Van Tonder v Hodgkinson [2012] NSWLEC 86 | Case summary

Land and Environment Court (NSW)|2012-04-24|Before: Biscoe J

ex tempore Judgment 1These are motions by the respondents for summary dismissal of these proceedings which purport to be in Class 3 of the Court's jurisdiction. According to the applicant's outline of written submissions, the proceedings were commenced pursuant to s 67 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). Section 67(1) provides that: "A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim". However, the applicant's Points of Claim indicate that more is claimed. 2The applicant, Mr Andre van Tonder, has no legal representation. The first respondent is the New South Wales Minister for Primary Industries. The second respondent, although named as an individual, is intended to be Wellington Shire Council. The third respondent is the New South Wales Minister for Regional Infrastructure and Services. 3The respondents' motions for dismissal are pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 on the basis that: (a)no reasonable cause of action is disclosed against them; (b)this Court possesses no jurisdiction to entertain the proceedings; and (c)the proceedings are an abuse of the process of Court. 4Rule 13.4 provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 5A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed. There has to be a high degree of certainty about the outcome of the proceedings if they were allowed to go to trial in the ordinary way. The test is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard [1993] HCA 57, 177 CLR 598 at 602-603, Agar v Hyde [2000] HCA 41, 201 CLR 552 at [56] - [57], McGuirk v University of New South Wales [2009] NSWSC 1424 at [37] - [39]; Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83 at [3]; and Shaw v State of New South Wales [2012] NSWCA 102 at [30] - [32]. 6According to the applicant's Points of Claim, on 9 April 2011 the applicant purchased rural land from the Council (the Land); the survey included in the contract of sale showed the Bell River on the eastern boundary of the Land; and a survey conducted on 13 July 2011 showed that a change in the course of the Bell River resulted in the river running through the middle of the Land, dividing the Land into two and making about half the Land inaccessible. 7The thrust of the applicant's allegations appears to be along the following lines: (a)prior to purchasing the Land, the applicant was unaware that the Bell River ran through it. After the purchase was completed he became aware of that fact; (b)by the Bell River running through the Land, the Crown has acquired that part of the Land over which it runs; (c)by the Bell River running through it, the Land has been severed into two parcels one of which is not usable; (d)the applicant lodged a claim for compensation under the Just Terms Act which the first and second respondents refused; (e)the issues need to be resolved on a "commonsense approach" and accordingly the Court should order the first respondent to transfer adjoining Crown Land to the applicant and order the Registrar-General to register a proposed deposited plan of subdivision prepared by the applicant, which gives effect to that transfer and vests that part of the Land beneath the Bell River in the first respondent; (f)the Court should also order the respondents within 90 days to attend to certain works at the river banks and land adjoining the river banks to the satisfaction of the applicant and thereafter attend to repairs to the rear channel when requested by the applicant; and (g)the Court should also make orders requiring the respondents to pay surveyor's costs, expert evidence costs, Land and Property Information fees, and legal and court costs of the applicant. 8The relief which the applicant claims is now set out in his Points of Claim filed on 14 March 2012. It seeks (a) orders for the compulsory acquisition of Lot 5 in the proposed deposited plan, and its transfer to the applicant; (b) an order that the Registrar-General (who is not a party to these proceedings) register the applicant's proposed deposited plan to effect the transfers and vesting referred to at [7(e)] above; (c) an order that this new deposited plan is not a subdivision pursuant to Part 4 of the Environmental Planning and Assessment Act 1979; and (d) orders that the respondents carry out the works and pay the costs and expenses to which I have earlier referred. 9In substance, at least some of the orders sought appear to be for compensation for compulsory acquisition in the form of land and works. In my opinion, even if this Court has jurisdiction, it has no power to make such orders. The Court's power under the Just Terms Act is limited to determining compensation because of the compulsory acquisition of land "in accordance with" the Just Terms Act, Division 2 of Part 12 of the Roads Act 1993 or any other Act: ss 19(e) and 24 of the Land and Environment Court Act 1979. Entitlement to compensation in the form of land or works only arises if the person and the authority of the State concerned agree: s 64 Just Terms Act. In the present case there is no such agreement. 10The more fundamental question, however, is whether this Court has jurisdiction to entertain the proceedings and whether any reasonable cause of action is disclosed. The applicant's Points of Claim seek to establish jurisdiction and to disclose a cause of action by reference not only to the Just Terms Act but to a range of other statutes.

