Cudgegong Australia Pty Ltd v Transport for New South Wales

[2018] NSWSC 929

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929

Hearing dates:

22 March 2018

Date of orders:

21 June 2018

Decision date:

21 June 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) The proceedings are summarily dismissed pursuant to r 13.4.

 (2) The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – UCPR r 13.4 – where proceedings concerned validity of Crown’s exercise of power to acquire land compulsorily in which plaintiff had an interest – whether proceedings should be summarily dismissed on the basis of estoppel – whether proceedings should be summarily dismissed on the basis that proceedings were brought outside time limited in UCPR r 59.10

 

ESTOPPEL – estoppel in pais - estoppel by representation – knowledge or intention of representor – whether plaintiff represented that it accepted the validity of the acquisition by suing for and accepting compensation – detrimental reliance – where Crown incurred legal costs, made advance compensation payments and undertook construction on the land – estoppel provided a complete defence to the proceedings in support of summary dismissal

CIVIL PROCEDURE – time – UCPR r 59.10 – whether rule had retrospective application to proceedings concerning a decision which predated the commencement of the rule – whether substantive rights affected - rule did not operate retrospectively in support of summary dismissal

Legislation Cited:

Closer Settlement (Amendment) Act 1907 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 11, 13, 37, 39, 42, 45, 66-68
Land Administration Act 1997 (WA)
Limitation Act 1969 (NSW)
Local Government Act 1919 (NSW) s 99
Mines Inspection Act 1901 (NSW) s 29
Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 59.1, 59.10

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122
Boeckh v Gowganda-Queen Mines Ltd (1912) 6 DLR 292
Brock v Roads And Maritime Services (formerly Roads and traffic Authority of NSW) [2012] NSWCA 404
Edwards v Culcairn Shire Council (1963) 9 LGRA 316; (1963) 64 SR (NSW) 62
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224
Grundt v Great Boulder Pty Ltd Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Hillebrand v Penrith Council [2000] NSWSC 1058
House v The King (1936) 55 CLR 499
Hungerfords v Walker (1989) 171 CLR 125
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523
Mandurah Enterprises Pty Ltd v Western Australia Planning Commission [2008] WASCA 211
Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723
O’Connor v State of New South Wales [2017] NSWCA 335
Parramatta City Council and Another v R & R Fazzolari Pty Ltd (2009) 237 CLR 603; [2009] HCA 12
Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98
Pye v Hawkins (1967) 87 WN (Pt 1) (NSW) 143
Regional Express Holdings Ltd v Dubbo City Council (No. 2) [2013] NSWLEC 113
Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319
Simmons v NSW Trustee and Guardian [2014] NSWCA 405
The Australian Workers Union New South Wales Branch v The Minister for Natural Resources (1991) 26 ALD 461; (1991) 43 IR 158
Vaughan Construction Co. Ltd v Attorney-General of Nova Scotia (1967) 60 DLR (2d) 692
Webster v Lampard (1993) 177 CLR 598

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Cudgegong Australia Pty Ltd (Plaintiff)
Transport for New South Wales (Defendant)

Representation:

Counsel:
P Tomasetti SC & M Fozzard (Plaintiff)
R Lancaster SC & E Bathurst (Defendant)

  Solicitors:
Wyndham Lawyers (Plaintiff)
Ashurst Australia (Defendant)

File Number(s):

2017/58504

Publication restriction:

Nil

Judgment

1. By an acquisition notice under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Act) issued on 31 May 2012 and published in the Government Gazette on 21 September 2012, the defendant advised of its intention to acquire the land at 35 Cudgegong Road, Rouse Hill, New South Wales by compulsory process. The land was to be acquired for the purpose of the northwest rail link.

2. At that time the registered proprietor of the land was Golden Mile Property Investments Pty Ltd. That company had been placed in liquidation and the mortgagee, Stacks Managed Investments Ltd, exercising its power of sale under a registered mortgage, entered into a contract for sale of the land to the plaintiff on 22 September 2008 for a purchase price of $2.25 million with completion being due on 1 June 2012.

3. When the proposed acquisition notice was issued, the vendor and purchaser on 21 June 2012 entered into a rescission agreement, and on the same day entered a further contract for sale to the plaintiff for $2,888,648 with the completion of the contract scheduled for 1 July 2013. The purchase price was not paid and the sale did not complete due to the acquisition of the land which occurred on 21 September 2012.

4. The plaintiff maintained it had an interest in the land and on 12 July 2012 submitted a claim for compensation under s 39 of the Act. The completed form sought $19.3 million for the market value of its interest in the land, and loss attributable to disturbance. That claim was later revised to $16,382,108.

5. On 5 December 2012, the Valuer-General determined that compensation was payable under the Act to Golden Mile as the registered proprietor and to the two mortgagees, Stacks (as first mortgagee) and RTS Super Pty Ltd (as second mortgagee) in the amount of $4,223,400.

6. On 12 December 2012 the defendant issued a compensation notice under s 42 of the Act to Stacks and to RTS Super offering $3,026,478 in compensation. The mortgagees accepted and were paid that compensation amount. The balance of the compensation was to be held on trust pending a determination whether Golden Mile or the plaintiff was entitled to the balance of the compensation.

7. On the application of the former liquidator of Golden Mile, that company was ordered to be re-registered.

8. The plaintiff then commenced proceedings under s 66 and/or s 67 of the Act in Class 3 proceedings in the Land and Environment Court. In those proceedings the plaintiff sought compensation amounting to $16,273,522 plus disturbance costs. Golden Mile applied to be joined as a party to those proceedings.

9. In June and July 2013 the plaintiff and the defendant exchanged town planning evidence. The experts conferred and produced a joint report. On 10 July 2013 the plaintiff filed a notice of motion seeking an order that the defendant make an advance payment of compensation to the plaintiff.

10. Justice Pain in the Land and Environment Court held on 13 March 2014 that the plaintiff had an interest in the land for the purposes of the Act and ordered the defendant to make an advance payment of $757,300 to the plaintiff under s 68(2)(b) of the Act.

11. Golden Mile sought leave from the Court of Appeal to appeal from that interlocutory order. The appeal was upheld on 16 April 2015 and the matter was remitted to the Land and Environment Court for the purpose of hearing and determining according to law the respective interests of Golden Mile and the plaintiff: Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100.

12. At a second hearing in the Land and Environment Court Pain J held on 1 December 2015 that the plaintiff had the relevant interest in the land for the purpose of the Act. Golden Mile again sought leave to appeal. Leave to appeal was granted but the appeal was dismissed on 25 August 2016: Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224. Thereafter, the compensation proceedings resumed.

13. On or about 6 September 2016 the defendant paid the plaintiff $765,468.59 being the total of the advance payment plus interest. That payment represented a $3 shortfall in interest that was paid to the plaintiff the next day.

14. Thereafter, valuation evidence was exchanged between the parties in the compensation proceedings. A conciliation conference was held on 16 December 2016 but no agreement was reached.

