Roads and Maritime Services v Desane Properties Pty Ltd

Court of Appeal (NSW)|2018-07-03|Before: Bathurst CJ, Ward JA, Payne JA, Bryson J

[1975] AC 520 Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23 Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep) Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38 Montreal Street Railway Co v Normandin [1917] AC 170 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37 Municipal Council of Sydney v Campbell [1925] AC 338 Nicholas v Western Australia [1972] WAR 168 Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; [2012] HCA 46 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Toohey (1981) 151 CLR 170 R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 Simpson v Attorney-General [1955] NZLR 271 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The Baptist Union of NSW v Georges River Council [2017] NSWSC 347 Tolson v RMS [2014] NSWCA 161 Truth About Motorways Pty Ltd v Macquarie Infrastructure investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11 X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57 Texts Cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (6th ed, 2016, LawBook Co) Category: Principal judgment Parties: Roads and Maritime Services (Appellant/Cross-Respondent) Desane Properties Pty Ltd (Respondent/Cross-Appellant) Representation: Counsel:

Mr N Hutley SC / Mr S Kanagaratnam / Mr S Hartford Davis (Appellant/Cross-Respondent) Mr R Merkel QC / Mr D Pritchard SC / Mr D Krochmalik (Respondent/Cross-Appellant)

Crown Solicitor's Office (Appellant/Cross-Respondent) Levitt Robinson Solicitors (Respondent/Cross-Appellant) File Number(s): 2018/161676 (Appeal) / 2018/174176 (Cross-Appeal) Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 553 Date of Decision: 01 May 2018 Before: Hammerschlag J File Number(s): 2017/243774

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Headnote [This headnote is not to be read as part of the judgment] In 2012 the NSW Government announced the WestConnex project, one of the largest integrated transport and urban revitalisation projects in Australia. WestConnex was divided into various stages including, relevantly, Stage 3B. Stage 3B involves the construction of an underground interchange at Rozelle (known as the Rozelle Interchange) and a connection to a future harbour crossing (known as the Western Harbour Tunnel). Since at least 2015, Roads and Maritime Services, the appellant, had identified that acquisition of privately-owned properties covering the area of the proposed Rozelle Interchange project, including a property owned by Desane Properties Pty Ltd, the respondent, would be required for the construction of the Rozelle Interchange and Western Harbour Tunnel. On 21 July 2016, the NSW Government publicly announced that following the completion of the construction work for the underground Rozelle Interchange, the area over the Interchange would provide up to 10 hectares of new parkland and open space. The area proposed to be transformed into parkland and open space included the area occupied by the respondent's property. On 26 May 2017, following a negotiation period, the appellant issued the respondent a Proposed Acquisition Notice ('PAN') in order to begin the compulsory acquisition process under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). While the PAN and accompanying compensation form reflected the information in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), they departed in some respects from the form for such notices which had been approved by the Minister pursuant to s 15(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ('Approved Form'). The respondent challenged the PAN, claiming that it was invalid for failure to comply with the Approved Form. The respondent also claimed that the appellant was actuated by an improper purpose in issuing the PAN because it sought to acquire the property for meeting the NSW Government's commitment to parkland and open space irrespective of whether the Rozelle Interchange project proceeded. The respondent also sought an injunction preventing the appellant from acting on the PAN. The primary judge found that the PAN was invalid because it departed from the Approved Form in material respects, in circumstances where the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) required strict compliance with its procedural requirements. Further, the primary judge found that compliance with the procedural requirements of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) was a necessary precondition to the exercise of the appellant's power compulsorily to acquire property. The primary judge found that the Approved Form departed from the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (which had been amended in 2016) to the extent that it was inconsistent with the Act, and thereby could not validly invoke the machinery of the Act. The primary judge further found that, by means of statutory implication, s 15 of the Act requires that a valid PAN state the particular public purpose for which the subject land is proposed to be acquired, and that the PAN issued by the appellant failed to meet this requirement. Finally, the primary judge found that the appellant was actuated by an improper purpose at the time it issued the PAN because it would not have issued the PAN but for the desire to provide open space and parkland. The primary judge thus found for the respondent but refused to grant the injunctive relief sought by the respondent (that being put in issue by the appellant's cross-appeal). On appeal the issues were: (i) Whether the primary judge erred in finding that the PAN was invalid for lack of compliance with the Approved Form and that compliance was a necessary precondition for a lawful acquisition; (ii) Whether the primary judge erred in finding that the Approved Form could no longer invoke the machinery of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the 2016 amendment to the Act; (iii) Whether the primary judge erred in finding that the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) required that the PAN strictly comply with the Approved Form; (iv) Whether the primary judge erred in finding that the PAN did not substantially comply with the Approved Form; (v) Whether the primary judge erred in finding that there was a requirement that the PAN state the public purpose for which the acquisition was sought; (vi) Whether the primary judge erred in finding that the appellant was actuated by an improper purpose in issuing the PAN. The respondent cross-appealed. The issue on the cross-appeal was: (vii) Whether injunctive relief restraining the appellant from acting on the PAN should be granted in the event that the PAN was not invalid but still unlawful. The Court (Bathurst CJ, Ward JA, Payne JA) held, allowing the appeal and dismissing the cross-appeal: In relation to issue (i), The PAN was not invalid. As a matter of construction, the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) as a whole evinces an intention that failure to comply with the provisions of Part 2 of the Act does not go to the validity of a PAN: [206]-[224] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 10A, 11, 12, 13(1), 14(3), 15, 16(1), (3), 17, 19, 31, 33, 42, 69; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38; ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39; Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep); Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 applied. Clunies-Ross v Commonwealth (1984) 155 CLR 193; [1984] HCA 65; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23; Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 distinguished. In relation to issue (ii), The Approved Form did not cease to be able validly to invoke the machinery of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the 2016 amendment to the Act. On its proper construction, s 15(a) of the Land Acquisition (Just Terms Compensation Act 1991 (NSW) does not require that any Approved Form precisely adopt the language of the Act at the date of the issue of a PAN or lead to the conclusion that any difference between the language in an Approved Form and the Act give rise to invalidity of the Approved Form: [249]-[254] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 15(a) applied. In relation to issue (iii), The PAN was not required strictly to comply with the Approved Form. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (in particular see ss 16(1), 33 and 69), does not evince an intention that strict compliance is necessary. It follows that s 80(1) of the Interpretation Act 1987 (NSW) applies to make it sufficient that the PAN substantially complied with the Approved Form: [225]-[230] Interpretation Act 1987 (NSW), ss 5(2), 80(1); Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 16(1), 33, 69; Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 applied. In relation to issue (iv), The PAN substantially complied with the Approved Form. The reference to "the disadvantage resulting from relocation" in the PAN was an accurate statement about a statutory entitlement which entitlement was materially the same as the repealed concept of "solatium" referred to in the Approved Form. One was merely the Latin cognate of the English phrase: [233]-[243] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 37, 55, 60; Tolson v RMS [2014] NSWCA 161 applied. The identification of a period of "within 45 days" for the giving of a compensation offer referred to in the PAN was a legally correct statement about the obligation imposed on an authority of the State by s 42(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and encompassed the period identified in the Approved Form of "generally within" 30 days: [244]-[248] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 42(1), (4) applied. In relation to issue (v), There was no requirement for a valid PAN to state the public purpose for which acquisition was sought. There is nothing in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) requiring the implication of such a requirement because the legislative scheme facilitates the provision to the owner of land to whom a PAN is issued of much more information than a bare statement of the public purpose: [255]-[277] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3(1)(c), 10A, 47, 54, 55, 56; Public Works Act 1912 (NSW), s 42; Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 applied. Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 considered. Municipal Council of Sydney v Campbell [1925] AC 338; Campbell v Municipal Council of Sydney (1923) 24 SR (NSW) 179; Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43 distinguished. In any event, the covering letter accompanying the PAN clearly identified the public purpose of the proposed acquisition: [278]-[280] Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 applied. In relation to issue (vi), The appellant was not actuated by an improper purpose. The critical time for assessing purpose is not at the time the PAN is issued but at the time the power to acquire is exercised, being at the time of acquisition: [299]-[300] Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 5, 7; Roads Act 1993 (NSW), s 177(1) applied. The appellant was not actuated by an improper purpose at the time the PAN was issued. The totality of the evidence, including the documentary evidence of the "guiding minds" of the appellant, was that the respondent's property would be used as a site for the construction of the Rozelle Interchange, including the Western Harbour Tunnel enabling works. While there remained uncertainty as to how the land would be used within the envelope of a construction site, there was no uncertainty that it would be used as part of a construction site and no need to identify the specific use with precision at the time the PAN was issued. The legitimacy of this purpose was not invalidated because there was a risk, inherent in every large-scale construction project, that the purpose may not at some future point be realised. To the extent that the appellant contemplated use of the property for open space and parkland, this was not until after the construction would be concluded and did not mean that the appellant was actuated by an improper purpose: [301]-[311] Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 applied. In relation to issue (vii), The issue of the grant of injunctive relief does not arise in circumstances where the PAN substantially complied with the Approved Form and was thus not unlawful: [291] In any event, the court would exercise its discretion to refuse injunctive relief in circumstances where the PAN provided legally accurate information about the respondent's rights under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW): [292]-[295]

