Davey v North Sydney Council

[2002] NSWSC 662

CITATION:	Davey v North Sydney Council [2002] NSWSC 662
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 5131/01
HEARING DATE(S):	Friday, 19 April 2002
JUDGMENT DATE:	26 July 2002
PARTIES :	Leath Glenbury Davey (Plaintiff) North Sydney Council (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	S. Burchett (for Plaintiff) M. Allars (for Defendant)
SOLICITORS:	Cowley Hearne Lawyers (for Plaintiff) Mallesons Stephen Jaques (for Defendant)
CATCHWORDS:	Practice and Procedure - Cross-claim by Defendant against an entity which is not the Plaintiff - Application by Defendant for leave to cross-claim - Requirement that nature of cross-claim be told to the Court as soon as may be practicable - Plaintiff claims payment to her by Defendant of compensation for compulsory acquisition of land in amount determined by Valuer General - Defendant disagrees with amount so determined - Defendant seeks by proposed cross-claim to challenge validity and efficacy of that determination - Whether the Court in the exercise of its discretion should grant that leave - Whether proposed cross-claim discloses a reasonable cause of action - Whether proposed cross-claim is in a form which, if filed, would be liable to be struck out as embarrassing - Relevance of conduct of Defendant preceding the institution of proceedings - Whether Defendant in seeking leave approaches the Court with clean hands - Any dispute in respect to proposed cross-claim is a dispute in which the Plaintiff could have no practical participation - Conduct of Defendant is in contravention of legislative scheme disclosed in Land Acquisition (Just Terms Compensation) Act 1991 - True complaint of Defendant is its disagreement with the valuation performed by the Valuer General - Any challenge to the validity and efficacy of the Valuer General's determination must not be allowed to drift into an attack on the merits of the impugned decision - Exercise of Court's discretion to grant leave sought - Prejudice to Plaintiff - Application by Plaintiff for summary judgment - Defendant does not dispute factual basis of relief sought by Plaintiff.
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979
CASES CITED:	AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR Gosford County Council v Cunningham (29 April 1997, unreported) Hoffman-La Roche v Trade Secretary [1975] AC 295 National Mutual Holdings Pty Ltd v Sentry Corporation Inc. (1989) 22 FCR 209 Ousley v The Queen (1997) 192 CLR 69
DECISION:	See paragraph 72.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 26 July 2002

5131/01 LEATH GLENBURN DAVEY -V- NORTH SYDNEY COUNCIL

JUDGMENT

1 MASTER: There are presently before the Court two notices of motion. The first was filed by the Defendant, North Sydney Council, on 3 December 2001. By that notice of motion the Defendant claims, substantively, an order that leave be granted to it to file a cross-claim in the form of the document said to be attached to that notice of motion. I shall, in due course, refer to the form of that proposed cross-claim. That application is opposed by the Plaintiff.

2 The second notice of motion was filed by the Plaintiff, Leath Glenburn Davey, on 13 March 2002. The relief sought in that notice of motion becomes of practical effect only in the light of the outcome of the Defendant’s application for leave to file a cross-claim. If that leave is granted, the Plaintiff seeks an order that the cross-claim be struck out in whole or in part, or alternatively, an order for particulars. (The Plaintiff no longer seeks the order for further discovery claimed in paragraph 1 (c) in her notice of motion.) If the leave sought by the Defendant not be granted, the Plaintiff seeks summary judgment in respect to the relief claimed in the summons.

3 The Plaintiff was formerly the registered proprietor of certain land situate at and known as 17 Belmont Avenue, Wollstonecraft. The Defendant compulsorily acquired part of that land. (I shall refer to the land so acquired as “the subject land”). The Defendant, however, is dissatisfied with the valuation of the subject land made by the State Valuation Office and, in consequence, with the compensation for the acquisition which has been determined by the Valuer General.

