[2009] HCA 41
Alexandria Landfill Pty Ltd v Roads and Maritime Services
Boiling Pty Limited v Roads and Maritime Services (No 4) [2018] NSWLEC 31
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1
[2012] HCA 3
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Alexandria Landfill Pty Ltd v Roads and Maritime ServicesBoiling Pty Limited v Roads and Maritime Services (No 4) [2018] NSWLEC 31
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1[2012] HCA 3
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v CrossCertain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378[2012] HCA 56
Coco v The Queen (1994) 179 CLR 427[1994] HCA 15
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492[1978] HCA 28
James v Australia and New Zealand Banking Group Ltd (2018) 97 NSWLR 663[2018] NSWCA 41
Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372[2008] FCAFC 60
Lazarus v Independent Commission Against Corruption [2018] NSWSC 997
Leerdam v Noori [2009] NSWCA 90(2009) 255 ALR 553
Marshall v Director-General, Department of Transport (2001) 205 CLR 603[2001] HCA 37
National Australia Bank Ltd v Charlton[1998] HCA 28
Spencer v Commonwealth of Australia (1907) 5 CLR 418[2008] HCA 5
Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266
Judgment (18 paragraphs)
[1]
earce & Geddes (8th edition, 2014)
Category: Procedural and other rulings
Parties: RD Miller Pty Ltd (ACN 058 073 582) (Applicant)
Roads and Maritime Services NSW (Respondent)
Representation: Counsel:
N Eastman with N Hammond (Applicant)
R Beasley SC with D Hume (Respondent)
On 14 December 2018, RD Miller Pty Ltd ('RDM') commenced Class 3 proceedings seeking compensation from the Roads and Maritime Services ('RMS') pursuant to ss 68(1) and 226(3) of the Roads Act 1993 (NSW) ('Roads Act') for loss or damage arising from its right of access across the boundary between its land, being Lot 4 DP 1077434 ('Land') and the road formerly known as the Princes Highway (now known as Newtown Road) ('Road') being restricted and/or denied as a result of the construction of the Bega Bypass in 2013 and the ensuing order declaring part of the Road to be a controlled access road published in New South Wales Government Gazette, No 136, 15 December 2017, at 7705 ('Order').
Presently before the Court is a Notice of Motion filed by Roads and Maritime Services ('RMS') on 12 April 2019 ('Motion') seeking orders pursuant to r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') that par (37) of RDM's Points of Claim filed 29 March 2019 ('POC') which posits three approaches to the determination of compensation be struck out. In the Motion, RMS also seeks orders pursuant to r 13.4 of the UCPR that if par (37) comprises RDM's claim for relief in the proceedings, that claim be dismissed.
At the hearing of the Motion, Mr R Beasley of senior counsel appeared with Mr D Hume of counsel for RMS and Mr N Eastman of counsel appeared with Ms N Hammond of counsel for RDM. Apart from the evidence referred to below, the Court received detailed written and oral submissions.
It is clear that RDM and RMS have significantly different views as to the proper construction of critical provisions of the Roads Act and that the acceptance of one of those views has substantial consequence for the type and extent of evidence which will need to be prepared for the hearing and the length of the hearing itself.
For the reasons that follow, I strike out pars (37)(a) and (37)(b) and allow a minor amendment to par (37)(c) of RDM's POC.
[4]
Introduction
The primary issue in the substantive proceedings concerns the amount of compensation payable to RDM for loss or damage arising from its loss of access across the boundary between its land and the former Princes Highway (now Newtown Road). The parties disagree as to the how the loss or damage should be calculated and the essential issue in the Motion relates to the parties' differing constructions of the relevant sections of the Roads Act.
The parties agree that the amount of compensation payable is determined in accordance with Div 4 of Pt 5 of the Roads Act.
As considered further below, RMS contends that Div 4 of the Roads Act precisely specifies how the amount of compensation payable is determined. RDM contends that the Act, in particular the words "loss of access" in s 68(1) and "market value" in s 69(1) should be considered more broadly by taking into account the common law and the actual conduct of RMS. Further, RDM contends that its view as to the application of the relevant provisions is and can be encapsulated in the manner in which the prescribed valuation approach in s 69(1) of the Roads Act is applied.
RDM contends that the conduct of RMS in constructing the Bega Bypass interfered with its ability to physically access the Princes Highway and that that should be considered in determining the compensation payable to it. RMS claims that the Roads Act provides a prescribed approach to the entitlement to compensation (and the calculation thereof) which clearly provides for the determination of market value immediately before and immediately after the making of the Order on 15 December 2017.
In considering the parties' respective positions, it is appropriate to detail some of the relatively uncontentious background facts, the relevant provisions of the Roads Act, and the parts of the POC the subject of the Motion.
[5]
Background
RDM has been the owner of the Land since 4 February 2005. Prior to 2013, the Land which comprises approximately 40 hectares at Bega was zoned 2(f) (Future Urban Zone) under the Bega Valley Local Environmental Plan 2002. In or about August 2013, the Land was rezoned to be part IN1 General Industrial, part R5 Large Lot Residential and part E2 Environmental Conservation.
Construction of the Bega Bypass commenced in June 2012 and the Bega Bypass was opened to traffic in December 2013. Prior to the construction of the Bega Bypass, part of the western boundary of the Land adjoined the Princes Highway.
Following the construction of the Bega Bypass, the Princes Highway was realigned and that part of the Princes Highway that had adjoined the western boundary of the Land became a council public road and was renamed Newtown Road. A new intersection was constructed which connected the new alignment of the Princes Highway to Newtown Road.
