Camilleri v Transport for NSW

Ex tempore Judgment 1Until May 2013 George and Pauline Camilleri resided on land known as 67 Schofields Road, Schofields (the Land). The Land was owned by Mr Camilleri. From that Land Mr and Mrs Camilleri conducted, in partnership, a road haulage and site profiling business. 2The Land was compulsorily acquired by the respondent on 21 September 2012 under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (the Compensation Act). Mr and Mrs Camilleri claim that in addition to losing the Land by reason of that acquisition, it affected the conduct of their business, for which they seek compensation. 3A compensation notice issued under s 42(2) of the Compensation Act was received by Mr and Mrs Camilleri shortly after 5 December 2012, determining the compensation for business disturbance in the sum of $141,800. Being dissatisfied with that determination, on 15 April 2013 Mr and Mrs Camilleri lodged with this Court an objection to the amount of compensation offered. That objection was lodged pursuant to s 66(1) of the Compensation Act. 4The objection was not lodged with the Court within 90 days from receipt by Mr and Mrs Camilleri of the compensation notice given to them under s 42(2). By operation of s 45(1) of the Compensation Act, the offer of compensation made in the compensation notice is "taken to have been accepted". However, that "acceptance" is subject to the operation of s 45(2). 5Mr and Mrs Camilleri now apply by motion for "leave" to have the Court "hear and dispose" of their claim for compensation relating to the operation of their business. The application is made pursuant to s 66(3) of the Compensation Act which provides: "(3) A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person's claim for compensation unless satisfied that there is good cause for the person's failure to lodge the objection within that period." 6Section 45 of the Compensation Act relevantly provides: "45 Deemed acceptance of offer of compensation (1) If a person entitled to compensation under this Part does not, within 90 days after receiving a compensation notice: (a) accept the amount of compensation offered by the authority of the State or (b) lodge with the Land and Environment Court an objection to the amount of compensation offered, the offer of compensation is taken to have been accepted. (2) Such an acceptance is subject to any decision of the Land and Environment Court on an objection lodged after the 90-day period." 7As will be apparent from the provisions of s 66(3), a grant of "leave" is not, in terms, required. However, the substance of the application is to seek a determination to the effect that the Court may hear and determine the claim made by Mr and Mrs Camilleri upon being satisfied that there is good cause for the failure to lodge the objection within the 90-day period. I propose to deal with the motion on the basis that the determination sought is as I have indicated. 8Evidence in support of the motion is provided in an affidavit sworn by Mrs Camilleri on 28 June 2013. Her evidence is not subject to challenge by the respondent who neither opposes nor supports the determination sought. 9Mr and Mrs Camilleri moved to reside on the Land in 1981. They built a new home on that Land and also erected other structures needed to facilitate the operation of their business. 10The business, which they have conducted for over 30 years, involves the provision of road haulage services to Boral Australia as well as site profiling for that same company. The latter activity involves moving stockpiles of material within sites occupied by Boral. Structural and other improvements made to the Land for the purpose of operating the business are said to include the construction of large sheds for the storage of truck accessories and equipment, the provision of a truck parking bay, installation of a diesel tank and the provision of high pressure washing equipment together with associated tanks. 11Mr and Mrs Camilleri were told in November 2011 of the decision by the respondent to acquire the Land. Thereafter, they retained a solicitor to advise them as to their rights and, I infer, through that solicitor to correspond with the respondent concerning the acquisition and its impact upon them, including the impact upon their business. 12In early 2012 Mr and Mrs Camilleri commenced their search for a suitable property on which they could reside and on which they could also provide the structures and facilities necessary to conduct their business. Their search was undertaken without knowing the quantum of compensation to be offered by the respondent either for acquisition of the Land or for business disturbance. 13A suitable property was identified by them in late 2012 and contracts exchanged to purchase that property in January 2013. Thereafter, consultants were engaged to prepare development applications seeking consent to erect a new dwelling on that property and also consent to erect sheds and associated structures for use in the conduct of their business. 14Once settlement of their new property purchase had taken place, Mr and Mrs Camilleri commenced such work as they were able to undertake without development consent in order to prepare the new property for occupation by them. However, they were unable to commence construction of a new dwelling or other structures required for their business until development consent was obtained. While they had hoped to receive those consents and undertake work sufficient to enable them to live on the new property before vacating the Land, these aspirations were not realised. 