Caruso v Blacktown City Council
[2014] NSWLEC 141
•29 August 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Caruso v Blacktown City Council [2014] NSWLEC 141 Hearing dates: 29 August 2014 Decision date: 29 August 2014 Jurisdiction: Class 3 Before: Craig J Decision: 1. Being satisfied that good cause has been shown by the Applicant for the failure to lodge the present Class 3 Application within 90 days after receiving a compensation notice from the Respondent, the Court may proceed to hear and determine the Applicant's claim for compensation.
2. I give leave to the Applicant to rely upon an Amended Class 3 Application in the form identified as Annexure A to the Notice of Motion.
3. By consent, the proceedings are stood over for directions to Friday 12 September 2014
Catchwords: PRACTICE AND PROCEDURE - motion for extension of time to lodge Class 3 application - objection to amount of compensation offered by Council - objection pursuant to s 66(1) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - whether good cause for Applicant's failure to lodge objection within 90 day period - s 66(3) of Land Acquisition (Just Terms Compensation) Act - exercise of discretion - evidence that Class 3 application sent to Court by registered post within time limit - Applicant unaware that application not lodged - misguided advice given to Applicant - relatively short period of time between expiry of 90 day limitation and time of lodgement - motion not opposed by Council - Court satisfied that good cause established - motion granted Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Category: Procedural and other rulings Parties: Mark Andrew Caruso (Applicant)
Blacktown City Council (Respondent)Representation: C M Novak (Applicant)
AJJ Thompson (solicitor) (Respondent)
Solutions Law (Applicant)
Ritchie & Castellan Solicitors (Respondent)
File Number(s): 30566 of 2014
EX TEMPORE Judgment
By Notice of Motion dated 27 August 2014, the Applicant, Mark Andrew Caruso, moves the Court for a determination pursuant to s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Compensation Act), effectively allowing the Court to hear and determine his application for compensation.
Land belonging to Mr Caruso at Riverstone was compulsorily acquired by Blacktown City Council (the Council) on 14 February 2014. Conformably with the provisions of the Compensation Act, a compensation notice was given by the Council to Mr Caruso on 25 March 2014. Applying the provisions of s 66(1) of the Act, any objection to the compensation nominated in that notice was required to be lodged with this Court by 23 June 2014. The present objection was not lodged until 29 July 2014, that is, some 36 days beyond the time limited for the filing of that objection.
Despite the provisions of s 45 of the Compensation Act and consistent with the provisions of 66(3), the Court may, if good cause is shown for a person's failure to lodge an objection within the time fixed by s 66(1), allow the objection to compensation to be heard and determined. It is in reliance upon the provisions of s 66(3) that the Applicant brings his present Notice of Motion.
The circumstances that attend Mr Caruso's failure to lodge his objection within the requisite period of 90 days may be shortly stated. Being dissatisfied with the compensation determined in accordance with the compensation notice and having been made aware that an objection was required to be lodged with the Court, Mr Caruso sought the assistance of a friend in preparing his objection. That friend, who was not a lawyer, assisted Mr Caruso by preparing a document that was thought to be appropriate to institute proceedings in this Court.
As it happened, the document prepared for Mr Caruso was in the form of an application in Class 1 of this Court's jurisdiction (objections under s 66(1) fall within Class 3) and perhaps more significantly, the document prepared nominated the Valuer-General as the respondent. Mr Caruso signed the document which was then forwarded to the Court by registered post on 8 May 2014. As would be apparent, had that document constituted an application by way of objection under the Compensation Act and been prepared in accordance with the Court's rules, it would have been lodged within the time stipulated by s 66(1) of the Compensation Act.
The document was received in the Court's Registry. Upon its receipt, it appears that a Registry officer spoke to Mr Caruso's friend whose name and telephone contact number had been stated on the form as the person responsible for lodging the document. The message from the Registry was that the nomination of the Valuer-General as a respondent was incorrect for a compensation claim and that the correct entity should be nominated. It may also be that reference was made to the absence of any filing fee accompanying the document that the Court Registry had received. Importantly, the friend of Mr Caruso to whom this message was conveyed stated that he would rectify the position but, until that was done, he requested that the court document should be held in abeyance in the Registry and no action taken in relation to it.