15. On 23 February 2017 the present proceedings were commenced.

16. The summons seeks five declarations to the effect that the acquisition of the land was unlawful and that the defendant was obliged to convey the land “or that part of the land upon which the defendant does not propose to carry out ‘construction of the Northwest Rail Link'”, alternatively, to pay equitable compensation to the plaintiff. The summons seeks orders that the acquisition notice be quashed, and that the defendant take all necessary steps to convey the land (or that part of the land) back to the plaintiff. The summons also seeks damages.

17. The essence of the claim is to be found in ground 10 of the summons which reads:

10.   While a portion of the Land was obtained for the purposes of constructing the Cudgegong Road rail station and associated rail line, the remainder of the Land was acquired for purposes which are unrelated to the functions of the defendant including:

a.   The construction of a town centre, entertainment and recreation facilities;

b.   Retail including supermarkets.

18. Ground 11 then asserts that in those circumstances the defendant had no power under the Transport Administration Act1988 (NSW) or at all to acquire that part of the land which was resumed for purposes other than the Cudgegong Station and rail line.

19. The defendant filed a response to the summons denying that the acquisition of the land was not for a purpose authorised by the Transport Administration Act and denied that the acquisition of the land was unlawful. The response further answered the summons by alleging that the plaintiff was time-barred by virtue of not complying with r 59.10 UCPR, and asserted that the plaintiff was estopped from claiming that the acquisition was unlawful and void by reason of claiming and accepting compensation.

20. Subsequently, the defendant filed a motion on 13 October 2017 seeking that the proceedings be summarily dismissed pursuant to r 13.4(1)(b) UCPR. It is with that motion that this judgment is concerned.

21. The defendant asserts that no reasonable cause of action is disclosed for two reasons. First, it is said that the plaintiff is estopped from contending now that the acquisition was invalid or unlawful because the plaintiff acted on the basis that it was lawful by seeking and accepting compensation for it. Secondly, the defendant asserts that the proceedings are time-barred by reason of r 59.10 UCPR which requires proceedings for judicial review to be commenced within three months of the date of the decision being challenged.

Submissions

22. The defendant submitted that the facts in the present matter gave rise to an estoppel in pais in that the plaintiff induced the defendant to adopt and act upon the basis that the acquisition was valid (the representation). The defendant submitted that the conduct of the plaintiff that gave rise to the representation were those matters earlier summarised at [4]-[14] above.

23. The defendant submitted that it acted to its detriment in reliance on the representation in three ways: (a) by incurring costs of a substantial nature in the compensation proceedings and by paying compensation to the plaintiff; (b) by continuing with the construction work to the point where the land in question has now been built on; (c) by being denied the opportunity to issue a further valid acquisition in a timely manner. The detriment in relation to a further notice arises because compensation is to be assessed at the time of the acquisition. The defendant submitted that compensation for any freshly issued notice of acquisition at the present time would inevitably be higher because of rising land values since 2013.

24. In relation to (a) above, the defendant pointed to advance payments made to the plaintiff of compensation pursuant to s 68(2)(b) of the Act and the legal costs involved in the compensation proceedings. In relation to (b) above, the defendant pointed to the evidence that on 18 March 2015 construction on the land commenced and has continued to the present time. The scope of those construction works is identified in aerial photographs taken at various times from October 2016 until 25 September 2017.

25. In relation to r 59.10 UCPR, the defendant submitted that the rule establishes a time limitation in which proceedings must be commenced. The defendant submitted that the rule applies despite the rule commencing after the date of acquisition, on the basis that the three month period began on the date the rule commenced, and that although the Court has power to extend the time, on the basis of the evidence in the present case, the time would not have been extended.

26. The plaintiff submitted that r 13.4 is not engaged and never could be engaged to enable a party to assert that by reason of an estoppel the claim for relief be dismissed as disclosing no reasonable cause of action. The plaintiff submitted that any issue of estoppel could only be dealt with at a final hearing of the proceedings.

27. The plaintiff submitted that it has never accepted the validity of the acquisition and in that way no representation by conduct or otherwise has been made by it. The plaintiff submitted that the defendant had never acted to its detriment because any payment of compensation was a statutory requirement of the Act. The plaintiff submitted that under the Act the plaintiff was bound to commence proceedings by way of an objection in the Land and Environment Court pursuant to s 66(1) within 90 days. The plaintiff submitted that the only choice it had was to accept the compensation offered or lodge the objection under s 66. In that way no representation was made.

28. The plaintiff submitted that any representation to found an estoppel in pais must be “completely unambiguous”, referring to Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723 at 738. (I note the judgment of Starke J says “clear and unambiguous”.) The plaintiff submitted that a representation must be as to an existing fact, whereas the plaintiff could only ever have held an opinion as to the lawfulness or validity of the acquisition. No representation of fact was made.

29. The plaintiff submitted that commencing the compensation proceedings, which must be commenced within 90 days, is consistent with the plaintiff’s reservation of the right to challenge the lawfulness of the acquisition. Further, the compensation proceedings have not yet been set down for hearing. In that way the compensation proceedings are not capable of being characterised as an unambiguous and unqualified representation that the plaintiff accepts the lawfulness of the defendant's acquisition of the land.

30. The plaintiff submitted that the advance payment is subject to s 48 of the Act which requires repayment if it is found not to be owing. The plaintiff submitted that the advance payment was not made in reliance on any representation because the defendant was under an obligation by virtue of the Act to make the payment.

31. The plaintiff submitted that, in developing and constructing on the land, the defendant did not act in reliance on any representation, but must have itself believed that it was entitled to proceed on the assumption that the acquisition was lawful by virtue of s 20 of the Act. The plaintiff submitted that there was no evidence that any representation induced the defendant to develop the land.

32. In relation to r 59.10 the plaintiff submitted that it does not have retrospective effect, with the result that it did not apply to the decision against which the appeal was brought. The defendant relied on Regional Express Holdings Ltd v Dubbo City Council (No. 2) [2013] NSWLEC 113 and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122. The defendant submitted that, in any event, it was always open to the Court to extend time under r 59.10.

Consideration

33. Rule 13.4 UCPR gives power to the Court to dismiss summarily the proceedings if (inter alia) no reasonable cause of action is disclosed. It is that rule upon which the defendant relies in the present matter.

34. The relevant principles to be applied when considering the application of the rule are well established. They were recently summarised by Gleeson JA (Beazley P and Barrett JA agreeing) in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]:

[196]   It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

[197]   More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

[198]   Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

[199]   In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

"The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."

