 90 LGERA 408 ("Haig No 3"), Handley JA (with Priestley and Clarke JJA agreeing) ordered (and, indeed, quantified) a repayment of overpaid compensation, reversing a decision of Bignold J. In Lake Macquarie City Council v Luka ("Luka") [1999] NSWCA 447; (1999) 106 LGERA 94, Handley JA (with Sheller and Stein JJA agreeing) said (at [73]):
"The Court will also have to deal with any payments of compensation made following the orders of Bignold J, which will have to be refunded by the owner, and interest on the amounts to be refunded. See [Haig No 3] ..."
87Talbot J in Wollong (at [20]) questioned Handley JA's assumption, in that passage of Luka, that this Court had the necessary jurisdiction, but I am content to accept Handley JA's consistency of approach to the restitution aspect, from 1992 to 1999, especially given the willingness of eminent colleagues on the Court of Appeal (Mahoney, Sheller, Priestley, Clarke and Stein JJA) over that decade to agree with him without adding any (relevant) comment.
88I conclude, therefore, that this Court has at least the power (s 22), and, I believe, the jurisdiction (s 16(1A)), to make the order sought, in the present matter, for repayment to the respondent of overpaid compensation, without any need for the respondent to commence proceedings in another "court of competent jurisdiction". Under the plain words of s 48(6) of the JTC Act, the respondent clearly has a choice of forum for pursuit of its statutory right to a refund.
89I hasten to add that the power and jurisdiction I find in this Court to deal with this aspect of the present case arise only because the repayment question arises as "ancillary" to a case which was brought in this Court, clearly "within jurisdiction".
90Had the overpayment occurred in circumstances, other than when an objection to a determination of compensation had been brought before the Court, I do not believe this Court would have any original jurisdiction to entertain an action for recovery of the debt involved.