Judgment

THE COURT: This case involves an application for declaratory relief and relief under s 69 of the Supreme Court Act 1970 (NSW) challenging the validity of a Proposed Acquisition Notice ("PAN") issued under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("Just Terms Act") in relation to the proposed compulsory acquisition, for the purposes of the WestConnex project, of commercial property held by the respondent at 68-72 Lilyfield Road, Rozelle ("the Desane property").
WestConnex is the name given to six motorway projects that together are proposed to link Sydney's West and South-West with the Sydney Airport and Port Botany precincts. WestConnex comprises three stages. Stages 1 and 2 are not presently relevant. Stage 3 of WestConnex is sometimes referred to as the M4-M5 Link Project. It comprises two sub-stages. Stage 3A involves the construction of a "mainline" tunnel connecting the new part of the M4 motorway at Haberfield (part of Stage 1) to the proposed interchange at St Peters (part of Stage 2). Stage 3B, critical to these proceedings, is the proposed Rozelle Interchange.
Stage 3B involves the construction of an interchange of underground tunnels and the construction of road connections allowing traffic, including that passing through the mainline tunnel, to connect with Victoria Road, the City West Link, the Anzac Bridge and the M4 and M5 motorways as extended under Stages 1 and 2. It is also intended to provide a point of connection to a proposed future harbour crossing described as the Western Harbour Tunnel ("WHT"), which will provide a link to the northern beaches, the Western Harbour Tunnel Beaches Link ("WHTBL"). The proposed Rozelle Interchange will be an engineering endeavour of exceptional complexity.
At the time of the hearing before the primary judge, planning approval was being sought for Stage 3. There was no final design for Stage 3. A Concept Design for Stage 3 was issued in May 2017. The proposed structure of WestConnex is shown in the following figure which forms part of the May 2017 Concept Design. Figure 1 - Proposed structure of WestConnex project
To understand this case and the arguments advanced on this appeal it is necessary to set out in some detail the development of the WestConnex project.
In 2012, Infrastructure NSW, a NSW Government body tasked with assisting the NSW Government in identifying and prioritising the delivery of critical public infrastructure for NSW, published a document entitled "'First things First', State Infrastructure Strategy 2012 to 2032". Relevantly, that document provided (at p 77): "New road capacity is urgently required to meet the challenge of population growth and substantial increases in freight volumes. In addition, new roads will relieve legacy arterial roads such as Parramatta Road, Pennant Hills Road and the Princes Highway, and permit urban regeneration in these areas. The most pressing investment needs occur on the M4 and M5 corridors because of their importance for the freight and business transport task; connecting Global Sydney and the international gateways with the industries and residential areas in the West and South-West. Infrastructure NSW has developed a scheme called WestConnex, which it proposes as Sydney's next motorway project. WestConnex integrates the M4 extension towards the Airport with an expansion of the M5 East. This new tollroad is proposed to be delivered in stages over the next ten years."
In September 2013, the "WestConnex Business Case Executive Summary" document stated that "WestConnex is the largest integrated transport and urban revitalisation project in Australia".
In November 2015, the "WestConnex Updated Strategic Business Case" document explained that: "WestConnex was a recommendation of Infrastructure NSW in October 2012, with Government adopting the concept in the 2012 State Infrastructure Strategy and the NSW Long Term Transport Master Plan. This was followed by the development of a business case, which was approved by Government in August 2013. An Executive Summary of that business case was publicly released. This Updated Strategic Business Case consolidates the work undertaken in the original business case, with the significant modelling, analysis and scope enhancements completed in the past 24 months."
The November 2015 document provides the following description of Stage 3: "Tunnels connecting to the M4 East and New M5 via Rozelle and Camperdown. Includes ramps connecting to the St Peters Interchange and an interchange at Rozelle with provision for a future connection to the Western Harbour Tunnel and Beaches Link."
The November 2015 document also contained a reference design for the Rozelle Interchange. It was explained that: "[t]he reference design shows the Rozelle Interchange will be within the disused freight yard beside the City West Link. The design of the interchange is intended to facilitate future urban renewal of the Rozelle Goods Yard as part of the broader Bays Precinct Transformation and has been developed in consultation with UrbanGrowth NSW. The Rozelle Interchange also allows the future connection of a Western Harbour Tunnel and Beaches Link directly to WestConnex."
The reference design for the Rozelle Interchange contained in the Updated Strategic Business Case indicated that the Rozelle Interchange would occupy the land of the Desane property.
The November 2015 document recorded that, in delivering a project the scale of WestConnex: "there is an inevitable need for the acquisition of property. The extensive use of tunnelling means that property requirements are significantly reduced when compared to ... largely above ground infrastructure project. However, land for tunnel portals and ramps, interchanges, and construction facilities [is] required."
Pausing there, it is to be noted that although the precise usage has changed over time, as and from at least November 2015, the Desane property has been part of the footprint of land required for acquisition for tunnel portals and ramps, interchanges, and construction facilities as part of the proposed Rozelle Interchange.
In January 2016, the "WestConnex M4-M5 Link State Significant Infrastructure Application Report" prepared by the appellant, Roads and Maritime Services ("RMS"), identified, relevantly, that there was to be a "new road interchange at Rozelle at the disused Rozelle Rail yard, to provide connections to and from the M4-M5 Link with City West Link, Victoria Road and the Anzac Bridge intersection". The report also identified the need for "[t]emporary construction ancillary facilities and temporary works to facilitate the construction of the project".
The January 2016 report also made clear that the project would require ancillary facilities during construction, including but not limited to: construction compounds, sedimentation basins, concrete batching plant, pre-cast yards and stockpiles. In determining the size and location of the construction ancillary facilities, existing land use activities, potential environmental impacts and amenity impacts on the surrounding community would be taken into account. At a minimum, construction ancillary facilities would be required close to the portals to provide tunnelling support. The location and size of the ancillary construction facilities would be developed as part of determining the preferred project design and would be assessed in the environmental impact statement for the project.
A map contained in the January 2016 report identified the Desane property as part of the Rozelle Rail Yards necessary for the Rozelle Interchange. The Rozelle Rail Yards (including the Desane property) are shaded in orange: Figure 2 - Map depicting Rozelle Rail Yards
On 23 March 2016, a Memorandum of Understanding was signed between RMS and Sydney Motorway Corporation ("SMC"), the entity then responsible for development of WestConnex. The Memorandum of Understanding provided (at p 4) that RMS and SMC would: "…work together to identify any land requirements that are 'strategic' in nature - that is, will be required under any plausible scenario for the delivery of Stage 3. RMS may seek Government approval to commence the acquisition process for 'strategic' land in 2016/17."
As and from this time the term "strategic" was used by RMS and SMC to refer to land required for acquisition under any plausible scenario for the delivery of Stage 3 of WestConnex. Although the precise proposed use changed over time, the Desane property was identified by RMS at all relevant times as being a "strategic" land acquisition.
On 24 March 2016, a briefing note prepared by Mr Peter Jones of SMC, the Project Director of the M4-M5 Link Project, identified the Rozelle Goods Yard as a strategic land acquisition. The Rozelle Goods Yard proposal comprised, amongst other elements, the acquisition of private commercial properties including the Desane property. Attachment A to the briefing note contained a Property Acquisition Map which clearly includes the Desane property.
On 1 April 2016, Mr Ken Kanofski, the Chief Executive Officer of RMS, sent a briefing note to the Minister for Roads, Maritime and Freight. The topic of the briefing note was: "Endorsement of the WestConnex M4-M5 Link - Strategic Property requirements at Rozelle for the 27 April Expenditure Review Committee (ERC) meeting."
The briefing note identified an acceleration of Stage 3 of WestConnex, which brought forward proposed property acquisitions in Rozelle by approximately 18 months. The submission sought approval for the transfer of freehold title of lands required for the Rozelle Interchange from NSW Government agencies to RMS, including the Rozelle Goods Yard, and the acquisition of commercial and industrial properties on the south side of Lilyfield Road. The Desane property was specifically identified as a property proposed to be acquired as it was "required for the Rozelle interchange".
On 18 April 2016, the Minister for Roads, Maritime and Freight made a submission to the NSW Cabinet seeking approval and funding to acquire, inter alia, the Desane property. The submission stated that acquisition of the Desane property was recommended by RMS on the following grounds: "[d]esign development by RMS indicates that there is no feasible scenario for providing connectivity for the Western Harbour Tunnel other than by use of this land. Experience at the St Peters Interchange indicates the desirability of integrated construction of the interchange in order to minimise community disruption and optimise value for money. It is expected that the land will be fully utilised for construction purposes as one means of minimising impacts on other land (eg Glebe Island/White Bay)."
Cabinet was told that "RMS and SMC agree that these properties are required for the efficient construction of the interchange, including provision for the Western Harbour Tunnel".
On 25 May 2016, a memorandum from Mr Doug Parris of RMS, Director of Motorway Development Projects, to the RMS property acquisition team stated that on 27 April 2016, the Expenditure Review Committee of the NSW Cabinet had approved a number of initiatives including funding for property acquisitions required for works that needed to be undertaken as part of WestConnex Stage 3 at Rozelle. The Desane property was specifically identified as one of the "M4-M5 link Property Requirements". The negotiation of the transfer of freehold title of land required for the Rozelle Interchange included land to be acquired by RMS from various NSW Government agencies, including Sydney Harbour Foreshore Authority, Newcastle Port Corporation and Rail Corporation New South Wales.
On 31 May 2016, a letter was sent by RMS to Mr Jones of SMC identifying properties to be acquired "for the core site of the proposed Rozelle interchange", which included the Desane property. The letter explained that RMS wished to maintain flexibility for the construction of the WHT, either in parallel with or subsequent to the M4-M5 Link. Accordingly, RMS envisaged that a "Permanent Access Arrangement" would make allowance for the WHT contractor to have suitable land access at any point after 1 January 2019. Appendix A included a map of the relevant properties. The Desane property is shown in yellow (next to the blue block) in the top right hand corner of the Rozelle Goods Yard, which is the area bordered in red. Figure 3 - Map of properties to be acquired for the Rozelle Interchange
On 21 July 2016, a public announcement was made by the NSW Government which was of some importance in the proceedings before the primary judge. The essence of the announcement was that the Rozelle Interchange would largely be built underground and that, following completion of the road works, "the majority of the interchange [would] be grassed over with a new large park and returned to the community". The announcement began by providing that: "[a] large stretch of new parkland will provide significant green space for Sydney's inner west and an underground connection will be built to take traffic off congested Victoria Road, under the new details of the concept design for the WestConnex interchange at Rozelle."
The then-Premier, Mr Baird, and Minister for Roads, Maritime and Freight, Mr Gay, were quoted as saying that: "…the interchange…will be built largely under the disused former Rozelle Rail Yards. This will allow for the majority of the interchange to be grassed over with a new large park and returned to the community."
Mr Baird was also quoted as saying that: "[u]p to 10 hectares of new parkland will connect Annandale and Rozelle via pedestrian and cycle links and also provide a green link between Easton Park and Bicentennial Park."
Importantly, an artist's impression of the parkland was included in the press release. The Desane property formed part of the proposed parkland shown in the artist's sketch as shown below. Figure 4 - Artist's impression of parkland
The precise meaning and effect of this public announcement was at the heart of the proceedings below. It is a subject which must be examined on appeal, particularly in relation to the question of whether RMS was motivated by an improper purpose in seeking to acquire the Desane property.
On 26 July 2016, an email from Ms Jane Drummond of RMS provided that the NSW Cabinet had: "approved the M4-M5 Link tunnel realignment and revised underground Rozelle Interchange that will deliver around 10 hectares in a 'park ready' solution over the top of the road infrastructure at the western half of the Rozelle site…".
On 27 July 2016, a meeting was held between representatives of Desane and RMS. Desane's note of the meeting records that RMS told those present that "the site would be used for truck access, warehousing, office or concrete batch plant during construction".
On 16 August 2016, Mr Tony Dixon of RMS, Property Interface Manager, sent an email to Ms Beverly Magpayo of RMS, Project Manager for the WestConnex Delivery Interface. That email recorded a conversation with Mr Matthew Brooke of WestConnex concerning the Desane property, confirming that "the property is required for the Project. The requirement, while not yet fully detailed, is expected to be for permanent infrastructure". The email concluded by "[n]oting again that design is not yet finalised, the expectation is that the land will be used to site access ramps as well as a connection between the M4-M5 Link and the planned HarbourLink project".
On 23 August 2016, RMS wrote to Desane outlining a proposal to commence negotiations to acquire the Desane property. RMS offered to arrange a qualified valuer to inspect the property to prepare a valuation report. RMS offered to reimburse Desane $7,000 (or a larger amount "if you think your valuation fees may be more than $7,000") to obtain its own report from a qualified valuer.
On 25 August 2016, Desane Group Holdings Limited, Desane's holding company, made an ASX announcement that said, relevantly: "On 21 July 2016, the NSW State Government announced changes through the media to the WestConnex M4-M5 Link with a proposed new 1.1km tunnel under Victoria Road and a new motorway interchange at Rozelle, planned to allow motorists to connect to and from the new toll-road to the Anzac Bridge and Victoria Road to be built underground to allow surface parkland on top."
The artist's impression of the parkland contained in the NSW Government Announcement (Figure 4) was attached to the ASX release.
On 15 December 2016, SMC made a presentation to RMS which contained "Rozelle Interchange Interim Reference Design" maps showing tunnelling running underneath the Desane property.
To summarise the evidence to this point, and as senior counsel for Desane accepted in oral argument in this Court, in all relevant iterations of the Rozelle Interchange project the Desane property was proposed to be used, at least in part, for a proper purpose, being a purpose authorised by the Roads Act 1993 (NSW) ("Roads Act").
Desane's complaint was rather that the proposed use of the Desane property changed over time. Desane submitted that the changing nature of the proposed use, when compared to what Desane described as the NSW Government's fixed intention to build 10 hectares of new parkland, gave rise to an inference that RMS would not have sought to acquire the Desane property except for the purpose of building that parkland.
In March 2017, RMS published an addendum to the State Significant Infrastructure Application Report. Figure 2 of the addendum depicted the Desane property as being on the surface of the M4-M5 Link area of interest.
On 31 March 2017, RMS sent a briefing paper, signed by Mr Kanofski, to the Minister for Roads, Maritime and Freight addressing the topic of the "upcoming compulsory acquisition of properties required for the WestConnex M4-M5 Link Project Western Harbour Tunnel Beaches Link ("WHTBL") and Rozelle Rail Yard site management". The briefing paper informed the Minister that the Desane property was "required" for the M4-M5 Link and that RMS was complying with its statutory obligations under the Just Terms Act by making genuine attempts for at least six months to obtain the land by agreement. The briefing paper also stated that: "…[t]o ensure timely completion of property acquisitions to facilitate the start of construction works immediately after receipt of planning approval, Roads and Maritime has commenced the acquisition process (in late 2016), advising owners and tenants about Roads and Maritime's intention to acquire their property."
On 3 April 2017, an internal RMS memorandum from Mr Ismet Huseyin, Technical Lead for the WHTBL, to Mr Doug Parris, the WHTBL Deputy Project Director, reported that: "[e]stablishment of a major construction site in the RRY [Rozelle Rail Yard] is critical to the construction strategy and programme for the WHT and has several key advantages, including reduction in private property impacts and construction programme benefits. A suitably sized site at this location will also provide flexibility for alternate tunnelling methodologies should these be presented by tenders."
On 13 April 2017, RMS informed Desane that if a binding agreement was not reached within 21 days RMS would recommend that Desane be given a PAN, thereby beginning the compulsory acquisition process under the Just Terms Act.
On 3 May 2017, a Minute Paper for the Executive Council signed by the Minister for Roads, Maritime and Freight stated that: "I recommend for the approval of His Excellency the Governor, with the advice of the Executive Council, that the land described in the schedule to the attached notice intended to be published in the Gazette be declared by Roads and Maritime Services to be acquired by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Roads Act 1993."