Prior to the construction of the Bega Bypass, the Land had three gated access points along its western boundary adjoining the Princes Highway and RDM was entitled to access the Land from any location along the western boundary where it adjoined the Princes Highway under s 6 of the Roads Act subject to such restrictions as were imposed under the Roads Act or any other Act or law.
In or about August 2010, RDM lodged a development application with Bega Valley Shire Council ('Council') and in September 2012 received development consent for a subdivision to create 63 rural residential allotments on the Land and surrounding land. In or about August 2012, RDM lodged a further development application with Council, being DA 2012/309 for certain earthworks on the Land. DA 2012/309 was granted in or about October 2012.
In December 2010, RMS approved the Bega Bypass under Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW).
On or about 15 December 2017, the Order (styled "Roads Act 1993, Order - Sections 46, 49, 54 and 67, Bega Valley Shire Council Area, Declaration as Controlled Access Road (including Partial Repeal of Declaration of adjoining Controlled Access Roads) of part of the Princes Highway at Bega") was published in New South Wales Government Gazette, No 136, at 7705 and declared:
1. Lot 11 in DP 843822 to be a controlled access road under s 49 of the Roads Act (I note that RMS pleads in its Points of Defence that this is not relevant to these proceedings and states that, relevant to the present proceedings, the Order declared Lot 11 in DP 1201729 to be a controlled access road); and
2. access to the controlled access road to be restricted under s 67 of the Roads Act.
[6]
Evidence
In support of the Motion, RMS reads the affidavit of Timothy James Poisel affirmed 12 April 2019 which details correspondence between the parties' solicitors leading to the filing of the Motion and indicates the parties' different approaches to the construction of the Roads Act. Although there was some discussion between the parties as to whether they would jointly agree that a preliminary question be determined by the Court in relation to the proper construction of the relevant provisions of the Roads Act prior to the substantive hearing, agreement was not reached and the Motion was filed.
RDM referred the Court to an expert engineering report prepared by John Wearne filed 14 December 2018. Mr Wearne provides background material and in summary opines that the construction of the Bega Bypass resulted in the removal of direct access to the Land with the consequence of significantly increasing the scope and cost of works required to allow proposed development of the Land.
RDM also referred the Court to parts of an expert valuation report prepared by Peter Adlington of Walsh & Monaghan Pty Ltd. Mr Adlington was instructed to provide an assessment of compensation "in accordance with s 69 of the Roads Act" following the restriction on access to the Land as a result of the declaration of part of the road adjoining the Land as a controlled access road pursuant to ss 46, 49, 54 and 67 of the Roads Act.
[7]
Statutory scheme
The Roads Act provides for compensation for loss of access in the following provisions:
49 Controlled access roads
The Minister may, by order published in the Gazette, declare to be a controlled access road:
(a) any main road that is designed to facilitate the movement of motor traffic, and
(b) any road that joins a main road referred to in paragraph (a).
…
Division 4 Loss of access to a freeway, transitway or controlled access road
67 Restriction of access to freeways, transitways etc
(1) An order declaring a road to be a freeway, transitway or controlled access road may restrict access to or from the freeway, transitway or controlled access road.
(2) In that event, the order:
(a) must specify the points along the freeway, transitway or controlled access road at which access may be gained to or from other public roads, and
(b) must, in addition to being published in the Gazette, be published in one or more newspapers circulating in the locality in which the freeway, transitway or controlled access road is located.
68 Entitlement to compensation
(1) If access across the boundary between any land and a public road is restricted or denied as a result of the road becoming a freeway, transitway or controlled access road, or if a person has started to construct a means of access to a freeway, transitway or controlled access road before its declaration as such and the consent of RMS to its completion is refused, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access.
(2) Compensation is not payable to the owner of any land merely because:
(a) adjacent land is acquired by RMS for the purpose of opening a new freeway, transitway or controlled access road or widening an existing freeway, transitway or controlled access road, and
(b) access is restricted or denied across the boundary between the owner's land and such part of the freeway, transitway or controlled access road as comprises the land so acquired.
(3) Compensation is payable under this Division only if a claim for the compensation is made within 12 months after the land concerned has been declared to be a freeway, transitway or controlled access road.
69 Amount of compensation payable
(1) The amount of compensation payable under this Division is an amount equal to the difference between the market value of the land immediately before, and the market value of the land immediately after, the right of access was restricted or denied.
(2) In determining the amount of compensation:
(a) the assessment of the market value of the land at the time it became subject to the restrictions must take into account any modifications of the restrictions that are attributable to any consent given by RMS and any conditions attached to such a consent, or that are attributable to any undertaking that RMS has given or promised, and
(b) there must be taken into consideration any benefit that may accrue to any other land in which the claimant has an interest because of the construction or improvement (whether by RMS or any other person) on land adjacent to that in respect of which the compensation is claimed of any road after the restrictions took effect or because of the effect of the restrictions, and
(c) no account may be taken of the fact that, since the land became subject to the restrictions, the interest of the claimant has become, or has ceased to be, the same as the interest of the claimant in other land.
