Porter & Anor v Hunters Hill Council

Land and Environment Court (NSW)|2003-05-12|Before: Pain J, Neighbourhood Association DP, Mr JA, Mr P

The Applicant submitted that the Court therefore has jurisdiction in separate proceedings to make orders in relation to matters which are ancillary to matters within jurisdiction, even if the matter within jurisdiction was the subject of other proceedings which have been formally concluded without the ancillary matter being raised during their pendency. The Applicants' counsel conceded that he could not find a decision to support this view and further that there are authorities to the contrary: see Mitchell v Waugh (1993) 82 LGERA 44. The Applicants' counsel submitted these cases were not made in the context of provisions of the Court Act and not on the literal wording of s 16(1A) which does not require proceedings within jurisdiction to be before the Court.

Council's submissions 55. In order to invoke the Court's ancillary jurisdiction under s 16(1A) of the Court Act there must be some matter falling within the Court's jurisdiction before the Court to which some other part of the case is ancillary. That is, there must be a matter within jurisdiction before the Court in this case. The obligation under s 42 of the Just Terms Act is not ancillary to anything under the LEP, it is an obligation under the Just Terms Act and the Land and Environment Court has no jurisdiction to determine the matter. The jurisdiction lies in the Supreme Court of New South Wales.

While the Applicant argued that if this Court did not have jurisdiction there could be three different sets of proceedings, one relating to acquisition, one relating to the issuing of a notice under s 42 of the Just Terms Act and one relating to the amount of compensation, each of these proceedings is independent. The fact that one proceeding may need to be taken in the Supreme Court rather than this Court does not change the necessity for the multiplicity of proceedings.

Valuer General's submissions 57. The VG referred the Court to a number of cases on the scope of s 16(1A). In Nix and Dunn v Pittwater Council Gleeson CJ (Priestly and Powell JJA agreeing) stated at 203: …because the Land and Environment Court was set up as a specialist tribunal to exercise a limited statutory jurisdiction, it is inevitable that cases will arise from time to time in which a matter that falls within the jurisdiction of the court will be part only of a wider dispute or series of disputes. This may, on occasion, result in multiplicity of proceedings, but there is nothing unusual about it. It is the price to be paid for what are seen as the advantages of having such tribunals.

His Honour stated at 205: 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(1A) 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 …

In Scharer v State of New South Wales (2001) 53 NSWLR 299 the Court held that the equitable easement at issue in that case was one which was conferred by the National Parks and Wildlife Act 1974 and therefore s 20(2)(a) and (c) of the Court Act applied as the National Parks and Wildlife Act 1974 was defined as a planning or environmental law by s 20(3) for the purposes of s 20(2). The Appellant also sought damages for obstructing the right of way. Stein JA stated at 308: 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.
In N Stephenson Talbot J stated at 265: Section 16(1A) was introduced to avoid multiplicity of proceedings in different courts to resolve issues between the same parties which are subordinate or subservient to a matter which falls within jurisdiction. The reference to a matter that is ancillary is intended to make it plain that the matter which is within jurisdiction relates to the primary dispute between the parties. In other words the jurisdiction conferred by s 16(1A) is in respect of matters which are subordinate to but arise in conjunction with the primary matter before the Court.

In Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95 Pearlman J held that in that case a claim for damages for negligence arising out of the installation of a sewerage system was framed as a general claim for damages in tort and was not ancillary to the applicant's claim relating to breaches of a development contract, which was within the Court's jurisdiction.

The VG relied on these cases to argue that there must first be a matter within jurisdiction before any reliance can be placed on s 16(1A) of the Court Act. The section refers to "jurisdiction to hear and dispose of any matter … being a matter that is ancillary to a matter …" and this colours the meaning of the word "matter". It is referring to pending litigation in the Court. The VG submitted that in this case the Applicants' claim is divorced from the Court Act, it is only founded on the Just Terms Act. The proceedings are therefore without jurisdiction.

Finding 63. I am unable to accept the Applicants' submissions as to the proper interpretation of s 16(1A) of the Court Act. It may be true that the literal wording of s 16(1A) does not require a matter within jurisdiction to be before the Court, but to accept the argument the Applicants have put forward would be to ignore the very purpose which s 16(1A) is arguably intended to serve. Nor is the Applicants' interpretation supported by the case law. It is worth repeating what Talbot J stated in N Stephenson at 265, namely that "[s]ection 16(1A) was introduced to avoid multiplicity of proceedings in different courts to resolve issues between the same parties which are subordinate or subservient to a matter which falls within jurisdiction." Before s 16(1A) can be invoked it is imperative that there must be a matter within jurisdiction in proceedings pending before the Court to which another matter in those same proceedings can be said to be ancillary. It must be remembered that this Court is a specialist tribunal of limited jurisdiction and to accept the Applicants' argument would be to widen the jurisdiction of the Court beyond that intended by s 16(1A).

This view is supported by the case law relied on by the VG and set out at par 57 - 61. Further, in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 Pearlman J reviewed the relevant cases and set out four propositions at 412 - 413 which I adopt, particularly: (c) Although s 16(1A) amplifies to some extent the jurisdiction of this Court (Nix v Pittwater Council), it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix v Pittwater Council). I respectfully adopt, in this connection, the statement of Talbot J in Duncan v Moore (at 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".

(I note that although this decision was overturned on appeal to the Court of Appeal, no criticism was made of the above paragraph, it not being necessary to deal with the issue regarding s 16(1A): see Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53). 65. Furthermore, in this case it cannot be said that there is any multiplicity of proceedings which could be saved if s 16(1A) were invoked. The acquisition proceedings are at an end and new proceedings must be taken in relation to this new issue which has arisen. It is simply a question of which court those proceedings must be commenced in, and the correct court is clearly the Supreme Court of New South Wales.

