Ray Fitzpatrick Pty Ltd v Minister for Planning

Land and Environment Court (NSW)|2008-07-01|Before: Sheahan J, Mr J

CITATION : Ray Fitzpatrick Pty Ltd v Minister for Planning (No.4) [2008] NSWLEC 161

APPLICANT PARTIES : Ray Fitzpatrick Pty Ltd RESPONDENT Minister for Planning

KEY ISSUES: Question of Law :- separate question; whether there is acceptance of the offer of compensation under the Act; admissibility of factual evidence on the question; collateral challenge to a determination of compensation; validity of offer after objection lodged in the Court

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Bass and Another; Conca and Another; Woodlands and Another v Permanent Trustee Company Limited and Others (1999) 198 CLR 334 Brambles Holdings Limited v Gosford City Council (2001) 53 NSWLR 153 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Council of the City of Gosford v Cunningham and Seeto; Cunningham and Pearl Pastoral Pty Limited [1997] NSWCA 81 Evagelakos v Roads & Traffic Authority of New South Wales [2006] NSWLEC 514 Financings Ltd v Stimson [1962] 3 All ER 386 Gosford City Council v Valuer-General (1996) 90 LGERA 413 Gray v Woollahra Municipal Council [2004] NSWSC 112 Hunters Hill Council v Cunningham [2004] NSWSC 508 Hunters Hill Council v Cunningham [2005] NSWCA 185 Leung and Another v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 CASES CITED: McCloys Pty Limited v Lake Macquarie City Council [1994] NSWLEC 148 Marshall v Watson (1972) 124 CLR 640 Michael Realty Pty Ltd v Carr and Another [1975] 2 NSWLR 812 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Niezabitowski and Another v Roads and Traffic Authority (NSW) (2006) 147 LGERA 417 Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) 157 LGERA 100 Ray Fitzpatrick Pty Ltd v Minister for Planning (No.3) [2008] NSWLEC 117 Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales (No.2) [2008] NSWLEC 78 State of Western Australia and Ors v Commonwealth of Australia (1975) 134 CLR 201 Tepko Pty Limited and Others v Water Board (2001) 206 CLR 1 Ward Richard Geoffrey v Roads and Traffic Authority of NSW [2007] NSWLEC 405 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5 Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another (2004) 216 CLR 515

DATES OF HEARING: 18 April 2008, 21 April 2008, 23 April 2008

APPLICANT Mr B Coles QC with Mr R Beasley SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr J Webster SC with Mr M Seymour SOLICITORS Hunt & Hunt

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30627 of 2006 Ray Fitzpatrick Pty Ltd v Minister for Planning (No.4)