4 By her summons the Plaintiff seeks declaratory and other relief in respect to the amount of compensation to which she is entitled pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (to which I shall refer as “the Act”).

5 The Defendant has not placed before the Court any material challenging any of the factual matters upon which the relief sought by the Plaintiff in her summons is grounded. The Defendant, however, seeks the leave of the Court to file a cross-claim, naming as First Cross-Defendant the Valuer General for the State of New South Wales and naming as Second Cross-Defendant the present Plaintiff. That proposed cross-claim is in the form of a pleading. (It will be appreciated that the summons itself merely claims relief.) Moreover, it will be appreciated that the Valuer General is not presently a party to the proceedings. Thus the opposition to the leave sought by the Defendant is opposition only of the Plaintiff, she being the only other party to the proceedings as presently constituted.

6 The substantive relief sought by the Defendant in the proposed cross-claim is declaratory relief, by which the Defendant seeks to challenge the validity and efficacy of the determination of compensation made by the Valuer General on 15 March 2001 and the consequent obligations upon the Defendant pursuant to the provisions of the Act. The Defendant by the proposed cross-claim seeks no substantive relief against the Plaintiff, although she is named as the Second Cross-Defendant thereto.

7 It will be appreciated, and it should here be emphasised, that the Plaintiff finds herself caught in a dispute between two statutory entities, in which dispute she is the totally innocent victim, and in respect to which dispute and the outcome thereof she can have no control or influence whatsoever.

8 I have had the benefit of receiving from Counsel for the respective parties written outlines of submissions and supporting chronologies. Those documents will be retained in the Court file.

9 In proceeding to a consideration of the present applications, it is appropriate that I should set forth, at least in summary, the factual background to the proceedings and their procedural history.

10 The Defendant, within whose geographical area the subject land is located, resolved on 29 May 2000 to acquire the subject land. That communication was on 18 July 2000 communicated by the Defendant’s solicitors to the Plaintiff. A further letter was sent by the Defendant’s solicitors on 14 August 2000, which included a copy of the appropriate notice by which the Defendant would acquire the property.

11 In late 2000 and early 2001 communications passed between the solicitors for the respective parties, the Plaintiff’s solicitors requesting as a matter of urgency that the acquisition by the Defendant of the subject land should be concluded, since the Plaintiff had on 23 August 2000 entered into a contract for the sale of the balance of land owned by her, but excluding the subject land.

12 Ultimately, on 27 February 2001 the Plaintiff filed an application in the Land and Environment Court of New South Wales, seeking orders requiring the Defendant to acquire the subject land. Those proceedings were discontinued on 9 March 2001, consequent upon the gazettal on that day of the notice of acquisition.

13 The thirty day period from the publication of the acquisition notice (within which period the Defendant was required by section 42(1) of the Act to notify the Plaintiff of, inter alia, the Valuer General’s determination of the amount of compensation) expired on 8 April 2001. The Defendant did not comply with that statutory requirement. It was only on 15 May 2001 that that determination was provided by the Valuer General to the Defendant’s solicitors, although (as will later appear) the Defendant had since 12 January 2001 been aware of the amount of that determination.

14 Despite an inquiry in that regard by the Plaintiff’s solicitors on 10 August 2001, the Defendant’s solicitors did not notify the Plaintiff of the Valuer General’s determination. Indeed, the Plaintiff became aware of the amount of that determination only on 5 September 2001, as a result of a written request in that regard by the Plaintiff to the Valuer General and the notification by the Valuer General in response to that written request (in compliance with section 42(8) of the Act).

15 On 10 October 2001 the Plaintiff instituted fresh proceedings in the Land and Environment Court, seeking orders substantially identical to those sought in the present proceedings. However, on 22 October 2001 those proceedings in the Land and Environment Court were, by consent of the parties, discontinued. The Plaintiff instituted the present proceedings in the Supreme Court by summons filed on the same date.