PUBLIC WORKS ACT 1912 11The Points of Claim allege that the Council under delegated authority from the other respondents did major works on the river channel, apparently upstream and downstream from the Land. The pleading refers to s 40 of the Public Works Act 1912, which applies to the acquisition of land for the purposes of any work other than authorised work. Section 40(2) provides that: The Minister may acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of:

(a) a public work or undertaking specified in section 41 if money has been appropriated from the Consolidated Fund (or is otherwise lawfully available) for or towards the carrying out of the work or undertaking, or

(b) a school site or a site for public offices or public buildings. 12In the present case, there has been no such agreement nor has there been any compulsory process "in accordance with" the Just Terms Act. That compulsory process is set out in Part 2 of the Just Terms Act. 13As I understood him, the applicant said in oral submissions that he was under the impression that this Court had the same power as the Minister to decide to compulsorily acquire land. In my opinion, the Court has no such power. 14In oral submissions, the applicant said that he did not disagree that there had been no compulsory process in accordance with the Just Terms Act. Nevertheless, he argued that the Just Terms Act entitlement to compensation arose because of the definitions in s 4 of that Act of "acquisition" of land (meaning acquisition of land or of any interest in land), the definition of "interest" in land, the definition of "public purpose", and because of ss 38, 39 and 67 which provide: 38 Compensation entitlement if land (not available for public sale) acquired by agreement An authority of the State is to take into account, in connection with any proposed acquisition by agreement of land not available for public sale, the same matters as are required to be taken into account under this Part in determining the compensation payable for an acquisition by compulsory process.

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. (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. 67 Appeal against failure to entertain claim for compensation (1) A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim. (2) Any such appeal must be lodged within 90 days after the rejection of the claim. (3) If any such appeal is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation. (4) A person who does not lodge an appeal within the 90-day period may nevertheless lodge an appeal under this section, but the Land and Environment Court is not to hear and dispose of the person's claim for compensation unless satisfied that there is good cause for the person's failure to lodge the appeal within that period. 15The applicant submitted that erosion of the riverbank changed the course of the river and that this constituted a compulsory acquisition. It is unnecessary for me to decide whether a change in the course that a river takes is capable of amounting, in such circumstances, to "compulsory acquisition". 16That is because in this case the Minister has not acquired land or an interest in land by agreement or by compulsory process "in accordance with" the Just Terms Act. Sections 19(e) and 24 of the Land and Environment Court Act are clear in indicating that the Court's jurisdiction is relevantly dependent upon compulsory acquisition of land "in accordance with" the Just Terms Act. Accordingly, the Court has no jurisdiction. Nothing in the Public Works Act or the Just Terms Act enlivens the Court's jurisdiction.

THE WATER ACT 1912 AND THE WATER MANAGEMENT ACT 2000 17The Points of Claim refer to various provisions of the Water Act 1912 and the Water Management Act 2000. Section 368 of the Water Management Act provides for an appeal to this Court against specified decisions made by the Minister in relation to access licences and certain other matters, none of which are of any relevance for present purposes. The Points of Claim refer to s 375 of the Water Management Act, which provides that the Ministerial Corporation may acquire land for the purposes of that Act by agreement, or by compulsory process "in accordance with" the Just Terms Act. As there has been no such agreement or compulsory process "in accordance with" the Just Terms Act, there is nothing in the Water Management Act (or the Water Act) which enlivens the jurisdiction of the Court in this case.

18Proceedings under the Encroachment of Buildings Act 1922 fall within Class 3 of the Court's jurisdiction: s 19(c1) Land and Environment Court Act. The Points of Claim refer to the Encroachment of Buildings Act and to the definition of "encroachment" in s 2, which provides: Encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil. 19"Court" is defined in s 2 as the Land and Environment Court. Section 3 relevantly provides: 3 Encroachments (1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2) On the application the Court may make such orders as it may deem just with respect to:

(a)the payment of compensation to the adjacent owner, (b)the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto, (c)the removal of the encroachment. 20The Points of Claim refer to a dictionary definition of "encroachment". They then assert that the Bell River is a permanent structure with foundations being the river bed, and with vertical structure owned by the Crown and that the water which provides the vertical structure is owned by State Water NSW. 21It is unnecessary to delve further into the pleading under this heading because, in my view, if there has been any "encroachment", it was not an encroachment by "a building". Therefore the Encroachment of Buildings Act is inapplicable and no reasonable cause of action is disclosed.