[200]   Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

35. I do not accept the plaintiff’s submission that the relevant rule has no application in circumstances where an estoppel, which would provide a complete answer to the claim, is made out. In circumstances where a limitation defence has been shown to provide a complete answer to a claim being brought, it has been held that no reasonable cause of action is disclosed: Hillebrand v Penrith Council [2000] NSWSC 1058 at [27]. It is the complete defence constituted by the expiry of a limitation period which means the otherwise reasonable cause of action ceases to be a reasonable cause of action. Similarly, if it is found that a plaintiff is estopped from bringing what would otherwise be a reasonable cause of action, that estoppel will mean that the cause of action is no longer a reasonable one.

36. The plaintiff submitted that the Court had to accept the plaintiff’s case at its highest when considering whether to grant summary dismissal. However, that is the appropriate approach for considering matters of pleading but, as the High Court made clear in Webster v Lampard (1993) 177 CLR 598 at 602, a case concerned with summary judgment, the issue is not whether the plaintiff would probably succeed, but whether the material demonstrates that the action should not be permitted to go to trial because it is apparent it must fail.

Estoppel

37. In Grundt v Great Boulder Pty Ltd Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Dixon J said this (at 674):

The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting.

38. In Edwards v Culcairn Shire Council (1963) 9 LGRA 316, the plaintiff was a Shire clerk of the defendant. The plaintiff, whose employment had been terminated by the defendant, was subsequently offered and accepted compensation assessed by the Minister and paid under s 99 of the Local Government Act 1919 (NSW). He thereafter brought proceedings against the Council alleging wrongful dismissal. The defendant pleaded that the plaintiff was estopped from being able to contend that he had been wrongly dismissed by reason of the fact that he had accepted compensation for his dismissal pursuant to the provisions of that Act.

39. Although the Full Court of the Supreme Court of New South Wales found that s 99 laid down a code of procedure that exclusively prescribed the remedies available to a servant whose employment was terminated, the Court went on to deal with the plea of estoppel. They said this (at 323-324):

The fifth plea is framed as one of estoppel but counsel for the defendant was in some difficulty in assigning the estoppel to any special category other than disclaiming that it raised the issue of res judicata. We think it probably does not matter how it is to be classified because at the basis of all estoppels is the principle that "the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations": (Grundt v. Great Boulder Pty. Goldmines Ltd). Particular applications of this principle are to be found in the classical form of estoppel in pais (Pickard v. Sears), in the rule that a party cannot approbate and reprobate (Lissenden v. C. A. V. Bosch Ltd); Banque des Marchands de Moscou v. Kindersley) or in the common law doctrine of election between alternative rights or remedies (Lissenden v C. A. V. Bosch Ltd.; Young v. Bristol Aeroplane Company; Nelungaloo Pty. Ltd. v. The Commonwealth). But at root these are merely illustrations of "a general principle that a party who adopts an assumption as to a state of affairs for the purpose of exercising rights cannot afterwards disturb the assumption for the purpose of claiming inconsistent rights against others who have acted on the same common basis" (Bennett v Murray). No doubt as Roper C.J., in Eq, observed in Pye v. Hawkins "the other elements of estoppel must be present in order to invoke this principle and in particular it must be shown that the one party obtained an advantage from adopting the assumption or the other party suffered a detriment from acting on the same basis", but this presents no problem when money has been paid by one party to the other on the faith of the common assumption.

The defendant contends that the fifth plea invokes some such estoppel as we have indicated because the application for compensation was made to the Minister by the plaintiff, the council was directed to pay to the plaintiff the sum of £480 and the council not only paid this sum but the plaintiff accepted it. It was submitted that the course of conduct which the plea alleges necessarily assumes that the plaintiff's services had been terminated - and validly terminated - by the council, for only in that event can an application for compensation be made to the Minister and, moreover, the payment of compensation by the council, albeit at the direction of the Minister, is a sufficient alteration of the Council's position to supply the requirements to which Roper C.J. in Eq. referred in the passage we have quoted from Pye v. Hawkins. We agree with these contentions and, indeed, the decision in Pye v. Hawkins itself appears to us to cover precisely the same situation as that raised by the demurrer to the fifth plea, for in that case, as here, the plaintiff was challenging the validity of an executive act, but was held to be precluded from doing so because of detriments which the other party (in that case the Crown) had suffered in consequence of having acted upon an assumption of the validity of the executive act which was subsequently challenged. In like manner in the present case, the moneys paid by the council at the Minister's direction in consequence of the procedure under s. 99(11A) having been invoked appear to us to represent a detriment suffered by the council upon an assumption that the plaintiff's service was validly terminated and it is accordingly not now open to the plaintiff to depart from that assumption.

It was contended by Mr. McGregor that no detriment was truly suffered because the defendant would in any case be obliged to pay damages; he also submitted that in any case the only effect which the estoppel could possibly have was to prevent the plaintiff pursuing the action for wrongful dismissal without offering to restore the compensation moneys already paid and this, he said, the plaintiff was prepared to do by giving credit for these moneys against the damages which would be awarded in the action (cf. Halsbury, 3rd ed., Vol. 15, p. 173). These arguments not only beg the question but they misconceive the true nature of the estoppel relied upon and proceed upon the further misconception that the remedy under s. 99(11A) is identical with that which would be open at law. The right of election which the plaintiff exercised by invoking this subsection was between alternative remedies which not only possessed a different character (one being an action at law and the other a proceeding of an administrative nature) but which provided monetary compensation on different bases (one by reference to reasonable notice and the other by reference to a statutory formula to which notice is irrelevant). It is, as we have already said in discussing the earlier pleas, impossible to allow a party in the position of the plaintiff to pursue these remedies concurrently, and when compensation has been provided by the statutory means and accepted by the servant, access to the other means must inevitably be denied in consequence of the operation of the principles we have attempted to expound.

40. Pye v Hawkins (1967) 87 WN (Pt 1) (NSW) 143 concerned similar subject matter to the present. The plaintiff’s land was resumed by a notice under the Closer Settlement (Amendment) Act 1907 (NSW) being published in the Government Gazette. The plaintiff appealed to the Land and Valuation Court against the value of the land as assessed by the advisory board established under that Act. Those proceedings went to the Privy Council. The plaintiff then brought proceedings seeking a declaration that there was no (valid) resumption of the land, and that he was still its owner. The time limitation for appealing to the Land and Valuation Court was 28 days and any such appeal lay only where land was resumed under the Closer Settlement Act.

41. When considering the defendant’s plea of an estoppel Roper CJ in Eq said (at 151):

[The defendants] rely upon an estoppel by representation arising from the facts that the plaintiff in appealing to the Land and Valuation Court asserted the validity of the resumption and that the Minister for Lands was thereby led into resisting that appeal and into contesting the subsequent litigation arising out of it on the assumption induced by the plaintiff's prosecution of the appeal that the validity of the resumption would not be challenged.