JUDGMENT Introduction 1 His Honour: The purpose of this judgment is to provide the answer to a "separate question" raised by the Respondent, and to rule on the admissibility of certain evidence the Respondent seeks to adduce in the hearing on that question. 2 Late on Friday afternoon 18 April the Liquidator of the Applicant company (Mr John Gibbons) wrote to the Minister for Planning purporting to accept, in accordance with s.44(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (the "JTC Act"), the amount of compensation offered by the Department at the time of acquisition. Mr Gibbons informed the Minister he would shortly forward to him a form of Deed of Release and Indemnity and the relevant documents of title to the subject land, pursuant to s.44(2) of the JTC Act. (That has since been done). 3 The legal representatives of the liquidator then sought an urgent hearing of a Notice of Motion to vacate the hearing dates which had been set for the substantive proceedings (14 days commencing Monday 21 April) in view of the fact that the matter had, in effect, been settled. 4 The solicitors for the liquidator were unsuccessful in securing the attendance of any representatives of the Minister for the urgently convened court hearing late on the afternoon of Friday 18 April, and I stood the Applicant's Notice of Motion over for hearing at 10am on Monday 21 April. 5 At that time on that date Senior Counsel for the Minister (Mr Webster SC) filed a Notice of Motion seeking not the vacation of the hearing dates, but, instead, (i) the adjournment of the hearing to a date to be fixed, and (ii) determination by the Court of the following "separate question": "Whether the letter of the Applicant to the Respondent dated 18 April 2008 was acceptance of an offer such that an agreement has been formed under section 68 of the" JTC Act. 6 I suspended the agreed programme for the lengthy hearing and visits of inspection etc, and made orders that the separate question be heard at 9.30am on Wednesday 23 April, with evidence and submissions to be filed and served by close of business the previous day. 7 In his written submissions, Senior Counsel for the Applicant (Mr Coles QC) sought to re-formulate the separate question in the following terms: "Whether upon the pure construction of s.44(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (construed in the context of the provisions of the Act as a whole, including in particular sections 66 to 68 of the Act) and in the events that have happened (being the letter from the applicant to the respondent dated 18 April 2008), the applicant has accepted the amount of compensation offered by the respondent in his letter dated 26 April 2006 within the meaning of s.44, with the consequence that there is no issue remaining for adjudication in these proceedings with respect to the question of the amount of compensation to which the applicant is entitled". 8 Both formulations raised the essential issue - "was it too late, on 18 April 2008, for the Applicant to seek to take the amount offered in 2006?". However, the Respondent sought to argue that it was actually impossible for the Applicant to take the "offer" anyway, because it had, in effect, been revoked and was no longer valid or available. 9 This circumstance raised, as a preliminary question to the separate question, the issue of whether this Court has jurisdiction to go behind the statutory offer to consider its validity, or the validity of the Valuer General's "determination" on which it is based - either at this stage or at any other stage of these or similar proceedings. 10 In support of its argument, the Respondent sought to file an affidavit by John Bentley Corbin (who was the valuer who prepared the recommendation that compensation be offered at the time of acquisition in the sum of $83,660,000), together with a bundle of documents alleged to be relevant to the separate question and extracted from the extensive "agreed bundle" filed in the substantive proceedings. It was during argument on the objection of Mr Coles QC to the reading of Mr Corbin's affidavit, and to the foreshadowed tender of the bundle, that the jurisdictional issue was argued. 11 Before the Court deals with the admissibility of the evidence, the preliminary question of jurisdiction, and the question of whether the statutory offer could be accepted immediately prior to the beginning of the hearing, it is necessary to summarise the scheme established by the JTC Act. The compulsory acquisition and compensation processes 12 The JTC Act received assent on 30 August 1991 and commenced on 1 January 1992, but its passage by Parliament followed many years of consultations. It set out to codify the law regarding the resumption of land, and to ensure the payment of "just" compensation to dispossessed owners whose resumed land was not available for public sale at the time of its compulsory acquisition. The objects of the legislation as set out in s.3 may be summarised as follows: (a) to guarantee that the amount of compensation will be not less than the market value of the land (unaffected by the acquisition proposal) at the date of acquisition, (b) to ensure compensation on just terms for the owners of land acquired by an authority of the State when the land is not available for public sale, (c) to establish new procedures for the compulsory acquisition of land by authorities of the State " to simplify and expedite the acquisition process ", (d) to require an authority of the State to acquire land, designated for acquisition for a public purpose, where hardship is demonstrated, and (e) to encourage the acquisition of land by agreement instead of compulsory process. 13 "Authority of the State" is defined in s.4(1) as: "(a) a Minister of the Crown, or (b) a statutory body representing the Crown, or (c) a council or a county council within the meaning of the Local Government Act 1993, or (d) any other authority authorised to acquire land by compulsory process." 14 The authority of the State requires the approval of the Governor and publication of a notice in the Gazette (and, where practicable, in at least one newspaper circulating in the local district) to effect an acquisition. The JTC Act envisages that the acquisition will have been pursued for a "public purpose", which is defined in s.4(1) as "any purpose for which land may by law be acquired by compulsory process under this Act". 15 The Act, by virtue of s.5(2), does not apply to any acquisition of land if the land is available for public sale and is acquired by agreement, and s.5(1) makes clear that the authority must be authorised to acquire land by compulsory process. Section 5(3) defines when "land is available for public sale". 16 An authority's power to acquire land compulsorily must derive from legislation other than the JTC Act itself (s.7). 