Regrettably, Mr Caruso was not advised by his friend of the conversation had with the Court Registry officer until mid July. That only occurred when Mr Caruso pursued his friend as to the progress of his application. Upon becoming aware of the situation, on either 15 or 17 July Mr Caruso went to the offices of a firm known as Platinum Property Law. Mr Caruso believed that firm to be a firm of solicitors, although, in fact, it is a firm of property conveyancers, the principals in which are not legal practitioners. Mr Watson of that firm made prompt enquiries of the Court's Registry when he learned of the exchange that had taken place in May between a Registry officer and Mr Caruso's friend. By that time, the 90 day period for lodging an objection to the compensation offer had expired.
It is sufficient to record that upon learning of the position, the present application was promptly prepared by Mr Watson, correctly nominating the Council as a Respondent. That is the application that was lodged with the Court on 29 July 2014. Sealed copies of the application were thereafter served on the Council.
These circumstances, so it seems to me, adequately explain the failure of Mr Caruso to have filed his objection within the 90 day period and demonstrate good cause for that failure. The hearing and determination of his objection should be allowed to proceed.
While the provisions of s 66(3) require focus upon an explanation for failure to lodge an objection within a 90 day period, the time by which that period is exceeded before an objection is lodged is also relevant. In the present case that time is relatively short. It is apparent that during the 90 day period, not only did Mr Caruso manifest an intention to object to the compensation offered to him but, relying upon the actions of his friend, believed that he had commenced proceedings so as to have the Court adjudicate upon his objection.
I also take into account two further matters in exercising the discretion available to the Court under s 66(3). First, the evidence makes clear that Mr Caruso is relatively unsophisticated in dealings of the present kind. He is presently out of work, having been unemployed for the last couple of years. He is also suffering a medical condition.
Secondly, Mr Caruso had communicated with the Council, indicating his dissatisfaction with the compensation offered. The Council does not oppose Mr Caruso's motion and does not claim to be prejudiced by commencement of the present proceedings outside the 90 day period.
The recitation of authority to support the exercise of discretion in the circumstances that I have identified is unnecessary. The authorities have been referred to and discussed in the course of submissions. Nothing is identified in those authorities that speak against the exercise of discretion favourable to an applicant in circumstances of the present kind. Being satisfied that good cause for Mr Caruso's failure has been demonstrated, I propose to make the orders sought in the Notice of Motion.
The Application Class 3 commencing the present proceedings was prepared by Mr Watson who, as I have said, is not a legal practitioner. A number of the orders sought in that application are inappropriate and not of a kind that could be made in an objection lodged pursuant to s 66(1) of the Compensation Act. With the invaluable assistance now provided to Mr Caruso by Ms Novak of counsel, an amended application has been prepared which seeks orders in conventional terms for proceedings of the present kind. That amended application has been attached to the Notice of Motion and I give leave to the applicant to rely upon it in these proceedings. The Council did not oppose that course.
Further, I understand that hitherto Ms Novak has appeared for Mr Caruso on a direct access basis. I am now informed by her that Mr Carl Buda of the law firm Solutions Law has indicated that he would be prepared to act for Mr Caruso in these proceedings. No Notice of Appearance has yet been filed but it is anticipated that he will do so within the next two weeks. In that time, Mr Buda will have the opportunity to acquaint himself with the matter so that on the next occasion the Court can give directions to have the matter prepared for hearing.
Mr Thompson, who appears for the Council, has, in the circumstances, agreed to the proceedings being stood over for a period of two weeks to allow Mr Buda to assume carriage of the matter. I propose to accede to the application that the proceedings be stood over for two weeks and thereafter proceed in accordance with directions that it is anticipated will be agreed between the parties.
The orders that I make, therefore, are as follows:
(1) Being satisfied that good cause has been shown by the Applicant for the failure to lodge the present Class 3 Application within 90 days after receiving a compensation notice from the Respondent, the Court may proceed to hear and determine the Applicant's claim for compensation.
(2) I give leave to the Applicant to rely upon an Amended Class 3 Application in the form identified as Annexure A to the Notice of Motion.
(3) By consent, the proceedings are stood over for directions to Friday 12 September 2014.
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Decision last updated: 08 September 2014
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