15Throughout 2012 Mrs Camilleri, who undertook the administrative and clerical functions of the business, was suffering a significant health condition. She required surgery for this condition in early 2012 and later underwent radiotherapy treatment. In December 2012 she was advised that she needed to undergo further surgery in order to address her medical condition. 16In April 2012 an accountant retained by Mr and Mrs Camilleri prepared a report assessing the costs of relocating their business and losses associated with that relocation. The report concluded that the aggregate of costs and losses was the sum of $1.575M. A copy of that report was provided to the respondent in the course of negotiating a resolution of the compensation claim. 17Subsequently, a firm of consultants retained by the respondent prepared a report which was said to reflect a "financial disturbance assessment of the business" conducted by Mr and Mrs Camilleri. According to Mrs Camilleri this report assessed the disturbance cost at $727,643. A copy of that report was provided to Mr and Mrs Camilleri. 18Mr and Mrs Camilleri understand that the business disturbance reports prepared both on their behalf and also on behalf of the respondent were provided to the Valuer-General prior to the determination by him of the compensation to be offered (cf s 47 of the Compensation Act). It will be remembered that the compensation for business disturbance offered by the respondent in accordance with the Valuer-General's determination was the sum of $141,800. 19By letter dated 4 July 2012 the respondent advised Mr and Mrs Camilleri that vacant possession of the Land was required by 28 February 2013, although at that time only a proposed acquisition notice had been served upon them in accordance with s 11 of the Compensation Act. The time by which vacant possession was required was subsequently extended to 31 May 2013. 20The compensation notice prepared by the respondent in accordance with s 42 was forwarded to Mr and Mrs Camilleri under cover of a letter dated 5 December 2012. As I have earlier indicated, it was received by them shortly after that date. At the same time, a separate compensation notice was sent to Mr Camilleri offering compensation for the acquisition of his freehold interest in the Land. 21Upon receipt of these notices, Mr and Mrs Camilleri contacted their then solicitor and other advisors concerning the offers of compensation. Mrs Camilleri says that their principal focus at the time was upon the compensation offered to Mr Camilleri for the acquisition of his freehold interest in the Land. Ultimately, an objection to the latter offer of compensation was lodged with the Court on 30 January 2013. As would be apparent, that objection was lodged within 90 days after receipt of the relevant compensation notice. Those proceedings have not yet been fixed for hearing. 22In February last, Mr and Mrs Camilleri decided to terminate the retainer of their former solicitor and to retain their present solicitor. Mrs Camilleri says that it "took some time to have the files transferred from our former solicitor and for our new solicitor to review this documentation." How long this process took is not stated. 23Mrs Camilleri candidly acknowledges that by mid February 2013 she and her husband were conscious of the fact that the 90-day period for lodging an objection to the compensation offered for their business disturbance was "coming to an end". However, she says that they were preoccupied with other matters, most of which were a consequence of or related to the compulsory acquisition of the Land. These matters included: (i) the pressure to leave a home of more than 30 years by the end of February which they realised would not be achieved and which resulted in them seeking and being given until 31 May to vacate; (ii) packing up to leave the Land after 30 years and organising for interim storage and accommodation; (iii) dealing with the council responsible for processing the development applications in relation to their new property; (iv) continuing to operate their business at the same time as preparing to leave the Land and relocate the business; (v) addressing the timing of further surgery that Mrs Camilleri was required to undergo, having regard to the commitments involved in vacating the Land and moving the business; (vi) dealing with the stress created by these circumstances, a stress for which Mrs Camilleri sought and obtained medical treatment; and (vii) involvement in the arrangement of her son's wedding. 24Mrs Camilleri also says that the widely divergent amounts that had been assessed by their accountant, by the consultants for the respondent and by the Valuer-General as to the compensation payable for business disturbance created uncertainty as to what she and her husband should do about that claim. They were, for some time, reluctant to expose themselves to the cost of commencing further proceedings in the Court. Ultimately, they decided to proceed and gave instructions to their solicitor in early April last to commence the present proceedings. On 20 March their solicitor had advised the respondent that such a claim was contemplated. 25The date upon which the compensation notice relevant to the business disturbance claim by Mr and Mrs Camilleri was received is not precisely known (cf s 66(1) of the Compensation Act). However, Mr and Mrs Camilleri accept that the document was received a day or two after 5 December 2012, that being the date of the letter from the respondent to them enclosing the notice. The 90-day period referred to in s 66(1) therefore expired on or about 7 March 2013. Their objection not having been lodged until 15 April 2013, some 39 days beyond the 90-day period, the provisions of s 66(3) are therefore engaged. 