16 The summons was returnable before the Registrar on 2 November 2001, upon which date it was by consent adjourned to 9 November 2001, when directions were made for the filing of affidavit evidence by the parties, and the proceedings were stood over to 7 December 2001.

17 Despite appearances before the Registrar by various legal representatives on behalf of the Defendant on 2 November and 9 November 2001, it was only on 26 November 2001 that the notice of appearance (which had been filed by the Defendant precisely one month earlier, on 26 October 2001) was served upon the Plaintiff.

18 The present application by the Defendant for leave to file a cross-claim was made by notice of motion filed by the Defendant on 3 December 2001.

19 I have already observed that the present application by the Defendant for the filing of a cross-claim is the result of the Defendant being dissatisfied with the determination by the Valuer General of the amount of compensation to be paid by the Defendant to the Plaintiff for the acquisition of the subject land.

20 Provision for such determination by the Valuer General where land is acquired by a public entity or instrumentality, such as the present Defendant, is made in accordance with the legislative scheme set forth in Part 3 of the Act. The purpose of that legislation was outlined in the Second Reading speech by the Honourable W.T.J. Murray, Deputy-Premier, Minister for Public Works, and Minister for Roads, when the Bill was originally introduced into the Legislative Assembly on 11 April 1991, and again when (in a new Parliament) it was re-introduced, in slightly amended form, on 2 July 1991.

21 After the legislation had been in force for the best part of two years, it was amended by the Land Acquisition (Just Terms Compensation) Amendment Act 1993. The object of that amending legislation was to enable a former owner to obtain, directly from the Valuer General, particulars for the amount of compensation determined by the Valuer General if the authority concerned fails to give the compensation notice to the former owner, as required by section 42 of the 1991 Act. The Second Reading speech in support of that amending legislation referred to a case where,

[A] council failed to offer compensation within 30 days of resumption because it did not agree with the Valuer General’s valuation. By failing to make an offer for compensation, the council was able to deliberately stall the whole process. Under the existing legislation a landowner is unable to proceed with the matter until an offer has been received. The legislation, however, imposes no sanction against a failure by the authority to comply with its requirements. The only recourse is for the affected landowner to take court action to compel the authority to abide by the Act. This action is considered unjust and contrary to the principles of the Act.

The intention of the Land Acquisition (Just Terms Compensation) Act is to ensure that a statutory timetable is followed to guarantee the speedy resolution of land resumption and the prompt payment of compensation to the landowner. The landowner should not be burdened with unnecessary legal costs and delays merely to enforce the statutory obligations of a government or local government authority. The proposed amendments will enable owners of resumed land to apply directly to the Valuer General to obtain a copy of his valuation when the government authority has failed to do so… This amendment will strengthen the rights of the private property-owner. Government agencies will no longer be able to frustrate a landowner by delaying the payment of compensation merely because they do not agree with the Valuer General’s independent assessment. The amendment will ensure that matters relating to compulsory land acquisition are dealt with in the shortest period with a minimal level of inconvenience imposed upon the landowner.

22 The situation in which the Plaintiff finds herself is precisely the situation from which the 1991 Act and the 1993 amendments thereto were designed to protect a landowner. The conduct of the present Defendant in failing for a period from 15 May 2001 (when it received the Valuer General’s determination) until 5 September 2001 (when the Plaintiff obtained notification of that determination directly from the Valuer General) is precisely the situation which the amending 1993 legislation was intended to prevent. The conduct of the Defendant in this regard is in blatant contravention of the provisions of the legislative scheme embodied in the Act and the 1993 amendment thereto.

23 It should be emphasised that that legislative scheme makes no provision for a challenge to the Valuer General’s determination at the instance of a governmental or local governmental entity. The only challenge which the legislation contemplates is a challenge by the landowner. It is abundantly clear from the Second Reading speeches from which I have quoted and to which I have referred that the landowner should be protected against conduct of the very nature of that which has here been perpetrated by the present Defendant against the present Plaintiff.