CONVEYANCING ACT 1919 22The Points of Claim refer to s 196A of the Conveyancing Act 1919, which provides for registration of resumptions by the Registrar-General. The Points of Claim go on to allege that the respondents failed in their duty of care in relation to the support of land pursuant to s 177. The particulars refer to works conducted on the river channel, which it is alleged were carried out negligently such as to cause the river channel to be located on the Land. Section 177 provides in part: 177 Duty of care in relation to support for land (1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land. (2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land). (3) For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed. 23This Court has no relevant express jurisdiction under the Conveyancing Act. It does have a limited jurisdiction in relation to the provision of easements referable to s 88K of the Conveyancing Act (see s 40(4) Land and Environment Court Act), but that is irrelevant for present purposes. 24The applicant, however, invokes the Court's ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act, which provides: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 25In Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292 at [13] I said: Section 16(1A) was enacted following National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) in which the Court of Appeal held that the Land and Environment Court has no jurisdiction to deal with a claim in tort for general damages. It has been held that "ancillary" is to be read as "incidental", "accessory" or "auxiliary": Scharer v State of New South Wales (2001) 53 NSWLR 299 (CA) at 308 [51] quoting Gleeson CJ in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 205. Thus, there must be a "matter" falling within jurisdiction, in relation to which the s 16(1A) matter is incidental, accessory or auxiliary. In Nix, Gleeson CJ stated that a claim for damages for nuisance could not reasonably be regarded as ancillary to Class 4 proceedings alleging the carrying out of unauthorised earthworks in breach of the Environmental Planning and Assessment Act 1979. In Scharer, Stein JA (Hodgson JA agreeing) held that a claim for damages for obstructing a right of way in a national park was ancillary to proceedings in this Court in its exclusive jurisdiction to enforce that right of way. In Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95 at [21], Pearlman J held that a claim for damages for negligence arising out of the installation of a sewerage system was not ancillary to a claim for alleged breaches of a development contract within the Court's jurisdiction. There is also a line of authority in this Court that before s 16(1A) can be invoked there must be a matter "pending before the court" to which another matter in the same proceedings can be said to be ancillary: Porter v Hunters Hill Council (2003) 131 LGERA 144 at [60], [63], [64] and the cases there cited (Pain J). In Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249 at [50], Spigelman CJ (Bell JA and Handley AJA agreeing) said: It is clearly desirable, in the interests of avoiding further proceedings, that the Land and Environment Court should be able to determine whether or not a person who has made a payment pursuant to a condition of a consent which is challenged is entitled to a refund and, if so, how much. Although the legal principles involved in such proceedings are not within the usual jurisdiction of that Court, such an issue is so clearly related to the issues before the Court that they should be resolved together. It may be that the requisite jurisdiction is conferred by s 16(1A) of the Land and Environment Court Act, but that section was not relied upon in these proceedings ... 26In the present case, in my opinion there is no matter that falls within the jurisdiction of the Court to which the claim under the Conveyancing Act is capable of being ancillary.

REAL PROPERTY ACT 1900 27The Points of Claim refer to s 120(1)(a) of the Real Property Act 1900 and allege fraud against the Council in that the Council "did not notify the applicant that the Bell River was in adverse possession of private property" and "advised the applicant in writing that the land was as described by the Deposited plan in the Contract of sale". Section 120(1)(a) provides that any person who suffers loss or damage as a result of the operation of the Real Property Act in respect of any land, where the loss or damage arises from fraud, may commence proceedings in the Supreme Court for the recovery of damages. There is no jurisdiction in the Land and Environment Court to deal with a claim under s 120.

ROADS ACT 1993 AND CROWN LANDS ACT 1989 28The Points of Claim refer to ss 41 and 44 of the Roads Act. The applicant explained in oral submissions that this claim relates to Lot 5 (an existing road reserve) in his proposed plan of subdivision, which he seeks to have transferred to him. He submitted that the power of the Court to order such a transfer arises under s 29 of the Crown Lands Act 1989, which provides: 29 Powers of the Court The Land and Environment Court has power to: (a) hear and determine all appeals made to it under this Act or the Crown Lands (Continued Tenures) Act 1989 and any matters referred to it by the Minister or by a local land board, and (b) make any order or decision which the nature of the case may require. 29In my opinion, s 29 does not disclose a cause of action against the respondents nor empower this Court to make the orders which the applicant seeks. This is not an appeal under the Crown Lands Act (or its predecessor), nor is it a matter referred to the Court by the Minister or a local land board. The Court has no other jurisdiction to entertain the claim by reference to the Roads Act or the Crown Lands Act.

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 30The Points of Claim seek an order that the deposited plan proposed by the applicant is not a subdivision pursuant to Part 4 of the Environmental Planning and Assessment Act. They refer to s 4B. Section 4B(3)(c) provides that a "subdivision of land" does not include "the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process". In my view, there has been no such acquisition of land by agreement or compulsory process. Accordingly, no question of ordering that the proposed deposited plan is not a subdivision pursuant to the Environmental Planning and Assessment Act can be entertained.

TRADE PRACTICES ACT 1974 (CTH) (NOW THE COMPETITION AND CONSUMER ACT 2010 (CTH)), FRUSTRATED CONTRACTS ACT 1978 AND SALE OF GOODS ACT 1923 31The Points of Claim refer to these three Acts and plead misleading, deceptive and dishonest conduct by the Council contrary to s 52 of the (former) Trade Practices Act 1974 (Cth) and frustration of contract. In my opinion, there is no jurisdiction in this Court to entertain these claims.

CONCLUSION 32In summary, in my opinion, the Court has no jurisdiction to entertain the proceedings and, to the extent indicated earlier, no reasonable cause of action is disclosed against any of the respondents. 33The orders of the Court are as follows: (1)The proceedings are dismissed. (2)The applicant is to pay the respondents' costs of the proceedings. 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: 02 May 2012

Trade Practices Act 1974(Cth)

(2003) 131 LGERA 144

Van Tonder v Hodgkinson

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (3)