The principle on which the defendants rely has been considered in many cases (see, for example, Bennett v. Murray and cases there cited and Banque des Marchands de Moscou v. Kindersley). "A party who adopts an assumption as to a state of affairs for the purpose of exercising rights cannot afterwards disturb the assumption for the purpose of claiming inconsistent rights against others who have acted on the same common basis" (Bennett v. Murray). But the other elements of an estoppel must be present in order to invoke this principle, and in particular it must be shown that the one party obtained an advantage from adopting the assumption and the other party suffered a detriment from acting on the same basis. In this case it is said that the plaintiff obtained no advantage from asserting the fact of resumption, in the Land and Valuation Court, and that the defendants suffered no detriment from acting on the basis that that assertion was correct. Evidence was tendered that the litigation involved the Minister for Lands in the payment of a substantial sum of money for costs in excess of the amounts which he recovered from the plaintiff under orders for costs made in it. The plaintiff submits that the payment of sums in excess of the properly taxed costs should not be regarded as a detriment, the implication being that the Minister was not bound to incur a liability for costs in excess of which he could recover under an order for costs made in his favour.

This I think is wrong. It is common knowledge that the amount recovered under an order for the payment of taxed costs rarely provides the person recovering it with a complete indemnity against his own liability as to costs. It did not do so in this case and the fact that the Minister became liable for costs as to which, notwithstanding that he was successful in the litigation, he was not indemnified, is I think a detriment which he suffered by action upon the assertion by the plaintiff of a valid resumption.

In my opinion, having failed to obtain the result which he sought as to the basis for the assessment of compensation in that litigation, the plaintiff cannot now be allowed to claim that the resumption was invalid. On this ground also I think that the suit fails.             (citations omitted)

42. In The Australian Workers Union New South Wales Branch v The Minister for Natural Resources (1991) 26 ALD 461; (1991) 43 IR 158, a proclamation was made by the Governor exempting a particular mine from s 29 of the Mines Inspection Act 1901 (NSW). That section provided that, except in the case of emergency, no person other than an owner or person acting in the management of the mine should be employed below ground in any mine for more than eight consecutive hours at any time. The Governor could by proclamation published in the Gazette exempt any mine or class of mines from the operation of the Act and any of its provisions.

43. On 21 November 1989, shortly prior to the proclamation, a dispute had been notified concerning a variation of the industrial agreement for the workers at the mine. The employer wished to introduce a 12 hour shift but that had been rejected by a majority of the mineworkers at a mass meeting. The proclamation by the Governor was published in the government Gazette on 8 December 1989. Thereafter, the AWU, the plaintiff, engaged in further negotiations and took part in proceedings before the Industrial Commission to deal with the dispute.

44. On 2 April 1990 a summons was filed in the Administrative Law Division of this Court seeking a declaration that the proclaimed exemption was invalid. The AWU sought an adjournment of the proceedings in the Industrial Commission until the Supreme Court proceedings were decided but Hill J in the Industrial Commission refused the application and set down the matters to be determined by the Industrial Commission for hearing, at the conclusion of which his Honour ordered an interim award. The AWU applied for leave to appeal against that interim award and sought a stay of the operation of the interim award. The stay was refused by the Industrial Commission in Court Session. After that judgment, the 12 hour shifts which had been going on since April 1990 continued and were maintained uninterruptedly from that time.

45. Subsequently, the AWU applied to vary the industrial agreement affecting the mine workers and engaged in further negotiations in relation to a further application for an exemption under s 29. Thereafter the Supreme Court proceedings came on for hearing. They were ultimately dismissed by Carruthers J on the basis that the AWU had no locus standi. From that decision an appeal was brought to the Court of Appeal.

46. Justice Priestley (with whom both Samuels and Handley JJA agreed with additional individual reasons) held that the AWU had standing to bring the proceedings. Justice Priestley then went on to consider the matter of waiver and estoppel. He said (at 186-189):

Waiver; delay; discretion: utility. Although other officers of the AWU knew of the decision to exempt the mine from s 29 before Mr Ecob, I will assume in the AWU's favour that the knowledge of the union that the decision had been made should be regarded as having come to it when Mr Ecob learnt of it on 1 November 1989. On 23 October 1989 the AWU had commenced proceedings in the Industrial Commission to increase the wage rates set by the 1987 Industrial Agreement. The proceedings continued, neither the decision to make the exemption nor its subsequent proclamation being raised as issues. The proceedings went ahead until either 30 March 1990 or 2 April 1990 in the industrial arena against the background of no action being taken to challenge the exemption for the reasons stated by Mr Ecob and earlier set out under the subheading "The AWU decides to bring proceedings in the Supreme Court". Those reasons can be broadly stated as two: the general reason that it was the AWU's normal policy upon trade union principles to deal with the twelve hour shift issue through the Industrial Commission; the second, more particular and practical reason, that until the end of March the AWU, acting, as did all parties concerned, on the basis that twelve hour shifts would not be introduced against the wishes of the employees, was confident that it had the numbers at the workplace to prevent the bringing in of such shifts. In a real sense, it seems clear, the AWU was in fact relying on condition 1 in the exemption to enable it to maintain its industrial policy at the mine. In the meantime, other parties interested in working conditions at the mine were allowed to do everything that they did in regard to the proceedings in the Industrial Commission on the footing that the exemption had been proclaimed and no legal action was being taken asserting it was either void or voidable.

Amongst other things that happened were the extensive negotiations between the parties undertaken with a view to reaching agreement on all matters to be included in the varied Industrial Agreement. In the course of these negotiations the meetings at the mine which I earlier recounted took place and the matter came before the Industrial Commission on a number of occasions. If the AWU's subsequent claim about the invalidity of the exemption were correct, much of this activity would have been simply a waste of time, effort and money. Further, had the AWU raised the claimed invalidity point by appropriate legal proceedings as soon as the proclamation was published, steps could at once have been taken towards the proclaiming of a further exemption, after complying with the requirements of procedural fairness, if the Minister then so decided. The facts in my opinion show that the AWU had decided not to take the claimed invalidity point but rather to rely (in part) on condition 1 of the exemption; all other parties also proceeded on the footing (whether they gave any thought to this position or not) that the exemption was legally operative.

The terms election, waiver, affirmation and estoppel have in the past often been used somewhat loosely, and at times almost interchangeably to describe the legal effect of situations of this kind. The latest authoritative discussion of the different (although sometimes overlapping) legal categories denoted by these terms is in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

… [His Honour discussed the various judgments in Verwayen and their applicability to the estoppel and waiver argument raised by the Minister. His Honour went on to say:]

The matter in issue in the Industrial Commission between the parties was working conditions at the mine, one very contentious aspect of which was the question of twelve hour shifts. In the sense in which waiver was used by both Toohey J and, I think, Gaudron J, in Verwayen the AWU had in my opinion waived any reliance upon the invalidity of the exemption. If, for example, the AWU had tried to raise the invalidity point in the Industrial Commission on 2 April 1990 (assuming for the sake of the example, without expressing any opinion about it, that the Industrial Commission had authority to decide such a point) the approach of Toohey J and, probably, Gaudron J would, I think, have required that the application be refused. I do not see how that waiver could be escaped by starting proceedings in another court to raise the same point.