An Explanatory Note was attached to the Minute Paper. The note is a critical document in these proceedings. The joint co-author of the note was Ms Karen Durie, Manager of Compulsory Acquisition and Road Dedication within RMS. The explanatory note stated: "In connection with the programmed construction of the WestConnex Stage 3 M4-M5 Motorway Link at Rozelle, it is necessary to acquire Lot 1 Deposited Plan 746891 shown coloured pink on the attached copy of that plan. Lot 1 comprises a tenanted commercial complex with parking, known as 68-72 Lilyfield Road, Rozelle, owned by Desane Properties Pty Limited. Roads and Maritime Services (RMS) commenced purchase negotiations with the owner in August 2016 and the tenants in February 2017, and gave an offer to the owner in February 2017. The owner has not submitted an asking price. RMS has not given offers to any of the 11 tenants and intends to exclude their interests from this compulsory acquisition whilst negotiations to acquire their interests by agreement continue. RMS' road works program requires possession of the land by March 2018. Accordingly, to ensure that the land is available when required, RMS told the owner on 13 April 2017 that, if a binding agreement was not reached within 21 days, RMS would recommend that it be given a proposed acquisition notice. A binding agreement has not been reached and, although negotiations are continuing, there is no assurance that timely agreement will be reached. In these circumstances, the process for compulsory acquisition of land requires the Minister to sign an Executive Council minute for referral to the Governor for approval to compulsorily acquire the land. When approved, the landowner is notified that the land will be compulsorily acquired after 90 days if negotiated settlement is not reached. On completion of the 90 day period, the notice of acquisition of the land is published in the Government Gazette if compulsory acquisition is still required."
The Minute Paper was approved by the Governor and the Executive Council.
Pausing there, senior counsel for Desane, Mr Pritchard SC, accepted on the hearing of the appeal that the content of these documents, including the statements that it was "necessary to acquire" the Desane property for the purposes of the construction of WestConnex and that "RMS' road works program requires possession of the land by March 2018", reflected the genuine beliefs of Ms Durie on behalf of RMS at that time.
On 26 May 2017, the PAN the subject of these proceedings was served on Desane in respect of the Desane property. The PAN was signed by Ms Durie of RMS. The precise content of that PAN raises a series of critical issues in this appeal and it is convenient to set out its terms when it comes to describing those issues.
On 1 June 2017, an internal RMS email from Mr Jazper Blizzard to Ms Magpayo with the subject heading "re M4-M5 Link EIS property assumptions" stated that current planning showed the Desane property being used during construction for "Light Vehicle Parking". The email also states: "[s]uggest if this is seen by [redacted] Desane it may cause consternation. I would ask for this to be updated, or for notes to be added showing that there is cut and cover tunnel construction and utility works occurring in this area".
We interpolate that this excerpt provides no basis for a finding, if it in fact be a finding by the primary judge, that the email was "arguably sinister". There is no evidence that suggests that RMS intended to add falsities or to embellish any detail in their correspondence with Desane. It is to be noted that Desane did not allege any subjective impropriety against any of the officers of RMS.
In August 2017, the M4-M5 Link Environmental Impact Statement ("EIS") was published by the NSW Government. This was the most recent document at the time of the trial identifying the proposed use of the Desane property as part of the Rozelle Interchange. The EIS identified a new interchange at Lilyfield and Rozelle (the Rozelle Interchange) that would connect the M4-M5 Link mainline tunnels with the City West Link, the Anzac Bridge, the Iron Cove Link and the proposed future WHTBL.
A map of the indicative Rozelle civil and tunnel site in the EIS depicted the Desane property as designated for use as a car park for the building site. Figure 5 - Indicative Rozelle civil and tunnel site
On 22 September 2017, Mr Kanofski sent a briefing note concerning WestConnex to the Minister for Roads, Maritime and Freight. The briefing note explained that: "Roads and Maritime will make relevant arrangements to designate Urban Growth as the entity that will have responsibility for the New Rozelle Park post M4-M5 Rozelle Interchange completion (potential staged handover)."
It was also explained that: "there will be a funded park design [encompassing the Rozelle Rail Yards] that will be delivered within the scope and cost of WestConnex M4-M5 Link and the provisioning works for future projects. This will need to meet the minimum expectations and the public commitments that Government has made to the parkland."

The primary judgment

On 1 May 2018, the primary judge delivered judgment in favour of Desane. Desane succeeded on several bases. The primary judge began by considering whether the PAN was invalid because it departed from the form approved by the Minister pursuant to s 15(a) of the Just Terms Act ("Approved Form"). He framed the relevant question as whether compliance with s 11(1) of the Just Terms Act, which is given content by ss 15 and 39(2), was a necessary precondition to the exercise of the compulsory acquisition power in s 19(1), by reference to the decision of the High Court in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833 at [62] ("Forrest & Forrest").
His Honour answered this question in the affirmative on the basis that "there can be discerned a clear legislative purpose that a PAN is invalid unless it complied with each of the requirements of ss 15 and 39(2)" (at [151]). In reaching this conclusion his Honour relied on four key points: 1. First, the language of the statutory provisions. In particular, the use of the mandatory "must" in ss 15 and 39(2) and the "rule-like" quality of those provisions indicated that strict compliance was necessary (at [156]-[158]). 2. Secondly, the principle of legality. Citing French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at 618, his Honour found that because the Just Terms Act and Roads Act are Acts which affect private property rights they should be interpreted in a way that is protective of those rights unless the contrary intention is manifest. As his Honour found that the unambiguous effect of the language of ss 15 and 39(2) of the Just Terms Act is consistent with protection of private property rights, this principle applied (at [159]-[162]). 3. Thirdly, his Honour drew an analogy with Forrest & Forrest. Namely, because the statutory power to grant exclusive rights to exploit resources of a State under consideration in Forrest & Forrest is similar to the statutory power granted by the Just Terms Act compulsorily to acquire exclusive rights to private property, the same approach as that adopted in Forrest & Forrest should be taken (at [154], [164]-[165]). 4. Fourthly, the terms of s 33(a) of the Just Terms Act. Namely, the fact that s 33(a) operates to cure an acquisition from any defect relating to notice requirements indicates that, prior to acquisition, compliance with those requirements is necessary for validity (at [166]).
Having found that compliance with the procedural requirements in ss 15 and 39(2) was necessary for the validity of the PAN, his Honour then considered whether the PAN met those requirements. In essence this question depended on whether the PAN complied with s 15(a), which relevantly turned on whether it met the Approved Form. The primary judge concluded that the PAN departed from the Approved Form and was therefore invalid (at [179], [181]).
The primary judge approached this question by identifying discrepancies between the PAN and the Approved Form and then assessing whether the discrepancies were "trivial". Of seven discrepancies found by his Honour, five were "trivial" and therefore did "not involve a real departure from the Approved Form" (at [167]-[169]). The two "non-trivial" departures were a reference to "the disadvantage resulting from relocation" instead of "solatium" as one of the heads of compensation, and a reference to an offer of compensation being generally provided within 45 days, instead of the 30 day period in the Approved Form.
In concluding that the reference to "the disadvantage resulting from relocation" was a "real departure" from "solatium", his Honour first noted that the former head of compensation replaced "solatium" as a head of compensation in the Just Terms Act following the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW). His Honour then found that the terms were different in two significant respects: 1. First, "solatium" had an "arguably" broader scope than "disadvantage resulting from relocation". This was because the definition of "solatium" in s 60(1) of the pre-amendment Just Terms Act referred to "compensation to a person resulting from the necessity to relocate his or her principal place of residence" (emphasis added), leaving it "undoubtedly arguably open" that compensation could account for the disadvantage caused to people other than just the "person entitled". By contrast, "disadvantage resulting from relocation" is not open to that construction because it is presently defined in s 60(1) by reference to "the necessity of the person entitled to compensation to relocate the person's principal place of residence" (emphasis added). 2. Secondly, "solatium" had a different mechanism for determining the maximum amount of compensation than "disadvantage resulting from relocation". In s 60(2) of the pre-amendment Just Terms Act, the compensation cap of $15,000 could be altered by the Minister through notice published in the Gazette. At the time of amendment the cap was $75,000. By contrast, in the current s 60(2), the compensation cap of $75,000 may be increased by regulations and is automatically adjusted for inflation.
His Honour found that "the recipient of a PAN which referred to a solatium would be in a substantially different position to a recipient of the present PAN" (at [178]).
In concluding that the reference to 45 days for the giving of a compensation notice was a "real departure" from the 30 day period referred to in the Approved Form, his Honour noted that the current s 42(1) of the Just Terms Act now provides for 45 days. Nevertheless, his Honour concluded that the recipient of a PAN stating that a compensation notice will generally be given within 30 days was "clearly in a significantly different position to being told that this will be within 45 days" (at [181]).
Having found that the PAN did not comply with the Approved Form, the primary judge also rejected an argument that s 80(1) of the Interpretation Act 1987 (NSW) rendered the PAN compliant. His Honour framed the relevant question as whether s 5(2) of the Interpretation Act displaced the application of s 80(1) to the Just Terms Act. Section 80(1) provides: "80 Compliance with forms (1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient."
Section 5(2) provides: "5 Application of Act (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned."
His Honour found that the relevant contrary intention, namely that strict compliance is necessary, appears in the Just Terms Act for two reasons: 1. First, his Honour relied on his earlier reasoning as to the language of "must" in the relevant provisions of the Just Terms Act. 2. Secondly, his Honour referred to s 16 of the Just Terms Act, which makes provision for the withdrawal of a PAN (s 16(1)) and the correction of clerical errors and obvious mistakes (s 16(3)).
In reaching this conclusion, his Honour noted that even if he were wrong and s 80(1) did apply it would not remedy the discrepancies in the PAN because the earlier conclusion regarding the "non-trivial" discrepancies between the PAN and the Approved Form meant that the PAN was not substantially compliant with the Approved Form.
Having concluded that the PAN was invalid for lack of compliance with the Approved Form, his Honour then addressed whether the Approved Form itself was invalid. His Honour framed the issue as being whether the power conferred on the Minister to designate an Approved Form in s 15(a) had been exercised in a manner consistent with the Just Terms Act (at [189]): Just Terms Act, s 74(1); Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 at 71-72.
In essence, this question turned on whether the discrepancies between the Approved Form and the Just Terms Act, being the same discrepancies as those between the Approved Form and the PAN, rendered the Approved Form inconsistent with the Act. In respect of the reference to 30 days in the Approved Form, his Honour found no inconsistency because 30 days is merely a more stringent requirement than the 45 days stated in s 42(1) of the Just Terms Act.
In respect of the reference to "solatium", however, his Honour found that the Approved Form was inconsistent with the Act because "solatium" differed from "disadvantage resulting from relocation" in a "material respect" (at [185]), presumably referable to the same two differences identified in his Honour's earlier analysis of the two terms.
The primary judge therefore found that, following the 2016 amendments to the Just Terms Act, the Approved Form "ceased to be a form which, if used, would validly invoke the machinery of the Act" (at [190]); a PAN issued using the Approved Form would accordingly be invalid.
His Honour then considered whether there was, by statutory implication, a requirement in s 15 of the Just Terms Act that a valid PAN state the particular public purpose for which the subject land is proposed to be acquired.
His Honour found that the statutory intention was for there to be such a requirement on the following grounds: 1. First, the guidance to interpretation provided by Dixon CJ's aphorism in Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43. Namely, "that the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose". 2. Secondly, the purpose of the Just Terms Act. His Honour found that the Just Terms Act is directed not only to ensuring efficient acquisition and just compensation, but also to protecting from interference the private property rights of land owners by restraining the ability of the State compulsorily to acquire property. His Honour cited s 3(1)(b) of the Just Terms Act, which identifies one of the objects of the Act as ensuring compensation on just terms, and reasoned that informing the owner of land subject to compulsory acquisition of the purpose of the proposed acquisition was essential to achieving that objective because of the significant disadvantage that would be occasioned to the owner in sale negotiations and compensation contests without that knowledge. 3. Thirdly, the provisions of the Just Terms Act. Here his Honour drew a distinction with the Land Acquisition Act 1955 (Cth) under consideration in Jones, where the implied requirement to state the public purpose was held to arise at the point of acquisition. Unlike the Land Acquisition Act, the acquisition power in s 19(1) of the Just Terms Act (and similarly s 177(1) of the Roads Act) does not require a declaration that acquisition is for the public purpose approved by the Governor, indicating that it was not intended for the public purpose to be stated at the point s 19(1) is exercised but rather at an earlier point in time. Further, in contradistinction to the narrow curing provision in the Land Acquisition Act, the curing provision in s 33 of the Just Terms Act was broad enough to render any requirement to state the public purpose at the point of acquisition meaningless because it also operated at the point of acquisition and would therefore always operate to cure any failure.
His Honour found that the provisions of the Just Terms Act indicated that the requirement to state the public purpose must arise at the time a PAN is issued because it is the only formal occasion where information must be given.
In support of this conclusion his Honour cited the requirement in s 39 of the Just Terms Act for a PAN to be accompanied by a form for a claim for compensation. The matters relevant in determining a claim for compensation, set out in s 55, include two heads of compensation that make some reference to the public purpose: ss 55(a), (f), and 56(1)(a), (b). The primary judge concluded that there is a "clear implication that the recipient will know the public purpose for which the land is to be acquired". His Honour also referred to the terms of the form for compensation issued to the respondent, which in paragraph 6(f) made provision for the respondent to claim compensation by a means that his Honour concluded required knowledge of the public purpose.
Having found that s 15 of the Just Terms Act implicitly required the PAN to state the public purpose for which the property was proposed to be acquired, his Honour then considered whether that requirement was satisfied.
The primary judge found that the reference to "a public purpose" in the Approved Form and repeated in the PAN "clearly" did not meet the requirement. The phrase could refer to any number of purposes.
Without reaching a conclusion on the level of specificity that would have been required in this case, his Honour noted that (at [260]): "…a significant question arises as to whether a description which refers merely to the purposes of the Roads Act is specific enough to be considered as disclosing a public purpose and approved as such".
The primary judge then addressed Desane's improper purpose claim. His Honour approached this issue by asking whether, at the date the PAN was issued, the appellant was actuated by an improper purpose, being a purpose beyond that for which the power of acquisition was authorised in s 177(1) of the Roads Act. His Honour framed the relevant test as being whether "no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose" (at [282]): Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679.
In order to determine this issue, his Honour considered two competing purposes for the acquisition of the Desane property. First, the purpose of use as a general construction site for the Rozelle Interchange. Second, the purpose of providing open space and green parkland. While his Honour accepted that the former was a purpose authorised under the Roads Act, the latter was an improper purpose.
The primary judge ultimately found that, but for the improper purpose of providing open space and parkland, the PAN would not have been issued. Accordingly, the PAN was invalid because it was not issued for an authorised purpose under s 177(1) of the Roads Act.
In reaching this conclusion his Honour made various findings of fact based on the evidence before him. Key amongst these were inferences that at the date the PAN was issued: (i) the appellant intended to acquire the Desane property even if the Rozelle Interchange did not go ahead and the Desane property was therefore not needed for use as a general construction site (at [316]); and (ii) the appellant's dominant purpose for acquiring the Desane property, without which it would not have issued the PAN, was the provision of open space and green parkland (at [331]). His Honour's ultimate conclusion was (at [333]): "RMS' contemplation that the Property will be used as a construction site is connected, as things stand, with its purpose to provide open space and green parkland. But the provision of open space is not inextricably bound with the road component as RMS would suggest. If the Rozelle Interchange goes ahead, the Property might well first be used as a construction site in some way and then converted into parkland. But if the Rozelle Interchange does not go ahead, RMS will acquire the Property for the Bays Precinct Transformation Plan anyway."
The primary judge drew support for this conclusion from the failure of RMS to call evidence from "any relevant guiding mind of RMS as to its purposes" (at [335]).
The primary judge dismissed the respondent's cross-claim on the basis that the injunctive relief sought was unnecessary. In the circumstances of the case, his Honour found that a declaration that the PAN was of no effect would be sufficient.