[8]
Points of Claim
RDM's POC detail the background facts relied upon by RDM and relevant to the Motion, under the heading "Grounds", provides:
…
37 The Applicant's claim under s 69 is predicated on one of three different scenarios described as follows:
a. The first scenario where:
i. The carrying out of the Works, [defined at par (18) (see [25] below)] was a step in the process to legally restrict a "right of access" within the meaning of s 69 of the Act (as described in [34(a)] above);
ii. The time at which the "market value of the land immediately before ... the right of access was restricted or denied" for the purposes of s 69 of the Act, ought be measured from December 2013 being the date in [33] above;
iii. Compensation is payable in the sum of $1,775,000.00, being the difference between, on this construction of s 69 of the Act, the market value immediately before the Works were constructed and the market value immediately after.
b. Alternatively, to paragraph 37 (a) above, the second scenario where:
i. The legal "right of access" was restricted and/or denied in the legal sense upon gazettal of the Order on 15 December 2017;
ii. The physical works were carried out in the circumstances described in [34(b)] above;
iii. The expression "immediately before" in s 69 of the Act ought not be construed in such a way as to allow the Respondent to take advantage of its own wrong or abuse the process imposed and regulated by the Act;
iv. Therefore the time at which the "market value of the land immediately before ... the right of access was restricted or denied" for the purposes of s 69 of the Act, ought be measured from December 2013 being the date in [33] above;
v. Compensation is payable in the sum of $1,775,000.00, being the difference between, on this construction of s 69 of the Act, the market value immediately before the Works were constructed and the market value immediately after.
c. Alternatively to paragraphs 37(a) and (b) above, the third scenario:
i. The legal "right of access" was restricted and/or denied in the legal sense upon gazettal of the Order on 15 December 2017;
ii. The expression "immediately before" in s 69 of the Act ought be construed to be 15 December 2017 and is to be construed to allow the Respondent to take advantage of its own wrong (or alternatively, the physical denial/restriction of access from 2013 is disregarded for the purposes of assessing compensation);
iii. Even without physical access, an owner of the Land, "immediately before ... the right of access was restricted or denied" has the ability to enforce its rights under s. 6 of the Act, or negotiate with the Respondent about that right, and such a right adds value to the potential highest and best use of the Land, which can be appropriately quantified in the valuation exercise;
iv. Consequently, compensation is payable for the difference between the market value immediately before the gazettal of the Order and the market value immediately after the gazettal, disregarding the Works that had been carried out in an amount to be quantified by a valuer, on the value of the ability to enforce or negotiate that "right" even in circumstances where that had been (unlawfully or otherwise) restricted by the Respondent (emphasis added).
[9]
RMS' position
RMS relies upon the Court's broad power to strike out pleadings pursuant to r 14.28 of the UCPR which it submits is supplemented by r 13.4 of the UCPR, a provision that permits the dismissal of the whole or part of a claim. RMS submits that whilst the Court has discretion as to whether it resolves issues of law at an interlocutory stage, that discretion is properly guided by the overriding objective in s 56 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act'). RMS submits that in a case such as the present which depends upon the correctness of a proposition of law which is clearly erroneous and if the early resolution of that proposition of law can avoid substantial expense and inconvenience to the Court and the parties, the Court's discretion can be exercised to resolve the issue of law at an interlocutory stage.
It is in the context of the clearly divergent views of the parties as to the construction of the Roads Act and RDM's pleading which has crystallised the construction dispute that RMS now pursues the strike out of pars (37)(a) and (37)(b) of RDM's POC. RMS submits that the POC makes allegations of law which will not and cannot succeed.
RMS submits that, as pleaded by RDM in its POC, the claim for compensation is "predicated" upon "one of three different [alternative] scenarios" provided for in pars (37)(a), (37)(b) and (37)(c). At the hearing of the Motion, it was accepted that the "third scenario" - that being pleaded in par (37)(c) - was no longer subject of the strike out application because of an agreed amendment to that paragraph (by the deletion of the words italicised in par (37)(c)(iv) at [23] above), and that if RMS was successful in obtaining the relief it sought in relation to pars (37)(a) and (37)(b), the hearing would proceed in accordance with par (37)(c).
In relation to par (37)(a), referred to as the "first scenario", RMS submits that RDM's position depends upon the proposition that the phrase "the right of access was restricted or denied" identifies a physical restriction on access, as distinct from a statutory prohibition on access. This is because par (33) in the POC provides:
Physical access across the boundary between the Road and the Land was restricted and/or denied in the practical and/or physical sense on or before December 2013.
RMS contends that RDM impermissibly equates the wording "the right of access was restricted or denied" with a physical restriction on access when this does not and cannot arise on a proper reading of the Roads Act.
[10]
RDM's position
As noted above, RDM submits that the Court should keep in mind that the Bega Bypass works resulted in the loss of three pre-existing access points to the Land and required the construction of an alternative access, increasing the scope of works required for future subdivision development of the Land. RDM says that it is the further scope of works (and the costs thereof) that is to be taken into account when determining the compensation sought. RDM further submits that in carrying out the Bega Bypass works, RMS did not take the relevant lawful steps to legally deny access to RDM until it finally declared the road a controlled access road on 15 December 2017. It was only at that time that the right to compensation was triggered, well after the physical works were completed.
RDM contends that a broad approach should be adopted in construing the statutory language and emphasises that the operative provision is "the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access". In those circumstances, RDM says, as it has detailed in par (37) of its POC, that there are three alternative approaches to determining compensation based on the proper construction of ss 68 and 69 of the Roads Act (noting that in circumstances where par (37)(c) is now to be amended, that paragraph, being the third scenario, is no longer the subject of the relief sought in the Motion).
The first scenario adopts a construction of the Roads Act in such a way that the Spencer or s 56 of the Compensation Act approach to compensation applies, that a "before and after approach" to construction is open and the time at which the relevant (before) test to be applied is that which disregards the public works or the public purpose in restricting access. RDM submits that this occurred approximately four years' prior to the Order.