The reason for the qualifications I have made concerning the applicability of Gaudron J's views is that it may be that her requirement of change in relationship is not satisfied in the present case. I think it probably is, in the sense of the words as she used them, in that it can be said, by analogy with what she said in Verwayen at 486, that the relationship between the AWU and the Minister changed, once the AWU joined in the proceedings in the Industrial Commission after knowing of the exemption decision, from one in which the AWU was entitled to take proceedings claiming invalidity of the exemption to one in which it was not so entitled. If this analogy can not be drawn, or if Gaudron J's theory of waiver does not become accepted doctrine, I would still rely on the decision in Verwayen as supporting my view in the present case because the views expressed about estoppel in the reasons of the dissenting judges in Verwayen would also seem to me to require the conclusion, on the facts of the present case, of an estoppel against the AWU.

In my opinion it was not open to the AWU, on 2 April 1990, to commence proceedings claiming that the exemption was void or voidable. I would uphold the decision of Carruthers J and dismiss the appeal, on this ground.

47. Justice Handley said (at 191):

I am also satisfied that by the time the Union commenced proceedings in the Court challenging the validity of the exemption it was estopped by its conduct from doing so. For some months it had conducted the proceedings in the Industrial Commission on the basis that the exemption was valid and it had successfully relied upon the inability of the employer to satisfy the conditions of the exemption as an answer to the application for an award to permit twelve hour shifts. This conduct may be described as approbating and reprobating, election, waiver or estoppel. I prefer to regard it as a form of estoppel by convention because between 8 December 1989 when the proclamation was gazetted and 27 March 1990 the proceedings in the Commission were publicly conducted by both sides on the basis that the existing exemption was valid. In doing so the Union relied on and took advantage of the conditions in the exemption. This conduct on its part caused detriment to the employer and the Minister because had the objection been taken for example in December 1989 it would have been open to the employer to seek a fresh exercise of the power. Had this course been followed and the Union given an opportunity to be heard it is probable that a fresh proclamation which was not open to challenge would have been gazetted prior to April 1990 when Hill J made the award authorising twelve hour shifts.

Whether or not it is appropriate to view the estoppel in this case as a novel form of estoppel by convention I agree with Priestley JA that the majority decision in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 supports the conclusion that the conduct by the Union of the negotiations with the employer and the proceedings in the Industrial Commission between December 1989 and April 1990 preclude it from challenging the proclamation on the ground that it had been denied procedural fairness before it was gazetted.

48. Justice Samuels said (at 158):

I do not disagree with Priestley JA’s opinion about waiver and estoppel,… .

49. Although in a different jurisdiction, the decision in Vaughan Construction Co. Ltd v Attorney-General of Nova Scotia (1967) 60 DLR (2d) 692 is relevant because, like Pye v Hawkins, it concerned a challenge to the validity of a land acquisition order. An expropriation (or acquisition) of the land had been made and compensation had been claimed.

50. In that case, Pottier J said (at 702)

It appears to me that at the time of the expropriation, which was in 1955, the plaintiff had an election to make, that is to say, whether he was questioning the legality of the expropriation or claiming compensation thereunder. He claimed compensation under the expropriation and accepted what might be called part payment. He cannot now question the legality of the expropriation.

In Dexters, Ltd. v. Hill Crest Oil Co. Ltd., [1926] 1 K.B. 348 at p. 358, one finds when dealing with this subject:

It has often been stated as the law that you cannot approbate and reprobate the same act; you cannot take advantage of a document or a right under it and at the same time say it is not a document which binds you . . . So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad ... It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right. That seems to me a misapplication of the rule, and for the same reason I think the appellants who have acted on the award by taking money under it have debarred themselves from appealing against it and saying it was wrong.

At the time the expropriation proceedings were being taken, Hudson, J., in City of Halifax v. Vaughan Construction Co Ltd., 30 D.L.R. (2d) 234 at p. 241, [1961] S.C.R. 715, 46 M.P.R. 115, says:

My conclusion is that at the time of expropriation both Vaughan and the city had an interest in this land. Vaughan held the fee simple subject to the equitable interest of the city to enforce a; reconveyance in certain defined events. Both these interests were destroyed by the expropriation and the owners of these interests are both entitled to share in the compensation.

In Boeckh v. Gowganda-Queen Mines, Ltd. (1912), 6 D.L.R 292 at p. 293, 4 O.W.N. 27, Middleton, J., says:

From the earliest times the Court has consistently held that a judgment is conclusive, not only upon all matters which are actually brought forward, but as to all matters which might have been brought forward as part of the subject of the contest; and this view has been recently confirmed both here and in England.

There are a number of cases which deal with estoppel.

In the case of Tinkler v. Hilder (1849), 4 Exch. 187, the same principle seems to be followed. There are a number of cases that bear upon the point at issue, namely: Henderson v Henderson (1843), 3 Hare 100, 67 E.R. 313; Hoystead et al. v. Commissioner of Taxation, [1926] A.C. 155; Clark v. Phirmey (1895), 25 S.C.R. 633; Royal Trust Co. v. City of Montreal (1918), 44 D.L.R. 767, 57 S.C.R. 352; Re Eaves; Eaves v. Eaves, [1939] 4 All E.R. 260; Chapman v Warren, [1936] 2 D.L.R. 157, [1936] O.R. 145; Watson v. Toronto Harbour Commissioners (1918), 41 D.L.R. 633, 42 O.L.R. 65.

There was a contention on behalf of the plaintiff that the defendant could not plead estoppel where statutory requirements had been complied with. This situation was dealt with in the case of Wilson v. Municipality of Delta, 8 D.L.R 881, [1913] A.C. 181.

51. As can be seen, Justice Pottier’s decision, like Priestley JA’s reasoning in AWU, seems to be based on a number of similar doctrines including election, approbation and reprobation, as well as estoppel. His Honour’s reliance on Boeckh v Gowganda-Queen Mines Ltd suggests the application of a principle similar to Anshun estoppel that was later established by the High Court of Australia.

52. The plaintiff sought to distinguish Edwards v Culcairn on the basis that in that case the compensation process was complete. In the present matter, the plaintiff submitted that the compensation proceedings were still to be heard.

53. I do not consider that this distinction alters the position as far as estoppel is concerned. The steps taken by the plaintiff, from the commencement of the s 66 proceedings to the present position after two trips by the plaintiff to the Court of Appeal and the preparation of town-planning and valuation evidence, all assumed the validity of the acquisition. Considerable legal costs were incurred by the defendant, and the defendant pursued the development and construction on the land. The defendant was obliged by the process to make payments on an interim basis.

54. The plaintiff submitted that the AWU case was distinguishable because in that case the AWU instituted separate proceedings asserting that the exemption was not valid when that point could have been raised in the proceedings before the Industrial Commission. The plaintiff submitted that this course of action fell within the Anshun principle, whereas in the present case the validity of the acquisition could not have been raised in the Land and Environment Court. In that way, the plaintiff submitted, there was no Anshun estoppel in the present case.