Grounds of appeal

On 1 June 2018, RMS filed a notice of appeal. The notice of appeal contained several grounds of appeal, which can be summarised as follows: 1. First, his Honour erred in finding that a PAN which did not strictly comply with ss 15 and 39(2) of the Just Terms Act was invalid and that a strictly compliant PAN was a necessary precondition for a lawful acquisition; 2. Secondly, his Honour erred in finding that the Approved Form ceased to apply to the Just Terms Act following the passage of the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW); 3. Thirdly, his Honour erred in finding that s 80(1) of the Interpretation Act did not apply to remedy any deficiencies in the PAN; 4. Fourthly, his Honour erred in finding that the PAN was invalid because: 1. the PAN did not substantially comply with the Approved Form; and 2. the PAN did not state the purpose for which the property was being acquired; and 1. Fifthly, his Honour erred in finding that RMS was actuated by an improper purpose in issuing the PAN.
In its written submissions RMS reframed these grounds into five questions to be answered on the appeal. These were: "(a) First, is a valid PAN a precondition to a valid acquisition under s 19 of the Act, and does non-compliance with ss 15 or 39(2) of the Act result in the invalidity of the PAN ('Project Blue Sky issue')? (b) Secondly, did the Approved Form "validly invoke the machinery" of the Act ('Approved Form issue')? (c) Thirdly, does s 80(1) of the Interpretation Act 1987 (NSW) apply in the circumstances of this case ('section 80(1) issue')? (d) Fourthly, was the PAN invalid for non-compliance with the Approved Form and the Act, or otherwise for failure to state the public purpose for which the land is to be acquired, predicated upon an implication in section 11(1) and 15 of the Act ('public purpose issue')? (e) Fifthly, did Hammerschlag J err in finding that the Appellant was actuated by an improper purpose in issuing the PAN ('improper purpose issue')?"

Notice of cross-appeal

On 6 June 2018, Desane filed a notice of cross-appeal. The substance of the cross-appeal was essentially that, irrespective of whether or not the finding that the PAN was invalid was upheld on this appeal, his Honour erred in failing to grant an injunction to restrain RMS from acting on the PAN.

Submissions of the parties

In relation to the validity of the PAN, RMS challenged two related findings. First, the finding that there was a "clear legislative purpose that a PAN is invalid unless it complies with each of the requirements of ss 15 and 39(2)" [of the Just Terms Act]. Secondly, the finding that a valid PAN was "a necessary precondition" to exercising the compulsory acquisition power in s 19(1) of the Just Terms Act.
RMS submitted that the primary judge made two errors in making the impugned findings.
First, the primary judge erred in construing s 33 of the Just Terms Act. Section 33 provides that: "33 Validity of compulsory acquisition Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by: (a) a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or (b) a subsequent failure to comply with a requirement of this Act relating to the acquisition."
The primary judge found that s 33(a) supports the conclusion that there was a clear legislative intention that a PAN was invalid if it did not comply with ss 15 and 39(2) because (at [166]): "It is significant that s 33(a) provides that, once land has been acquired by compulsory process, the validity of the acquisition is not affected by a failure to comply with any requirement in relation to a proposed acquisition notice. This supports the conclusion that it is necessary for those requirements fully to be met."
RMS relied on Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep) at p 4 per Bryson J where his Honour stated that: "the terms of s 33 make it difficult to conceive of an acquisition by compulsory process after delivery of a deficient [PAN] as an irreparable injury appropriate to be protected by injunction."
This Court subsequently dismissed an application for leave to appeal the decision in Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 where Mahoney P (Sheller JA agreeing) stated (at 4) that those who drafted s 33 intended "to ensure that failure to comply with the provisions [of Part 2 of the Just Terms Act] should not go to validity".
RMS submitted that if s 33(a) vitiates any defect in the PAN, it cannot be said that a compliant PAN is an essential precondition to acquisition, contrary to the primary judge's findings.
The second error identified by RMS was that the primary judge erred in his treatment of prior authority. RMS submitted that the primary judge did not follow relevant authority. Namely, the primary judge did not refer to the decision in this Court of Manson and indicated during the course of the trial that he did not consider a Court of Appeal decision dismissing an application for leave to appeal to constitute binding authority. RMS submitted that, by analogy to a special leave application, Manson constitutes "guidance": X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57 at [97] per Bathurst CJ. RMS submitted that the primary judge also erred in failing to follow The Baptist Union of NSW v Georges River Council [2017] NSWSC 347 at [82] per Lonergan J, where her Honour held that the "notice requirement in the context of the [Just Terms Act was] procedural rather than substantive".
Further, RMS submitted that the primary judge relied on distinguishable authority. Forrest & Forrest was distinguishable because it concerned materially different legislation, the Mining Act 1978 (WA), s 75(6) of which did not "allow the Minister to make a grant where the warden had failed to comply with the Act": Forrest & Forrest at [75]. Further, the Court in Forrest & Forrest found (at [76]) that the failure to comply in that case "cannot fairly be described as an informality or irregularity" triggering s 116(2) of the Mining Act, which immunises the grant of a mining tenement from the effect of any informality or irregularity. By contrast, RMS submitted that s 33 of the Just Terms Act operates differently from ss 75(6) and 116(2) of the Mining Act because it is not limited by reference to the identity of the non-conforming party or by reference to concepts of "informality" or "irregularity".
RMS submitted that Forrest & Forrest is also distinguishable because the policy of the Mining Act, on which the majority placed some reliance (at [85]-[89]), is different from the purpose underlying the Just Terms Act of simplifying and expediting the acquisition process (as provided in s 3(1)(c)).
RMS submitted that, to the extent that the provisions in Division 1 of Part 2 of the Just Terms Act use mandatory language (ss 11(1), 13(1), 14, 15, 16 and 17), Division 2 does not require that the procedure in Division 1 has been complied with. Rather, s 33(a) manifests a flexible approach to non-compliance. Accordingly, RMS submitted that the primary judge erred in finding that non-compliance with s 15 of the Just Terms Act renders invalid an exercise of power under s 19(1).
In relation to the Approved Form, RMS challenged the finding that the Approved Form was out of accord and inconsistent with the provisions of the Just Terms Act in a material respect and that there was no form approved by the Minister or by regulations that could "validly invoke the machinery of the Act".
RMS submitted that in making this finding, his Honour erred in three respects.
First, RMS submitted that the primary judge's reasoning was "juridically unsound". RMS submitted that the primary judge assumed that the Approved Form ceases to be "approved by the Minister", contrary to s 15(a) of the Just Terms Act, if there is some amendment to the legislation. This reasoning was submitted to be unsound because it would require s 15(a) to be "read as requiring that a form be approved and that the approved form comply with all requirements of the Act from time to time". RMS submitted that the correct construction of s 15(a) is that a PAN should be substantially consistent with a form approved by the Minister, a requirement satisfied in the present case.
Secondly, RMS submitted that the primary judge erred by proceeding on an incorrect premise, namely that the Just Terms Act required a PAN to contain information on "solatium", and thereby concluding that the Approved Form was inconsistent with the Act. RMS submitted that neither s 15 nor s 39 require a PAN to contain particulars of compensation referable to the heads under s 55 of the Just Terms Act.
Thirdly, RMS submitted that the primary judge erred in finding there to be a material difference between "solatium" and "disadvantage resulting from relocation", the phrase that replaced "solatium" as a head of compensation under s 55. RMS submitted that "solatium", before being removed from the Just Terms Act, was defined in s 60 to mean: "…compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition."
In comparison, "disadvantage resulting from relocation" is defined in s 60 as: "…non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person's principal place of residence as a result of the acquisition."
RMS submitted that the former is merely the Latin cognate of the latter English phrase.
To the extent that the primary judge found that there existed a material difference, being that "solatium" contained an "undoubtedly arguably open" possibility that it could be claimed by a person other than the "person entitled", RMS submitted that this construction of "solatium" is not open and has never been the subject of an affirmative finding in the authorities. RMS relied on Tolson v RMS [2014] NSWCA 161 at [113] per Preston CJ LEC where his Honour stated that: "…solatium involves compensation for the non-financial disadvantage suffered by the person whose land has been acquired of having to relocate his or her principal place of residence."
To the extent that the primary judge relied on the differing amounts of maximum compensation for "solatium" and its post-amendment conception as a material difference, RMS submitted that at the time of the amendment the gazetted maximum was already the same as the maximum following the amendment ($75,000) and that there was nothing in the Approved Form that was inconsistent with a cap on the "solatium" head of compensation.
In relation to s 80(1) of the Interpretation Act, RMS challenged the finding that this section did not cure any non-conformity between the PAN and the Approved Form. It will be recalled that s 80(1) provides that: "80 Compliance with forms (1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient."
On this issue the primary judge found in favour of Desane on the basis that: first, s 80(1) was displaced by a clear legislative intention to the contrary in the Just Terms Act (Interpretation Act, s 5(2)); secondly, there was no valid Approved Form for s 80(1) to apply to in any event; and thirdly, s 80(1) would not cure the PAN because the PAN did not substantially comply with the Approved Form.
RMS submitted that it was inconsistent for the primary judge to find that s 80(1) was inoperative while also finding that five of the seven identified discrepancies between the PAN and the Approved Form were "trivial".
RMS submitted that the primary judge erred in finding that there was a clear legislative intention in the Just Terms Act that a PAN must strictly comply with the terms of ss 15 and 39(2) for three reasons: 1. First, the primary judge incorrectly relied on the words "must" in ss 15 and 39(2) which, RMS submitted, do not displace s 80(1) but rather activate it. Section 80(1) operates where a form is "prescribed by" an Act and, on RMS' submissions, "prescribed" in this context means "require to follow", commensurate with the mandatory language of "must" in ss 15 and 39(2). 2. Secondly, the primary judge incorrectly relied on the fact that s 16 of the Just Terms Act allows for the PAN to be withdrawn and for clerical errors to be corrected. RMS submitted that this does not justify the displacement of s 80(1), but rather indicates its applicability because the Just Terms Act makes provision for the rectification of the issues to which s 80(1) is directed. 3. Thirdly, the primary judge incorrectly found that a s 11(1) notice was an essential precondition to the exercise of the acquisition power in s 19.
Of the seven discrepancies between the PAN and the Approved Form identified by the primary judge, only two were found to be material: the reference to "solatium" and the timeframe for a compensation notice (45 instead of 30 days). RMS submitted that the primary judge erred in finding these discrepancies to be substantial, thus rendering s 80(1) inapplicable.
RMS submitted that "the disadvantage resulting from relocation", used in the PAN, was not materially different from its Latin cognate "solatium", used in the Approved Form, for the same reasons given in its submissions in respect of the Approved Form above.
RMS submitted that the reference to 45 days in the PAN brought it into line with the relevant timeframe in the Just Terms Act (post-amendment), and in such circumstances the discrepancy ought not be regarded as substantial.
RMS challenged the finding that the PAN was invalid because it did not state the public purpose for which the Desane property was to be acquired. RMS also challenged the basis of this finding, which was an implication drawn from ss 11(1) and 15 of the Just Terms Act to the effect that a PAN must inform the recipient of the public purpose for which the land is to be acquired.
RMS submitted that there is no basis to imply a public purpose requirement into s 15. RMS submitted that there is a high threshold for statutory implication: Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 37; Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[39]. RMS relied on the principle of expressio unius because the predecessor to the Just Terms Act, the Public Works Act 1912 (NSW), expressly required a statement of the public purpose in s 42. That requirement does not appear in the Just Terms Act: Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 at [34].
RMS submitted that the primary judge erred in following Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43. That case was distinguishable. The relevant legislative provision in Jones, the Lands Acquisition Act 1955 (Cth), made explicit reference to "the purpose approved by the Governor-General". Secondly, the three reasons for implication in Jones do not apply here: the first related to s 51(xxxi) of the Constitution (Cth), which does not govern a State's power to acquire land; and the second related to a provision under the relevant Act requiring notice of acquisition to be tabled in Parliament, which finds no comparable provision in the Just Terms Act. The third reason in Jones was an "aphorism" that "the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose". RMS submitted that the primary judge erred by assuming this "aphorism" to apply in the present case because his Honour thereby commenced construction with an interpretive consideration sourced outside the text of the Just Terms Act: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].
While the primary judge reasoned that there is no statutory occasion for notification of a purpose other than through a PAN, RMS submitted that s 10A of the Just Terms Act allows for a negotiation period during which the purpose of the acquisition "would beyond any practical doubt be communicated". This is so notwithstanding s 10A(7), which provides that nothing in the section can be taken into account in any civil cause of action.
In any event, RMS submitted that the PAN was compliant with any public purpose requirement. The PAN stated that "Roads and Maritime Services requires the whole of your interest in the land located at Rozelle, for a public purpose". The covering letter to the PAN, similar to the accompanying letter considered relevant in Manson (at p 3), stated "[p]roposed acquisition…for WestConnex Stage 3 M4-M5 Motorway Link". RMS submitted that this communication constituted substantial compliance attracting the application of s 80(1) of the Interpretation Act.
RMS challenged the finding that the PAN was "invalid as having been given for an improper purpose" being a purpose not under the Roads Act 1993 (NSW). That purpose was "to acquire the Property to provide 10 hectares of open space and green parkland as publicly committed to by the Government" instead of a purpose under the Roads Act.
The essence of RMS' contention was that the evidence clearly and unambiguously showed that the Desane property was, at all relevant times, proposed to be acquired and used for Roads Act purposes. These purposes included use of the Desane property as a construction site for the Rozelle Interchange and for permanent sub-surface tunnel infrastructure built by cut and cover construction.
RMS submitted that the correct conclusion from this evidence was that at the time the PAN was issued, the Desane property was to be part of land contemplated for use as a construction site, whereby part of the actual infrastructure of the Rozelle Interchange would be on the property.
To the extent that the land was ultimately intended to be used as parkland after the construction of the Rozelle Interchange, this was not inconsistent with the proper purpose. Likewise, an inference of improper purpose does not arise merely because there was no planning approval or a finalised design for the Rozelle Interchange at the time of the issue of the PAN.
RMS submitted that the evidence disclosed that the ultimate purpose of the acquisition was the construction of Stage 3 of the WestConnex project, and the commitment to parkland was ancillary to this purpose.
RMS submitted that his Honour's finding as to purpose can be set aside by this Court because, in light of the evidence, his Honour's finding was inconsistent with incontrovertible facts, glaringly improbable, and contrary to compelling inferences: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43].
As for the primary judge's conclusion that the PAN would not have been issued but for the improper purpose, RMS submitted that, in declining to find whether the Rozelle Interchange would proceed, the primary judge failed to answer the critical question of whether RMS thought the project would proceed. RMS cited a range of evidence which, on its submission, supported the conclusion that RMS had the purpose of acquiring the Desane property for use in construction of the WestConnex project at all material times.
RMS submitted that the primary judge's conclusion that the PAN would not have been issued but for the improper purpose was based on a logical fallacy. Namely, the conclusion was not available from the findings upon which it was premised, being findings that: 1. RMS believed and was optimistic that the Rozelle Interchange would proceed; and 2. RMS held the intention of using the Desane property for general use as a construction site in the event the Rozelle Interchange did proceed.
RMS submitted that the ultimate conclusion of the primary judge failed to appreciate the distinction between finding that the Desane property would be acquired notwithstanding that the Rozelle Interchange may not go ahead and finding that the Desane property would be acquired even if the Rozelle Interchange did not proceed. The former finding is an uncertainty inherent in every acquisition made in advance of a project and thus cannot render otherwise actuating Roads Act purposes insubstantial: CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365; [1965] HCA 55 at 381. RMS submitted that it is the former conclusion which follows from his Honour's reasoning, and to find the latter conclusion was erroneous.
RMS also challenged the inference the primary judge drew from the failure of RMS to "call any person who, on its behalf, or functioning as its executive organ" was in a position to provide direct evidence "that without the presence of the purpose of providing open space and green parkland, the acquisition of the Property would nevertheless proceed".
To the contrary, RMS submitted that three senior witnesses were called who attested to the purposes of the acquisition from an engineering perspective. Moreover, there was ample documentary evidence from senior position holders at RMS, including Mr Kanofski and Ms Durie, as to purpose.
Desane premised its submissions about the validity of the PAN on the reasoning of French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at 618-620 to the effect that the principle of legality favours Desane's construction based on strict compliance by the executive government which interferes least with private property rights.
Desane submitted that the primary judge was correct in finding that the failure of the PAN to comply with ss 11 and 15 of the Just Terms Act resulted in the invalidity of the PAN because compliance with ss 11 and 15 is an essential precondition to the exercise of the statutory power of compulsory acquisition.
Desane relied on the "rule-like", mandatory language in ss 11-20 of the Just Terms Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 391. To the extent that RMS relied on s 33(a) in support of its construction, Desane submitted that s 33(a) should be read as curing procedural defects that would otherwise invalidate acquisition. If such irregularities did not invalidate the exercise of the power prior to the point of acquisition, then the provision would be otiose: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23 at 206-7.
Desane submitted that the giving of a PAN is an important part of the legislative scheme. In this sense, the Just Terms Act is not merely aimed at expediting the acquisition process; it has the additional purpose of ensuring mechanisms to protect interference with private property rights. In this statutory context, and applying the principle of legality, the Court should hesitate to condone departures from ministerially approved forms.
In respect of the way the primary judge dealt with the authorities, Desane submitted that his Honour was correct to follow Forrest & Forrest because it provides guidance generally with respect to legislation involving the disposition of property. In contrast, the decision of this Court in refusing the leave application in Manson did not bind the primary judge: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37 at 117, 133-134. Desane submitted that in any event the present case is distinguishable from Manson because in that case the PAN was not non-compliant with the Approved Form.
Desane also drew analogies with other areas of law where courts have invalidated the exercise of invasive powers for want of strict compliance with statutory conditions: Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 at 133, 143; George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 110-111; Police v Conway (2006) 95 SASR 83; [2006] SASC 186 at 94.
Desane submitted that the Approved Form was invalid at the time the PAN was issued because it was not authorised by the empowering Act: Just Terms Act, s 74(1); Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; [2012] HCA 46 at 41[54]. The Approved Form was inconsistent with the Just Terms Act following the 2016 amendment because of the reference to "solatium" in the Approved Form.
Desane submitted that it could not be assumed that a recipient of a PAN which referred to "solatium" would deduce the meaning of "solatium" from the definition used in the pre-amendment conception of the Just Terms Act: Jones at 483 per Dixon CJ. Desane submitted that the primary judge was correct to find "solatium" to be materially different to "disadvantage resulting from relocation", the head of compensation that replaced "solatium" in the Just Terms Act.
Desane submitted that "solatium", as it was defined in s 60 of the Just Terms Act prior to the 2016 amendment, left open the possibility of compensation to a person other than the person whose land was being acquired. Such a construction is no longer available under the definition of "disadvantage resulting from relocation" in s 60 of the Just Terms Act following the 2016 amendment. To the extent that RMS submitted that the authorities had never considered this construction of "solatium" to be open, Desane submitted that this "exemplifies rather than detracts from the point".
Desane submitted that his Honour was also correct in finding the two heads of compensation to differ on the basis of the different caps in quantum available under them. While the compensation cap for "solatium" was gazetted at $75,000 at the time of the amendment, and therefore equivalent to the post-amendment cap for "disadvantage resulting from relocation", Desane submitted that the two heads were still materially different in this respect because the legislative cap for "solatium" permitted alteration based on ministerial direction while compensation for "disadvantage resulting from relocation" is capped by operation of the legislation.
Desane submitted that, contrary to the characterisation put forward by RMS, the primary judge did not find that the inconsistency between the Approved Form and the Just Terms Act "resulted in the vitiation of the Minister's approval". Rather, Desane submitted that the primary judge correctly found that from the point of amendment, including when the PAN was issued, the Approved Form was impermissibly inconsistent with the empowering Act.
Desane submitted that the Just Terms Act evinced a clear legislative intention displacing the application of s 80(1) of the Interpretation Act: Interpretation Act, s 5(2). Namely, the Just Terms Act already contains a comprehensive code to deal with procedural non-compliance, comprising mandatory language in respect of notice (s 15), mechanisms for the correction of clerical errors involved in notice (s 16), and a curing provision for irregularities in notice once acquisition has occurred (s 33(a)).
In response to RMS' submission that the mandatory language in s 15 supports the opposite conclusion, Desane submitted that the choice of "must", instead of a permissive word, is significant. Likewise, to the extent that RMS also relied on s 16 to support its alternate conclusion, Desane submitted that a regime for correcting clerical errors presupposes that substantial compliance is insufficient.
Desane submitted that even if substantial compliance is sufficient, the primary judge was nevertheless correct in finding that s 80(1) would not operate to remedy the defects in the PAN because the PAN was not substantially compliant with the Approved Form. This was so for three reasons: 1. First, the reference to "disadvantage resulting from relocation" in the PAN was not substantially compliant with the reference to "solatium" in the Approved Form because the effect of ss 15(a), (f) and 39(2) of the Just Terms Act was to require the PAN to reflect the Approved Form. Hence, it is not to the point, as RMS contended, that ss 15(a), (f) and 39(2) do not mandate the content of the heads of compensation to be set out in the PAN. Further, Desane submitted that the legislative regime in relation to a "solatium" and "disadvantage resulting from relocation" operated in a significantly different manner. 2. Secondly, Desane submitted that the primary judge was correct in relying on the discrepancy in the time period for the offer of compensation between the PAN and the Approved Form. Desane submitted that "in circumstances where private property rights are at stake", the difference of 15 days was substantial, drawing an analogy with Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 at 418. 3. Thirdly, Desane relied on the principle of legality.
Desane submitted that the primary judge approached the task of construction correctly because he referred to the text, context and purpose of the statutory scheme. Desane submitted that the objects of the Just Terms Act, which include "to encourage the acquisition of land by agreement" (s 3(1)(e)), support the implication of a public purpose requirement because a landowner can only fairly assess whether to reach an agreement with knowledge of what the acquiring authority intends to do with the land and whether it is authorised to acquire the property for that purpose.
Desane relied on the aphorism drawn from Jones at 483 per Dixon CJ, and submitted that "a person whose land is to be compulsorily acquired is entitled to know whether the proposed acquisition is a valid exercise of the statutory power". Desane submitted that this reasoning not only applies in the present case, but that giving effect to that reasoning as part of the construction exercise is consistent with the principle of legality.
Desane submitted that the legislative history of the Just Terms Act supported its construction because predecessor legislation required the acquiring authority to state the purpose for which the land was acquired: Public Works Act 1912 (NSW), s 42; Lands Acquisition Act 1989 (Cth), s 22(2)-(3). Although the express requirement was not carried through to the Just Terms Act, there was no reference to this departure in the Explanatory Note and Second Reading Speech.
Desane submitted that because the PAN is the final step before acquisition (which is irreversible by virtue of s 33), the land owner ought to be made aware of the purpose of acquisition at the point the PAN is received as otherwise it will be too late for them to challenge the acquisition.
Desane submitted that the PAN did not sufficiently state the purpose of acquisition. To the extent that RMS relied on the covering letter accompanying the PAN, which referred to "WestConnex Stage 3 M4-M5 Motorway Link", Desane submitted that this does not assist RMS. The terms used are amorphous, covering both proper and improper purposes. Further, the letter did not refer to the Roads Act. Finally, the letter is not part of the PAN, which must itself refer to the purpose: Jones at 483.
On the question of improper purpose, Desane supported the conclusion of the primary judge and submitted that the evidence as a whole demonstrated that as at the critical date of 26 May 2017 (being when the PAN was issued), the Rozelle Interchange proposal remained "embryonic" and undefined.
Desane referred to the Stage 3 EIS and the Stage 3 Response Report, which referred to the possibility of the Rozelle Interchange not proceeding, in which case the Desane property would be used as part of the Bays Precinct Transformation Plan.
Desane submitted that in light of the uncertainty regarding the Rozelle Interchange, the only explicable basis for issuing the PAN was due to the NSW Government's commitment to provide open space and parkland.
Desane submitted that the primary judge's finding was open on the evidence. To the extent that at times the Desane property had been contemplated to be used as a construction site, Desane submitted that as at the date the PAN was issued there was some fluidity as to whether the Desane property was needed for such use.
Desane submitted that the primary judge did not err in his reasoning. His Honour was not required to consider or make findings on RMS' actual intention: R v Toohey (1981) 151 CLR 170. It was open, and correct, for the primary judge to conclude that RMS was aware of the possibility that the Rozelle Interchange would not proceed.
Desane submitted that the primary judge was correct to draw inferences from the failure of RMS to call the decision-makers who issued the PAN to give evidence. To the extent that RMS submitted that there was extensive documentary material as to purpose, Desane submitted that there was an absence of documentary evidence from the period prior to the issuing of the PAN which clearly stated the actual purpose of the proposed acquisition.