24 The Defendant is in contravention of the provisions of section 42(1) of the Act, which requires it, within the time limit specified in that subsection, to give to the Plaintiff written notice of, inter alia, “the amount of compensation offered (as determined by the Valuer General)”.

25 The fact that the Defendant did not and does not agree with the amount of that determination by the Valuer General is no justification whatsoever for the failure of the Defendant to comply with the foregoing legislative provision (indeed, for the deliberate disobedience of the Defendant in that regard).

26 I have already referred to the nature of the substantive relief sought by the Defendant in its notice of motion, being that leave be granted to it to file the proposed cross-claim. The reason why that leave is necessary is that, by Part 6 rule 12(1) of the Supreme Court Rules, subject to rule 13, a defendant to a summons may not cross-claim without leave. Rule 13(1) of that Part provides that a defendant to a summons may cross-claim against the plaintiff without leave. It follows, therefore, that where the proposed cross-defendant is not the plaintiff, the defendant requires the leave of the Court to make such a cross-claim.

27 Subrule (2) of rule 12 is in the following terms,

The defendant who seeks leave under subrule (1) shall, at as early a stage as is practicable, tell the Court the nature of the cross-claim.

28 In the instant case the Court (and, by the same token, the Plaintiff) was told the nature of the cross-claim only upon the filing by the Defendant of its notice of motion on 3 December 2001. (No point has been taken on behalf of the Plaintiff that the proposed cross-claim is not, as asserted in paragraph (1) of the notice of motion, attached to that notice of motion, but is, in fact, physically attached to the affidavit of Debra Jean Townsend sworn 30 November 2001, filed in support of that notice of motion.)

29 It has been submitted on behalf of the Plaintiff that the filing of the cross-claim by the Defendant must be effected within the time limited for entering the appearance of the Defendant (Part 6 rule 13(3)). However, it appears that that subrule relates only to a cross-claim by a defendant to a summons against the plaintiff, and that the time at which the nature of a cross-claim against an entity which is not the plaintiff in the proceedings must be made known is “at as early a stage as is practicable” (as required by rule 12(2) of that Part). The present proceedings were instituted when the Plaintiff filed her summons on 22 October 2001. The Defendant filed its appearance on 26 October 2001. Yet it did not inform the Court (or the Plaintiff) of the nature of the cross-claim until 3 December 2001, that is, almost six weeks after the filing of the appearance. I consider that that delay is relevant to a consideration firstly of whether the Defendant has complied with the requirement of the foregoing subrule, and secondly of whether (if there has been such compliance) the leave sought by the Defendant should, in any event, be granted.

30 The Defendant as early as 29 May 2000 resolved to request the Sate Valuation Office (“SVO”) to determine the amount of compensation payable for the subject land. On 25 September 2000 the Defendant’s solicitors requested the Plaintiff to agree that it was appropriate that a draft valuation be provided by the SVO to assist the Council. From at least 13 October the Defendant’s solicitors were in correspondence with the SVO concerning the obtaining of a valuation of the subject land. On 12 January 2001 the Defendant received from the SVO a draft valuation of the subject land, setting forth the amount of the proposed valuation and the basis upon which that amount was calculated. Correspondence between the Defendant (through its then solicitors) and the SVO continued until on 15 May 2001 the Valuer General provided his determination to the Defendant.

31 The Defendant was aware, from the institution by the Plaintiff of two separate sets of proceedings in the Land and Environment Court on 27 February 2001 and 10 October 2001 respectively, of the concern of the Plaintiff in relation to the compliance by the Defendant with the legislative scheme in respect to compulsory acquisition and to just compensation. Nevertheless, it was only on 3 December 2001 that the Defendant chose to attempt to challenge, by the application for leave to file a cross-claim in the present proceedings, the Valuer General’s determination of compensation.