The second scenario, detailed in par (37)(b) of RDM's POC, is similar to the first, but instead of construing the relevant provisions in accordance with Spencer or San Sebastian or in pari materia to the Compensation Act, RDM relies upon the general rule that an interpretation of an Act or contract will not be adopted that will allow a person to take advantage of their own wrong with reference to principles considered in TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 147, Green v Kogarah Municipal Council [1999] NSWLEC 256 at [32], and Statutory Interpretation in Australia, Pearce & Geddes (8th edition, 2014) at par [2.41]. RDM submits that the denial of access is what is meant to trigger compensation in accordance with s 68 of the Roads Act and although this was "legally effected" by the gazettal, it was physically effected by the Bega Bypass works. RDM contends that in these circumstances, the "wrong" is to physically deny access without taking legal steps to effect it.
[11]
Strike out principles
RMS seeks relief pursuant to rr 14.28(1)(a) and 13.4 of the UCPR. Rule 14.28 provides:
14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Rule 13.4 provides:
13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
While the parties made competing submissions in relation to the appropriate strike out principles, I consider that the manner in which the Court approaches strike out applications to be relatively well understood. Whilst caution needs to be exercised in dealing with strike out applications, I note that courts have frequently drawn a distinction between issues of fact and issues of law and it is often appropriate to resolve issues of law at an interlocutory stage.
In Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [131], Gordon J (considering the application of s 31A of the Federal Court of Australia Act 1976 (Cth)) stated:
…the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, "argument, perhaps even of an extensive kind" was permitted "to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed": General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.
[12]
The proper construction of the relevant provisions of the Roads Act
As noted above, the essential difference between the parties is that RDM contends (adopting the Spencer or Compensation Act disregard approach detailed above) that the time at which the "right of access was restricted or denied" refers to the time at which physical access was restricted and that the time "immediately before" the right of access was restricted or denied could be some years prior to the making of the Order when physical access was denied. Conversely, RMS contends that the time at which the "right of access was restricted or denied" refers to the time at which the restriction effected by the Order (under s 67(1)) came into effect.
The relevant provisions of the Roads Act are detailed at [22] above. In summary, s 49 provides that the Minister may, by order published in the Gazette, declare any main road, or any road that adjoins a main road, to be a controlled access road. Division 4 of Pt 5 provides, pursuant to s 67, that an order declaring a road to be a controlled access road may restrict access to or from a freeway, transitway or controlled access road and in that event, the order must, inter alia, specify points along the freeway, transitway or controlled access road at which access may be gained to or from other public roads.
The Order was authorised under s 67 and it imposes a legal restriction on access. Section 68(1) provides that if access across the boundary between land and a public road is restricted or denied as a result of the road becoming a controlled access road, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access and s 69 then provides how the amount of compensation is to be calculated. It provides that the amount of compensation payable is equal to the difference between the market value of the land "immediately before, and the market value of the land immediately after, the right of access was restricted or denied" (emphasis added). Section 69(2) provides further guidance in relation to the determination of the amount of compensation.
As stated by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (footnotes omitted):
…the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[13]
Paragraph (37)(a) - first scenario
RDM's first approach is that the Roads Act must be construed in such a way that the Spencer approach or the s 56 of the Compensation Act approach to compensation applies, that a "before and after" approach to compensation is open and that the time at which the (before) test is to be applied should disregard the proposal to carry out the public works (or public purpose in restricting access), approximately four years prior to the gazettal of the Order. This scenario, in my view, does not have reasonable prospects of success.
I do not find RDM's submission that "market value" should be construed in accordance with Spencer or San Sebastian or that it is in pari materia to the Compensation Act to be compelling because, in summary: the definition of market value in the Compensation Act is expressly said to be a definition "in th[is] Act" in s 56(1) of the Compensation Act and it cannot be equated with a general definition of "market value"; the Roads Act does not, as RMS submits, "conspicuously" provide that "market value" was intended to bear the same meaning as in the Compensation Act; and, the in pari materia principle does not apply in circumstances where the two statues use different language. I am not of the view that the two Acts should be read as having coextensive fields of operation. I consider that no principle of statutory construction will allow the wholesale incorporation of the text from the Compensation Act into the Roads Act.
I find that it is clear that the Roads Act and the Compensation Act use materially different language and have different structures. The present proceedings are not brought pursuant to the Compensation Act and cannot be treated as such.
It follows that the Roads Act, unlike the Compensation Act does not provide for a statutory "disregard" in relation to the determination of market value. To the extent that RDM seeks to rely upon the common law concept of "market value" deriving from Spencer which incorporates s 56(1) of the Compensation Act including the Pointe Gourde (or Sans Sebastian) principle to support pars (37)(a) and (37)(b) of its POC, I do not accept this submission primarily because the concept which is captured in s 56(1) of the Compensation Act is different in any event from the Pointe Gourde principle.
Put simply, whilst there is reflected in the terms of s 56(1)(a) of the Compensation Act a policy to require a "disregard", it does not follow that there is a concept of "disregard" that arises from the specific words used in the relevant sections of the Roads Act. Importantly, the High Court in Walker expressly cautioned against an approach that involved implementing the Pointe Gourde principle without regard to the terms of the particular Act, stating at [47]:
The term "scheme" is not found in the Compensation Act but was used throughout his reasons by the primary judge. It is the terms of that legislation that are determinative and it is not to be assumed that they reproduce or attempt to reproduce an understanding of "principles" derived by way of gloss upon the spare terms of ss 49 and 63 of the 1845 Act…
[14]
Paragraph (37)(b) - second scenario
For completeness, insofar as they are relevant, I repeat my findings above in relation to the second scenario.