The cross-appeal

The cross-appeal related to the decision of the primary judge in Desane Properties Pty Ltd v State of New South Wales [No 2] [2018] NSWSC 738 in which the primary judge declined to grant a permanent injunction restraining RMS from acting on the PAN.
Desane, the cross-appellant, submitted that the cross-appeal arises in the event that this Court concludes that the PAN is valid notwithstanding its non-compliance with the Approved Form and/or the omission of a statement as to the purpose of the proposed acquisition.
Desane submitted that in these circumstances, the Court should grant injunctive relief because the exercise of power was unlawful and there are no circumstances disentitling it from relief: Project Blue Sky at 393.

Consideration

In addressing the questions here in issue it will be necessary to refer to some aspects of the legislative scheme of the Just Terms Act in detail. The long title of the legislation is: "Land Acquisition (Just Terms Compensation) Act 1991 No 22 An Act relating to the acquisition of land on just terms by authorities of the State."
The objects of the Act are: "3 Objects of Act (1) The objects of this Act are: (a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and (b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and (c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and (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. (2) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action."
The Act defines PAN and "public purpose" in s 4 as: "proposed acquisition notice means a notice under section 11 of intention to acquire land by compulsory process. public purpose means any purpose for which land may by law be acquired by compulsory process under this Act."
In nearly all cases the power of acquisition must be found outside the Just Terms Act: "5 Acquisition of land to which Act applies (1) This Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process. (2) This Act does not apply to any such acquisition if the land is available for public sale and the land is acquired by agreement. (3) Land is available for public sale if: (a) the land is advertised by the owner as being available for sale, or (b) the land is listed by the owner with a real estate agent as being available for sale, or (c) the land is otherwise held out by the owner as being available for sale." … 7 Act not to empower authority to acquire land (1) This Act does not empower an authority of the State to acquire land if it does not have the power (apart from this Act) to acquire the land. (2) The power of an authority of the State to acquire land under another Act is affected by sections 7A and 7B of this Act. Any such acquisition to which section 7A or 7B applies remains, for all purposes, an acquisition of land under and subject to that other Act."
It was common ground that the power of acquisition in this case was located in the Roads Act, s 177: "177 Power to acquire land generally (1) The Minister, RMS or a council may acquire land for any of the purposes of this Act. (2) Without limiting subsection (1), the Minister, RMS or a council may acquire: (a) land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or (b) land that forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired for the purpose of opening, widening or constructing a road or road work. (3) Without limiting subsection (1), RMS may also acquire land that it proposes to declare to be RMS development land."
The requirement to negotiate for a period of six months prior to the issue of a PAN is a provision of some importance. Section 10A of the Just Terms Act provides: "10A Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process (1) This section applies to land that is affected by a proposal for acquisition by an authority of the State, other than a proposal to acquire: (a) Crown land, or (b) an easement, or right to use land, under the surface for the construction or maintenance of works, or (c) a stratum under the surface for the construction of a tunnel. (2) The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice. (3) The owner of the land and the authority of the State may agree to a shorter or longer period of negotiation for the acquisition of the land by agreement. (4) The Minister responsible for the authority of the State may approve a shorter period of negotiation, but only if the Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to have any longer period of negotiation. Any such approval requires the concurrence of the Minister administering this Act (being concurrence given for the particular approval or given generally for an approval of that kind). (5) This section does not prevent a continuation of negotiation after the giving of a proposed acquisition notice. (6) The authority of the State is not required to comply with this section if: (a) the owner of the land notifies the authority that the owner is not prepared to negotiate with the authority for the acquisition of the land by agreement, or (b) the owner of the land cannot be located after the making of reasonable inquiries. (7) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action."
An authority of the State may not compulsorily acquire land without giving the owners of the land written notice: "11 Notice of intention to acquire land by compulsory process (1) An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so. (2) The authority of the State is not prevented from acquiring the land by agreement after giving the proposed acquisition notice. 12 Owners to be given notice (1) A proposed acquisition notice need only be given to all the owners of the land who: (a) have a registered interest in the land, or (b) are in lawful occupation of the land, or (c) have, to the actual knowledge of the authority of the State, an interest in the land. (2) If the proposed acquisition notice relates only to a particular interest in land, the notice need only be given to all such owners of that interest. (3) If the proposed acquisition notice relates to an interest which does not exist (such as a proposed easement), the notice need only be given to all the owners of the land who: (a) have a registered interest in the land (other than a mortgage interest), or (b) are in lawful occupation of the land. (4) If the proposed acquisition notice relates to land under the Real Property Act 1900, the authority of the State must give a copy of the notice to any person who has lodged a caveat which is recorded in respect of the land in the Register kept under that Act. (5) If the proposed acquisition notice relates to land that is the subject of a registered native title claim under the Commonwealth Native Title Act, the authority of the State must give a copy of the notice to the registered native title claimant under that Act. Note: Under the NTA, the registered native title claimant is the person shown in the Register of Native Title Claims as the applicant for the claim."
The minimum period of written notice is prescribed: "13 Minimum period of notice (1) A proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. (2) A shorter period of notice may be given if: (a) the authority of the State and the owners of the land agree in writing to the shorter period, or (b) the Minister responsible for that authority approves of the shorter period, but only if that Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to give any longer period of notice. (3) The approval of a shorter period of notice under subsection (2) (b) requires the concurrence of the Minister administering this Act (being a concurrence given for the particular approval or given generally for an approval of that kind). 14 Compulsory acquisition to be completed as soon as practicable (1) As soon as practicable after the expiration of the minimum period of notice of a proposed compulsory acquisition, the authority of the State must: (a) acquire the land by compulsory process or by agreement, or (b) withdraw the proposed acquisition notice. (2) The proposed acquisition notice is taken to have been withdrawn if the authority of the State has not acquired the land or withdrawn the proposed acquisition notice: (a) except as provided by paragraph (b) - within 120 days after it gave that notice, or (b) within such longer period as that authority and the owner of the land have agreed to in writing. (3) If the proposed acquisition notice is withdrawn or taken to have been withdrawn, the authority of the State may not give a further proposed acquisition notice in respect of the land within 12 months after the date of withdrawal unless the Minister responsible for that authority is satisfied that in the circumstances of the case a further notice within that period is justified."
A critical provision in this appeal is the section which identifies the "particulars to be included" in a PAN, s 15: "15 Particulars to be included in proposed acquisition notice A proposed acquisition notice given to an owner of land must: (a) be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister, and (b) specify the authority of the State proposing to acquire the land, and (c) contain a description sufficient to identify the land proposed to be acquired, and (d) specify the period within which the land will be compulsorily acquired, and (e) request any owner who wishes to claim compensation for the acquisition to lodge with the authority of the State a claim for compensation within the period specified in the notice (being not less than 60 days after the notice is given to the owner), and (f) be accompanied by the form for a claim for compensation under section 39."
The withdrawal (which gives rise to a right to compensation) and amendment of a PAN is addressed: "16 Withdrawal or amendment of proposed acquisition notice (1) An authority of the State may, before the land is compulsorily acquired, withdraw a proposed acquisition notice by a further notice. (2) Part 4 deals with the compensation payable when a proposed acquisition notice is withdrawn. (3) An authority of the State may, by a further notice, amend a proposed acquisition notice for the purpose of correcting a clerical error or an obvious mistake in the notice. Any such amendment has effect from the date of the original notice unless otherwise specified in the further notice. (4) A further notice under this section is to be given in the same manner as the proposed acquisition notice concerned was given."
With the approval of the Governor, an authority of the State may declare that land described in the notice is acquired by compulsory process: "19 Compulsory acquisition by notice in Gazette (1) An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process. (2) A copy of the acquisition notice is, if practicable, to be published in at least one newspaper circulating in the district in which the land concerned is situated. (3) An acquisition notice may relate to part only of the land described in the relevant proposed acquisition notice."
The effect of an acquisition notice is prescribed: "20 Effect of acquisition notice (1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act: (a) vested in the authority of the State acquiring the land, and (b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land. (1A) Subsection (1) is subject to any express provision of an Act that authorises the acquisition of land by compulsory process but preserves the operation of any trusts, restrictions, dedications, reservations, declarations, setting apart of or other matters relating to the land concerned. (2) If: (a) the acquisition notice excepted an easement from acquisition, and (b) immediately before the vesting, the benefit of a restriction as to user was annexed to the easement, then (unless otherwise specified in the acquisition notice) the restriction continues to have effect as if the acquisition had not taken place. Note. Examples of express provisions of Acts to which section 20 (1A) refers are section 17AB (4) (b) of the Fisheries and Oyster Farms Act 1935, section 15 (4C) (b) of the Forestry Act 1916, section 186 (3) of the Local Government Act 1993 and section 146 (2C) (b) of the National Parks and Wildlife Act 1974."
Rescission of an acquisition notice is specifically provided for: "31 Rescission of acquisition notice (1) The Governor may, by notice published in the Gazette, rescind in whole or in part any acquisition notice. (2) An acquisition notice may not be rescinded unless a Minister has certified that it is necessary to do so for the purpose of correcting a clerical error or obvious mistake or for other good cause or that the former owners of the land have agreed to the rescission. (3) An acquisition notice published under Division 3 (Owner-initiated acquisition in cases of hardship) may not be rescinded without the consent of the owner who required the acquisition. (4) On the publication in the Gazette of the rescission notice, the land described in the rescission notice: (a) revests in the person who was entitled to it immediately before the compulsory acquisition for the estate, interest or right which the person had immediately before the compulsory acquisition, but subject to any interest in or equity binding on the land created by the authority of the State since its compulsory acquisition, and (b) is subject to all trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts from which it was freed and discharged by the compulsory acquisition, and (c) is subject to any interests in or equities binding on the compensation money that were created since the compulsory acquisition. (5) If a resumption application relating to land described or referred to in an acquisition notice has been lodged under section 31A (2) of the Real Property Act 1900 with the Registrar-General: (a) a rescission notice may not rescind so much of the acquisition notice as relates to that land, and (b) any transfer of that land, after it has been brought under the provisions of the Real Property Act 1900, to the person who was entitled to it immediately before the resumption is, for the purposes of Part 4 of this Act, taken, on its registration under that Act: (i) to revest that land under this section in the transferee, and (ii) to rescind the compulsory acquisition in so far as it relates to that land. (6) Part 4 deals with the compensation payable when an acquisition notice is rescinded under this section. (7) In this section, "acquisition notice" includes a notification of appropriation or resumption made under the Public Works Act 1912 before the commencement of this section."
Once land has been acquired by compulsory process, the validity of the acquisition is not affected by the matters identified in s 33: "33 Validity of compulsory acquisition Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by: (a) a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or (b) a subsequent failure to comply with a requirement of this Act relating to the acquisition."
Adverse use of acquired land is addressed: "36 Adverse use of acquired land (1) If a person is using, or proposes to use, land acquired by an authority of the State by compulsory process in a manner inconsistent with the public purpose for which the land was acquired, the Land and Environment Court may, on the application of that authority, make such order as it thinks fit to remedy or restrain that use. (2) Without limiting the powers of the Land and Environment Court under subsection (1), an order made under that subsection may: (a) restrain the use of any building, work or land, or (b) require the demolition or removal of any building or work, or (c) require the reinstatement, as far as practicable, of a building, work or land to the condition it was in immediately before the relevant use. (3) The Land and Environment Court may, at its discretion, by interlocutory order, restrain the continuation of the relevant use of the land pending the determination of an application under subsection (1)."
Claims for compensation are provided for by Division 2 of Part 3, and in particular: "39 Claim for compensation (1) A person who wishes to claim compensation under this Part must lodge a claim in accordance with this section with the authority of the State that is acquiring the land concerned or with the Valuer-General. (2) A claim for compensation must be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister. (3) The claim form may require information to be verified by statutory declaration. (4) A claim for compensation may be withdrawn by the claimant. (5) As soon as practicable after an authority of the State or the Valuer-General receives a claim for compensation: (a) the authority must give the Valuer-General a copy of the claim, or (b) the Valuer-General must give the authority a copy of the claim, as the case requires. … 41 Valuer-General's determination of amount of compensation (1) The authority of the State must, within 7 days after it compulsorily acquires land, provide the Valuer-General with a list of the issues that the authority believes are relevant to the determination of the amount of compensation by the Valuer-General. (2) The Valuer-General may determine the amount of compensation to be offered to a former owner of land for a compulsory acquisition of the land: (a) before or after the acquisition takes effect, and (b) even though the former owner has not made a claim for the compensation. (3) The Valuer-General is to provide a copy of the determination of the amount of compensation (together with any report on the value of the land prepared by or for the Valuer-General) to: (a) the authority of the State concerned, and (b) the former owner to whom the compensation is payable."
Post-acquisition procedures relating to compensation are addressed in Division 3 of Part 3, and in particular: "42 Notice of compensation entitlement and offer of compensation (1) An authority of the State which has compulsorily acquired land under this Act must, within 45 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General). (2) The compensation notice must be given to all former owners of the land who, immediately before the acquisition: (a) had a registered interest in the land, or (b) were in lawful occupation of the land (but only if the authority of the State considers they are entitled to compensation), or (c) had, to the actual knowledge of the authority of the State, an interest in the land which entitles them to compensation. (3) If the acquisition relates only to a particular interest in land, the notice need only be given to all such former owners of that interest. (4) The Minister may extend the period of 45 days within which the compensation notice is required to be given (but not by more than 60 days) if the Minister is satisfied that it is necessary to do so to enable a valuation to be made of any interest in the land concerned. (5) An authority of the State is not excused from the requirement to give a compensation notice because the period during which the notice is required to be given has expired or because the former owner has not lodged a claim for compensation. (6) However, the authority of the State may delay giving a compensation notice if a number of persons claim competing interests in the land concerned. (7) Despite any such delay, the compensation may be paid into the trust account under this Part and advance payments of compensation may be made under this Part. (8) The obligation of the Valuer-General under section 41 (3) to provide a copy of the determination of the amount of compensation to the former owner applies despite a failure by the authority of the State to give a compensation notice to the former owner as required by this section."
The determination of the amount of compensation is addressed by Division 4 of Part 3, which we will set out in detail when addressing the question of the content of a valid PAN below. The disadvantage resulting from relocation is defined in s 60: "60 Disadvantage resulting from relocation" (1) In this Act: disadvantage resulting from relocation means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person's principal place of residence as a result of the acquisition. (2) The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000. Note: Schedule 1A provides for the amendment of this section to enable the maximum amount of compensation to be increased by regulation and for the automatic indexation of the maximum amount in line with inflation. (3) In assessing the amount of compensation in respect of the disadvantage resulting from relocation, all relevant circumstances are to be taken into account, including: (a) the interest in the land of the person entitled to compensation, and (b) the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and (c) the inconvenience likely to be suffered by the person because of his or her removal from the land, and (d) the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land. (4) Compensation is payable in respect of the disadvantage resulting from relocation if the whole of the land is acquired or if any part of the land on which the residence is situated is acquired. (5) Only one payment of compensation in respect of the disadvantage resulting from relocation is payable for land in separate occupation. (6) However, if more than one family resides on the same land, a separate payment may be made in respect of each family if: (a) the family resides in a separate dwelling-house, or (b) the Minister responsible for the authority of the State approves of the payment. (7) If separate payments of compensation are made, the maximum amount under subsection (2) applies to each payment, and not to the total payments."
Compensation for withdrawal of a proposed acquisition notice is specifically addressed: "69 Compensation for withdrawal of proposed acquisition notice (1) If a proposed acquisition notice is withdrawn (or taken to be withdrawn) under this Act, an owner of the land concerned is entitled to be compensated by the authority of the State who gave the notice for any financial costs or any damage actually incurred or suffered by the owner as a direct consequence of the giving of the notice and its later withdrawal. (2) Compensation is not payable under this section in respect of any change in the value of the land. (3) Compensation is not payable under this section unless a claim for the compensation is made within 3 years after the withdrawal of the proposed acquisition notice."