55. There are two related reasons why the plaintiff’s submissions in that regard should be rejected. First, the Court of Appeal did not dismiss AWU’s appeal on the basis of Anshun estoppel and did not make any mention of it.

56. Secondly, what Priestley JA said was this:

Further, had the AWU raised the claimed invalidity point by appropriate legal proceedings as soon as the proclamation was published, steps could at once have been taken towards the proclaiming of a further exemption … (emphasis added)

57. The decision was not based on the failure of the AWU to raise the matter in the proceedings in the Industrial Commission but on its failure to raise the matter at all in appropriate legal proceedings before it engaged in behaviour which, from an objective point of view, accepted the validity of the exemption proclamation.

58. The plaintiff sought to distinguish the decision in Vaughan Construction Ltd on the basis that the regime in relation to land acquisition was a different one from that which obtained under the Act.

59. In my opinion, that is an irrelevant matter. As in the present case, after the Notice of Expropriation was served on the plaintiff in Vaughan Construction, the plaintiff made a claim for compensation and ultimately received that compensation. Sometime thereafter the plaintiff took proceedings for an order declaring that the expropriation was invalid and that the plaintiff was entitled to its land. The only relevant distinction between Vaughan Construction and the present case is the plaintiff’s submission that it had no choice as a result of the Act requiring an objection to be lodged within 90 days and, therefore, that it was not acting voluntarily in pursuing compensation.

60. Although the Act prescribed a period of time in which proceedings had to be taken in relation to compensation, it was open to the plaintiff at any time to challenge the validity of the acquisition as it has latterly done. The Act provides under s 13 that a proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. Once the land has been acquired, s 37 provides that the owner is entitled to be paid compensation. Section 39 provides that a person who wishes to claim compensation must lodge a claim in accordance with that section. The authority which compulsorily acquires the land must give notice within 30 days after the publication of the acquisition notice to the persons entitled to the compensation and the amount of the compensation offered: s 42. Section 45 provides that if a person entitled to compensation does not within 90 days after receiving a compensation notice accept the amount of compensation offered or lodge an objection to the amount of the compensation, the offer of compensation is taken to have been accepted.

61. Section 66 gives the person 90 days to lodge with the Land and Environment Court an objection to the amount of compensation offered. The Land and Environment Court may extend that period if it is satisfied that there is good cause for the person’s failure to lodge the objection within that period. It was always open to the plaintiff to commence these proceedings challenging the acquisition within the 90 day period. It is difficult to conceive that the commencement of those proceedings would not provide a good cause within the meaning of s 66 of the Act. Alternatively, it was always open to the plaintiff to commence the present proceedings and also to commence the s 66 proceedings. It could then have sought, as has now occurred, a stay of those proceedings either in this Court or the Land and Environment Court until the validity of the acquisition was determined.

62. Senior counsel for the plaintiff submitted that the plaintiff did not have the necessary documents to assert and allege invalidity, and it was that fact which was responsible for the delay in the institution of these proceedings. The plaintiff has led no evidence of any correspondence in which the plaintiff asserted any doubt about the validity of the acquisition prior to a letter from its then solicitors Bransgroves to Hunt and Hunt, the defendant’s then solicitors, dated 11 November 2016.

63. However, the very issue now raised in the proceedings by the plaintiff in relation to the use of the land, and whether for railway purposes, is to be found in the joint report of the town planning experts dated 23 July 2013. Moreover, in the affidavit of Sukhdev Singh of 15 November 2017, Mr Singh refers to a meeting he had as a director of the plaintiff with Bryan Jones, who he understood was in charge of land acquisitions and compensation, in November 2011. Mr Jones provided him with a book entitled “Northwest Rail Link Project Overview July 2011”. Mr Jones explained that the plaintiff’s land was being acquired compulsorily for Cudgegong Railway Station. Having noted from a diagram in part of the booklet that only a small part of the land was marked for use as Cudgegong Railway Station, Mr Singh raised with Mr Jones that it was apparent the defendant did not need all of the land for the train platform and asked if it was to be used for commercial purposes. Mr Singh said he thought that the defendant intended to build a town centre or local centre on the land and that it was to be used for commercial use and not public purposes.

64. Even before that time, Mr Singh sent an email to the Department of Planning on 11 February 2011 in which he noted a Growth Centre Commission Area 20 Precinct plan which provided for a railway station, a car park and a local centre on Lot 71. The final paragraph of the letter attached to the email said this:

We will not oppose your plan to build a railway station as long as we are compensated as soon as possible for foregone potential profits that could have been earned. The surrounding land and the land itself comprise local centre, commercial (railway station) and medium density. (emphasis added)

65. These are the matters now put forward by the plaintiff in support of the claim asserting the invalidity of the acquisition.

66. In my opinion, the actions of the plaintiff in relation to the claim for compensation amounted to an acceptance by the plaintiff of the validity of the acquisition. The representation in that regard was clear and unambiguous. The defendant acted to its detriment in incurring the costs involved in the compensation proceedings, in continuing with the development of the land and the construction of the railway station, and in not promptly issuing a further valid acquisition notice in the event that the notice gazetted on 21 September 2012 was held to be invalid.

67. The defendant also acted to its detriment in paying the advance payments of compensation. The plaintiff submitted that such payments were not made in reliance on any representation but were required to be paid under s 68 of the Act. However, the advance payments should not be viewed in isolation. At the time they were required to be paid the defendant continued to act on the assumption that the acquisition was valid and unchallenged. If proceedings had been instituted challenging the acquisition, one or other of the parties would have sought a stay of the compensation proceedings, as I have already noted has now occurred. In such circumstances the defendant would not have been obliged to pay the advance payments. In paying them, the defendant has been deprived of the use of those funds since they were paid. That is so even if, as a result of any finding that the acquisition was invalid, the money will have to be repaid. The law accepts such deprivation as a detriment because that is part of the basis of the payment of interest on judgments: Hungerfords v Walker (1989) 171 CLR 125; Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 at [89]-[90] and [115].

68. The plaintiff relied on a number of cases including Brock v Roads And Maritime Services (formerly Roads and traffic Authority of NSW) [2012] NSWCA 404, Mandurah Enterprises Pty Ltd v Western Australia Planning Commission [2008] WASCA 211 and Parramatta City Council and Another v R & R Fazzolari Pty Ltd (2009) 237 CLR 603; [2009] HCA 12 to argue that cases involving land acquisition were in a special category and that in such cases there is an additional barrier in the way of summary judgment.