17 Section 8 provides that the JTC Act prevails, to the extent of any inconsistency, over the provisions of any other Act relating to the acquisition of land by an authority of the State, and s.9 makes clear that the Act binds the Crown. 18 Section 10 deals with a situation where a request is made by an owner or prospective purchaser for an authority of the State to acquire land. 19 The acquisition of land by compulsory process is dealt with by Part 2 of the Act commencing with Division 1, s.11, which provides for the issuing of a "proposed acquisition notice" stating the intention of the authority to acquire land by compulsory process. An authority cannot acquire land by compulsory process without the giving of such written notice, but having given that notice, the State is not prevented from acquiring the land by agreement. Section 12 identifies the owners to whom notice must be given, and s.13 requires that the notice be given at least 90 days before the acquisition unless the owners agree to shorten the period, or the Minister shortens it when satisfied of urgency. Section 14 provides that as soon as possible after the expiration of the minimum period of notice, the acquisition must be completed (120 days after notice). Section 15 specifies the particulars to be included in the notice, and s.16 provides for its withdrawal or amendment. Section 17 requires the Registrar General to be notified of the proposed acquisition notice and its withdrawal or amendment, and s.18 requires the Valuer General to be notified of the proposed acquisition notice. 20 Acquisition procedures are dealt with in Division 2 of Part 2, commencing at s.19. The Act vests the land described in the gazetted acquisition notice in the authority acquiring the land, on the date of publication in the Gazette (subject to any express provision of the act that authorises the acquisition of the land by compulsory process), but preserves the operation of trusts, etc. 21 Division 3 of Part 2, commencing at s.21, provides for owner-initiated acquisition in cases of hardship. Section 21 provides for the land to be designated for acquisition for a public purpose. Division 3 applies to the owners of designated land, defined in s.22. Section 23 enables such an owner to require an authority, by notice in writing given to that authority, to acquire the land, if it is appropriately designated and the owner considers he or she will suffer hardship if there is a delay in its acquisition. The authority can be compelled to acquire only so much land as it requires for the public purpose for which it was designated. Section 24 assists in the definition of "hardship". The land required to be acquired under Division 3 is "to be acquired by compulsory process" or by agreement. The pre-acquisition procedures set out in Division 1 (ss.11-18) do not apply to the acquisition of land under Division 3. 22 Division 4, commencing at s.29, deals with some miscellaneous provisions relating to acquisition. 23 Part 3 of the JTC Act, commencing at s.37, deals with compensation for acquisition. The right to compensation is established by s.37, and the method of claiming compensation is set out in s.39. Division 3 of Part 3 commences at s.42. Section 42 provides that an authority which has compulsorily acquired land must, within 30 days after the publication of the acquisition notice, give the former owners written notice of (i) the acquisition, (ii) their entitlement to compensation, and (iii) the amount of compensation offered (as determined by the Valuer General - see s.47). Section 43 sets out the particulars to be included in this "Compensation Notice" (defined in s.4(1) in terms of the requirements of s.42). 24 Section 44 provides: "(1) A person entitled to compensation under this Part may accept the amount of compensation offered by the authority of the State in the compensation notice. (2) Payment of the compensation is to be made within 28 days of the receipt by the authority of the State of a claim for compensation, deed of release and indemnity (duly completed) and any relevant documents of title." 25 Section 45 provides that if the person does not, within 90 days of receiving a compensation notice, accept the amount offered or lodge with the Court "an objection to the amount of compensation offered", the offer of compensation is taken to have been accepted. Such acceptance is subject to any decision of the Court on an objection lodged outside the 90 day period (s.45(2)). 26 Section 47 provides that the Valuer General is to determine the amount of compensation to be offered by the authority under this part of the Act. Section 46 provides for claims to be made by people who were not offered compensation, and s.48 provides for advance payments. Sections 49-53 provide for interest and for acquiring authorities to keep a trust account. 27 Division 4 of Part 3 deals with the Determination of the amount of compensation. It commences with s.54, which establishes the former owner's entitlement to an amount of compensation which, "having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land". Section 55 lists the matters relevant to be considered in determining the amount of compensation, and subsequent sections deal with most of those matters in relevant detail - s.56 deals with "market value", s.57 with "special value", s.58 with "loss attributable to severance", s.59 with "loss attributable to disturbance", and s.60 with "solatium". There are special provisions in ss.61 and 62 relating to unusual cases, and there are miscellaneous provisions in ss.63-65. 28 Division 5 of Part 3 deals with "objections and appeals to the Land and Environment Court". It commences with s.66 which deals with the lodgement of an "objection" to the amount offered, within 90 days. Section 66(2) provides "if any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation". 29 Section 68 deals with "payment of compensation arising from Court proceedings", and provides as follows: "(1) Payment of compensation in respect of matters before the Land and Environment Court is to be made in accordance with any agreement reached during the proceedings or, if no such agreement is reached, in accordance with the decision of the Court. (2) Subject to any such agreement or decision: (a) if the authority of the State gave the owner concerned a compensation notice - the authority is required to pay 90 per cent of the amount of compensation offered in the notice (as an advance payment) within 28 days after the authority is given notice of the institution of the proceedings or (if the owner does not accept that advance payment) the authority is required to pay 90 per cent of that amount into the trust account kept under this Part, or (b) if the authority of the State did not give the owner concerned a compensation notice - the authority may (but is not required to) make an advance payment under this Part or pay an amount into the trust account kept under this Part."

