Huggins v State of New South Wales; NA & J Investments Pty Ltd v State of New South Wales; Commins Partnerships Pty Ltd v State of New South Wales

Huggins v State of New South Wales; NA & J Investments Pty Ltd v State of New South Wales; Commins Partnerships Pty Ltd v State of New South Wales - [2009] NSWSC 1420 - NSWSC 2009 case summary — Zoe

[14]

JUDGMENT (Stay of proceedings) 1 HER HONOUR: By notices of motion filed 22 September 2009, the defendant in all three matters seeks an order, pursuant to section 67 of the Civil Procedure Act 2005, that the proceedings be stayed pending the finalisation of proceedings of Hutchins Pastoral Co Pty Limited v The Minister Administering the Water Management Act 2000 and the State of New South Wales commenced in the Land and Environment Court of New South Wales number 41292/2006. 2 The plaintiffs in all proceedings relied on the affidavit of Joshua Daniel Wolff sworn 9 October 2009. The defendant relied on the affidavit of Jacqueline Townsend affirmed 25 September 2009 and 7 December 2009. The proceedings in this Court 3 There are three proceedings in this Court, 30055/2009, 30058/2009 and 30061/2009. In matter number 30055/2009, the plaintiffs are Stephen Leslie Huggins and Carol Margaret Huggins. In matter number 30058/2009, the plaintiff is NA & J Investments Pty Ltd. In matter number 30061/2009, the plaintiff is Commins Partnership Pty Ltd. The defendant in all three Supreme Court proceedings is the State of New South Wales ("the State"). The plaintiffs plead that they purchased properties in the Lower Murrumbidgee farming area of New South Wales and that their properties were said to have held an existing bore water licences. These proceedings in this Court were commenced in late July 2009. 4 In this Court, the plaintiffs seek damages and a declaration of estoppel, as well as interest and costs. It is alleged that they suffered loss as a consequence of negligent oral misstatements made by servants of the State as to the State's intentions to regulate farmers' water entitlements under the Water Act 1912 and the Water Management Act 2000. The alleged misrepresentations were the result of enquiries made in May 2005 by the plaintiff of the defendant as to future ground water entitlements of licence holders to obtain access to ground water in the Lower Murrumbidgee region in New South Wales. It is alleged the defendant represented to the plaintiff that the water entitlements would be reduced in a worst case scenario to 51 per cent of the existing entitlements. In fact, a 2006 Amendment Order amended the Water Management Act and effectively reduced the water entitlements to approximately 18.5 per cent.

[18]

And (at [13.11]): "The making of the misrepresentations alleged below in the course of and for the purposes of the plan making functions or purported plan making functions such that the said functions were exercised in an anomalous manner or in bad faith. " (sic) 11 The "Particulars of Misrepresentations" and "Particulars of Falsity" set out at 1-8 and 1-9 respectively, overlap with the particulars in the Supreme Court statement of claim by S & C Huggins which plead that the claims of the alleged "representations" were "materially false and misleading" (at [15]-[20]) and were made negligently (at [21]). There are similar pleadings in the other two Supreme Court matters - [14]-[21] in the NA & J Investments matter and [13] - [22] in the Commins matter. 12 Counsel for the State submitted that there is considerable duplicity in the nature of the principal cases brought by the same three plaintiffs in both the Land and Environment Court and the Supreme Court proceedings. Because of the confusing way in which the Land and Environment Court Points of Claim are pleaded, there is some ambiguity as to the extent of that overlap. On one view, the plaintiffs are seeking relief for the similar causes of action in two courts at the one time and that amounts to an abuse of process: Williams v Hunt [1905] 1 KB 512. Counsel for the plaintiffs submitted that there are two separate causes of action, one in each court and they are distinct. The plaintiffs also submitted that they would suffer financial hardship, yet no evidence to this effect was forthcoming. In my view, there will be an overlap of evidence given in both this Court and the Land and Environment Court. If both are heard at the same time, the Courts may make different factual findings. 13 However, there is no ambiguity in the duplicity of the relief sought in both sets of proceedings. In the Land and Environment Court proceedings, the plaintiffs jointly seek at [22] of the Second Further Amended Points of Claim "the restoration or making good in monetary terms of their loss and damage" said to arise from the claim at [21] of alleged breaches of the Water Management Act 2000 or Regulations" or, [22.5] in the alternative, "damages": The Land and Environment Court Second Further Amended Points of Claim sets out various forms of relief including at [22.6] a claim for "compensation". 14 At [24] of the Land and Environment Court Second Further Amended Points of Claim, the plaintiffs seek compensation pursuant to s 87AA of the Water Management Act for the reduction to their water entitlements created by the 2006 Amendment Order. 15 At [27] the plaintiffs plead: "In the premises, the Applicants ask the Court to make the declarations sought and orders for such compensation by way of appeal or otherwise that is just in all circumstances of the case, or alternatively to make the directions for the assessment and payment of same" 16 At [54] the plaintiffs plead: "By reason of the matters pleaded the Applicants are entitled to be paid just compensation, taking into account market value by the First and Second Respondents in accordance with the Just Terms Act".

[24]

55 Santow J then examined relevant factors that bore on the granting of a stay and their relative weight in the final balance. These included: The impact of the Supreme Court and IRC proceedings on each other. The relative progress of each proceedings. Conduct of the parties with respect to the relative progress of each proceedings. The fact that the Supreme Court proceedings were commenced first in time. Not all parties to the Supreme Court proceedings were parties to the IRC proceedings. Possible jurisdictional problems in relation to the IRC proceedings and how they bore on the stay application. Financial disadvantage. (Cf also the useful checklist offered by Einstein J in Rexam at [21].) 56 Santow J recognised that the defendants bore the onus of satisfying him that the requirements of justice required an exercise of discretion in favour of a stay. …" 20 The Land and Environment proceedings were commenced about three years earlier than these Supreme Court proceedings. The pleadings in that Court have undergone a number of refinements. They are listed in February 2010 for directions. There are 33 plaintiffs in the Land and Environment Court proceedings. Seven of the plaintiffs in the land and Environment Court are plaintiffs in this Court. Four of those plaintiffs have consented to the stay of their Supreme Court proceedings pending determination of the Land and Environment Court proceedings. Only these three have not. Most of the issues in dispute will be determined in the Land and Environment Court. It is my view that the negligent misstatement or misrepresentations alleged in this Court will cover the same evidence as the cases pleaded in the Land and Environment Court. It would be undesirable to have the possibility of two courts making different factual findings. Thirty of the 33 plaintiffs are content to have their proceedings heard in the Land and Environment Court. Only three are not. The defendant has discharged its onus of proof. I am satisfied that the requirements of justice require that a stay of proceedings be granted. 21 I order that the proceedings be stayed pending the finalisation of proceedings of Hutchins Pastoral Co Pty Limited v the Minister of Ministering the Water Management Act 2000 and the State of New South Wales commenced in the Land and Environment Court of New South Wales number 41292/2006 or until further order of the Court. Costs are reserved.

At a glance

Court

Decision date

Before

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Judgment (27 paragraphs)

Cases Cited (5)