Validity of the Proposed Acquisition Notice

The three issues before the primary judge concerning the operation of the PAN were identified in the Further Amended Commercial List Statement as being whether, for three identified reasons, the "PAN was void, invalid and of no effect". Those reasons were: "1 Was the PAN void, invalid and of no effect because it failed to state, with the requisite particularity, the purpose for which it was claimed that the Property was required for compulsory acquisition? 1A Was the PAN void, invalid and of no effect because it was not in the form of proposed acquisition notice approved by the Minister and published in the Gazette on 26 June 1992? 1B Was the PAN void, invalid and of no effect because the form of proposed acquisition notice approved by the Minister and published in the Gazette on 26 June 1992 is inconsistent with the Just Terms Act, such that RMS has not given Desane written notice of its intention to acquire the Property pursuant to s 11 of the Just Terms Act?"
It is convenient to deal with the issues raised in [1A] and [1B] of the Further Amended Commercial List Statement first, as the primary judge did, before turning to issue [1] identified in the Further Amended Commercial List Statement.
The pleaded case is a matter of some importance to the way Desane approached this appeal. That Desane's pleaded claim was limited to one that the "PAN was void, invalid and of no effect" is confirmed by the Further Amended Commercial List Statement at paragraphs [70], [70X] and [70ZD].
Desane pleaded that the "PAN was void, invalid and of no effect" on the basis that "RMS has not given Desane written notice of its intention to acquire the property pursuant to s 11 of the Just Terms Act, and may not therefore acquire the property by compulsory process": Further Amended Commercial List Statement paragraph [70ZE].
The declaration made by the primary judge was that "the Proposed Acquisition Notice given by the Second Defendant [RMS] to the plaintiff [Desane] dated 26 May 2017 (PAN) is invalid and of no statutory effect".
It is clear that the case conducted below, and the findings of the primary judge, were based on the pleading that the PAN did not amount to written notice of RMS' intention to acquire the Desane property pursuant to s 11 of the Just Terms Act. The primary judge found that the PAN was not a notice for the purposes of s 11 but, as Mr Hutley SC (who appeared for RMS on the appeal but not below) submitted, "just a piece of paper".
As will become apparent, however, on the appeal Desane sought to argue that the PAN did have operative effect in respect of certain provisions of the Just Terms Act. Desane's submissions concerning s 69, which affords compensation to a landowner where a PAN is withdrawn, illustrates this point. Desane submitted that, based on the explanatory materials to the Just Terms Act, the precondition to the operation of s 69 is the issue of a "notice" under s 11, which the PAN was; not a "valid notice", which the PAN was not. The PAN was thus sufficient to provide notice within the meaning of s 11 of the Just Terms Act for the purposes of s 69 of the Act. As this question is close to the issues at the heart of the appeal and the cross-appeal, we will return to it in detail later.
Before embarking on a detailed consideration of whether the PAN was "void, invalid and of no effect" in failing to reflect the contents of the Approved Form, it is necessary to set out the PAN sent by RMS to Desane. The text in red comprises each of the differences between the text of the PAN and the text of the Approved Form.
The relevant parts of the Claim Form accompanying the PAN, with differences from the Approved Claim Form approved under s 39(2) of the Just Terms Act noted in red, are:
The first question is whether those departures in the PAN and the Claim Form (marked in red) from the Approved Form and the Approved Claim Form (either separately or collectively) had the effect that the PAN was "void, invalid and of no effect". The specific departures in the PAN from the Approved Form were: 1. the absence of the words "of New South Wales" from the description of Roads and Maritime Services in paragraph 1; 2. the word "This" instead of "The" in two places in paragraph 3; 3. the reference to "the disadvantage resulting from relocation" rather than "solatium" in paragraph 3(e); 4. the reference to "within 45" rather than "within 30" days as the period within which an offer would be made following publication of an acquisition notice in the Gazette in paragraph 6; and 5. the substitution of a Post Office Box in the address of Ms Durie for an "address of office of the Authority".
Complaints about departures in the Claim Form were limited to two matters: 1. the Claim Form did not contain the address of the land; and 2. the Claim Form referred to "the disadvantage resulting from relocation" rather than "solatium".
It will be recalled that the primary judge concluded that all but two of those departures, the references to "solatium" and 45 rather than 30 days, "may be thought to be trivial and not to involve a real departure from the Approved Form": [169]. We respectfully agree that the matters identified as trivial and not involving a real departure from the Approved Form were correctly so described by his Honour.
The initial question posed in this case is whether the differences identified by Desane between the PAN and the Approved Form amount to an act done in breach of a provision of the Just Terms Act and whether, if so, the PAN is void, invalid and of no effect.
In considering whether the departures from the Approved Form render the PAN "void, invalid and of no effect", the relevant question is that posed by the High Court in Project Blue Sky at 390-391: "A better test … is to ask whether it was a purpose of the legislation that an act done in breach of a provision should be invalid...In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute."
This task requires an assessment of the departures from the Approved Form and a consideration of whether the departures are significant. The question of whether the PAN in this case was a notice for the purposes of s 11 of the Just Terms Act or "just a piece of paper" requires attention to be given to the language of the relevant provisions and the scope and object of the whole statute.
While reliance on the use of imperative language in the form of "must" in s 15 is instructive, it is merely the beginning of the task of construction and not determinative. In addition to Project Blue Sky, the High Court made this point in Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38 at [26] per Gummow A/CJ, Kirby, Hayne Crennan and Kiefel JJ.
At the forefront of Desane's submissions in this Court was the proposition that the Court should hesitate to condone departures from the ministerially Approved Forms because of the principle of legality. We do not accept that the principle of legality has the central role assigned to it by Desane in this case. In ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 Gleeson CJ said at [43]: "[43] As to the presumption that legislation is not intended to interfere with vested proprietary rights, the relevant provisions of the legislation in question have, as their primary concern, interference with vested proprietary rights. That is what compulsory acquisition is about. As the legislative history referred to above shows, the object of the legislation is to provide a regulatory scheme which enables a takeover offeror, who has achieved a prescribed level of acceptances, to compel people who have not accepted the offer to transfer shares, subject to appropriate safeguards to protect their interests. It is of little assistance, in endeavouring to work out the meaning of parts of that scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve. Furthermore, for the reasons given in the preceding paragraph, it does not help to say that legislation enabling abrogation of property rights should be strictly confined according to its terms, when the legislation confers a power upon a regulatory authority (subject to procedures of review) to alter those terms."
In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]-[314] Gageler and Keane JJ explained the principle as one of construction and said: "[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'."
The long title of the Land Acquisition (Just Terms Compensation) Act states that it is an "Act relating to the acquisition of land on just terms by authorities". This is but the first indication that the Just Terms Act intends to interfere with private property rights. It does not assist to say that legislation enabling abrogation of property rights should be strictly confined according to its terms, when the legislation confers a power upon a regulatory authority (subject to procedures of review) to alter those terms. Much less is it helpful when analysing the critical question in this case, whether a PAN which departs from the terms of an Approved Form is thereby void, invalid and of no effect. The real question here is whether, as a matter of construction, this is the correct conclusion. The cases relied upon by Desane give rise to no different conclusion.
In Clunies-Ross v Commonwealth (1984) 155 CLR 193; [1984] HCA 65, the High Court was asked to construe a power conferred by the Lands Acquisition Act 1955 (Cth) to "acquire land for a public purpose". In that context, in the passage (at 201) relied upon by Desane, the Court explained that an executive power to deprive a citizen of his or her property should be confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred. The Court held that an acquisition for a public purpose was limited to a power to acquire land for some purpose related to a need for or proposed use (be it active or passive) or application of the land to be acquired. The High Court explained (at 199-200) that the purpose relied upon by the Commonwealth in that case was not "some need for or use of the land" but rather a purpose of achieving "some more remote public purpose, however laudable". Clunies-Ross thus raises quite different issues to the present case where, subject to the question of improper purpose addressed below, there is no suggestion that RMS' purpose, if its actuating purpose was to acquire the Desane property for use in construction of the Rozelle Interchange, was not within the scope of what is granted by the clear meaning or necessary intendment of the words in the Roads Act by which that power is conferred.
In R & R Fazzolari, the High Court considered s 7B of the Just Terms Act in the context of Part 1 of Chapter 8 of the Local Government Act 1993 (NSW). The judgment of French CJ, relied upon by Desane, addressed the principle of legality in the context of the construction of the acquisition powers in the Local Government Act. The presumption stated in Clunies-Ross that statutes are not to be construed as interfering with vested interests unless that intention is manifest was re-stated. What French CJ actually decided about the Just Terms Act was that "it deals with procedures for the compulsory acquisition of land by authorities of the State and compensation on just terms" at [65], save for s 7B "which goes beyond those procedures". French CJ did not construe the provisions of the Just Terms Act dealing with procedures for compulsory acquisition as requiring any special rule of construction. The plurality in R & R Fazzolari decided that the land being acquired was not being acquired under Part 1 of Chapter 8 of the Local Government Act, but was being acquired under s 7B of the Just Terms Act. Thus the exception appearing in s 188(2)(a) of the Local Government Act to the requirement in s 188(1) that the approval of the owner of the land be obtained if the land was "being acquired for the purpose of re-sale" did not apply. R & R Fazzolari does not provide support for Desane's approach to construction of the provisions in the Just Terms Act dealing with "procedures" for the compulsory acquisition of land.
The principle of legality may well have had a more prominent operation in this case if there was a dispute about the construction of s 177 of the Roads Act; in other words, if the argument was whether the purpose of a particular acquisition fell within that acquisition power. In the present case the debate is not about the construction of the Roads Act. When one comes to the Just Terms Act, the principle of legality has a much more limited field of operation. It is difficult to see how the principle is central to the interpretation of what are essentially procedural steps in relation to the acquisition.
The decision of the High Court in Forrest & Forrest was an important focus of Desane's submissions in this Court. It was submitted that the principle of legality was "analogous" to the interpretation principles relied upon in that case and that Forrest & Forrest made clear that the Just Terms Act "is of a type far removed from the manner in which Project Blue Sky is being relied upon by RMS".
Forrest & Forrest concerned the question of whether non-compliance with the provisions of the Mining Act 1978 (WA) as it stood prior to the commencement of the Mining Amendment Act 2012 (WA) in relation to matters preliminary to the grant of a mining lease would render invalid mining leases granted by the Minister. Section 74 of the Mining Act made provision for the grant of a mining lease. Subject to a presently irrelevant exception, an application for the grant of a mining lease was required to be accompanied by a mining proposal and a mineralisation report in accordance with sub-section 1(ca). The case turned on a complaint that the application was not accompanied by the mineralisation report referred to in s 74(1)(ca)(ii). The central place of the mineralisation report required to accompany the application in the statutory scheme was emphasised by the High Court.
The High Court noted a long line of authority which provided that no effective grant of rights to exploit the mineral resources of the State may be made except upon compliance with the statutory regime which provides for the making of the grant: see the cases cited at footnote 3 of Forrest & Forrest and in particular Nicholas v Western Australia [1972] WAR 168 at 172 and 174. Section 74 of the Mining Act required a notice of application to be given by the applicant for the mining licence to the owner and occupier of the land over which the licence was sought. A time period was fixed for service of the notice of application and there was provision made for public access to information concerning the mining lease application: s 74(5).
Critically, the Director, Geological Survey, was required to provide a report to the Minister as to whether there was significant mineralisation in or under the land the subject of the application: s 74A. The High Court found (at [18]) that the Director, Geological Survey, had neither an obligation nor a power to provide that report in circumstances where the application was not, as in the case before the Court, accompanied by a mineralisation report. All that followed in the statutory scheme was built on this foundation. There was a two track system for progression of an application to the Minister; unopposed applications proceeded via a Registrar. Section 75 provided for the determination of opposed applications by the mining warden, following the expiry of the period fixed for objections. Whether the applicant had "complied in all respects with the provisions of this Act" was a matter to be established to the satisfaction of the warden: s 75(3). Section 75(4) made express provision for the warden to excuse non-compliance by the objector with time limits for lodging the objection. The plurality regarded it as significant that no such provision applied to non-compliance with the requirement to lodge a mineralisation report with the application. The warden issued a report holding that he had jurisdiction, notwithstanding the application was not accompanied by a mineralisation report, and made a recommendation to the Minister that the application should be granted. Mr Forrest made a judicial review application to quash the warden's report and recommendation. The Western Australian Supreme Court refused to quash the report and recommendation and an appeal to the Court of Appeal was dismissed. The High Court allowed the appeal, granted declaratory relief and quashed the warden's purported report.
The Court commenced by observing that the Court of Appeal did not consider a line of authority which established that where a statutory regime confers power on the executive government of the State to grant exclusive rights to exploit the resources of the State, the regime, subject to provision to the contrary, must be understood as mandating compliance with requirements of the regime as essential to the making of a valid grant: Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533. To permit non-compliance with the legislative regime might "imperil the honest and efficient enforcement of the statutory regime" (at [65]). The language of the Act in requiring provision of the mineralisation report with the application was found to be emphatic and mandatory. The Court of Appeal erred in permitting the applicant who had not lodged a mineralisation report with the application to proceed "on credit" (at [69]). The warden's power to hear the application was expressly conditioned on the provision of the mineralisation report with the application. The express provisions relating to the consequences of non-compliance with requirements of the Act preliminary to the exercise of the Minister's powers, which did not apply to the non-provision of the mineralisation report with the application, were "fatal to the validity" of a grant made in a case such as the present (at [74]). The "curing" provisions, ss 75(6)(b) and 116, did not address a want of "compliance" but rather addressed "informality and irregularity" in the application. The plurality held that the failure of the warden to observe the requirements fundamental to his jurisdiction could not be described as an "informality or irregularity" (at [76]). This conclusion about construction was underlined by the plurality's findings about the objects of the Mining Act. Compliance with the regime requiring provision of the mineralisation report with the application was "apt to reduce the administrative burden upon the Department" (at [85]). The non-compliance worked "to the material disadvantage of individuals for whose protection the condition exists". The requirement for the provision of the mineralisation report with the application was for the purpose of ensuring that the occupiers of the land were "not troubled unnecessarily or prematurely by half-baked proposals" (at [86]). The provision of informed views on the vital topic of mineralisation was apt to improve the quality of decision making about the grant of a lease (at [88]). The extrinsic material strongly supported the construction of the Mining Act that the plurality preferred. The Explanatory Memorandum for the Mining Amendment Bill 2004 (WA) provided that the relevant provisions had the effect that a mining licence could only be applied for when accompanied by a mineralisation report. A like statement was made in the Second Reading Speech (at [90]).
In considering whether the decision in Forrest & Forrest compels the conclusion that a PAN must strictly comply with the legislative requirements to be a valid notice under s 11 of the Just Terms Act the following matters must be borne in mind. First, the requirements for the mining proposal and mineralisation report were an essential step in the provision of information to the Minister to enable him or her to determine whether a mining lease should be granted and to enable the public to make submissions on whether the grant should be made. By contrast, the Just Terms Act says nothing about the procedure to be adopted by a public authority in exercising its acquisition power. Rather, it simply imposes procedural steps which are required to be put in place to give effect to a decision made pursuant to a power granted by other legislation. The procedural nature of the provision is demonstrated by the amendment power in s 16(3) of the Just Terms Act and more importantly by the provisions of s 33 which provide that once land had been acquired by the compulsory process the validity of the acquisition is not affected by a failure to comply with any requirements relating to the giving of notice of the proposed acquisition. In that context it must be remembered that s 13(1) requires a time period of at least 90 days between the date of the PAN and the date of compulsory acquisition. Such a period gives the person whose land is to be acquired ample opportunity to object to any of the terms of the PAN. In those circumstances the principle of legality does not operate to require strict compliance with the particular form prescribed by the Minister for it to be valid. In particular, decisions such as R & R Fazzolari have little relevance to the present case once it is appreciated that the Just Terms Act is not a precondition on the power to acquire land but rather merely sets out procedural requirements once that has been resolved upon.
What Forrest & Forrest does compel is a close consideration of the language of the Just Terms Act, in context, including of course the objects and purpose of the Act. This is a matter to which we will now turn.
Some matters about the scope and purpose of the Just Terms Act may be noticed at the outset. The essential precondition to acquisition of land is notification in the Gazette: s 19. The Just Terms Act provides for a six month negotiating period before an authority of the State can issue a PAN: s 10A. At the very least, a landowner has the protection of an opportunity to negotiate with the acquiring authority for that period. It was common ground that the acquiring authority would need to conduct that negotiation in good faith.
The issue of a PAN triggers the commencement of the compulsory acquisition process. The statutory object of the PAN is, at least to some extent, to inform the owner that their property is going to be acquired and, at least to some extent, to set out the owner's rights. The issue of a PAN provides important statutory protections for the landowner. It: 1. imposes a time limit on the acquiring authority to effect the acquisition: s 42; 2. ensures that all persons who have an interest in the land and might be entitled to a claim for compensation are notified of the proposed acquisition: s 12; 3. provides the landowner with limited protection against the issue of further notices: s 14(3); and 4. provides the landowner with a right to compensation if the PAN is withdrawn by the acquiring authority: s 69.
Under the Just Terms Act, a PAN must include the content prescribed in s 15(b)-(f). Here, the PAN issued to Desane included all the matters set out in those sub-sections with the possible exception of the complaint made about the content of the "claim for compensation" under s 15(f).
It may be observed that s 15 itself does not require identification of the heads of compensation in s 55 of the Just Terms Act or the period of time under s 42(1) of the Just Terms Act before which an authority of the State is required to give the former owners of the land written notice of the amount of compensation offered, as determined by the Valuer-General.
At issue is whether a document which does not precisely conform to the Approved Form approved under s 15(a) of the Just Terms Act is, for that reason, "void, invalid and of no effect".
Critical to the determination of this issue is the fact that, whilst it is correct that the provisions in Division 1 of Part 2 of the Just Terms Act use mandatory language (in ss 11(1), 13(1), 14-17), Division 2 does not require that the procedure in Division 1 shall have been complied with. Rather, s 33(a) of the Just Terms Act manifests a legislative intention that a failure strictly to comply with s 15 of the Just Terms Act will not result in invalidity. If s 33(a) cures any defect in the PAN, it cannot be said that a valid PAN is an essential precondition to acquisition.
We do not agree with Desane's submission that s 33 would be "otiose" if any irregularities in a PAN "did not invalidate the exercise of the power prior to the point of acquisition". On this question, Desane relied upon Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23 at 206-7 for the proposition, in the context of jurisdictional error and s 75(v) of the Constitution, that Parliament can provide that certain administrative decisions are "valid and enforceable notwithstanding the existence of some procedural defect which would otherwise result in invalidity". So much may be accepted. The same point was emphatically underlined by the High Court in Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32. To so conclude, however, does not assist in identifying whether the "procedural defect" here identified by Desane would otherwise result in invalidity. The fact that s 33 of the Just Terms Act protects the validity of an acquisition from, inter alia, a failure to comply with "any requirement of this Part relating to the giving of notice" under the Act does not, in and of itself, mean that any failure to comply with "any requirement of this Part relating to the giving of notice", no matter how trivial, necessarily results in invalidity. Such a conclusion would be inconsistent with s 16(3) which provides a power of amendment for the purpose of correcting a "clerical error" or "obvious mistake" in a PAN. If s 33 had the operation suggested by Desane, there would be no PAN to correct. Under Desane's construction the predicate to the operation of s 33, that a non-complying but otherwise valid PAN has been issued, could never be engaged. A notice which is "void, invalid and of no effect" is no notice at all and would not engage the operation of s 33, which only applies to land acquired "by compulsory process under this Act".
The question of whether a document which does not precisely conform to the requirements of s 15 of the Just Terms Act is, for that reason, "void, invalid and of no effect" has previously been considered by this Court by Bryson J in the Equity Division: Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep). The Roads and Traffic Authority had there issued a PAN and accompanying letter about an easement required by the Roads and Traffic Authority to build and construct a motorway. An issue in the case was whether, by reason of what was alleged to be non-compliance with s 15(d) of the Just Terms Act by the giving of incorrect or incomplete information in the PAN and its accompanying letter, "an essential step in the acquisition process has not occurred and acquisition would be unlawful". Bryson J held that s 33 appeared to exclude reliance on defects in notices "once land has been acquired by compulsory process". His Honour held at p 4 that: "That stage has not yet been reached, but the terms of s 33 make it difficult to conceive of an acquisition by compulsory process after delivery of a deficient Proposed Acquisition Notice as an irreparable injury appropriate to be protected by injunction. The objects of the Act stated in s 3 include (s 3(1)(c)) to simplify and expedite the acquisition process. Part 2 Div 1 speaks throughout in language which would be appropriate for an intention to make compliance with the prescribed pre-acquisition procedures mandatory. For example, in subs. 11(1) "may not acquire"; in subs. 13(1) "must be given"; in s 15 "must"; and see too the use of the word "must" in ss. 14, 17 and 18. On the other hand the address to the subject of acquisition procedures in Div 2 does not incorporate any requirement that the procedure in Div 1 shall have been complied with. The pre-acquisition procedure is mentioned to authorise departure from it; see s 19(3) but is not otherwise mentioned. A declaration in s. 20 of the effect of publication of an acquisition notice is stated in absolute terms which do not refer to compliance with pre-acquisition procedures. I find the legal effect of this strong language in Div 1 rather difficult to see. Section 33 excludes the view that failure to comply with them produces invalidity of any subsequent acquisition. Machinery exists which could see to their enforcement, including ministerial and parliamentary supervision over compliance by public authorities with the law. It is far from being the case that the mandatory language is futile unless it causes invalidity of a later purported acquisition. However that may be, s 33 appears to me to speak firmly in showing that a later acquisition is not invalidated."
This Court subsequently dismissed an application for leave to appeal in Manson v RTA of NSW [1996] NSWCA 339. Whilst it is true that the case was a decision about leave to appeal from an interlocutory decision, and strictly speaking the primary judge was not bound by the decision, Manson was fully argued and reasoned. We find the reasoning of Mahoney P (with whom Sheller JA agreed) persuasive. By the time the case came to this Court, the necessary Executive Council approval for the acquisition had been obtained and the notice of acquisition was about to be published in the Gazette. Mahoney P held that (page 4): "Reference was also made [to] s 33 of the Act. That provides that once land has been acquired by compulsory process, the validity of the acquisition is not affected by the failure to comply with any requirements of the Part relating to the giving of notice of the proposed acquisition. That section has been relied upon by Mr Mason QC in support of the contention that it was not intended that non-compliance with the strict requirements of s 15(d) or otherwise the requirements of this Part of the Act should result in invalidity of what was done. I think that is true. I think that the legislation plainly contemplated that the precise terms there specified would be complied with: they would not have enacted them if that was not so. But the draftsman intended, in my opinion, to ensure that failure to comply with the provisions should not go to validity. Accordingly, within what has been said in this regard, in cases such as Adler v District Court of New South Wales (1990) 19 NSWLR 317, I do not think that a failure to comply with s 15(d) would go to the validity of what was done. I do not mean by this that in an appropriate case a court will not grant an injunction to prevent an authority proceeding in the purposed exercise of a statutory power where it has not complied with the terms of the exercise of the power merely because what is involved is a technicality or because what has been done or omitted falls within that description. If statutory powers are to be exercised, it is, of course, important that those who are exercising them do so strictly in accordance with the terms of the power granted to them. But the nature of what has been done or omitted may be relevant in considering other matters, for example matters going to discretion."
At [236] the primary judge found that "Section 33 saves the acquisition from any failure to give notice". Desane did not accept that the primary judge was correct in this respect, and we accept this submission. A notice which is "void, invalid and of no effect" is no notice at all and would not engage the operation of s 33, which only applies to land acquired "by compulsory process under this Act".
We agree with Mahoney P in Manson that it may be accepted that the legislature intended the precise terms of s 15 would be complied with; the legislature would not have enacted them unless that was so. But the legislature intended, by enacting s 33, to ensure that a disconformity between a PAN and a form approved under s 15 should not affect the validity of the PAN. We accept, in so concluding, that if an authority of the State chose not to give a notice at all, that s 33 has no saving operation. In such a case, if an acquisition were nevertheless threatened, as Mahoney P held in Manson, an injunction may lie.
We also accept that if a PAN does not comply with the formal requirements of the Just Terms Act then the proposed acquisition may be challenged prior to the acquisition taking place and could be prevented by injunction. Discretionary issues would arise in the grant of that relief, as recognised by Mahoney P. Assuming notice has been given, once acquisition is complete s 33 will protect the process of acquisition (including any defect in the PAN) from subsequent challenge.
In respect of a PAN which is by hypothesis not in conformity with the Approved Forms made under ss 15 and 39, the compensation provisions on withdrawal and the right to compensation for the acquisition will still apply. That construction permits the whole of the various provisions in the Just Terms Act to work harmoniously. On this construction, the Just Terms Act as a whole evinces an intention that failure to comply with the provisions of Part 2 of the Act does not go to the validity of a step taken, including the issue of a PAN.
The conclusion that a notice which does not comply in some material respect with the Approved Form is still a "notice" for the purposes of s 11 of the Just Terms Act and is not void, invalid and of no effect is underlined by the following matters. If a notice which does not comply in some material respect with the Approved Form is void, invalid and of no effect, the "notice" would not be a notice to all the owners of land for the purposes of s 12; it would not be effective to start time running for the purposes of s 13; it would not provide the limited protection to the landowner in relation to withdrawal under s 14(3); it would not give rise to compensation rights upon its withdrawal under s 16(1) and Part 4; it could not be amended under s16(3); it would not constitute notification for the purposes of s 17; it would not be able to be rescinded under s 31; and, it would not give rise to rights of compensation under s 69.
It is true that a PAN is an essential step in the acquisition process but its basic role is procedural or mechanical. The primary judge correctly held that trivial non-compliance with the Approved Form under s 15(a) did not matter.
Desane recognised a difficulty relating to the substantial protections given to landowners which would be lost if the PAN was void, invalid and of no effect. Somewhat surprisingly, given Desane's pleaded case and the declaration it had secured from the primary judge, Mr Merkel QC, counsel for Desane in this Court and below accepted that the PAN did give notice to Desane of the proposed acquisition and "it would be cured upon acquisition and that would fall within the s 33": "BATHURST CJ: Did [the PAN] have the effect of giving notice of the acquisition? MERKEL: It gave notice of the acquisition but not in the approved form. BATHURST CJ: Therefore - I know not an approved form - it gave notice of the acquisition, then once a resumption occurs those defects are cured. It's not a question of anything being void. You may be able to have restrained the resumption or reliance on it possibly by way of a quia timet injunction, although you'd have to show if you suffered some damage as a result, in the context where another PAN could be issued the next day. MERKEL: There are a number of steps in what you've put to me. It would be cured upon acquisition and that would fall within the s 33. BATHURST CJ: Because regardless of its defects it is a notice. MERKEL: The question I'm about to come to are whether the defect is one where s 80 or s 5(2) might-- BATHURST CJ: Forget all of that. I'm accepting for the sake of this argument this is a defective notice. MERKEL: The answer to that-- BATHURST CJ: What I'm saying to you is so what? They will be that had you sought a quia timet injunction then restraining the acquisition on the basis of incorrect PAN, but the way the case, as I understood it, was put was that the PAN was void for all purposes. MERKEL: It's put in the different alternatives. It had no legal or operative effect whether that's called void, invalid comes to the same point. WARD CJ in Eq: To qualify that you do say for some purposes it had an effect because you say for the purpose of a s 69(4) application it has. You're only saying it's got no legal or operative effect for a particular purpose. MERKEL: Yes. I am corrected… "
To put the submission that the PAN has "no legal or operative effect for a particular purpose" in context, Mr Merkel QC submitted that RMS' submission that the primary judge's construction would deny the recipient of a defective PAN the entitlement to compensation for withdrawal under s 69 incorrectly assumes that an invalid PAN has no effect at all. How this submission was consistent with Desane's pleaded case, that the PAN was "void, invalid and of no effect", was never effectively addressed. In effect, Desane contended that the PAN in this case had no statutory effect for one purpose, as a notice under s 11, but was fully effective for another purpose, as a notice enlivening statutory rights such as those in s 69: "WARD CJ in Eq: Can I take you back to your argument in relation to s 69. Is your argument then that a PAN that's issued not in the approved form has no statutory effect for one purpose under the legislation but does have statutory effect for another purpose? MERKEL: Yes. That's because of the kind of principles I indicated. Section 69 is there purely as a beneficial provision in the interest of a landowner, a member of the public, who incurs loss through no fault of their own, but solely by reason of the conduct of an acquiring authority in withdrawing a PAN. A proposed notice is withdrawn. That's the first principle. The principle of legality, competing constructional choices, and thirdly I'll take your Honours in due course to the Second Reading Speech, but it talks of the giving of a notice, being the foundation for the claim here, not the giving of a valid notice. We would say on a proper construction of this provision a court in these circumstances would not be troubled at all about having to determine was it a valid claim? In the end it would be the authority relying on its own failure to comply with the Act to justify not paying compensation. It would be a brave authority that would be confident and optimistic that they're going to walk away and win that case. That is not the way modern rules of construction work in respect of statutes."
On the third day of the appeal, however, this submission was "clarified". Mr Merkel QC submitted that there was a primary and an alternative argument. The primary argument is that the PAN was invalid and without effect. The alternative argument was that if the PAN was valid then the court should find that, until cured of its defects, it was unlawful. This alternative argument was said to found the cross-appeal.
The acceptance by Senior Counsel for Desane recorded at [220] that the PAN was a "notice" and that it "would be cured upon acquisition and that would fall within the s 33" was a correct concession. The PAN was not "void, invalid and of no effect". Assuming the PAN was a defective notice in failing to conform to the Approved Form in material respects, Desane may, and subject to discretionary considerations of the kind discussed in Manson, have been able to obtain an injunction to prevent the acquisition. But, as Senior Counsel for Desane repeatedly submitted, that was not what was sought in the litigation by Desane.
We have concluded that as a matter of construction, and assuming for this purpose that the PAN contained material inconsistencies with the Approved Form, the PAN was not "void, invalid and of no effect".