26I have set out at some length the facts and circumstances addressed by the evidence that seeks to explain why the present objection was not lodged by 7 March. That is the evidence upon which the Court is asked to determine its satisfaction that good cause be shown for the failure to lodge the objection within the 90-day period. 27The expression "good cause" is not defined in the Compensation Act. In the context of s 66(3), the "good cause" about which the Court is to be satisfied is the failure to lodge an objection to an offer of compensation within the stipulated period. That statutory provision, so it seems to me, is to be understood as requiring a legally acceptable or sufficient explanation for the failure (Sydney Nationwide Realty Pty Ltd v Sydney Metro [2011] NSWLEC 19 at [22]). While focus will be upon the conduct of an applicant during the requisite period, other considerations may be relevant to the adequacy or sufficiency of the explanation. In principle, these other factors may include the length of time by which the 90-day period is exceeded, prejudice to the respondent occasioned by delay and demonstration on the part of the applicant of an arguable case justifying the continuation of the proceedings, although the last requirement is unlikely to present difficulty, given the statutory entitlement to compensation. 28Beyond the particular provisions of s 66(3), there is a more general context in which the need to show "good cause" must be understood. An extension of time to comply with procedural time limits, however those limits may be expressed, will ordinarily be granted where it is in the interests of justice so to do (Cohen v McWilliam (1995) 38 NSWLR 476). The interests of justice are particularly significant in the present case given that the proceeding is one in which Mr and Mrs Camilleri seek to exercise a statutory entitlement to compensation as a consequence of the compulsory acquisition of Land by an authority of the State. Further, one of the objects expressed in s 3 of the Compensation Act is "to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale". These contextual matters have the consequence that the need to show "good cause" under s 66(3) does not impose a high threshold in order to reach the requisite satisfaction (Parramatta City Council v Transport Construction Authority [2011] NSWLEC 49 at [90]). 29Having regard to the facts and circumstances that I have earlier identified and applying the contextual considerations just stated I am satisfied that there was good cause for the failure by Mr and Mrs Camilleri to lodge the objection within the 90-day period, that is, by 7 March 2013. In particular, I rely upon the cumulative effect of events and circumstances identified in [24] - [25]. 30Those facts and circumstances demonstrate the pressure under which Mr and Mrs Camilleri found themselves during the first three months of this year. They were required to address and manage the move from the Land compulsorily acquired from them while at the same time continuing to operate a business in which Mr Camilleri worked from 5.00am to 6.00pm on six days each week, driving trucks and equipment, and at the same time endeavouring to make decisions about current legal proceedings, while also coping with the significant illness from which Mrs Camilleri suffered. During this same period they also changed their legal representation. 31I accept as understandable that Mr and Mrs Camilleri should have focussed upon Mr Camilleri's claim for compensation arising from the freehold acquisition of the Land. The uncertainty created by the widely divergent assessment of compensation for business disturbance and an understandable reluctance to commence further legal proceedings claiming compensation for business disturbance is also relevant to the indecision experienced by Mr and Mrs Camilleri during the 90-day period. 32The factors that I have identified in the preceding paragraphs would, of themselves, be sufficient to satisfy me that there was good cause for the failure by Mr and Mrs Camilleri to have lodged their objection within the requisite period. Other factors that I have identified as being potentially relevant to reaching the requisite level of satisfaction only reinforce the conclusion already expressed. 33Although the respondent was not formally notified until 20 March 2013 by the solicitor acting for Mr and Mrs Camilleri that they proposed to challenge the compensation assessed for business disturbance, the respondent was clearly on notice prior to then that a business disturbance claim was made. The exchange of reports between the parties during 2012 demonstrated as much, as did the determination of an amount for such claim by the Valuer-General, albeit in a sum that differed from that advanced by either party. 34The respondent does not contend that it is prejudiced by the lodgement of the objection beyond the 90-day period. This is not a case where the statutory time limit for lodging an objection was exceeded by a significant period. As I have earlier indicated, the objection was lodged some 39 days after expiry of that time. 35Further, the evidence presently available does not suggest that the claim made by Mr and Mrs Camilleri for business disturbance lacks any foundation. On the contrary, the assessment made in that regard by the respondent and the determination made by the Valuer-General supports, at least for present purposes, the likelihood that, quantum aside, such a claim has foundation. 36For all these reasons I make the following determination: Being satisfied that good cause has been shown by the applicants for their failure to lodge the present objection within 90 days after receiving a compensation notice from the respondent, the Court may proceed to hear and determine the applicants' claim for compensation.