69. None of the cases support such a proposition. Brock dealt at [79]-[83] with a particular approach to costs in compensation claims in respect of land acquisition. Mandurah Enterprises was a similar case to the present in that land had been “taken” (acquired) under the Land Administration Act 1997 (WA). The plaintiffs made a claim for compensation. They received partial payments of compensation. They then sought a declaration that the taking of the land was invalid. They were unsuccessful and appealed. On the appeal the defendant to the claim filed a notice of contention which, inter alia, asserted that the plaintiffs made a binding election to pursue their claim for compensation rather than challenge the validity of the order. The appeal was upheld in part but the notice of contention was dismissed.

70. In her judgment McClure JA said:

[98] The trial judge dismissed the respondent's claim that the doctrines of approbation and reprobation or alternatively election prevented the appellants from challenging the validity of the taking order. The primary judge concluded that neither doctrine applied if the taking order was invalid as a result of a defect that was incapable of being waived (being one that is essential to the validity of the taking order). The respondent disavowed any reliance on estoppel.                   (emphasis added)

71. Her Honour then considered a number of English, Victorian and New South Wales including Edwards and AWU and said:

[117] Most of the above cases involved preventing a person from relying on a state of affairs which had formed the basis for a judgment or order. That is not this case. Where there was no judgment or order (Edwards v Culcairn Shire Council and Slough Estates) the person had a choice between valid and properly available alternatives. In this case the appellants have only one valid alternative. The existence of one defeats the other.

…

[123] However, I would not uphold the respondent's claim that the doctrine of election prevents the appellants from challenging the validity of the taking order. It is clear from the description of the four categories of election that none apply to the circumstances of this case. Further, the case law suggests that the doctrine of election is confined to choices between lawful alternative rights and claims, save perhaps where judgment intervenes.

[124] That is also the clue to the resolution of the question whether the independent doctrine of approbation and reprobation applies to prevent the appellants from pressing their claims the subject of this action. The answer is the doctrine does not apply because the appellants have not received a relevant benefit. They have not received a benefit because the advance payment is liable to be forfeited on the ground that the taking order, and all consequential conduct including the advance and Deed related thereto, are in excess of power and thus invalid. No restitutionary defence is claimed by the appellants.

[125] It is clear that in the absence of a judgment or order, a public authority exercising statutory power cannot, for the purposes of the doctrine of approbation and reprobation make a binding election between a valid and an invalid course of conduct. The choice simply cannot arise. In such circumstances the appellants could not rely on the doctrine against the statutory decision-maker. (The doctrine would apply if the public authority had a choice between valid alternatives.) Mutuality is achieved in that the doctrine of approbation and reprobation does not apply against the appellants who would be liable to forfeit the only relevant benefit being the advance payment under the Land Act. If the taking of the land is indefeasible under the TLA, the appellants would then have a right to compensation under the TLA not the Land Act and the payment under the Land Act would still be liable to forfeiture. Accordingly, I would dismiss the notice of contention.

72. The defendant in the present case relies on an estoppel which was not under consideration in Mandurah Enterprises. The Western Australian Court of Appeal considered that different principles applied where the defence relied on election or approbation and reprobation. To the extent that those principles differ from the approach in Edwards, AWU and Pye v Hawkins, I am bound by the legal principles in the first two of those cases, and I respectfully follow the approach of Roper CJ in Eq in Pye v Hawkins.

73. The plaintiff relied on Fazzolari for the appropriate way to construe statutes which affect property rights at [44] and [45]. That appears to me to be a matter only relevant to any final hearing where the rights of the defendant to acquire the land are being construed. The case says nothing about whether an estoppel provides an answer to the plaintiff’s claim.

74. The estoppel demonstrated in the present case is a complete answer and defence by the defendant in the proceedings. For that reason, no reasonable cause of action is disclosed by the plaintiff in the proceedings. The present case does not, in principle, differ from the determinations in Edwards v Culcairn, Pye v Hawkins, AWU and Vaughan Constructions. The plaintiff’s claim is, in the circumstances, a hopeless one and is doomed to fail.

Rule 59.10 UCPR

75. In the light of my conclusion on the estoppel point, it is not strictly necessary to determine this second basis upon which the defendant relies. However, in deference to the detailed arguments put forward, and in case the matter should go elsewhere, I will now consider this aspect of the defendant’s motion.

76. Rule 59.10 provides:

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

77. The rule commenced on 15 March 2013. The acquisition notice was gazetted on 21 September 2012.

78. There are two issues in relation to this rule. The first is whether it applies to the present proceedings in circumstances where the decision challenged predated the commencement of the rule. The second issue is whether, if the rule applies, the filing of the proceedings outside of the time allowed is such that the proceedings should be summarily dismissed.

79. The defendant relied on what was said by Campbell J in Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 to argue that the rule was a procedural requirement and in those circumstances could operate retrospectively.

80. The plaintiff relied on the decision of Biscoe J in the Land and Environment Court in Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, followed by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122, to argue that the rule effected a substantive change and would not therefore operate retrospectively.

81. In the first decision to make reference to r 59.10, Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 Basten JA said at [6]:

… Because the decision in question was handed down before the new Pt 59 of the UCPR commenced, it is by no means beyond doubt that the time limit in r 59.10 operates. Even if it does, although the decision was dated 20 November 2012, it was apparently not provided to the applicant until 8 December 2012. On that basis, the three month period would have expired about 11 days before the applicant provided to the Court and to the Crown Advocate his proposed application seeking to rely upon s 69 of the Supreme Court Act. In those circumstances, were an extension of time necessary, it should be granted.

82. In Kolundzic the plaintiff challenged the legality of three decisions of public officials of the Workers Compensation Commission of New South Wales involved in the medical assessment process. Justice Campbell noted at [2] that the last of those decisions was made on 25 October 2012 and the summons was not filed until 5 December 2013. His Honour considered the substantive relief sought and found that no errors had been demonstrated in the assessments made.

83. His Honour then went on to consider the matter of r 59.10. His Honour said this:

[53] The plaintiff says that r 59.10 does not apply to these proceedings. I gave leave for written submissions to be filed after the hearing, which leave was exercised by the plaintiff on 16th July 2014 and by the first defendant on 22nd July 2014. As I have decided that the plaintiff's case fails on the merits, it is unnecessary to deal with the detailed written arguments advanced by each party in relation to this issue. And, in my view a decision is better made in a case, the outcome of which may depend upon it.

[54]   The plaintiff essentially advances 8 grounds for arguing these proceedings are not caught by the rule. The first is that as the last decision challenged was made before the commencement of the rule on 15th March 2013, the rule simply has no application. The remaining 7 grounds go to its validity. I should record that the third such ground invokes Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [54] - [55]. But the plaintiff does not expressly call into question the constitutionality of the rule, no notice having been given under s 78B Judiciary Act 1903 (Cth).

[55]   No purpose is served by me dealing with each ground of challenge separately. It is sufficient that I state my conclusions about the matter.

[56] In my opinion, being a procedural requirement, r 59.10 Uniform Civil Procedure Rules 2005 applies to these proceedings and to all proceedings commenced after 15th March 2013. However, its operation in the present case required these proceedings to be commenced by 15th June 2013; ie within 3 months of the rule's commencement. It does not have a directly retrospective operation.