Section 80 of the Interpretation Act and substantial compliance

Even assuming the PAN contained material inconsistencies with the Approved Form, we have concluded that the PAN was not void, invalid and of no effect. That is a sufficient conclusion to determine this part of the appeal. Given the cross-claim, however, it is nevertheless desirable to consider whether the departures from the Approved Form were in this case material. In addressing this question the related question under s 80 of the Interpretation Act needs to be addressed. The terms of s 80 of the Interpretation Act are set out at [62].
The Approved Form and the Approved Claim Form were each "a form … approved under… an Act", being ss 15(a) and 39(2) of the Just Terms Act. If s 80(1) of the Interpretation Act applies, strict compliance with the Approved Form and the Approved Claim Form was not necessary but substantial compliance was sufficient. The question is whether the Just Terms Act evinces a contrary intention. Section 5(2) of the Interpretation Act provides: "5 Application of Act (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned."
We have concluded that s 80 of the Interpretation Act applies to the PAN in this case. It may be accepted that the word "must" is used in s 15 of the Just Terms Act. Mandatory language such as that used in s 15, however, does not determine the question. If s 80 of the Interpretation Act only applied in circumstances where permissive language about the use of a form was used in the relevant statute, the circumstances in which it would operate would be few. As the High Court has observed about a similar question arising under a provision of the Bankruptcy Act 1966 (Cth), the fact that a requirement is expressed by use of the term "must" is not conclusive: Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 at 420[29].
As already noted, we have concluded that on the correct construction of the Just Terms Act, strict compliance with the Approved Form and the Approved Claim Form was not a necessary precondition to validity. The broad curing provision, once acquisition has occurred, in s 33 tends against the existence of a legislative purpose requiring strict compliance with the Approved Form. As we have found in addressing the validity issue above, and contrary to submissions made by Desane, s 33 is not in effect a code to deal with any procedural non-compliance in a PAN.
Section 16(1) of the Just Terms Act allows for corrections to be made to a PAN for clerical errors or "obvious mistakes", which must include obvious mistakes of law. If, as a matter of law, any departure in a PAN from the Approved Form rendered the PAN invalid, then any such departure will be self-evident or an obvious mistake because it will be clear on the face of the PAN. In that sense, s 16(1) admits of the possibility that a PAN may depart from the Approved Form (and a claim form from the Approved Claim Form) without being invalid. This is another factor tending in favour of substantial compliance being sufficient.
Finally, the provisions of the Just Terms Act protective of landholders' rights (including that compensation be paid in the event that a PAN is withdrawn or taken to be withdrawn) which are contingent on the service of notice in a PAN and a claim form tend against a construction requiring strict rather than substantial compliance with the Approved Form and the Approved Claim Form. If the construction advanced by Desane was correct, and that even trivial differences between a PAN and the Approved Form affected the validity of the PAN, innocent recipients of a purported PAN would be left without the remedy provided by s 69. The better construction of this provision is that it supports the conclusion that the legislature contemplated that substantial compliance rather than strict compliance with the Approved Form was sufficient.
As Desane insisted in oral address that it pressed the matters the primary judge had found "may be thought to be trivial" as affecting the validity of the PAN, it is necessary to address each of them: 1. The absence of the words "of New South Wales" from the description of Roads and Maritime Services in paragraph 1 was a trivial departure from the Approved Form. No credible suggestion could be made that the words "of New South Wales" could make the slightest difference to any recipient of a PAN; 2. The use of the word "This" instead of "The" in two places in paragraph 3 is best described as typographical and both usages were self-evidently trivial departures; 3. The substitution of a Post Office Box in the Address of Ms Durie as Manager, Compulsory Acquisition and Road Definition, Roads and Maritime Services for an "address of office of the Authority" was a completely trivial departure from the Approved Form.
In each of these respects we reject the submission that there was not substantial compliance with the Approved Form; plainly there was.
In respect of the other two departures from the Approved Form, the references to "the disadvantage resulting from relocation" rather than "solatium" in paragraph 3(e) and "within 45" rather than "within 30" days as the period before which an offer would be made following publication of an acquisition notice in the Gazette in paragraph 6, we respectfully differ from the primary judge about the characterisation of those matters.
The reference to "disadvantage resulting from relocation", the phrase that replaced "solatium" as a head of compensation under s 55 in 2016, constituted substantial compliance with the Approved Form. "Solatium", before the term was removed from the Just Terms Act in 2016, was defined in s 60 to mean: "…compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition".
In comparison, "disadvantage resulting from relocation", at the time the PAN was issued, was defined as: "…non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person's principal place of residence as a result of the acquisition."
"Solatium" is not materially different to the post-amendment concept of "disadvantage resulting from relocation". The only meaningful difference between "solatium" and the current "disadvantage resulting from relocation" is that one is the Latin cognate of the English phrase, as confirmed by Schedule 1 to the Explanatory Memorandum to the amending Act which refers to a "renaming" of the relevant head of compensation.
To the extent that the primary judge found that there existed a material difference, being that "solatium" contained an "undoubtedly arguably open" possibility that it could apply to a person other than the "person entitled" to compensation, this construction of "solatium" is incorrect. The opening words of s 55 of the Just Terms Act in the form it took at the time compensation was payable for "solatium" make this clear: "In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only…solatium."
In Tolson v RMS [2014] NSWCA 161 at [113] Preston CJ LEC explained that "solatium involves compensation for the non-financial disadvantage suffered by the person whose land has been acquired of having to relocate his or her principal place of residence". Basten JA in the same case remarked that "[t]he remaining paragraph, (e), relates to "solatium", defined in s 60 to mean compensation for 'non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence'" at [33]. Regrettably, Tolson was apparently not drawn to the primary judge's attention.
Section 37 of the Just Terms Act, the section which relevantly identifies the people entitled to compensation under the Act, remained unchanged. That section confers an entitlement to compensation upon "an owner of an interest in land" the subject of the PAN. That was the correct understanding of the legislation then existing as two members of this Court found in Tolson. It was never the case that people without an interest in the land could make a claim under the Just Terms Act.
As to claims that "an owner of the land" may make for family members, the entitlements under both versions of the Act were identical. Sub-sections 60(5), (6) and (7) were in identical terms. Whilst "an owner of the land" under both versions of the Act could obtain compensation on behalf of his or her family, he or she could only make one claim: s 60(5). If more than one family resided on the land, both versions of the Act made identical provision for separate payments to be made.
The pre-amendment definition of "solatium" in s 60(1), in the context of the Act as a whole before 2016, did not leave open the possibility of compensation being paid for solatium to a person other than "an owner of the land". That argument was foreclosed by the entitlement to compensation in s 37 and by the terms of the relevant calculation of that compensation in s 60 in both versions of the Act.
The suggestion made by Desane in oral argument about the possibility that different rights might attach to family members under the two versions of compensation payable under s 55(e) of the Just Terms Act is not correct. The reference in paragraph 3(e) in the PAN and in the Approved Claim Form to "the disadvantage resulting from relocation" rather than "solatium" amounted to substantial compliance with the Approved Form and the Approved Claim Form. The PAN contained an accurate statement about a statutory entitlement which entitlement was materially the same as the repealed concept "solatium".
The other matter relied upon by Desane in relation to "solatium", that the two heads of compensation differ, should also be rejected. Compensation for solatium was gazetted to be a maximum of $75,000 at the time of the 2016 amendment, and therefore was the same as the post-amendment cap for "disadvantage resulting from relocation". The only difference identified by Desane is theoretical in that the cap for solatium in the legislation expressly allowed for alteration based on Ministerial direction while compensation for "disadvantage resulting from relocation" is capped by operation of the legislation. As we have said, in the case of this PAN, the amounts were identical. The PAN contained an accurate description about the landholder's statutory entitlement which entitlement was materially the same as the repealed concept "solatium". In those circumstances, there was substantial compliance with the Approved Form.
The second basis upon which the primary judge found that the PAN was not authorised by the Just Terms Act was the identification of the period of "within 45 days" rather than "within 30 days" which was provided by the Approved Form. The PAN accurately described the requirement placed upon the authority of the State by the Just Terms Act.
Section 42(1) provides that "[a]n authority of the State which has compulsorily acquired land must within 45 days after publication give the former owners written notice of the compulsory acquisition". That is an obligation placed by the statute on the authority of the State. The Minister responsible for the Just Terms Act has a power of extension of time in s 42(4), not a power of reduction of the time identified in s 42(1). The Minister cannot by issuing or preserving an Approved Form affect the obligation contained in s 42(1) of the Just Terms Act.
The reference to "the Minister" in s 42 is a reference to the Minister responsible for the Just Terms Act, which we were informed was currently the Minister for Finance and Services, and not the Minister responsible at the relevant time for RMS, the relevant authority of the State. The Just Terms Act itself draws a distinction between the acquiring authority and the Minister.
It may be that the Minister, if he or she wished to, could have specified a date of "usually within 30 days" in the PAN, because of the words "within 45 days" in s 42(1). But there was no extension of time granted by the PAN. It simply repeated, correctly, the terms of the Just Terms Act itself.
This difference between the PAN and the Approved Form gave effect to the terms of the Just Terms Act. The words used in the Approved Form on this topic, which were expressed to be "generally within" the period of 30 days, underline and support the conclusion that the description of the event as occurring "generally within" 45 days had the effect that the PAN was in substantial compliance with the Approved Form. It also had the effect that the PAN was a legally correct statement about the obligation imposed on an authority of the State by s 42(1) of the Just Terms Act.

The validity of the Approved Form and the Approved Claim Form after 2016

It is next necessary to deal with Desane's alternative case that there was no "Approved Form" for the purposes of s 15(a) of the Just Terms Act by reason of the amendment to the Just Terms Act in 2016. It will be recalled that Desane submitted that as from the amendment of the Just Terms Act in 2016, no PAN could be issued unless and until the Minister had approved a different form.
In writing, Desane submitted that the primary judge did not find that the inconsistency between the Approved Form and the legislation "resulted in the vitiation of the Minister's approval". Rather, Desane submitted that the primary judge correctly found that from the time of the amendments, the Approved Form was impermissibly inconsistent with the empowering Act. Orally, Mr Merkel QC for Desane submitted that his Honour had found that the form approved by the Minister was inconsistent with the Act and that every PAN issued after the amendment in 2016 was a nullity (or inapplicable).
The primary judge found that the Approved Form ceased to be "approved by the Minister", contrary to s 15(a) of the Just Terms Act, if there was some material amendment to the legislation. We respectfully disagree.
This is a question of construction. We accept that a particular amendment to the Just Terms Act could have the consequence that a PAN issued after the amendment in conformity with the Approved Form is inconsistent in some material respect with the Just Terms Act, as amended. We have earlier accepted that if a PAN did not comply with the formal requirements of the Just Terms Act then the proposed acquisition may be challenged prior to the acquisition taking place and could be prevented by injunction. Discretionary issues would arise in the consideration of that relief. It does not follow, however, that a form approved by the Minister under s 15(a) of the Just Terms Act ceases to be an Approved Form by reason of an amendment to the Just Terms Act.
That construction would require s 15(a) of the Just Terms Act to be read as requiring not only that a form be "approved" but that any Approved Form under ss 15(a) or 39(2) precisely adopt the language used by the Just Terms Act as at the date of the issue of the PAN and the Claim Form. It would also require a conclusion that any difference between the language in an Approved Form and the language of the Just Terms Act following an amendment, no matter how trivial the difference, gives rise to invalidity of the Approved Form and the Approved Claim Form. There is no warrant for such a construction.
In any event, we have already concluded that the correct construction of s 15(a) of the Just Terms Act in context is that a PAN and the Claim Form should be substantially consistent with the forms approved by the Minister. We have found that despite the changes in language effected by the 2016 amendments to the Just Terms Act, the PAN and the Claim Form issued in this case were substantially consistent with the forms approved by the Minister in 1992. Even if the construction advanced by Desane were correct, in this case the Approved Form and the Approved Claim Form, which were approved in a valid exercise of power in 1992, did not become void, invalid and of no effect following the amendment of the Just Terms Act in 2016.

The public purpose issue

It will be recalled that the primary judge concluded that it was an implication of the statute that the public purpose of the acquisition needed to be identified in the PAN. We respectfully disagree.
The predecessor to the Just Terms Act, the Public Works Act 1912 (NSW), expressly required a statement of the public purpose: s 42. The Public Works Act provided: "42 For the purpose of carrying out any authorised work, if the Governor directs that any land required for such work shall be taken under this Division of this Act, he may by notification to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land the subject of such notification declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. An abstract of the land so appropriated or resumed, together with the purpose for which the same is required shall in every case be laid before Parliament, if in session at the date of such notification, within seven days after its publication in the Gazette; and if not, then within fourteen days after the commencement of the next ensuing session."
That requirement, specifically to identify "the purpose for which the [land] is required", does not appear in the Just Terms Act. The other important difference in the content of the Acts is that under the Public Works Act, the first the landholder heard of the proposed acquisition was notification by publication of the acquisition in the Gazette or a newspaper circulated in the police district where the land was situated.
A critical feature of the Just Terms Act is the requirement for a six month period of negotiation between a landowner and an acquiring authority prior to the issue of a PAN: s 10A. It was accepted by the parties that a period of negotiation in good faith for that period was afforded to Desane in this case. The content of good faith negotiations required by the Just Terms Act plainly includes the requirement upon an acquiring authority, if asked, to provide such information about an acquisition so as to permit a landowner to negotiate about sale price. This is in a context where those negotiations are against a backdrop of the heads of compensation payable to an owner of land as identified in s 55 of the Just Terms Act and the method of calculating market value is identified in s 56 of the Act.
This difference between the current regime and that under the Public Works Act is reflected in s 3(1)(c) of the Just Terms Act which identifies as an object of the Act: "to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process."
Section 54, which has been described as the lodestar of the Just Terms Act, provides: "54 Entitlement to just compensation (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. (2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis."
Section 55 provides: "55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) the disadvantage resulting from relocation, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired."
Section 56 provides: "56 Market value (1) In this Act: "market value" of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition. (3) If: (a) the land is used for a particular purpose and there is no general market for land used for that purpose, and (b) the owner genuinely proposes to continue after the acquisition to use other land for that purpose, the market value of the land is taken, for the purpose of paying compensation, to be the reasonable cost to the owner of equivalent reinstatement in some other location. That cost is to be reduced by any costs for which compensation is payable for loss attributable to disturbance and by any likely improvement in the owner's financial position because of the relocation."
It is clear that the primary object of the Act is to guarantee that the amount of compensation to be paid to a landowner will not be less than the market value of any land acquired. The market value must be calculated without reference to the proposal for acquisition, which might increase or decrease the value.
For most purposes related to valuation the public purpose is irrelevant. Desane's reliance upon the reference to public purpose in ss 55-56 of the Just Terms Act was misplaced. The definition of "market value" in s 56, which guides that valuation, expressly excludes consideration of the public purpose. In those circumstances we do not regard the identification of a public purpose in the PAN as necessary to fill a gap in the legislation.
There remains, however, a question about the reference to public purpose in s 55(f) of the Just Terms Act. The first point to notice is that s 55(f) involves a valuation exercise initially to be undertaken by the Valuer-General and not the landowner: s 47. Secondly, s 55(f) recognises that the carrying out of the public purpose may either increase or decrease the value of other land. An increase in value is irrelevant. Where the effect of the public purpose is to decrease the value of the land that adjoined or was to be severed, an amount is recoverable for the detriment: see generally Tolson at [8]-[11]; [30] and [112].
Whilst s 55(f) has no direct role to play in the circumstances of this case as Desane did not own any land that adjoined or was to be severed from the Desane property, the assumption that the section was relevant needs to be made to test whether or not there is a statutory implication of a requirement to identify a public purpose in a PAN.
It may be accepted, for the purposes of a landowner to whom s 55(f) was relevant, that the landowner may wish to obtain his or her own valuation as part of the good faith negotiations being conducted with the acquiring authority, to guide those negotiations. It may also be accepted that properly to consider the question of the value to be attributed to land adjoining or severed from the proposed acquired land, a putative landowner would need to know the public purpose for which the land was to be acquired in order to brief a valuer to identify the amount of compensation to which the landowner would be entitled under s 55(f).
It is also clear, however, that properly to consider the question of the value to be attributed to land adjoining or severed from the proposed acquired land, a putative landowner would need to know much more than the bare "public purpose". In identifying the amount of compensation to which a landowner is entitled under s 55(f), detail about matters such as noise and amenity may need to be taken into account in addressing a valuation of the effect on the value of land adjoining or severed from the acquired land: see for example Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [17] which addressed the relevance for s 55(f) purposes of "prognostic" acoustic evidence about noise created by a roadway yet to be built. That "prognostic" acoustic evidence was based on assumptions about traffic volumes, speed limits and lane configurations, which are all matters travelling well beyond any bare statement of public purpose. An incident of the negotiation in good faith required by the Just Terms Act is the provision of information by the acquiring authority about such matters as are within its knowledge about the effect on the value of land adjoining or severed from the acquired land.
In order for there to be "a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice" within the meaning of s 10A of the Just Terms Act, a public authority would need to co-operate in good faith to provide such relevant information and material to the landowner as was available. As noted above, that relevant information and material, as was apparently provided by the acquiring authority in Peak, is likely to go far beyond the mere description of the "public purpose" of the acquisition. This is no "gap in the legislation" requiring the implication of a requirement to identify the public purpose in the PAN.
There is a further reason why the suggested implication should not be made. In the present case the primary judge found that Desane conceded that it would have been a sufficient description of the public purpose for the PAN to have said "for the purposes of the Roads Act 1993 no. 33": at [259]. Whilst Desane denied that it had made any such concession its formulation, on the appeal, of what the PAN required, namely, "It is needed for the construction of the WestConnex Stage 3A for the purposes of the Road Act" was equally uninformative in the context of the exercise here under consideration, a valuation for the purposes of s 55(f) of the Just Terms Act.
It is against that background that the primary judge's finding that there was an implied statutory requirement for a PAN to identify a particular public purpose needs to be addressed.
In Taylor v The Owners - Strata Plan No 11564 at [38], French CJ, Crennan and Bell JJ said: "The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'".
The principal reasoning underlying the primary judge's conclusion that a landowner must know of the purpose of acquisition at the point the PAN is issued is that otherwise he or she would be at a disadvantage in sale negotiations with the acquiring authority.
In order for any meaningful valuation exercise under s 55(f) to be conducted there usually would need to be much more information provided by an acquiring authority than a bare statement of the public purpose. The legislative scheme provides that this information is, at the instance of the landowner, the subject matter of good faith negotiations prior to the issue of a PAN. The implication of the requirement to identify the public purpose in the PAN thus does not fill any "gaps disclosed in legislation".
Further, the suggested implication makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature". The requirements of the Just Terms Act are significantly different to those in earlier legislation where identification of the public purpose was required. There is no reason to imply into the Just Terms Act a requirement to identify the public purpose in the PAN. The legislative scheme is complete without any such implication which, as we have explained, would not in any event provide information which was useful for any statutory purpose. The implication of such a requirement elevates a formal requirement drawn from legislation which was repealed long ago over the substance of the requirements of the Just Terms Act.
We do not regard the cases relied upon by Desane as leading to any different conclusion. In Municipal Council of Sydney v Campbell [1925] AC 338 and Campbell v Municipal Council of Sydney (1923) 24 SR (NSW) 179, at 209 it was held that a landowner needed the means to be satisfied that the public purpose was a permitted purpose. As we have said, the relevant scheme here contains its own mechanisms to ensure relevant information is exchanged between the landowner and the acquiring authority and the implication of a requirement to identify the public purpose as part of the PAN is unwarranted.
We would also reject the reliance by the primary judge upon Jones v The Commonwealth (1963) 109 CLR 475 at 483 per Dixon CJ as inapposite. The relevant legislative provision in Jones, the Lands Acquisition Act 1955 (Cth), made explicit reference to "the public purpose approved by the Governor-General". The relevant issue was not whether the public purpose had to be stated, but rather the level of generality at which that statement could be expressed. The relevant context was also quite different. Section 51(xxxi) of the Constitution does not govern a State's power to acquire land; the relevant Act does not, unlike the Act in Jones, require notice of acquisition to be tabled in Parliament, and the aphorism that "the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose" flows from the statutory context in which the specific public purpose had to be identified in the notice.
Even if there was a requirement to identify the public purpose in a PAN, we would conclude that it was complied with in this case. Mahoney P dealt with this precise issue in Manson, where, as here, the public purpose was identified in a covering letter served with the PAN. It was submitted in that case that regard could not be had to the terms of the covering letter. Mahoney P said: "It would be artificial indeed to restrict the terms of the notice given within the legislation simply to the terms of the document 'proposed acquisition notice.'"
We agree with Mahoney P. In the present case, the covering letter to the PAN made clear that acquisition was "for WestConnex Stage 3 M4-M5 Motorway Link".
Even if there is an implication in the legislation that the public purpose should be identified, and the covering letter could not be taken into account, we would nevertheless not hold that the PAN was "void, invalid and of no effect", for essentially the same reasons of statutory construction addressed at [189] - [223].