The second scenario, which relies on the principle that an interpretation of an Act will not be adopted that will allow a person to take advantage of their own wrong, is also untenable. Whilst there may be a general rule that an interpretation of an Act or contract will not be adopted that will permit a person to take advantage of their own wrong (Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266; (2010) 178 LGERA 445 at [75] and the authorities referred to therein), I accept the submission of RMS that if there was a "wrong" under s 6 of the Roads Act, the remedy would be a suit under s 6. In the circumstances, it would be an untenable construction of s 68 if the compensation that was awarded was affected by the fact that RDM did not bring proceedings under s 6. Further, there is no available construction of s 68 that could accommodate the Roads Act operating differently where there had been some unlawful conduct anterior to the Order. It is also unclear what "kinds" of unlawful conduct would be covered by the construction proffered by RDM. The proposed construction in this regard does not arise from the text of the Roads Act.
Further, I do not consider that the conduct described in par (34)(b) of RDM's POC (relied upon in par (37)(b)(ii)) can be said to be a "wrong" or an abuse of process which would affect or drive the construction of the words "immediately before" in s 69 of the Roads Act as claimed in par (37)(b)(iii) of the POC. As such, I find that par (37)(b) of RDM's POC discloses no reasonable cause of action.
[15]
Time and cost savings
The correspondence between the parties (annexed to the affidavit of Mr Poisel) and submissions made at hearing revealed a difference between the parties as to whether there would be any material saving in terms of time and costs in relation to the marshalling of expert and lay evidence and the conduct of the hearing. RDM disputes RMS' position that there would be a material and "obvious" saving of time and expense if pars (37)(a) and (37)(b) of the POC were struck out as it still intends on retaining a number (possibly four) experts from various disciplines for the hearing.
Although I do not consider this aspect determinative given my findings regarding pars (37)(a) and (37)(b) above, in light of the manner in which the Motion has been argued and the submissions made by the parties, I find that it is clear that there will be a material saving in terms of time and costs if the matters raised in the Motion are dealt with prior to the substantive hearing. I find that the need for both expert and lay evidence would be increased if the Court was required to consider factors affecting valuation and conduct in and around December 2013, as would be the logical consequence if pars (37)(a) and (37)(b) of RDM's POC remained, at the hearing.
[16]
Conclusion
For the reasons given above and accepting the need for "extreme caution" in exercising my discretion, I do not consider that the prospects of the first and second scenarios are even "slim". There is "certainty of outcome" because pars (37)(a) and (37)(b) of RDM's POC disclose no reasonable cause of action. In the circumstances, I consider that RMS is entitled to the relief it seeks in the Motion and I find it appropriate to exercise my discretion to strike out pars (37)(a) and (37)(b).
[17]
Orders
The orders of the Court are:
1. Paragraphs (37)(a) and (37)(b) of the Points of Claim filed 29 March 2019 by RD Miller Pty Ltd are struck out.
2. Costs reserved.
[18]
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Decision last updated: 12 September 2019
RDM posits that the "works" (which it defines in par (18) of its POC as that part of the construction of the Bega Bypass that was carried out between October and December 2013 on that part of the Princes Highway that was adjacent to the Land, including the construction of a new intersection) resulted in the loss of three pre-existing access points to the Land, and required the construction of alternative access, increasing the scope of works required for future subdivision development of the Land, including some 200m of roadway, substantial cut and fill earthworks and additional utility services. RDM calculates its compensation claim accordingly. As considered below, this approach has manifested itself in the manner and methodology adopted in RDM's valuation evidence which proceeds on a "before and after" basis.
The words italicised in par (37)(c)(iv) above were deleted by consent at the hearing of the Motion.
Paragraphs (18), (33) and (34) (referred to in par (37) of RDM's POC) provide:
18 Between about October and December 2013, as part of the construction of the Bega Bypass, works were carried out on that part of the Princes Highway that was adjacent to the Land, and included construction of a new intersection from the Bega Bypass to the Road (Works).
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33 Physical access across the boundary between the Road and the Land was restricted and/or denied in the practical and/or physical sense on or before December 2013.
34 The Respondent either:
a. Acted lawfully by physically denying access, as the Works were a step in the process to legally restrict/deny access, and the final step described in paragraph [35] below was the final part of that process; or
b. Acted unlawfully by physically denying access to the land without taking steps required by s 67(1) of the Act.
RMS also submits that if par (37)(a) remains, it will require significant lay and expert evidence as to the character of the physical restrictions on the Land in or around December 2013, and valuation evidence as to the market value of the Land at unspecified times in or before December 2013 which may in turn require expert evidence in other disciplines such as town planning, traffic, engineering and quality surveying. It also points to the vague nature of the words "on or before December 2013" in par (33) of the POC.
In relation to par (37)(b) of RDM's POC, referred to as the "second scenario", RMS submits that this scenario accepts that the restriction referred to in s 69(1) of the Roads Act is the legal restriction effected by a s 67 order, however then asserts that the time "immediately before" the imposition of the legal restriction (by the Order) might be some years prior (here, December 2013). Again, RMS submits that as with the first scenario, the second scenario will require lay evidence in relation to the character of the works referred to in par 34(b) and valuation expert evidence as to the market value of the Land at unspecified times in or around December 2013 which may in turn require expert evidence in other disciplines such as town planning, traffic, engineering and quantity surveying. RMS says that the reference to "December 2013" is unhelpful and inconsistent with the pleading of "on or before December 2013" in par (37)(a).