30 Part 4 of the Act deals with the compensation for "abandoned" acquisition, and Part 5 makes miscellaneous provisions. Schedule 2 notes the repeal of the old Public Works legislation which formerly governed compulsory acquisitions. Schedule 3 includes savings, transitional and other provisions. The Act includes a regulation-making power (s.74), but there are no current regulations made under it. 31 At the time the JTC Act was passed, amendments were made to the Land and Environment Court Act 1979 ("the Court Act"), which now makes specific and separate provision for dealing with "claims for compensation" under the JTC Act, and valuation appeals under the Valuation of Land Act 1916. In Part 3, s.19 in Division 1, and ss.24 and 25 in Division 2, provide as follows: " 19 Class 3 - land tenure, valuation, rating and compensation matters The Court has jurisdiction (referred to in this Act as 'Class 3' of its jurisdiction, to hear and dispose of: … (b) appeals under section 37(1) of the Valuation of Land Act 1916 … (e) claims for compensation by reason of the acquisition of land, referred to in Division 2 … 24 Claim for compensation in compulsory acquisition cases (1) If: (a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and (b) no agreement is reached between the claimant and the authority required to pay the compensation, the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise. (2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation. 25 Determination of estate, interest and amount (1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled. (2) In the exercise of its jurisdiction under subsection (1), the Court may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party to the proceedings and may then proceed to determine the nature of the estate or interest of that person and the amount of compensation (if any) to which the person is entitled." 32 I will turn now to the relevant history of the acquisition involved in this case, and the history of the proceedings themselves. The acquisition and these proceedings 33 Mr Gibbons wrote to Minister Knowles on 3 September 2004 asking the Minister, pursuant to cl.17(1)(c) of Blacktown Local Environment Plan 1988, to acquire the company's 134.8ha of land, known as Lot 4 DP 262213 "Old Walgrove Road, Eastern Creek", and zoned 5(a) Special Uses - General Corridor. 34 The Minister did not grant the request, and proceedings 41599 of 2004 were commenced on 20 December 2004. On 4 February 2005 orders were made by Lloyd J, by consent, requiring the Minister to acquire the land. 35 The "proposed acquisition notice" is dated 2 February 2005. The whole of the subject land was required by the Minister "for a public purpose". The "acquisition notice" was published in the Gazette of 13 May 2005. The company made a claim pursuant to s.39 of the JTC Act (dated 28 September 2005, but submitted on 9 February 2006) in the amount of $120,405,052, made up of Market Value $113,648,400 plus Disturbance of $6,756,652. 36 On 26 April 2006 the Minister issued a Compensation Notice, pursuant to s.42(2) and based on a determination by the Valuer General, in the amount of $83,660,000, made up of Market Value $83,154,000 plus Disturbance of $506,000 (See the Determination annexed at p.9 of Mr Holland's affidavit 22 April 2008). 37 The company filed its Class 3 application on 19 July 2006. The Minister adhered to the Compensation Notice figures in his Points of Assessment filed 25 August 2006. In its Points of Claim filed 13 October 2006, the company claimed Market Value of $135,000,000 plus Disturbance of $1,100,000. In his Points of Defence dated 20 October 2006, the Minister contended again for the figures in the Compensation Notice. 38 For a long time the case was conducted on the basis that the highest and best use of the subject land was as SEPP 59 Employment Lands. With leave granted by Jagot J, the Respondent Minister amended his defence on 6 July 2007 to contend for a Rural 1(a) Zoning - see Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) 157 LGERA 100 - and I permitted a further amendment on 17 March 2008 to accommodate the High Court's decision in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5, handed down on 27 February 2008 ("Walker"). See Ray Fitzpatrick Pty Ltd v Minister for Planning (No.3) [2008] NSWLEC 117. 39 The correct interpretation of the High Court's decision in Walker, as distinct from the Court of Appeal's decision under appeal, loomed large as an issue for the substantive proceedings if and when they were heard (see my judgment No.3, at pars [9], and [11]-[14]). The Applicant has consistently argued (including in its written submissions on the separate question) that the High Court's decision has no bearing on its entitlement to compensation in this case. 40 In the Amended Points of Defence dated 6 July 2007, all components of the contended value were stated to be either "N/A" or "To be Advised". In the Second Further Amended Points of Defence, dated 18 March 2008 and filed 19 March 2008, there were alternative formulations of the "proper assessment of compensation in accordance with s.55" - Market Value is $27,650,000 if the underlying zoning is Rural 1(a) or Corridor 5(a), or $55,070,000 if the Court were to find the land would be zoned "Employment" under SEPP 59, plus "Disturbance $ to be advised" in either case. The latest figure for the Applicant's Disturbance claim is $873,646.30. 41 Mr Gibbons deposes (in his affidavit 18 April 2008) that it was only when the respective valuation evidence had been filed and served during March and April 2008 that the Applicant was first put on notice that the Respondent's expert valuation evidence would place the value of the subject land well below the amount determined by the Valuer General and put to the Applicant in the Minister's s.42 offer. When Mr Gibbons returned to Australia from urgent business in London on 18 April, the shareholders of the company authorised him (as Liquidator) to formally accept the offer made by the Minister in the Compensation Notice of 26 April 2006. 42 The Respondent's case on the separate question now before the Court is that from 6 July 2007 "the applicant was on notice that the respondent no longer relied upon the statutory valuation carried out by the Valuer General on 26 April 2006 as that valuation was based upon an assumption that the subject land should have a zoning of Employment Lands under SEPP59", and that the Respondent would, on the basis of Walker, contend for a valuation based on "a zoning of Rural 1(a) with potential to be rezoned to Employment Lands under SEPP59" (see Maureen Peatman's affidavit 21 April 2008 par 10). 43 In the Second Further Amended Points of Defence filed on 19 March 2008 (in par 10) it was contended for the first time by the Minister that the Valuer General's valuation is "fundamentally flawed", in that it was based on an "invalid assumption" which the Respondent denies is "an appropriate basis for assessing the" value of the subject land. That wording was much "stronger" than that used in the 6 July 2007 document, which had simply "denied" (in par 6) that the SEPP 59 assumption was "an appropriate basis …", and made no assertion that the valuation was "fundamentally flawed" and any underlying assumption "invalid". 