Accordingly, the Applicants also fail on this ground.

Final Comment 67. A final question to ask, unrelated to the above arguments, is have there been cases of this nature before the Supreme Court? In Davey v North Sydney Council Master McLaughlin appears to be dealing with circumstances very similar to those before me. The details of the Applicant's claim are not made clear in the judgment however, so that it is difficult to be conclusive based on that case. I note the plaintiff in Davey first commenced proceedings in this Court but then discontinued and commenced Supreme Court proceedings. No decision has been referred to me nor have I been able to find a case in which the jurisdiction of the Supreme Court of New South Wales to entertain an application of this nature has been challenged.

Dismissal of the proceedings 68. As the Applicants have failed on all three grounds they have been unable to show that this Court has jurisdiction to hear and dispose of their application. Accordingly, I am satisfied that the proceedings should be dismissed under Pt 13 r 5(1) of the SCR, which has been adopted by this Court pursuant to Pt 6 r 1(2) of the Court Rules.

The remaining Notices of Motion 69. There is no need to consider the remaining two Notices of Motion, namely the Council's Notice of Motion for joinder of the VG and the Applicants' Notice of Motion for expedition and strike out of the Council's defence. I will formally dismiss those Notices of Motion but, recognising that in Class 4 proceedings costs usually follow the event, I note that no adverse conclusions should necessarily be drawn in relation to costs simply by the fact that the Notices of Motion have been dismissed.

As I have heard no submissions from the parties on costs, I will reserve the question of costs.

Orders 71. Accordingly, the Court orders that:

The Applicants' Class 4 Application is dismissed pursuant to Pt 13 r 5(1) of the Supreme Court Rules 1970 as adopted by Pt 6 r 1(2) of the Land and Environment Court Rules 1996.
The Applicants' Notice of Motion dated 14 April 2003 is dismissed.
The Respondent's Notice of Motion dated 7 April 2003 is dismissed.
The question of costs is reserved.
The exhibits may be returned.

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CITATION : Porter & Anor v Hunters Hill Council [2003] NSWLEC 179 APPLICANTS Graham William Porter and Meredith Ruth Porter PARTIES : RESPONDENT Hunters Hill Council FILE NUMBER(S) : 40313 of 2002 CORAM: Pain J KEY ISSUES: Jurisdiction :- land compulsorily acquired pursuant to LEP by commencement of separate proceedings that are already concluded - Council refused to give Applicants a notice under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 - Applicants seek delivery by Council of a notice under s 42 in new Class 4 proceedings - jurisdiction of Court to hear and dispose of proceedings - whether jurisdiction arises because the obligation to pay compensation is inherent in the obligation to acquire - whether jurisdiction arises under s 24 of the Land and Environment Court Act 1979 - whether ancillary jurisdiction under s 16(1A) of Land and Environment Court Act 1979 can be invoked - proceedings dismissed Environmental Planning and Assessment Act 1979 s 27 Hunters Hill Local Environmental Plan cl 24 Land Acquisition (Just Terms Compensation) Act 1991 s 4, s 5, s 7, s 11, s 12, s 13, s 14, s 15, s 19, s 20, s 28, s 37, s 39, s 41, s 42, s 43, s 44, s 47, s 55, s 66, s 67, s 68 LEGISLATION CITED: Land and Environment Court Act 1979 s 16(1) , s 16(1A), s 19, s 20, s 24, s 25, s 31, s 32 Land and Environment Court Rules 1996 Pt 6 r 1 Local Government Act 1993 s 186 Supreme Court Rules 1970 Pt 8 r 8, Pt 13 r 5(1) Davey v North Sydney Council [2002] NSWSC 662; Duncan v Moore (1999) 103 LGERA 312; McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238; Mitchell v Waugh (1993) 82 LGERA 44; N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248; CASES CITED: Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95; Nelson v Ballina Shire Council (1993) 80 LGERA 271; Nix and Dunn v Pittwater Council (1994) 84 LGERA 199; NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; Pittwater Municipal Council v Nix and Dunn (1993) 80 LGERA 385 at 387; Scharer v State of New South Wales (2001) 53 NSWLR 299 DATES OF HEARING: 12/05/2003, 17/06/2003 DATE OF JUDGMENT: 08/13/2003

The Just Terms Act was amended by the Land Acquisition (Just Terms Compensation) Amendment Act 1993 to insert s 42(8), which provides: If a former owner of land has not been given a compensation notice as required by this section, the Valuer-General must, as soon as practicable after being requested to do so, give the former owner written notice of the amount of compensation to be offered to the former owner as determined by the Valuer-General. This subsection extends to a compulsory acquisition of land before the commencement of this subsection. The purpose behind this amendment is set out in the Second Reading Speech as referred to in Davey v North Sydney Council [2002] NSWSC 662 at [21].
I note that although this subsection may have been enacted to help cure the very situation in which the Applicants find themselves, according to the Second Reading speech, as the Applicants' counsel noted, it is doubtful whether the wording of the section actually achieves that aim. It appears that the Applicants have accepted, by filing this Class 4 Application, that despite the insertion of s 42(8) it is still necessary for them to obtain a s 42 notice before the process of compensation under the Just Terms Act can proceed any further.

(2003) 131 LGERA 144

(1999) 103 LGERA 312

(2001) 112 LGERA 403

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