The notice of contention

On the third day of the appeal Desane was granted leave to file a notice of contention alleging that in addition to identifying the Roads Act purpose, it was necessary to identify the "basis of the power" in the PAN. Leave was not granted to argue that there was no public purpose sanctioned by the Roads Act. The notice of contention was in these terms: "1. The proposed acquisition notice issued by the Appellant/Cross-Respondent (RMS) on 26 May 2017 (PAN) was invalid as: a. It was a requirement of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) that a PAN state the purpose of the proposed acquisition with sufficient particularity to enable the recipient to form a view as to whether the proposed acquisition was a purpose authorised by section 177 of the Roads Act. b. Further and alternatively, even if it was not a requirement of the Just Terms Act that a PAN state the purpose as set out in a. above, the "public purpose", stated in a PAN must be a purpose sanctioned or authorised by the Roads Act or the Just Terms Act. c. The PAN stated that the property at 68-72 Lilyfield Road, Rozelle was required for a "Public Purpose". d. By reason of a., b., and c., above, the PAN: i. purported to make a statement of a purpose being a "public purpose" which was not a purpose authorised or sanctioned by the Roads Act or the Just Terms Act. ii. failed to state a purpose that enabled the recipient to form a view as to whether the proposed acquisition was, or was within, a purpose authorised by section 177 of the Roads Act, being the Act which empowered the RMS to issue the PAN. 2. In the premises, the PAN is void, invalid and of no effect."
The putative implied requirement for a PAN to identify the purpose of the proposed acquisition with sufficient particularity to enable the recipient to form a view as to whether the proposed acquisition was within power finds no support in the Just Terms Act. Sections 55(f) and 56 of the Just Terms Act, which are said to provide the context for the suggested implication, do not assist Desane. It forms no part of the legislative scheme that an explanation must be given about the basis of the statutory power to acquire the land. The source of the suggested implication, Dixon CJ's observation in Jones that "the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose", flowed from the statutory context in which the specific public purpose had to be identified in the notice. That is not the case in this scheme.
The notice of contention should be rejected. There was no implied requirement to identify the "basis of the power" of acquisition in a PAN.

The cross-appeal

The cross-appeal occupied two paragraphs of the cross-appellant's written submissions and was barely mentioned in oral address. We have set out above at [176]-[181] Desane's pleaded case. The application for an injunction before the primary judge was made in circumstances where the primary judge had been persuaded that Desane's case that the PAN was invalid and of no statutory effect was correct.
His Honour did not make an order sought quashing the PAN or issuing an injunction as "such orders are surplusage". His Honour was correct, as upon making the declaration that the PAN was "invalid and of no statutory effect" there was no PAN to quash and no threatened conduct of giving effect to the PAN. His Honour had declared that there was no PAN. To adopt Mr Hutley's colourful phrase, the purported PAN was in law no more than "a piece of paper".
Desane's attempt in this Court to move away from the pleaded case and seek an injunction on the basis that the PAN was not invalid, is a different case to the one pleaded and conducted in the Court below. What is now sought is a permanent injunction forbidding acquisition of the Desane property based on the PAN on the hypothesis that the PAN was valid but nevertheless unlawful.
The injunction is sought on the hypothesis, which we do not accept, that the PAN contained material discrepancies from terms of the Just Terms Act, which did not invalidate the PAN but which demonstrated circumstances where the Court could nevertheless grant injunctive relief. Despite the absence of a pleading of the issue, as the appellant did not submit that any prejudice was suffered, we will assume that this case is open to Desane.
In Project Blue Sky at [100] the High Court said: "[100] In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable" [Simpson v Attorney-General [1955] NZLR 271 at 281; Montreal Street Railway Co v Normandin [1917] AC 170 at 175.]. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action."
The precise limits of the principle identified by the High Court in Project Blue Sky are not clear. Although both of the cases referred to by the Court, Simpson and Montreal Street Railway Co, dealt with statutory provisions which made conduct done in breach of the statute "punishable" in the sense of a breach of an offence provision, we do not accept that the High Court was intending to limit the occasions where an injunction may be granted to prevent conduct consequent upon a breach of an Act to occasions where the relevant breach constituted an offence. Such a conclusion would be inconsistent with the current understanding of the engagement of the equity jurisdiction with matters of public law: see Truth About Motorways Pty Ltd v Macquarie Infrastructure investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11 per Gummow J at 628; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 232 per Gaudron J and 241 per Gummow and Hayne JJ; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (6th ed, 2016, LawBook Co) at [16.110].
We have earlier accepted that the description given by Mahoney P in Manson was an accurate statement about the Just Terms Act that remains relevant in the form the Act now takes: "If statutory powers are to be exercised, it is, of course, important that those who are exercising them do so strictly in accordance with the terms of the power granted to them. But the nature of what has been done or omitted may be relevant in considering other matters, for example matters going to discretion."
We have found that the PAN and the Claim Form issued to Desane were substantially in compliance with the Approved Form and the Approved Claim Form and thus not unlawful.
Even if we had reached a different conclusion, and found that the PAN and Claim Form issued to Desane were materially different from the Approved Form and the Approved Claim Form, we would in the exercise of discretion have refused to grant an injunction.
This is because it was accepted by Desane that the PAN and the claim form served upon it provided legally accurate information about its rights under the Just Terms Act. There is no credible suggestion that anyone was, or could have been, misled by the PAN or the Claim Form. There is no suggestion that the absence of information in the PAN affected Desane's rights in any way.
Also relevant to this question is Desane's misleading conduct case. Desane complained that it had relied to its detriment upon the same conduct of RMS which was said to invalidate the PAN and the Claim Form, and that the conduct was misleading. The primary judge found that this case "although not formally abandoned, was very faintly argued". The primary judge rejected that claim. It was not the subject of the cross-appeal.
In these circumstances, in the exercise of discretion, even if we had concluded that the PAN and the Claim Form were unlawful, we would have refused to grant a permanent injunction.

The improper purpose issue

The relevant legal test was not in contest. In Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679, the High Court held: "The critical question in the present case is whether the purposes for which the Board proposes to acquire the land are purposes of the Act. If the Board is seeking to acquire the land for an ulterior purpose, there will be an ostensible but not a real exercise of the power granted by the Act. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition; it will be an abuse of the Board's powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose: see Thompson v Randwick Corporation (1950) 81 CLR 87 at 106 and Minister for Public Works v Duggan (1951) 83 CLR 424."
Nor was it in contest that RMS was not entitled to acquire the Desane property for the purpose of building a park. It was accepted that if the evidence showed that RMS' actuating purpose in acquiring the Desane property was to build a park, rather than build a road, that would be an improper purpose.
In the present case the relevant legislative standard for purpose is not drawn from the Just Terms Act but from the Roads Act. The Roads Act contains the power to acquire for the purposes of the Roads Act in s 177(1). Sections 5 and 7 of the Just Terms Act demonstrate that the relevant power is not sourced from the Just Terms Act itself.
Given that it is a power to acquire land, we accept RMS' submission that the logical focus is on the purpose at the time of acquisition, when the power is exercised. While acts preparatory to the acquisition are evidentially relevant to whether or not that purpose would exist, the critical time for assessing purpose is at the point of acquisition. Desane's submission that this way of approaching the case was foreclosed to RMS should be rejected.
The issue was adverted to by RMS in its Commercial List Response. In answer to paragraph 74 (and in particular paragraph 74(ba)) of the Amended Commercial List Statement, which contained the allegation that RMS was actuated by a purpose of acquiring the Desane property to "meet the Rozelle Parkland Commitment", RMS denied the allegation and averred, inter alia, that: RMS required and continues to require the Desane property for the purpose of constructing Stage 3 of WestConnex (68E); that RMS is empowered to acquire land pursuant to its powers under the Roads Act (68G) and that the validity of any acquisition (future tense) would not be affected by any failure to comply with the Act, which was denied (68I). In any event, the question of when the relevant time is to identify the purpose of an acquisition is a question of law and no prejudice is occasioned to Desane by focussing on the correct legal question.
We are unable to agree with the primary judge that RMS was actuated by an improper purpose at the time the PAN was issued. At the time the PAN was issued, RMS was actuated by the purpose that the property, when acquired compulsorily, would be used as a site for the construction of the Rozelle Interchange, including the WHT enabling works. The substratum of the Desane property was to be used, in part, for road infrastructure. We would draw the following conclusions from the evidence referred to at [4] - [54] above: 1. Although the precise usage has changed over time, as and from at least the November 2015 Updated Strategic Business Case, the Desane property has been part of the footprint of land required by RMS for construction of the proposed Rozelle Interchange. 2. In January 2016, the WestConnex M4-M5 Link State Significant Infrastructure Application Report confirmed that the WestConnex project would require construction facilities close to the Rozelle Interchange portal to provide tunnelling support. RMS believed that the Desane property was necessary to construct the Rozelle Interchange. 3. As and from the 23 March 2016 Memorandum of Understanding between RMS and SMC, the Desane property was identified as a "strategic" land acquisition, being land required under any plausible scenario for the delivery of Stage 3 of WestConnex. 4. On 1 April 2016, Mr Ken Kanofski, the Chief Executive Officer of the RMS, specifically identified the Desane property as a property proposed to be acquired by RMS as it was "required for the Rozelle Interchange". Acquisition for use in constructing the Rozelle Interchange was Mr Kanofski's purpose at that time. 5. On 18 April 2016, RMS informed the NSW Cabinet that the Desane property was required for the efficient construction of the Rozelle Interchange, including provision for the WHT. This submission reflected RMS' purposes at the relevant time. 6. On 27 April 2016, the Expenditure Review Committee of NSW Cabinet approved funding for property acquisitions required for works that needed to be undertaken as part of the WestConnex Stage 3 at Rozelle, including the Desane property. 7. On 31 May 2016, in a letter RMS identified properties to be acquired "for the core site of the proposed Rozelle Interchange", which included the Desane property. We would infer that this letter reflected RMS' purposes being to acquire the Desane property for construction of the Rozelle Interchange at the relevant time. 8. The 21 July 2016 NSW Government announcement was at the centre of Desane's case. As the announcement itself recorded, "the majority of the interchange [is] to be grassed over with a new large park and returned to the community". The announcement, in its terms, was about a park to be created after the building of the Rozelle Interchange. We would not infer that RMS' purposes at the relevant time were to obtain the Desane property to build a park, regardless of whether the Desane property was needed for the Rozelle Interchange. 9. On 26 July 2016, the NSW Cabinet "approved the M4-M5 Link tunnel realignment and revised underground Rozelle Interchange that will deliver around 10 hectares in a 'park ready' solution over the top of the road infrastructure at the west half of the Rozelle site". Again, in its terms, it was integral to the NSW Cabinet's decision that the park was to be created after the building of the Rozelle Interchange. Assuming, in favour of Desane, that the NSW Cabinet's purpose was RMS' purpose, we would not infer that RMS' purpose at the relevant time was to obtain the Desane property to build a park regardless of whether the Desane property was needed for the Rozelle Interchange. 10. On 15 December 2016, SMC made a presentation to RMS which provided Rozelle Interchange Interim Reference Design maps showing tunnelling running underneath the Desane property. We would conclude that this engineering requirement, that the Desane property be used for tunnelling for the purposes of the Rozelle Interchange, never changed. That, in and of itself, was a proper Roads Act purpose for the proposed acquisition. 11. On 31 March 2017, Mr Kanofski's briefing stated that the Desane property was required for the M4-M5 link and that RMS was applying the statutory obligations under the Just Terms Act by making genuine attempts for at least six months to obtain the land by agreement. We would infer that this briefing paper reflected RMS' purposes and Mr Kanofski's purposes at the relevant time. 12. On 3 May 2017, a Minute Paper for the Executive Council signed by the Minister for Roads, Maritime and Freight stated, "I recommend for the approval of His Excellency the Governor, with the advice of the Executive Council, that the land described in the schedule to the attached notice intended to be published in the Gazette be declared by Roads and Maritime Services to be acquired by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Roads Act 1993". We have set out at [45] the content of the Explanatory Note prepared by, inter alia, Ms Karen Durie from RMS. We would infer that this Minute Paper reflected RMS' purposes at the relevant time and that the statements that it was "necessary to acquire" the Desane property for the purposes of the construction of WestConnex and that "RMS' road works program requires possession of the land by March 2018", reflected the genuine beliefs of Ms Durie on behalf of the RMS at that time. 13. On 1 June 2017, an internal RMS email from Mr Jazper Blizzard to Ms Beverly Magpayo "re M4-M5 Link EIS property assumptions" stated that current planning shows the Desane property being used during construction as "Light Vehicle Parking". We do not draw an inference of the existence of an improper purpose from this document. It will be recalled that the notes sought to be added were accepted by Desane's counsel in argument as an accurate summary of the proposed engineering use of the Desane property; i.e. in part for tunnel construction. 14. In August 2017, the M4-M5 Link Environmental Impact Statement was published by the NSW Government. This was the most recent document at the time of the trial identifying the use of the Desane property as part of the Rozelle Interchange. The Environmental Impact Statement identified the Rozelle interchange as connecting the M4-M5 Link mainline tunnels with the City West Link, the Anzac Bridge, the Iron Cove Link and the proposed future WHTBL. We would conclude based on this document that RMS' purpose remained to obtain the Desane property for use in the construction of the Rozelle Interchange. 15. On 22 September 2017, a briefing note was sent to the Minister by Mr Kanofski about WestConnex. The note explained that "Roads and Maritime will make relevant arrangements to designate Urban Growth as the entity that will have responsibility for the New Rozelle Park post M4-M5 Rozelle Interchange completion (potential staged handover)". The essence of this document is that the funded park design encompassing the Rozelle Rail Yards be delivered as an integral part of the WestConnex M4-M5 Link. That does not demonstrate the existence of an improper purpose, let alone an actuating improper purpose.
Samrein was a case where the best evidence of the purpose of a public authority was how the authority expressed itself orally and in writing. We accord significant weight to the documentary evidence from RMS. There was amongst that evidence no suggestion of any concept or plan that RMS would acquire the land even if the land would not be used in construction of the WestConnex project. We have concluded that RMS' purpose was to acquire the Desane property for use in construction of the WestConnex project. While there remained uncertainty in how the land would be used within the envelope of a construction site, there was no uncertainty that it would be used as part of the construction site.
To the extent that the primary judge drew an adverse inference from the apparent failure of RMS to call certain witnesses, it was unclear exactly who those witnesses were or why they were necessary in the face of the formal documentary evidence. In oral argument, the relevant witnesses were identified by Mr Pritchard SC as Mr Kanofski and Ms Durie. We do not think the inference is open on the uncontroversial documentary evidence that either Mr Kanofski or Ms Durie were actuated by the alleged improper purpose
In any event, as the High Court explained about the drawing of inferences of this kind in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [100]: "[100] This Court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held 'that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence'". (footnotes omitted)
Our conclusion based on the documentary evidence is that it was the clearly expressed purpose of RMS (and if it matters, was the clearly expressed purpose of the NSW Government) that a Rozelle Interchange would be constructed as part of the WestConnex project. At all relevant times RMS had a plan to build that Rozelle Interchange. At all relevant times RMS planned to acquire the Desane property for the purpose of constructing that interchange.
We are respectfully unable to agree with the finding of the primary judge that "RMS contemplated that the property might not be in the final motorway and utilities footprint because of the necessity to use it to provide open space". In all of the plans and announcements the land at the Rozelle Rail Yards was not planned to be used to provide open space until after the construction had concluded and utilities footprint had cleared.
There was no evidence that anyone at RMS had contemplated that before acquisition of the Desane property there could be a situation where the NSW Government had simply given up on the WestConnex project. There was no evidence to suggest that RMS was actuated by a desire to acquire the property irrespective of whether it was required as a construction site for the WestConnex project.
It was sufficient to decide this aspect of the case that the actuating purpose of RMS in proposing to acquire the Desane property was to use it as a construction site and that there would be a tunnel under part of the property. The precise use of the Desane property for the purposes of constructing the Rozelle Interchange would naturally evolve over time and did not need to be identified with precision at the time the PAN was issued.
It bears emphasising that Desane accepted in oral argument in this Court that on all relevant iterations of the Rozelle Interchange project, the Desane property was shown as being used for a Roads Act purpose. Desane's complaint was rather that the specific proposed use of the Desane property changed over time and that these changes, when compared to what they described as the NSW Government's fixed intention to build the 10 hectares of new parkland, gave rise to an inference that RMS would not have sought to acquire the Desane property except for the purpose of building that parkland. We do not think that inference fairly arises on the evidence.
On the basis of the evidence as a whole, the inference we draw is that RMS sought to acquire the Desane property for Roads Act purposes. The Rozelle Interchange was likely to proceed, for which land would be needed for construction. Under all plausible scenarios, the Desane property was required by RMS as a construction site. That purpose was sufficient to meet the threshold of being an actuating purpose. The legitimacy of this purpose is not invalidated because there was a risk that the purpose may not at some future point be realised. There is a degree of uncertainty inherent in every large-scale construction project. The mere fact that it was certain that the land would ultimately be used as a park does not mean that the Roads Act purpose was not an actuating purpose.
It follows that we respectfully disagree with the primary judge that RMS was actuated by an improper purpose in issuing the PAN. Desane's improper purpose claim should have been dismissed.

Conclusion and orders

For the foregoing reasons the appeal should be allowed.
The following orders should be made: 1. Appeal allowed. 2. Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders: 1. Summons and Further Amended Commercial List Statement be dismissed. 2. The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed. 1. The respondent to pay the costs of the appellant of the appeal as agreed or assessed.

Amendments 07 September 2018 - Typographical amendments made to paragraphs [96], [115], [172], [185(4)], [195], [210], [225], [233], [277], [300], [304].

Added the words "and submitted" to [144], line 2. 06 August 2019 - Typographical amendments made to paragraphs [12], [42], [80], [202], [211], [279], [301]. Changed date from 2016 to 2017 in paragraph [53]. Changed reference from section 1(a) to 1(ca) in paragraph[199] . Deleted words "s 11 and" in paragraph [227]. 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. Decision last updated: 06 August 2019

Land Acquisition (Just Terms Compensation) Amendment Act 2016(NSW)

Mining Amendment Act 2012(WA)

Public Works Act 1912(NSW)

Land Acquisition (Just Terms Compensation Act 1991(NSW)

Land Acquisition Act 1955(Cth)

Just Terms Act, the Public Works Act 1912(NSW)

Jones, the Lands Acquisition Act 1955(Cth)

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