44 I accept that the validity of the determination which underpinned the Minister's statutory offer (in the Compensation Notice) was put in issue in the substantive proceedings by the Respondent's ultimate Points of Defence document, following the High Court's decision in Walker. The Respondent has pleaded no challenge to the statutory offer itself, but now contends that that offer has to be or remain valid (because its underpinning Valuer General determination is valid) for the "agreement" to be formed between the parties, pursuant to s.68 of JTC Act. 45 The Applicant having purported to form such an agreement, by accepting the statutory offer before the competing valuation evidence and the competing submissions on what Walker means have been heard by the Court, this Court now has to adjudicate on that "validity" question, as part of the separate question as to whether it is too late for the Applicant to form the agreement. 46 The first question that arises is whether the Court should admit additional evidence said by a party, but not agreed, to be germane to that issue. Additional evidence? 47 The High Court, in a series of important cases, has clearly established the principle that when a trial court embarks on consideration of a separate question it should seek to do so on clearly or easily established facts, or on the basis of an agreed statement of facts, and not seek to do so where determining the question "may require findings of fact on matters likely to be contentious on the determination of the remaining issues in the proceeding" (Ritchie's Uniform Civil Procedure NSW, Pt.28, pp.7559-7563). In this case the answer to the separate question has the capacity to largely dispose of the substantive proceedings, so care must be taken to avoid any factual controversy surrounding that answer. See Bass and Another; Conca and Another; Woodlands and Another v Permanent Trustee Company Limited and Others (1999) 198 CLR 334 ("Bass"), especially at 355ff (pars [45]-[59]); Tepko Pty Limited and Others v Water Board (2001) 206 CLR 1 (pars 55f [168]-[171]); Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another (2004) 216 CLR 515. 48 Mr Webster sought to read the Corbin affidavit, and Mr Coles objected on the grounds, inter alia, that it dealt with a contentious issue in the substantive proceedings (i.e. the need to apply the principles in the High Court's decision in Walker in arriving at the appropriate valuation for the subject land), and was not relevant to the separate question (i.e. whether the trial of all the substantive issues in the proceedings could be pre-empted by the acceptance of the statutory offer). Mr Webster had not (yet) sought to tender the bundle of selected documents, but he told the Court that the bundle would "clearly indicate the application of the Walker principles" to the matters in dispute (T30 LL4-5). Mr Coles clearly indicated that he objected to its tender on the same grounds as those he advanced against the acceptance of Mr Corbin's affidavit (T52 LL1-6 & 45-50). 49 I have not examined the bundle closely but its table of contents indicates an emphasis on Walker-related questions of zoning and possible rezoning of the subject land, as well as valuation and acquisition documentation. In his affidavit Mr Corbin essentially deposes that Walker was decided after he prepared the Valuer General's determination for the Minister - a self-evident fact of which I could surely take judicial notice - and that the principles he applied were not those he understands the High Court has since laid down in Walker. 50 Mr Corbin's evidence and the bundle are clearly neither relevant to the separate question, however formulated, nor probative of any fact I need to find in order to answer that question. The applicability of Walker to the valuation of land like that acquired in this matter is an issue this Court may well be asked to decide some day, but not now in this matter. The issue to be decided in this case at this point is how the regime of the JTC Act is applied to the facts as I have already summarised them above. All the necessary facts are before the Court without such evidence, largely from the Court file and the affidavits of Mr Holland, Ms Peatman, and Mr Gibbons, which have been read on the separate question, and the above summary appears not to be the subject of any real dispute between the parties. 51 Accordingly, I will not allow Mr Corbin's affidavit to be read for the purposes of the separate question, and, on the same grounds, I will not allow the tender of the bundle. (Such a bundle was at the centre of the dispute in Bass). Challenge to the validity of the offer? 52 The Respondent's case on the separate question is that, as the Valuer General's determination can be shown to be invalid, there was no valid offer for the Applicant to accept on 18 April. 53 These proceedings are founded on the decision of the Applicant not to accept the statutory offer within 90 days of its being made. The validity of the offer must be presumed for the proceedings to remain on foot. 54 I challenged Mr Webster to make good his submission that this Court, in this separate question proceeding, could go behind the statutory offer and invalidate the determination upon which it was based, and the Court was referred to (i) Whealy J's decision in Gray v Woollahra Municipal Council [2004] NSWSC 112 ("Gray"), (ii) the judgment of Finkelstein J in the full court of the Federal Court of Australia in Leung and Another v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 ("Leung"), and (iii) the decision of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 ("Bhardwaj"), especially the judgment of Hayne J dealing with the differences between "voidable" and "void ab initio" decisions or actions. 55 (a) In Leung, the Minister revoked citizenship certificates when it was shown that their recipients had made false representations in their applications. The full Federal Court held the original decision was not a "true exercise of the power" reposing in the Minister and it could be revoked as being of no effect. (b) In Bhardwaj, the relevant action was the Immigration Review Tribunal's decision upholding the revocation of a student visa, taken at a hearing held in the absence of the person whose visa had been revoked, at a time which that party's agent had notified the tribunal he could not attend and had sought a later date. As the error occurred within the tribunal, the High Court held that the tribunal's first decision was not an exercise of the power purported to have been exercised, and that the power was appropriately re-exercised by the tribunal, favourably to the applicant, when the error was discovered.

