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Cappello v Roads and Maritime Services

Cappello v Roads and Maritime Services

Case [2019] NSWCA 227 16 September 2019

Judicial Review

Statutory Construction

Statutory Interpretation

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Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cappello v Roads and Maritime Services [2019] NSWCA 227
Hearing dates: 20 August 2019
Date of orders: 20 August 2019
Decision date: 16 September 2019
Before: Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61]
Decision:
(1)    Leave to appeal granted.
(2)    Grant leave nunc pro tunc to file notice of appeal which was filed on 2 July 2019.
(3)    Appeal dismissed.
(4)    Appellant to pay the costs of the respondents.

Catchwords:
ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW)
STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Div 5.2, s 5.19
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 13
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 19
Road Transport Act 2013 (NSW), s 4
Roads Act 1993 (NSW), ss 3, 7, 52, 63, 64, 71, 177, 178
Cases Cited: ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7
James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis)
K Roach, “The Uses and Audiences of Preambles in Legislation” (2001) 47 McGill LJ 129
A Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 MULR 184
Category: Principal judgment
Parties: Rosario Cappello (First Appellant)
Maria Cappello (Second Appellant)
Roads and Maritime Services (First Respondent)
Registrar General of New South Wales (Second Respondent)
Representation:
Counsel:
A Cheshire SC (Appellants)
N Owens SC / L Waterson / L Johnston (First Respondent)
Solicitors:
Murphy Lyons Lawyers (Appellants)
Crown Solicitor’s Office (First Respondent)
Office of the Registrar General of New South Wales (Second Respondent)

File Number(s): 2019/00147141; 2019/00232564
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 439

Date of Decision:

18 April 2019

Before:

Campbell J

File Number(s):

2019/00061724

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants were the registered proprietors of two adjoining parcels of land at Haberfield. Roads and Maritime Services proposed to acquire the appellants’ land to construct a tunnel as part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cappello v Roads and Maritime Services

Details

AGLC: Cappello v Roads and Maritime Services and Another [2019] NSWCA 227
Case: [2019] NSWCA 227
Decision Date: 16 September 2019

CaseChat Overview and Summary

In *Cappello v Roads and Maritime Services*, the Supreme Court of New South Wales Court of Appeal considered the validity of compulsory acquisition notices issued by Roads and Maritime Services (RMS) for land intended for the construction of a tollway. The appellant, Mr. Cappello, challenged the RMS's authority to acquire his property.

The central legal issue before the Court was the interpretation of section 177 of the *Roads Act 1993* (NSW), which empowers the RMS to acquire land for "the purposes of this Act." Specifically, the Court had to determine whether this phrase was confined to the objects explicitly listed in section 3 of the Act, or if it encompassed a broader range of activities undertaken by the RMS in fulfilling its statutory functions, such as the construction of tollways.

The Court reasoned that the phrase "the purposes of this Act" in section 177 should be interpreted broadly to include all functions and activities that the RMS is authorised to undertake under the *Roads Act*. This interpretation was based on the principle that statutory powers should be construed in a manner that gives effect to the overall legislative scheme. The Court found that the construction of tollways was a legitimate purpose falling within the scope of the Act, and therefore, the RMS had the statutory authority to compulsorily acquire the appellant's land for this purpose.

Consequently, the Court of Appeal granted leave to appeal and leave to file the notice of appeal retrospectively, but ultimately dismissed the appeal. The appellant was ordered to pay the costs of the respondents.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Grant leave nunc pro tunc to file notice of appeal which was filed on 2 July 2019.

(3) Appeal dismissed.

(4) Appellant to pay the costs of the respondents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cappello v Roads and Maritime Services and Another [2019] NSWCA 227

Most Recent Citation

FKP20 v Minister for Home Affairs [2022] FedCFamC2G 396

Cases citing this decision · 8 of 8 shown

Smith v Blanch
[2025] NSWCA 188 Para 45

…is to be identified by a process of statutory construction of the Act as a whole: see eg Cappello v Roads and Maritime Services (2019) 100 NSWLR 259; [2019] NSWCA 227 at [40]. Having regard to the terms of ss 7 and 19 of the Act, there can be no doubt that protection of people from intimidation (including harassmen…
Aversa v Transport for New South Wales (No 2)
[2023] NSWSC 892

…not a “public road” ( Roads Act , s 52(2)). [25] In Cappello v Roads and Maritime Services (2019) 100 NSWLR 259, another case involving the compulsory acquisition of subterranean land at Haberfield for the purposes of WestConnex, the Court of Appeal held that the compulsory acquisition of the land was valid even thoug…
Cappello v Transport for New South Wales
[2022] NSWDC 730 Para 4

…es [2019] NSWSC 439 at [58]. The Cappellos appealed, however, the appeal was also dismissed with costs: Cappello v Roads and Maritime Services & Anor [2019] NSWCA 227. Judgment at first instance was delivered on 18 April 2019, after an expedited hearing, and judgment in the appeal was handed down on 16 September 20…
FKP20 v Minister for Home Affairs
[2022] FedCFamC2G 396 Para 20