[57]   The rule does not offend the Kirk doctrine: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [24]; a statutory provision merely regulating the exercise of the supervisory jurisdiction of a State Supreme Court does not deprive it of its essential constitutional characteristics.

[58] I am also of the view that s 9 Civil Procedure Act 2005 (NSW) as amplified by clauses 1 and 31 of Schedule 3 of that Act provide ample power to make Rule 59.10.

[59] Had I been persuaded that the merits of the claim for relief favoured the plaintiff, I would have extended the time for commencing the proceedings under r 59.10(2) having regard to the considerations set out in sub-rule (3). Principally, I would have decided that the importance of the plaintiff's interest in having his degree of permanent impairment determined according to law outweighs the prejudice to the first defendant in facing a delayed application for judicial review. The first defendant can have no accrued or vested interest in maintaining an invalid decision.

84. In Regional Express Holdings the plaintiff sought to challenge two decisions of Dubbo City Council pertaining to the local airport. The decisions were made on 22 October 2012 and 25 February 2013. The summons was filed on 23 May 2013. Accordingly, if r 59.10 applied an extension of time was required for the first but not the second decision.

85. Justice Biscoe first set out the passage from Patsalis that I have quoted above. His Honour then said:

[13]   There is a presumption against retrospectivity of statutes, to which statutes merely affecting procedure are an exception. Where a period for taking legal action is limited by statute, it is a rule of construction that the statute should not, unless it is clearly intended, be given a retrospective operation to deprive a person of the opportunity of instituting an action which is otherwise within time. If it were given a retrospective operation, it would operate so as to impair an existing substantive right - the right to bring a claim - and such an operation could not be said to be merely procedural. However, if there is still a proper opportunity to commence the action despite the coming into effect of the new limitation period, the operation of the statute will be regarded as procedural. This rule of construction is founded on the principle that no suitor has any right to complain of procedural changes, provided no injustice is done. See Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 at 267, 270 per Dixon CJ, 277-278 per Williams J; Yrttiaho v Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228 at 239-242 per Gibbs J (the rest of the Court agreeing, on this aspect); Egan v Cudgegong (Abattoir) County Council (1973) 1 NSWLR 222 (CA) at 226-227 per Jacobs P (Moffitt and Hope JJA agreeing); Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC); Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515, at 518-520 (joint judgment); Habib v Nationwide News Pty Ltd [2006] NSWCA 14, (2006) 65 NSWLR 264 at [7] per Spigelman CJ (Santow JA and Nicholas J agreeing).

[14] In my opinion, in accordance with these principles, r 59.10 does not apply retrospectively to the first decision, therefore an extension of time is not required. Otherwise its effect would be to deny completely the right of REX to proceed without an extension of time because the first decision was made more than three months before Part 59 commenced on 15 March 2013. Although r 59.1(2) provides that Part 59 does not apply to proceedings commenced before the commencement of Part 59, it does not follow that the r 59.10(1) time limit always applies to proceedings commenced afterwards: the above principles apply to such proceedings.

86. In Agricultural Equity Pepper J at [24] simply followed what Biscoe J said in Regional Express.

87. More recently, in O’Connor v State of New South Wales [2017] NSWCA 335 the Court of Appeal (Leeming and Simpson JJA) said:

[18] Prominence was given in oral submissions to what was said to be a divergence in authority between decisions of the Land and Environment Court and the Supreme Court in relation to whether r 59.10 has retrospective effect. The point was raised, but not determined, in Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 at [6]. In Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J was dealing with an application to review decisions made on 22 October 2012 and 25 February 2013, shortly before the rule commenced on 15 March 2013. The proceedings were commenced on 23 May 2013. His Honour held that the rule did not apply to the first decision, but in any event would have granted an extension of time if it did: at [12]-[15]. The decision was followed by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122. It is not necessary to express a view as to the correctness of those decisions, nor as to whether r 59.10 is to be regarded as procedural for the purposes of the distinction drawn in Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228; [1971] HCA 29, nor as to whether the terms of r 59.1 as to the applicability of the Part displace the presumption against retrospective operation.

88. It may be observed that, to this point, there is no authority or guidance from the Court of Appeal on the issue, seemingly, because the point has not been squarely raised. Campbell J (as his Honour then was) appears to have assumed the rule was a procedural requirement partly, at least, on the basis that it did not offend the doctrine from Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. With great respect to Campbell J, the fact that the rule does not transgress Kirk is not determinative. The power to extend time would go some way to ensure that.

89. Ordinarily, a requirement in the rules of court for commencing proceedings or some interlocutory action would not be regarded as a substantive requirement, unlike a provision in the Limitation Act 1969 (NSW) or some similar statutory provision. As such, the defendant’s argument concerning r 59.10 needed to elevate the status of that rule to something akin to a limitation period in order to justify the dismissal of the proceedings on a summary basis for a failure to comply with that rule. To the extent that r 59.10 is to be regarded as similar to a limitation period, the change effected by the introduction of that rule would have to be regarded as affecting substantive rights. In those circumstances it would not operate retrospectively. If the rule was merely a procedural change it would be a rare case where a failure to comply with the rule, particularly given the power of extension in sub-r (2), would justify a summary dismissal of proceedings.

90. In my opinion, the rule does not operate retrospectively for reasons similar to those given by Biscoe J in Regional Express at [14]. If the rule operated retrospectively it would deny to any applicant the right to challenge any decision made more than three months before Pt 59 commenced, subject only to a right to have a discretion exercised to extend the time period. A discretionary decision can only be challenged if an error of the type discussed in House v The King (1936) 55 CLR 499 is made out. In that way, substantive rights would be affected.

91. Although r 59.1(2) provides that Pt 59 does not apply to proceedings commenced before the commencement of Pt 59, there is nothing in that Part or in r 59.10 particularly which requires a challenge to decisions made before the Part commenced to be made within three months of the commencement of the Part. That appears to me to be another matter tending to suggest that the rule does not apply to decisions made prior to the commencement of the Part.

92. Accordingly, the present proceedings were not commenced contrary to r 59.10 and no basis is demonstrated for summary dismissal of the proceedings based upon that rule.

93. If the rule applied to the present proceedings, because it was a rule affecting procedure only, it would be difficult, as noted earlier, to justify summary dismissal for non-compliance. The discretionary power to extend time suggests that there would need to be a factual enquiry involving some or all of the matters in subrule (3). Ordinarily, those enquiries are not appropriately considered other than at a final hearing.

Conclusion

94. In my opinion the defendant demonstrates that the plaintiff is estopped from maintaining the present for the reasons I have earlier given. In those circumstances I make the following orders:

(1) The proceedings are summarily dismissed pursuant to r 13.4.

(2)   The plaintiff is to pay the defendant’s costs of the proceedings.

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Decision last updated: 21 June 2018