(c) In Gray, Whealy J found that a Magistrate had erred in ruling that he had no jurisdiction to adjudicate on a defendant's claim that the Council order she was charged with disobeying was invalid. His Honour held that only the clearest language in a Statute should be held to take away the right of a defendant in criminal proceedings to challenge any document underpinning them. 56 In this case the legal and valuation principles applied by the Valuer General's agent in 2006 may well have been superseded by principles articulated by the High Court in Walker - a question not beyond argument or doubt, but one seriously in contest in the substantive proceedings in this case - such that if the land were valued now, a different result may be achieved. The rights of a defendant to challenge the grounds of a criminal charge (Gray), the rights of a tribunal applicant wrongly denied a hearing (Bhardwaj), and the rights of a Minister to rectify a decision infected by false representation (Leung), do not assist this Court in dealing with the situation here. The decision of the Minister in this case, based upon the determination of the Valuer General, cannot be void ab initio, and must stand until successfully challenged. The jurisdictional question, which has arisen as a preliminary question to the separate question, is whether that challenge to the Valuer General's determination (or perhaps any challenge to the Minister's reliance upon it when making his statutory offer), can be mounted "collaterally" in these proceedings. 57 In Gosford City Council v Valuer-General (1996) 90 LGERA 413 the Court of Appeal, on appeal from the decision of Bignold J in this Court, held that the authority of the State which had resumed land under the JTC Act had no right of objection, in proceedings before this Court, against the amount of compensation determined by the Valuer General for the purposes of the resumption. Powell JA delivered the judgment of the Court (Priestley and Sheller JJA agreeing), and usefully surveyed the various functions exercised by the Valuer General when doing a valuation under his principal Act (the Valuation of Land Act 1916) and making a determination of compensation under the JTC Act, respectively. If one objects to a valuation, the objection is determined by the Valuer General and an appeal may lie to this Court. (See par [31] above - s.19(b) of the Court Act). The Court of Appeal held (at 422) that Bignold J was correct in holding that the Valuer General's determinations under the JTC Act were not susceptible to those Valuation Act processes. 58 Powell JA commented that he found the situation "anomalous", and he recommended (at 423) that the Government might consider amending the JTC Act legislation. 59 Following the above decision of the Court of Appeal, Gosford Council took proceedings in the Supreme Court to quash the Valuer General's determinations on the basis of administrative law principles. Newman J rejected the challenges, and his decision was appealed unsuccessfully to the Court of Appeal - Council of the City of Gosford v Cunningham and Seeto; Cunningham and Pearl Pastoral Pty Limited [1997] NSWCA 81. Mason P (with whom Grove and Brownie AJJA agreed) commented regarding the proceedings before Newman J: "the jurisdiction of the Supreme Court to entertain such an application is not in issue". 60 Powell JA's reasoning in the first Gosford case was considered by Grove J when he later sat as a single Judge in Hunters Hill Council v Cunningham [2004] NSWSC 508, where the Council sought to set aside a Valuer General's determination under the JTC Act on the grounds of error of law, such as ignoring a principle of assessment. The Council's challenge was dismissed, and in doing so Grove J repeated Powell JA's concerns about an apparent anomaly caused by the legislation. 61 Grove J's decision went on appeal to the Court of Appeal - Hunters Hill Council v Cunningham [2005] NSWCA 185 - where Giles JA's judgment dismissing the Council's appeal (with which Young CJ in Eq, and Stein AJA agreed) noted that the Supreme Court's jurisdiction to review a Valuer General's determination had been accepted in the second Gosford case and not contested in the case before him. 62 The legislation has not yet been amended as recommended by Powell JA and Grove J in the cases to which I have referred, and the line of authority is clear. 63 Any challenge to a Valuer General's determination under the JTC Act may be brought only as a judicial review case in the Supreme Court of NSW (where the Valuer General would be a Defendant), and not by way of valuation appeal/review proceedings in this Court (where again the Valuer General would be a Respondent), nor by way of a collateral challenge in JTC Act proceedings before this Court, where the Court sits as a judicial valuer under s.66 of the JTC Act and s.19(e) of the Court Act (and the Valuer General is not a party). The JTC Act is clear. As Mr Coles submitted (T47 LL28-32), there is no evidence of any Parliamentary intent to subject "the important efficacy of the statutory offer to the vagaries of its underpinning process". (There is no challenge pleaded to the offer as such, but I believe that any such challenge would also have to be by way of judicial review proceedings in the Supreme Court). 64 I should note for completeness that Mr Coles adverted, during argument on this "validity sub-question", to the principles laid down by the High Court in Commonwealth of Australia v Verwayen (1990) 170 CLR 394 (quaere a possible estoppel against the Minister challenging the determination or offer), and in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 (quaere the Minister cannot seek on an "interlocutory" basis a form of relief this Court is not empowered to give in the exercise of its normal jurisdiction, i.e. a declaration that the offer and/or determination is/are invalid). 65 Those arguments were not developed in oral or written submissions and I have not relied on them, or on those two authorities, in reaching my conclusion on this point. 66 As the determination which underpins the Minister's offer remains valid until and unless successfully challenged in the appropriate Court, the offer based upon it remains valid. The Court must, therefore, consider whether that offer remains open to acceptance by the Applicant. Can the Minister's offer now be accepted? 67 The law of contractual agreements has long been predicated on the principles of both "offer and acceptance", although the Courts are frequently asked to find a binding agreement where the offer and/or the acceptance lack their traditional clarity. See the discussion of modern examples of contract by Heydon JA (as he then was) in Brambles Holdings Limited v Gosford City Council (2001) 53 NSWLR 153, where His Honour went on to find that an offer once rejected may remain operative and available for acceptance if the circumstances so provide (see p.179 at [80]). See also Financings Ltd v Stimson [1962] 3 All ER 386, at 388, where Lord Denning MR held that it was not necessary for any particular action to be taken to manifest a revocation of an offer, so long as the intention is clear. 68 The Respondent argues that the Applicant's decision not to accept the Minister's offer, and the commencement of these proceedings with a view to winning a larger amount of compensation, constitute a rejection of the Minister's statutory offer and lead to its withdrawal/revocation at law. 69 Such a submission is contrary to the clear provisions of the JTC Act and to a line of specific authority in this Court. In respect of the former, the Interpretation Act 1987 (s.33) requires me to "promote the purpose or object" of the legislation in construing it, and, in respect of the latter, the correct principles of judicial comity (as stated by Holland J in Michael Realty Pty Ltd v Carr and Another [1975] 2 NSWLR 812 ("Michael Realty") and followed by many Judges of this Court over the years) require me to exercise my own judgment as to the correctness or otherwise of my colleagues' decisions before I depart from them. 70 I have set out my summary of the scheme of the JTC Act and Court Act at pars [12]-[ 32] above. The scheme as outlined by the JTC Act is very clear if one works steadily through the Act division by division: · Once the authority of the State effects its compulsory acquisition by notice in the Gazette, the dispossessed owner makes a claim for compensation (s.39(1)), and the Valuer General prepares the determination of compensation (s.47), which the authority must (within 30 days after the Gazette notice) carry forward into an offer contained in its Compensation Notice (s.42). The Valuer General's functions under that Division of the JTC Act are then concluded. · The dispossessed owner may accept the offer - and s.44(1) puts no time limitation on that acceptance. However, if the dispossessed owner does nothing for 90 days the offer is deemed to be accepted under s.45. · Within that 90 day period (which may be extended) the dispossessed owner may lodge with this Court an "objection to the amount of compensation offered", and the Court then embarks on its role as "judicial valuer" in the resulting proceedings, which are somewhat "adversarial" in character (s.66). · It is inevitably the case that the "objector" contends for a higher compensation figure, and it is not at all unusual for the acquiring authority to contend for a lower compensation figure, than the Valuer General's determination nominated. The Valuer General may or may not be a witness in the proceedings. 71 This scheme was also described by Biscoe J in Niezabitowski and Another v Roads and Traffic Authority (NSW) (2006) 147 LGERA 417 ("Niezabitowski"), at pars [20], [21], [29] and [30], and I respectfully agree with His Honour's summary. In that case the former owner purported to discontinue his JTC Act proceedings and then accept the authority's statutory offer after learning early in the hearing that the authority would be contending for an amount of compensation less than half the statutory offer ($2.4M c.f. $5.0M). Many of the arguments on the separate question in these proceedings mirror the RTA's submissions in those proceedings, e.g. that the lodging of the objection in the Court constitutes rejection of the statutory offer. 72 His Honour held that the purported Notice of Discontinuance was ineffective, but that the statutory offer was validly and effectively accepted. It could be accepted at any time prior to any settlement of the relevant JTC Act proceedings by other means, or prior to the delivery of the Court's judgment in them. 73 I respectfully adopt His Honour's reasoning and his construction of the relevant sections of both the JTC and Court legislation. Paragraphs [32]-[35] of Biscoe J's judgment (at 426-7) bear repeating: "32 Section 66(2) of the Just Terms Act does not refer to, but does not preclude, payment of compensation in accordance with an agreement between the parties, for that is expressly provided for in s 68(1) of that Act and in s 24(1) of the Court Act.