In light of the above, RMS submits that s 69(1) refers to a "right of access" being "restricted or denied" and that the restriction or denial referred to is that effected by law by s 67(1) of the Roads Act. Put simply, RMS submits that the restriction or denial is not a physical restriction on access. RMS contends that this position arises from basic principles of statutory construction and s 69(1) should be construed in the context of its surrounding provisions. RMS says that there is textual thread running through ss 67, 68 and 69 of the Roads Act which is determinative in construing those sections. In these circumstances, RMS submits that s 67 cannot be read as referring to a "physical restriction".
RMS further submits that there is no textual basis in Div 4 of Pt 5 of the Roads Act for the suggestion that the division is concerned with physical restrictions. RMS contends that the construction propounded by RDM depends upon the concept of the "Works" (as defined in par (18) of RDM's POC) being a "step in the process" to issue the Order in circumstances where such a concept is vague and has no statutory foothold. To the extent that RDM relies upon s 56(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ('Compensation Act') for determining the market value for the purposes of s 55(a) of that Act, RMS submits that the Roads Act provides no such statutory "disregard" as provided for under the Compensation Act.
RMS submits that RDM's position that "market value" should be accorded a meaning similar to that in the Compensation Act would not be accepted because: first, the definition of market value in the Compensation Act is clearly expressed to be a definition "in th[is] Act" (s 56(1)) rather than a general definition; second, Parliament did not intend for market value to bear the same meaning in each Act; and third, there is no basis to suggest that the common law (or general) conception of "market value" deriving from cases such as Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82 ('Spencer') includes the whole of the concept in s 56(1), including what is known as the Pointe Gourde (or Sans Sebastian) principle (which in effect was historically considered in land acquisition/resumption cases - see below at [50]) and which should therefore be read into s 68 of the Roads Act.
In these circumstances, RMS submits that the construction which underpins the first scenario (that is, par (37)(a) of RDM's POC) is therefore wrong in law and/or untenable.
In relation to the second scenario, RMS submits that s 69(1) of the Roads Act refers to the time "immediately before" the right of access was restricted or denied and as such, the relevant time is the time immediately prior to the taking effect of the Order. Therefore, it is not and cannot be a time four years prior to the taking effect of the Order as is contended in par (37)(b) of RDM's POC. In the circumstances, "immediately" bears its natural and ordinary meaning. That is, it is a reference to a time immediately prior to the taking effect of the restriction. RMS submits that the statutory text controls the constructional outcome.
RMS further submits that the construction advanced by RDM depends on the proposition that "immediately before" can have two meanings: one in a case where there has not been an unlawful physical restriction of access and one in a case where there has been an unlawful physical restriction of access. Whilst denying that there was any unlawful physical restriction of access, RMS says that no orthodox principle of construction could permit the same statutory text to bear two different meanings depending on the circumstances.
In reply to RDM's submissions, RMS points to the approach taken by the High Court in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 ('Walker') at [31]-[35] that the focus when construing compensation statutes must always be on the text of the particular statute. In response to RDM's position that the broad construction it posits is necessary to avoid unfairness, RMS submits that RDM's position starts from the premise that the physical carrying out of works preceding the controlled access road declaration was a contravention of s 6 of the Roads Act. The proposition then concludes that the remedy for such a contravention must be an award of compensation under s 68, however RMS submits that the conclusion does not follow from the premise. RDM may have had a right under s 6, however if it did, it did not bring proceedings to enforce any such right (for injunctive relief or damages) and its relief would have been under s 6, not under an "untenable" construction of s 68 of the Roads Act.
In response to RDM's submissions regarding the second scenario, RMS says that there is no warrant to suggest that RMS has sought to benefit from its own wrong and in any event RDM does not identify what forms of unlawful conduct would be covered by the statutory construction it proposes.
For the above reasons, RMS submits that the construction which underpins pars (37)(a) and (37)(b) of RDM's POC is wrong in law and/or untenable and in these circumstances, the Court should exercise its discretion to resolve the legal issues against RDM at this interlocutory stage. RMS says that this would lead to a material reduction in the nature and extent of expert evidence required, particularly in relation to what the circumstances may have been in an "amorphous" period in or around late December 2013. RMS submits that the just, quick and cheap resolution of the proceedings favours the interlocutory resolution of the issues raised by par (37) of RDM's POC.
RMS also reminds the Court that striking out pars (37)(a) and (37)(b) does not deprive RDM of compensation under the Roads Act, however any compensation is required to be assessed pursuant to s 69 where "before" is immediately prior to the making of the Order (on 15 December 2017) and "after" is immediately after the making of the Order.
The third scenario (which is now not the subject of the strike out application) is that even if the Bega Bypass works are not disregarded (that is, there is no disregard) in determining compensation, the valuation approach will be based upon the assumption that a hypothetical purchaser of the Land "immediately before" legal steps are taken to deny access, even if the physical works have been undertaken, would take into account the existing right under s 6 of the Roads Act and the ability to enforce such a right would be valuable and compensable.
RDM details the history of s 6 of the Roads Act and submits that the common law treated the owner of land adjoining a highway as having rights over or in connection with the highway and that s 6 effectively re-states this right. RDM refers to s 3(1)(b) of the Compensation Act (and the objects of that Act) and contends that the principles of construction in relation to valuation in resumption and compulsory acquisition legislation should be applied to the Roads Act.
RDM submits that there are no relevant defined terms that arise out of the provisions in Div 4 of Pt 5 of the Roads Act (being ss 66-70) and that both "compensation" and "market value" are undefined. In these circumstances, RDM submits that "market value" in s 69(1) of the Roads Act is in pari materia with the definition of "market value" in the Compensation Act, and, historically, the term "market value" derived from the decision in Spencer which RDM submits is obviously the basis for the definition of "market value" in the Compensation Act.