32 If the Defendant thought that it had any legitimate ground for challenging that determination, or if it thought that there was any procedure available to it by which it could mount such a challenge, then the Defendant had almost seven months in which to make such a challenge before the Plaintiff, as a consequence of the contravention by the Defendant of section 42(1) of the Act, was forced into the position of instituting the present proceedings. Indeed, the Defendant had the best part of a year (since 12 January 2001, when it received the draft valuation from the SVO) in which to prepare for any proposed challenge. During that period the Defendant could have alerted both the Plaintiff and the Valuer General to the intention of the Defendant to make such a challenge, and the grounds upon which such a challenge was proposed to be mounted.

33 In considering whether or not the provision of the proposed cross-claim on 3 December 2001 can be regarded as having been made “at as early a stage as is practicable”, it seems to me that the Court must look to the factual background to the proceedings, and not merely to the period from the date of the service of the summons. There appears to be no reason why, if the Defendant was determined to force the Plaintiff into instituting proceedings against it, before attempting itself to challenge the Valuer General’s determination, the Defendant could not have had the proposed cross-claim available to be placed before the Court with a notice of motion considerably earlier than five and a half weeks after the filing of its appearance (and six weeks after the institution of the proceedings).

34 In any event, no attempt whatsoever has been made on behalf of the Defendant to explain even the delay of five weeks. The affidavit of the solicitor for the Defendant to which I have already made reference does not address itself to the requirement that the Defendant shall tell the Court the nature of the cross-claim “at as early a stage as is practicable”. In the circumstances of the instant case I am not persuaded that the Defendant has “at as early a stage as is practicable” told the Court the nature of the cross-claim. The Defendant, who is seeking the leave of the Court to file the proposed cross-claim, is obliged to comply with that requirement.

35 The conduct of the Defendant in failing to seek the present leave immediately upon the service upon it of the summons (in circumstances where for the best part of a year it was aware of the amount and the basis of the valuation proposed by the SVO and was in total disagreement with that amount), and in failing to address the necessity of establishing (since the burden of so establishing reposes upon it) that the present application has been made at as early a stage as is practicable, is consistent with the conduct of the Defendant throughout the entirety of this matter, from the time when it first resolved to resume the subject land, and is consistent with the conduct of the Defendant in flagrantly violating not only the legislative requirement of section 42(1) of the Act, but in attempting to subvert the legislative intention of the Act by preventing the Plaintiff from obtaining compensation until after the notice of the Valuer General’s determination had been obtained by her.

36 The foregoing failure of the Defendant to address any question of compliance by it with rule 12(2), let alone to persuade the Court of such compliance (such compliance being, as I have already observed, a necessary prerequisite to the exercise by the Court of the discretion to grant the leave sought by the Defendant) may be regarded as conclusive of the Defendant’s present application.

37 Nevertheless, it is appropriate that I should also proceed to a consideration of the grounds upon which the Defendant submits that, if (contrary to my foregoing conclusion) the discretion to grant leave be activated, that discretion should be exercised in favour of the granting of such leave, and the grounds upon which the Plaintiff opposes the granting of such leave.

38 The Defendant by the proposed cross-claim seeks to challenge the validity of the Valuer General’s determination of compensation payable by the Defendant to the Plaintiff. The relief sought in the cross-claim is as follows:

(1). A declaration that the purported determination of compensation payable by the Council to the Plaintiff made by the Valuer General on 15 May 2001 is invalid and of no effect.

(2). A declaration that the Valuer General has not made a determination within the meaning of section 47 of the Lands Acquisition (Just Terms Compensation) Act 1991 of the amount of compensation payable by the Council to the Plaintiff.

(3). A declaration that the Council is not obliged by section 42(1) of the Lands Acquisition (Just Terms Compensation) Act 1991 to forward the notice to the Plaintiff of the Plaintiff’s entitlement to compensation for the compulsory acquisition by the Council of Lot 101 in DP 102615 and the amount of compensation offered by the cross-claimant until the Valuer General has made a proper determination of the amount of compensation in accordance with the law.