33 In my view, a textual analysis tends to support the construction that the time for acceptance of the statutory offer under s 44(1) of the Just Terms Act is unlimited. Section 44(1) provides that a person entitled to compensation may accept the amount of compensation offered, but prescribes no time limit within which acceptance must occur. By contrast, s 66(1), which is also a permissive provision, permits lodgement of an objection with the Court within 90 days.

34 Lapsing or rejection of a statutory offer are not concepts to which the provisions of the Just Terms Act refer. There is no provision that the statutory offer lapses or is rejected when an objection is lodged with the Court. There is a distinction between a statutory offer which has not been accepted, as referred to in s 45(1)(a), and an offer which has been rejected. There is no provision that the statutory offer can be withdrawn, rescinded, amended or varied. In contrast, there are express provisions in the Just Terms Act that a proposed acquisition notice can be withdrawn (ss 14, 16, 17, 69) or be deemed to be withdrawn (s 14(2)), rescinded (ss 31, 70) or amended (s 16(3)). There are express provisions for compensation claims to be withdrawn (ss 39(4), 71(3)). There are express provisions that, in certain circumstances, an authority can reject a claim for compensation (ss 46, 67, 71) and for a deemed rejection of a claim for compensation (ss 46(3), 67(1)).

35 Section 68(1) of the Just Terms Act provides that payment of compensation is to be made in accordance with "any" agreement reached during the proceedings, or if no such agreement is reached, in accordance with the decision of the Court. The word "any" is without limitation. Acceptance of the statutory offer gives rise to an agreement within the ordinary understanding of the effect of acceptance of an offer. In my view, that agreement is within the ambit of the broad expression "any agreement" in s 68(1). The respondent submitted that the words "any agreement" in s 268(1) should be construed as being restricted to an agreement negotiated independently of the statutory offer. I do not accept that submission. In my view, the words should be construed with all the generality that they permit." 74 The RTA in that case, like the Minister here, relied on Bignold J's decision in McCloys Pty Limited v Lake Macquarie City Council [1994] NSWLEC 148 ("McCloys") for a contrary view. 75 The central question decided by Bignold J was that a Respondent may contend, in proceedings under the JTC Act, for lower compensation than was offered pursuant to s.42. His Honour made some general remarks upon which the RTA in Niezabitowski and the Minister here based a submission that the Valuer General's determination and the Respondent's offer are "spent" (to use Bignold J's word quoted by Biscoe J), once the proceedings are on foot, and certainly once a Respondent's contentions on compensation fall below the Valuer General's figure. 76 Like Biscoe J (at par 38) "I would not attribute that conclusion to His Honour when that issue was not squarely before him", and (at par 39) "the [JTC Act] does not justify that characterisation of an objection". 77 I find nothing in Biscoe J's carefully considered and carefully worded judgment in Niezabitowski which I cannot wholeheartedly accept on the question before me at this stage of this matter. The issues of Discontinuance and costs were before Biscoe J, but are not (yet) before me in this matter. Neither he nor I is/am troubled by the fact that the offeror (i) has no discretion to offer a different figure from the one the Valuer General determined and (ii) cannot move away from its figure when the Court is engaged, but the offeree can return to accept it at any time before the judicial valuer completes his/her task by giving judgment. The statutory offer remains the "just compensation" until the judicial valuer decides otherwise. That is the clear and natural meaning of the relevant provisions, and no resort to the general law of contract is necessary or justified. Under the JTC Act the two parties to any agreement are forced into that relationship by the clear provisions of the statute. 78 To find for the Respondent on this separate question I would have to import into s.44(1) words setting some time limit, when one is neither imposed or needed by s.68(1). 79 The Chief Justice of NSW in a recent public lecture (The McPherson Lecture of 12 March 2008) stated (at 41) that the law on such importations remains as stated by Stephen J in two major High Court cases more than 30 years ago:

