Cappello v Roads and Maritime Services - [2019] NSWSC 439

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cappello v Roads and Maritime Services & Anor. [2019] NSWSC 439
Hearing dates: 15 April 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Refuse relief sought in the Amended Summons filed on 25 March 2019;
(2) Dismiss the proceedings;
(3) Order the plaintiffs to pay the first defendant’s costs;
(4) No order as to the Registrar-Generals costs.

Catchwords:
ADMINISTRATIVE LAW – legal effect of proposed acquisition notice – statutory authority of Roads and Maritime Service to acquire land under s 177 of Roads Act – source of RMS’s legal authority to acquire land.
STATUTORY INTERPRETATION – Roads Act 1993 – meaning of s 177 – construed to favour private property rights – statutory power only enlivened after identification of objective purpose of Act – purpose of the Act are to be found in all the provisions of the statute – s 64 marker of a statutory purpose of Roads Act – carry out functions of road authority with respect to proposed tollway – s 71 – road works widely defined – carry out roadwork – s 63 ministerial directions – all functions of road authority, to the fullest extent possible to become responsibility of RMS – proposed acquisition notice authorised by law.
Legislation Cited: Conciliation and Arbitration Act 1904 (Cth), s 140
Environment and Planning Assessment Act 1979 (NSW), s 5
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 13, 14, 20
Roads Act 1993 (NSW), ss 7, 52, 54, 63, 64, 71, 177, 178, 213
Cases Cited: Darkingung Pty Ltd v Darkingung Local Aboriginal Land Council [2006] NSW SC 1008; (2006) 203 FLR 394
James v Cowen (1929 – 1930) 43 CLR 386
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
Wilkinson v Hull Railway and Dock Co (1882) 20 Ch.D. 323
Zang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category: Principal judgment
Parties: Rosario Cappello (Plaintiff)
Roads and Maritime Services (Defendant)
Representation:
Counsel: B.A. Coles QC with G. Farland and
M. Keene (Plaintiff)
N.J. Owens SC with L. Waterson and
L. Johnston (Defendant)
Solicitors: Murphy Lyons Lawyers (Plaintiff)
NSW Crown Solicitors Office (Defendant)

File Number(s): 2019/61724

Judgment

The first and second plaintiffs are the registered proprietors of land located at XXXXX XXX, Haberfield. The second plaintiff is also the registered proprietor of adjoining land in XXXXX XXX, Haberfield. I will refer to the plaintiffs as “the landowners”. They challenge the validity of proposed acquisition notices in respect of each parcel of land issued by Roads & Maritime Services (RMS) under s 11 Land Acquisition (Just Terms) Act 1991 (NSW) (“Just Terms Act”). Each notice was issued on 18 January 2019. By s 13 of the Just Terms Act, a proposed acquisition notice must be given at least…

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.

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Details

Case: [2019] NSWSC 439
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the case of Cappello v Roads and Maritime Services, the dispute revolves around the legal effect of a proposed acquisition notice issued by the Roads and Maritime Services (RMS). The court was tasked with determining whether the RMS had the statutory authority to acquire land under section 177 of the Roads Act 1993. The primary legal issue was whether the RMS’s power to acquire land was properly derived from the Act, specifically examining the statutory provisions and the extent to which these provisions supported RMS's actions.

The court delved into the statutory interpretation of the Roads Act, particularly section 177, and considered whether the statutory power was activated only after identifying the objective purpose of the Act. The interpretation favoured private property rights, meaning the statutory power could only be exercised if it aligned with the broader purposes outlined in the Act. The court noted that the purpose of the Act is reflected in all its provisions and highlighted section 64 as indicative of the statutory purpose, which involves carrying out the functions of a road authority with respect to a proposed tollway. Additionally, the court examined section 71, which broadly defines roadworks, and section 63, which outlines ministerial directions, emphasizing that all functions of a road authority should, to the fullest extent possible, become the responsibility of the RMS. The court concluded that the proposed acquisition notice was indeed authorised by law.

The court found that the RMS had the legal authority to issue the proposed acquisition notice under the provisions of the Roads Act, specifically section 177. The court’s reasoning was grounded in the interpretation of the statutory language and the purposes of the Act, which were deemed to encompass the RMS’s functions and responsibilities. The court held that the RMS’s statutory power to acquire land was properly derived, and the proposed acquisition notice was authorised by law. Consequently, the court dismissed the challenge brought by the plaintiff, Cappello.

Orders