39 I have already observed that the Act makes no provision for any challenge by an entity in the situation of the Defendant to the determination by the Valuer General of compensation. Indeed, as is manifest from the Second Reading speeches from which I have already set forth extracts, the legislation is intended to protect a landowner from the very conduct which the present Defendant is now perpetrating. Any complaints which the Defendant might have against the Valuer General’s determination are not complaints which can or should be visited upon the Plaintiff.

40 The Defendant in seeking leave to file the proposed cross-claim relies upon section 78 of the Supreme Court Act 1970. Subsection (1) of that section provides,

Subject to subsection (3), the Court may grant to the defendant in any proceedings (in this section called the first proceedings) all such relief against any person as the Court might grant against that person if the person were a defendant in separate proceedings commenced by the defendant for that purpose.

41 Subsection (3) of that section provides

The Court may not, under this section , grant against a person not a plaintiff in the first proceedings relief not relating to or connected with the subject of the first proceedings.

42 The Defendant submits that the relief sought against the Valuer General in the proposed cross-claim is relief “relating to or connected with” the subject of the Plaintiff’s claim against the Defendant in the summons. For the purposes of the consideration of the present submissions, I shall accept that the Court is not precluded by section 78(3) from granting the leave presently sought by the Defendant.

43 Essentially, the Defendant submits that if leave is not granted it will be necessary for the Defendant to commence separate proceedings, seeking judicial review of the Valuer General’s determination. Further, that it would be necessary for the Plaintiff, if she wished to be heard on the validity of that determination, to seek to be joined as a Defendant to those proceedings, and that additional costs would be incurred by both the present Plaintiff and the present Defendant.

44 I am conscious of the statutory admonition enshrined in section 63 of the Supreme Court Act, that “all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”. Nevertheless, it must be appreciated that the controversy in the instant case is not of the Plaintiff’s making. Indeed, there is no controversy between the Plaintiff and the proposed cross-defendant, the Valuer General. There is, as will later herein appear, no controversy of substance between the Plaintiff and the Defendant. The only matter in controversy is between the Defendant and the Valuer General, only one of those entities being presently a party to the proceedings.

45 There appears to me to be a significant distinction to be drawn between, on the one hand, the present situation where the Defendant is seeking the exercise in its favour of a judicial discretion to join an entity which is not presently a party to the litigation, and where there is no dispute between the Plaintiff and that proposed third party, and, on the other hand, the situation, which arose in the decision upon which the Defendant placed reliance, AMP Fire and General Insurance Company Limited v Dixon [1982] VR 833, where the Full Court of the Supreme Court of Victoria considered, on appeal, an order that there be separate trials of a plaintiff’s case against a defendant and the defendant’s claim against a third party.

46 The present Defendant also relied on the decision of Gummow J in the Federal Court of Australia in National Mutual Holdings Pty Limited v Sentry Corporation Inc. (1989) 22 FCR 209. His Honour’s decision in respect to the exercise of the discretion to file a cross-claim was consistent with the accepted approach that a court will not participate in an exercise in futility by granting leave to a party to file a pleading which, once filed, would be liable to be struck out in accordance with such well settled authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR per Barwick CJ at 128-130.

47 The Defendant submits that the claim asserted by it in the proposed cross-claim is not hopeless and arguably has substance. The Defendant submits, therefore, that it should not be deprived of the leave sought to file a cross-claim, upon the ground that, if filed, the cross-claim would be liable to be struck out as disclosing no cause of action.

48 The Plaintiff has placed before the Court submissions of substance concerning the proposed cross-claim. The Plaintiff submits firstly that the pleading does not disclose a cause of action against the Valuer General and thus that the proposed cross-defendant would be entitled to have the proceedings against him dismissed pursuant to Part 13 rule 5). Further, that the form of the pleading is such as would entitle the proposed cross-defendant to have the pleading struck out, upon the ground that it is embarrassing, or does not disclose a cause of action (pursuant to Part 15 rule 26).