(a) In Marshall v Watson (1972) 124 CLR 640, His Honour said (at 649): " Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation ". (b) In State of Western Australia and Ors v Commonwealth of Australia (1975) 134 CLR 201, His Honour said (at 251): "However to accede to this submission would, I think, be to read into s.57 words which are not there and to do so without good reason. To read words into any statute is a strong thing and, in the absence of clear necessity a wrong thing … Section 57 contains no ambiguity which calls for resolution by the reading in of some such temporal limitation as suggested; it presents no absurdity of operation if read as it stands, without any addition being made to its wording. None of the circumstances here exist which courts have regarded as justifying the reading into statutes of words other than those chosen by the legislators ". 80 There is no "clear necessity", "absurdity", or "ambiguity" in the scheme of the JTC Act nor in any of its key sections. Nor is there any "gap" that the legislators did not intend to be there. The agreement envisaged by s.68(1) can be reached either by acceptance of the statutory offer pursuant to s.44(1) at any time prior to a judgment of the Court in compensation proceedings, or as the result of successful settlement negotiations undertaken in the normal course of litigation. Such negotiations failed in this case (according to Mr Gibbons' affidavit), but the option of s.44(1) remained open, and was taken. Nothing in s.24 of the Court Act precludes that option - the words "and not otherwise" deal with the exclusive nature of this Court's jurisdiction to dispose of compensation disputes, and do not preclude any such disposition involving determination of compensation as agreed between the parties by virtue of acceptance, during the proceedings, of the statutory offer. 81 In Evagelakos v Roads & Traffic Authority of New South Wales [2006] NSWLEC 514 ("Evagelakos") the statutory offer was accepted on Day 4 of the hearing, only one week after Niezabitowski was decided, and Biscoe J was specifically asked to depart from his decision in Niezabitowski. His Honour considered submissions very similar to those he had rejected in that earlier decision, and saw no reason to depart from his reasoning. 82 In determining the question of costs in Ward Richard Geoffrey v Roads and Traffic Authority of NSW [2007] NSWLEC 405 Talbot J noted Niezabitowski and Evagelakos, but it would appear that while the Respondent in Ward did not "necessarily accept" (par [26]) Niezabitowski, its authority was not specifically challenged before His Honour. 83 Likewise in Serbian Cultural Club 'St Sava' Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales (No.2) [2008] NSWLEC 78, Jagot J was not asked to depart from Niezabitowski, and did not question its authority in her judgment. 84 If the principles in Michael Realty require me to be more specific about my decision on the apparent conflict between Niezabitowski and McCloys, I adopt Biscoe J's ratio and analysis in Niezabitowski, and Bignold J's ratio in McCloys, but I choose not to adopt Bignold J's obiter remarks in McCloys (or, rather, the implications the Respondent says I should draw from them). 85 The answer to the separate question as formulated by counsel on either side of the matter is YES. Summary 86 The conclusions of the Court are: · The Respondent cannot adduce the further evidence it sought to adduce (beyond that received by the Court at the hearing). · The Respondent cannot challenge the validity of the Valuer General's determination (or the Minister's offer) as a collateral aspect of the separate question proceeding. · The Applicant's acceptance on 18 April 2008 of the Minister's offer in his Compensation Notice is permissible. 87 I acknowledge, with thanks, the assistance I have received from Acting Commissioner Sheehan. Future Disposition of these Proceedings 88 The valid acceptance of the statutory offer disposes of the issue of the amount of compensation to be paid, and I note (from p.21 of Mr Holland's affidavit, item G) that 90% of that amount was paid, with some interest, on 19 May 2006. Mr Coles' submissions indicate, however, that questions of interest and costs, and final formal orders to dispose of the matter, remain to be considered. 89 I set the proceedings down for further hearing at 11am on Monday 5 May, when further attention can be given to these outstanding matters. 90 Mr Corbin's affidavit and the disputed tender bundle may be returned to the Respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2006) 147 LGERA 417

(2007) 157 LGERA 100

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (23)

Cited By (5)