…and Bell JJ) [37] Capello v Roads and Maritime Services (2019) 100 NSWLR 259 at [39]-[42] (Payne JA; Brereton JA and Emmett AJA agreeing); WBM v Chief Commissioner of Police (Vic) (2012) 43 VR 446 at [40] (Warren CJ; Hanson JA agreeing); see also Eastman v Chief Executive Officer of Department of Justice and Community…
Mitchell v Roads and Maritime Services (now known as Transport for NSW)
[2022] NSWSC 500 Para 3

…luding the fact that the claim appeared to raise an issue that had been decided adversely to the plaintiffs in Cappello v Roads and Maritime Services [2019] NSWCA 227; (2019) 100 NSWLR 259 — namely, whether TfNSW’s acquisition of the plaintiffs’ land was not authorised by s 177(1) of the Roads Act 1993 (NSW) becaus…
Aversa v Transport for New South Wales
[2022] NSWSC 277 Para 25

…In Cappello v Roads and Maritime Services (2019) 100 NSWLR 259, another case involving the compulsory acquisition of subterranean land at Haberfield for the purposes of WestConnex, the Court of Appeal held that the compulsory acquisition of the land was valid even though the acquisition was carried out for the purposes…
Aversa v Roads and Maritime Services
[2021] NSWSC 1047 Para 2

…e upper, surface layer: Roads Act 1993, sections 177-178; Land Acquisition Act , sections 15(c) and 19-20; Cappello v Roads and Maritime Services (2019) 100 NSWLR 259 at [31], [43], [47]-[50] and [54];…
RD Miller Pty Ltd v Roads and Maritime Services NSW
[2020] NSWCA 241 Para 35

…authority to carry out the road work on land which was under its control pursuant to s 71 of the Roads Act ( Cappello v Roads and Maritime Services [2019] NSWCA 227 at [49] ff).…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

Cappello v Roads and Maritime Services
[2019] NSWSC 439

…n: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 439 Date of Decision: 18 April 2019 Before: Campbell J File Number(s): 2019/00061724…
Taylor v The Owners - Strata Plan No 11564
[2014] HCA 9 Para 37

…In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 French CJ, Crennan and Bell JJ said at [39]:…
Lee v New South Wales Crime Commission
[2013] HCA 39 Para 46

…t give rise to any different conclusion about the appellants’ suggested construction. 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 [3] and said:…
Australian Securities and Investments Commission v DB Management Pty Ltd
[2000] HCA 7

…(NSW), s 4 Roads Act 1993 (NSW), ss 3, 7, 52, 63, 64, 71, 177, 178 Cases Cited: ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Municipal Officers’ Association of Australia…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 21

…at his Honour also erred in concluding that the purposes of the Roads Act , according to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, are to be found “in all the provisions of the statute”. It was submitted that the decision in Project Blue Sky was not that the purposes…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 21

…rred in concluding that the purposes of the Roads Act , according to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, are to be found “in all the provisions of the statute”. It was submitted that the decision in Project Blue Sky was not that the purposes of a statute ar…
Municipal Officers' Association of Australia v Lancaster
[1981] FCA 165 Para 21

…tatute. It was submitted that the primary judge erred in relying upon the decision in Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129, where the Court, in identifying the objects, considered the method by which the legislature had implemented those objects. It was submitted that this approa…
James v Cowan
[1930] HCA 48 Para 21

…ined or constrained by the objects provision”. It was submitted that the dissenting judgment of Isaacs J in James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48 offers no support for looking for the purposes of the Roads Act beyond the objects expressly set out in s 3. It was submitted that his Honour also erred…

Legislation cited in this decision · 6

Roads Act 1993 (NSW)
177, 178, 3, 52, 63, 64, 7, 71 9 mentions (from Para 5)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
11, 19 3 mentions (from Para 6)
Road Transport Act 2013 (NSW)
4 2 mentions (from Para 31)
Crown Land Management Act 2016 (NSW)
1 mention
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 2)
Transport Administration Act 1988 (NSW)
1 mention

Medium Neutral Citation:	Cappello v Roads and Maritime Services [2019] NSWCA 227
Hearing dates:	20 August 2019
Date of orders:	20 August 2019
Decision date:	16 September 2019
Before:	Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61]
Decision:	(1) Leave to appeal granted. (2) Grant leave nunc pro tunc to file notice of appeal which was filed on 2 July 2019. (3) Appeal dismissed. (4) Appellant to pay the costs of the respondents.
Catchwords:	ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), Div 5.2, s 5.19 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 13 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 19 Road Transport Act 2013 (NSW), s 4 Roads Act 1993 (NSW), ss 3, 7, 52, 63, 64, 71, 177, 178
Cases Cited:	ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) K Roach, “The Uses and Audiences of Preambles in Legislation” (2001) 47 McGill LJ 129 A Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 MULR 184
Category:	Principal judgment
Parties:	Rosario Cappello (First Appellant) Maria Cappello (Second Appellant) Roads and Maritime Services (First Respondent) Registrar General of New South Wales (Second Respondent)
Representation:	Counsel: A Cheshire SC (Appellants) N Owens SC / L Waterson / L Johnston (First Respondent) Solicitors: Murphy Lyons Lawyers (Appellants) Crown Solicitor’s Office (First Respondent) Office of the Registrar General of New South Wales (Second Respondent)
File Number(s):	2019/00147141; 2019/00232564
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 439 Date of Decision: 18 April 2019 Before: Campbell J File Number(s): 2019/00061724