49 I am in agreement with the Plaintiff that a challenge to the validity of the determination upon the various grounds asserted by the Defendant in the cross-claim, in the words of the Court of Appeal in Gosford County Council v Cunningham (29 April 1997, unreported) “must not be allowed to drift into an attack on the merits of the impugned decision”. The form of the pleading, especially the various allegations and assertions contained therein seems to me very largely to have drifted into an attack on the merits of the impugned decision. The form of the pleading is certainly on that account (at least) open to the charge of being embarrassing.

50 Of far greater significance, however, in my view, is the question whether, in the light of the legislative scheme set forth in Part 3 of the Act (and in the light of the purpose and objects of that scheme as expressed in the Second Reading speeches in respect to the legislation as originally introduced in 1991, and the amending legislation in 1993), any challenge is available in any Court to the body required to pay compensation. There also appears to me to be considerable substance in the submission on the part of the Plaintiff that, to the extent that a review of the merits of the determination may be conducted, any issue as to the proper amount of compensation to be awarded (which is the real ground upon which the Defendant seeks to challenge the determination) is excluded from the jurisdiction of the Supreme Court by section 24 of the Land and Environment Court Act 1979, section 24.

51 Nevertheless, were I otherwise satisfied that the Defendant had established that the Court in the exercise of its discretion should grant the leave sought by it to file the cross-claim, I would not be disposed, on account of the nature of the cause of action asserted therein, to refuse that leave. I have considerable doubt, however, whether, in any event, leave should be granted to the filing of a cross-claim in the form of the proposed pleading (which in its present form appears to me to be embarrassing, even if it does disclose a cause of action).

52 The Plaintiff, however, submits that it is relevant to the exercise of the Court’s discretion in regard to the granting of the leave that the Defendant in making the application comes before the Court with “unclean hands”.

53 I am in entire agreement with the submission of the Plaintiff in this regard.

54 Whilst it is the assertion of the Defendant that the Valuer General’s determination is invalid, nevertheless the legality and efficacy of that determination is presumed until set aside by appropriate proceedings. (See, for example, Ousley v The Queen (1997) 192 CLR 69 at 130-131 per Gummow J; Hoffman-La Roche v Trade Secretary [1975] AC 295 at 65; see, also, Campbell, “Inferior and Superior Courts and Courts of Record”, Journal of Judicial Administration, Volume 6 (1997) 249 at 258; Aronson and Dyer, Judicial Review of Administrative Action (1996), 653.)

55 In the instant case the Defendant has deliberately chosen to contravene the express provisions of section 42 of the Act (and in doing so has acted in the very manner which the amending legislation of 1993 was enacted to prevent).

56 Although for a period of almost seven months from 15 May 2001 it was aware of the Valuer General’s determination and although for a period of almost a year from when it became aware of the amount and basis of the SVO’s proposed valuation, the Defendant has done nothing in a legal sense to challenge that determination until some five weeks after the Plaintiff instituted the present proceedings. The entire conduct of the Defendant since it decided to effect the compulsory acquisition of the Plaintiff’s land has consistently been an attempt to subvert the legislative intentions of the Parliament of New South Wales.

57 I consider the conduct of the Defendant in this regard, and its failure to institute any substantive proceedings in an attempt to challenge the Valuer General’s determination before the Defendant became liable, under the legislative timetable, to pay the compensation to the Plaintiff, let alone before it was necessary for the Plaintiff herself to institute the present proceedings to enforce her entitlement to that compensation, as being an extremely relevant consideration to the exercise of the Court’s discretion to grant the leave sought by the Defendant.

58 The Plaintiff has already suffered very considerable prejudice in not receiving payment of the compensation which the legislation has entitled her to receive, for a period of more than a year since she became thus entitled. The Defendant meanwhile has had title to the subject land since March 2001. That prejudice to the Plaintiff is a further element relevant to the exercise of the Court’s discretion.