RDM further relies upon the Pointe Gourde principle that compensation for compulsory acquisition of land cannot include an increase in the value of acquired land which is due to the scheme underlying the acquisition: Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 (as adopted by the High Court in Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28).
As such, RDM submits that the proper approach to "market value" in the Roads Act is the importation of a statutory disregard as provided for under the Compensation Act and RDM applies this approach to the first two scenarios the subject of the Motion.
In relation to the first scenario, s 68 of the Roads Act provides that "the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access" (emphasis added). RDM submits that RMS' approach is characterised by "manifest unfairness and mischief" because if the legal denial of the right to access had been done prior to the undertaking of the "works", compensation would have been for the denial of legal access which previously physically existed. However, the approach of RMS is to the effect that after it denies physical access, the value diminishes at that point so the gazettal to deny legal access has little practical effect meaning that there is no (or at least marginal) compensable loss. RDM says that it is that "mischief" that the legislation should be construed to address. Therefore, RDM's first scenario adopts an approach to the construction of ss 68 and 69 of the Roads Act, even when considering the words "immediately before", that disregards the physical works carried out prior to when the actual legal right of access was denied. To effect this result, RDM submits that the Court would need to accept that the approach to the construction of market value is either or both: in pari materia to that adopted in the Compensation Act and/or has the same meaning as it does in the Spencer and Sans Sebastian line of authorities.
RDM submits that its approach to construction adopts the approach to resumption statutes which is well-known, referring to Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 at [32]-[34].
In relation to the proper application of r 14.28 of the UCPR, RDM contends that its prospects of success on the construction argument are "much greater than slim". Accordingly, RDM submits that the Court would not exercise its discretion to strike out pars (37)(a) and (37)(b) of its POC.
In the circumstances, RMS submits that the Motion ought to be dismissed.
For present purposes, it is convenient to adopt the summary of authorities in F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44 at [24] where Pepper J noted:
At common law the power to strike out pleadings because they disclose no reasonable cause of action should be exercised only in plain and obvious cases. Various formulations of the test have been enunciated by the courts. A review of the cases reveals the following pertinent principles in relation to the striking out of pleadings for failing to disclose a reasonable cause of action:
(a) the power to strike out pleadings should only be exercised in plain and obvious cases. That is where the case proposed is "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129);
(b) the mere fact that an applicant's prospects of success might be characterised as slim would not be enough to strike out a pleading (Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) [1997] HCA 8; (1997) 188 CLR 241 at 271);
(c) great caution is required where factual questions are involved because it may be difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. By contrast, where the application turns on questions of law, while caution ought nevertheless be the touchstone of the exercise of the Court's discretion, unless there is no reasonable prospect that the deficiencies in what is pleaded are able to be cured by amendment, opportunities for strike out claims will arise more frequently (Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75]); and
(d) the Court is not precluded from hearing argument "even of an extensive kind" in determining whether or not the plaintiff's case is untenable (General Steel Industries at 130).
In Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75], Macfarlan JA (with whom Spigelman CJ and Allsop P concurred) stated (in relation to a matter of summary dismissal):
Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as "so obviously untenable that it cannot possibly succeed" and "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.
More recently, Macfarlan JA reiterated that point in James v Australia and New Zealand Banking Group Ltd (2018) 97 NSWLR 663; [2018] NSWCA 41 at [42], where his Honour stated:
Although summary judgment should not be given, or leave to amend pleadings refused, on the ground of lack of merit except in clear cases, the opportunity to take such a course will, as I pointed in Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 at [75] (with the concurrence of Spigelman CJ and Allsop P), often arise where questions of law are involved. At [76] and [77], I cited a number of cases in which claims were summarily dismissed or struck out as a result of the determination of questions of law. In contrast, where questions of fact are involved, summary determination will frequently be precluded by the Court's inability to foresee the precise manner in which the evidence will unfold.
I consider that the Court's discretion in matters such as the present should be guided in such a way that rr 14.28 and 13.4 of the UCPR give effect to the overriding statutory purpose set out in s 56(1) of the Civil Procedure Act to facilitate the just quick and cheap resolution of the real issues in the proceedings: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] (per Spigelman CJ; Basten JA; Campbell JA agreeing).
In National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 ('Charlton') (in relation to an application for summary judgment under r 13.4 of the UCPR), Walton J stated at [51]-[58]:
[51] …an application for summary dismissal …should only be granted in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ("Agar") at [57]; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 ("Spencer") at [55].
[52] NAB also placed reliance upon the judgment of Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) in Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 ("Shaw") at [32] which stated the relevant test was as follows:
The question is therefore whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated.
(His Honour was concerned with whether the claim was "doomed" or "hopeless").
[53] It should be observed that although Shaw concerned an application to strike out certain paragraphs of an amended statement of claim under r 14.28 of the UCPR, the statements of principle are broadly applicable in the present context.
[54] The following observations in Agar may also be noted (at [57]):
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Footnotes omitted.]
[55] Reference should be made to the recent judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 ("Perera") at [30] as follows:
I would reject the first aspect of Mr Perera's complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff's case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action" and "be manifest that to allow [the pleadings] to stand would involve useless expense". In part that variety stems from whether the application is made in the court's inherent jurisdiction or under the rules (see Dixon J's analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for "exceptional caution", as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.
[56] I note Leeming JA's reference to Spencer incorporated the following passage (at [55]):
As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome. [Footnotes omitted.]
[57] No reference was made by the parties to the statutory duty imposed by s 56(1) and (2) of the Civil Procedure Act 2005 (NSW). By reference to the judgment of Hammerschlag J in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [57]-[64] and the consideration of that judgment by Ward J in McDonald v Grech [2012] NSWSC 717 at [32]-[34], the learned authors in Ritchie's Uniform Civil Procedure (NSW) suggested that the dismissal power conferred by r 13.4(1)(b) may not be confined to proceedings that are so demonstrative as to be certain to fail. Having regard to the conclusions reached in this matter, it is unnecessary to reach any view as to that opinion, although the proposition is prima facie attractive, provided it is recognised the relevant inquiry is that stated in Perera, namely, the demonstrated certainty of the outcome of the litigation.
[58] The aforementioned principles are plainly applicable to the second limb of conditions of r 13.4(1)(b)…
Walton J subsequently adopted the principles in Charlton in Lazarus v Independent Commission Against Corruption [2018] NSWSC 997 at [32].
I accept the submission of RMS that the overriding objective in s 56 of the Civil Procedure Act is brought into play if a proposition of law is clearly erroneous and if an earlier resolution of that proposition may avoid substantial expense and inconvenience to the Court and the parties, the Court's discretion can properly be exercised to resolve the issue of law at an interlocutory stage.
To the extent that RDM relies upon the comments in Donaldson v State of New South Wales [2019] NSWCA 109 and Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 4) [2018] NSWLEC 31 in relation to the applicable strike out principles, I note that, as submitted by RMS, those cases concerned issues of fact and/or issues of mixed fact or law and not pure issues of law.
I consider that the issue in dispute in the Motion may be characterised as a question of law and, as considered below, to the extent that I find that the construction propounded by RMS is correct (and it cannot be said that any other construction has a real prospect of being correct), I am satisfied that this is sufficient to warrant granting the relief sought by RMS in the Motion.
The purpose of particular provisions may be gleaned from an expressed statement of purpose, an inference from its text and structure and/or reference to extrinsic materials. Although ordinarily the legal meaning of a provision will correspond with the grammatical meaning of the provision, this is not always the case. Sometimes the context of the words, the consequences of literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a provision to be read in a way that does not correspond with its literal meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].
The manner in which the Court approaches the construction of legislation dealing with an impairment of individual property rights (particularly in relation to compulsory acquisition cases) has generated significant judicial consideration. For example, in Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 ('Marshall'), Gaudron J (Hayne J concurring) stated at [38]:
Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.
While there is a presumption (in the absence of unambiguous language) that the legislature has not intended to interfere with basic rights, freedoms or immunities (Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 at 437), I am conscious of the comments expressed by the plurality in Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [28] that (footnote omitted):
In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
To the extent that reliance was placed upon the purpose of the relevant provisions in the Roads Act, I note the comments of French CJ and Hayne J in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378; [2012] HCA 56 at [26] (citations omitted):
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added)
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Moreover, as noted above, while it is clear that the duty of the court in construing legislation is to give effect to the purpose of legislation, the primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation, even in other jurisdictions, may be guides to, but cannot control, the meaning of legislation and they are not substitutes for the text of the statute.
Considering the judicial consideration above and the parties' submissions, and looking at both the text and context of the Roads Act, I consider that the relevant sections of the Roads Act are determinative and the text of the provisions at issue readily yields to the construction favoured by RMS primarily for the reasons proffered by RMS summarised above.
I find that Div 4 of the Roads Act provides for a complete scheme for the entitlement to compensation in circumstances where access across a boundary has been restricted or denied as a result of a road becoming a controlled access road, triggering the roads authority to pay compensation for loss or damage arising from the loss of access (per s 68(1)). I also note that compensation is payable under Div 4 at a time (within 12 months) after the land concerned has been "declared" to be a controlled access road. In those circumstances, it is clear that s 69 then provides for the amount of compensation which is determined "immediately before the right of access was restricted or denied".
Consideration of compensation to be paid for the loss or damage resulting from the denial or loss of access as per s 68(1) must begin and end with consideration of the relevant statutory provisions and reference to the common law is useful only if it assists in construing the applicable statutory provisions. In this case, I consider that the common law does not assist.
Accordingly, contrary to the position propounded by RDM, I am of the view that s 69(1) of the Roads Act must be construed in the context of its surrounding provisions. I do not consider that s 67, given its context in Div 4 of the Act and adopting what RMS submits is a "textual thread running through ss 67, 68 and 69", can be read as referring to a physical restriction on access. It is a restriction in law and is directed to restrictions on the right of access.
The expression "step in the process" (or anything similar) as per par (37)(a)(i) of RDM's POC is not found in the Roads Act, the terms of which I consider to be both clear and determinative. As stated in Walker at [47] (as considered and noted below), it is the terms of the legislation that are determinative and it is not to be assumed that they reproduce or attempt to reproduce an understanding of "principles" derived by way of a gloss upon earlier legislation.
In the present case, there is no textual foothold in the Roads Act for the incorporation of something akin to the Pointe Gourde principle. This is because: first, the Roads Act does not refer to the concept of public purpose (cf Compensation Act s 56(1)(a) and (b)); and second, the Roads Act does not refer to the concept of a "proposal to carry out" (cf Compensation Act s 56(1)(a)). In these circumstances, I find that no legitimate process of statutory construction can read those terms into the Roads Act and therefore the construction upon which par (37)(a) of RDM's POC is based is not maintainable as it discloses no reasonable cause of action.