59 I summarise as follows my foregoing conclusions.

60 The Defendant has not satisfied the requirement of Part 6 rule 12(2) that it shall “at as early a stage as is practicable, tell the Court the nature of the cross-claim”. Compliance with that requirement is a prerequisite to the exercise by the Court of its discretion to grant to the Defendant the leave to file the proposed cross-claim, pursuant to rule 12(1).

61 The Defendant is in flagrant and deliberate default of the legislative requirements contained in section 42 of the Land Acquisition (Just Terms Compensation) Act.

62 The relief sought in the proposed cross-claim is relief in respect to the validity of the Valuer General’s determination of compensation. That is a matter in respect to which and the outcome thereof the Plaintiff can have no control or influence. The Plaintiff finds herself caught in a dispute between two statutory entities, in which she is the totally innocent victim.

63 The present application for leave is made at a time, after a delay, and in such circumstances as would, if granted, cause considerable prejudice to the Plaintiff.

64 The dispute asserted in the proposed cross-claim is a dispute as to the validity of the Valuer General’s determination. It should not be allowed to drift into some form of hearing as to the merits of the original determination, let alone as to the appropriate amount of compensation to be paid by the Defendant to the Plaintiff.

65 If the cross-claim be allowed to be filed in the present proceedings, those proceedings would continue as a dispute between the Defendant and the Valuer General, in which the Plaintiff, as a matter of practicality, would have little, if any, participation.

66 For the foregoing reasons, I am not persuaded that, in the exercise of the Court’s discretion, the leave sought by the Defendant to file a cross-claim against the Valuer General should be granted. Accordingly, I propose to dismiss the notice of motion filed by the Defendant on 3 December 2001.

67 In consequence, it becomes necessary to proceed to a consideration of the Plaintiff’s notice of motion filed on 13 March 2002.

68 By paragraph 2 in that notice of motion the Plaintiff seeks summary judgment in accordance with the claim made by her in the summons. That relief is sought by the Plaintiff pursuant to the provisions of Part 13 rule 2 of the Supreme Court Rules.

69 I have already recorded that the Defendant has not placed before the Court any material challenging any of the factual bases upon which the relief in the summons is sought by the Plaintiff. I am satisfied from the affidavits filed on behalf of the Plaintiff both in support of the summons and in support of the notice of motion filed on 13 March 2002 that there is evidence of the facts on which the claim is based (as required by paragraph (a) of Part 13 rule 2(1), and I am satisfied that the affidavit of Justin Lindsay Doyle, solicitor, sworn 15 April 2002 provides in paragraph 3 (and also paragraph 4) compliance with the requirement of paragraph (b) of that subrule.

70 Consistently with her legislative rights under section 42 of the Act – which the Defendant has flagrantly sought to disobey and subvert – the Plaintiff is entitled to summary judgment for relief of the nature claimed by her in the summons.

71 I consider that the Plaintiff has established an entitlement to the relief sought in prayers 1 to 8 in the summons. It is possible that the Plaintiff may also be entitled to damages (although I have received no express submissions concerning such relief). I shall reserve to the Plaintiff liberty to apply in that regard. The Plaintiff is also entitled to her costs of each notice of motion and of the proceedings.

72 I make the following orders,

(1). I order that the notice of motion filed by the Defendant on 3 December 2001 be dismissed.

(2). I order that there be judgment for the Plaintiff in the terms of the relief sought in prayers 1 to 8 in the summons.

(3). I order that liberty be reserved to the Plaintiff to apply for summary judgment for damages against the Defendant.

(4). I order that the Defendant pay the costs of the Plaintiff of the notice of motion filed by the Defendant on 3 December 2001 and of the notice of motion filed by the Plaintiff on 13 March 2002 and of the proceedings.

(5). The exhibits may be returned.

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Last Modified: 11/22/2002