Devir v Western Australian Planning Commission
[2000] WASC 282
•22 NOVEMBER 2000
DEVIR & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASC 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 282 | |
| Case No: | CIV:1400/1999 | 12 OCTOBER 2000 | |
| Coram: | MASTER BREDMEYER | 22/11/00 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | STEPHEN DEVIR MARCIA FRAGIADAKIS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Pleading Application to strike out statement of claim Rezoning of rural land to parks and gardens Plaintiffs injuriously affected Claim for misleading and deceptive conduct by defendant |
Legislation: | Fair Trading Act 1987 (WA), s 9, s 10, s 12, s 13, s 18, s 123 Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 36(2)(a), 2(b), (2b) Town Planning and Development Act 1928 (WA), s 11, s 12 Trade Practices Act 1975 (Cth), s 51A, s 51AA, s 51AB, s 52A, s 52, |
Case References: | Devir & Anor v Western Australian Planning Commission [1999] WASC 130 Devir & Anor v Western Australian Planning Commission [2000] WASC 43 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Alec Finlayson Pty Limited v Armidale City Council (1994) 51 FCR 378 Bird-Pearce; Ex parte Somerset City Council (1979) 77 LGR 753 Folkestone v Metropolitan Region Planning Authority [1968] WAR 164 Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302 Geita-Sebea & Ors v The Territory of Papua (1941) 67 CLR 544 Gregory v Federal Commissioner of Taxation (1971) 123 CLR 565 H R Moch Co Inv v Rensellaer Water Co (1928) 159 NE 896 Henderson v Armadio Pty Ltd & Ors (No 1) (1995) 62 FCR 1 Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VR 733 Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332 Shire of Sutherland v Heyman & Anor [1985] 157 CLR 424 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MARCIA FRAGIADAKIS
Plaintiffs
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Defendant
Catchwords:
Pleading - Application to strike out statement of claim - Rezoning of rural land to parks and gardens - Plaintiffs injuriously affected - Claim for misleading and deceptive conduct by defendant
Legislation:
Fair Trading Act 1987 (WA), s 9, s 10, s 12, s 13, s 18, s 123
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 36(2)(a), 2(b), (2b)
Town Planning and Development Act 1928 (WA), s 11, s 12
Trade Practices Act 1975 (Cth), s 51A, s 51AA, s 51AB, s 52A, s 52,
(Page 2)
Result:
Application allowed
Representation:
Counsel:
Plaintiffs : In person
Defendant : Mr R J Andretich
Solicitors:
Plaintiffs : In person
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Devir & Anor v Western Australian Planning Commission [1999] WASC 130
Devir & Anor v Western Australian Planning Commission [2000] WASC 43
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Case(s) also cited:
Alec Finlayson Pty Limited v Armidale City Council (1994) 51 FCR 378
Bird-Pearce; Ex parte Somerset City Council (1979) 77 LGR 753
Folkestone v Metropolitan Region Planning Authority [1968] WAR 164
Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302
Geita-Sebea & Ors v The Territory of Papua (1941) 67 CLR 544
Gregory v Federal Commissioner of Taxation (1971) 123 CLR 565
H R Moch Co Inv v Rensellaer Water Co (1928) 159 NE 896
Henderson v Armadio Pty Ltd & Ors (No 1) (1995) 62 FCR 1
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VR 733
Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332
Shire of Sutherland v Heyman & Anor [1985] 157 CLR 424
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendant dated 12 May 1999 to strike out parts of the plaintiffs' statement of claim. The application initially came on for hearing before me in July 1999 in relation to the original statement of claim of seven pages attached to the writ of summons. That resulted in a published judgment: Devir & Anor v Western Australian Planning Commission [1999] WASC 130. I ordered that par 30 of that statement of claim, relating to unconscionable conduct under s 51AA of the Trade Practices Act 1975 (Cth) and prayer for relief three - which sought remedies under the Trade Practices Act - be struck out. I gave the plaintiffs leave to file a minute of amended statement of claim within 28 days.
2 A minute of amended statement of claim dated 19 July 2000 has now been filed. An explanation has been given in affidavit as to its lateness and I do not propose to reject it on that account. Since my earlier hearing the parties attended a mediation conference before a Mediation Registrar in September 1999, which failed. Also, the plaintiffs applied to the court for an order nisi for writ of certiorari directing the Minister for Planning to remove into the court and quash his approval of an amendment to the Metropolitan Region Scheme. They also sought a stay of consent orders made at the mediation on 17 September 1999. Those applications were heard together by Heenan J and were dismissed for reasons published on 25 February 2000: Devir & Anor v Western Australian Planning Commission [2000] WASC 43. I do not consider that the plaintiffs are seeking to re-open matters decided by Heenan J.
3 The status of the present application is that the plaintiffs are seeking leave to have the minute of amended statement of claim of 19 July 2000 ("the minute") accepted as the statement of claim in this action.
4 The plaintiffs purchased a 4 hectare (10 acre) property known as Lot 1, Old Northam Road, Chidlow, and became the registered proprietors of that land on 12 March 1996. At the date of purchase the land was zoned for rural use. The land was vacant and they purchased it for $76,000. On 16 April 1996 the defendant resolved to proceed under s 33 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) with Metropolitan Region Scheme Amendment 978/33 which had the effect of rezoning the land for public purposes only, being a parks and recreation reserve as part of the Darling Range Regional Park. The plaintiffs did not receive any written notice of the proposed rezoning, but early in June one of their neighbours told them about it. On 24 June they made a submission objecting to the proposal. Other submissions were also received objecting to the proposal. A total of 240 submissions were
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- received by the defendant. On 14 November 1996 the proposed amendment became effective as an amendment to the Metropolitan Region Scheme. The coming into effect of this amendment was published on 22 November 1996. The effect of the amendment was to prevent the plaintiffs from developing the land in any way. They had proposed to build a home on the land and use the land to operate a commercial worm farm.
5 Section 11 of the Town Planning and Development Act 1928 (WA) ("the T P Act"), provides that any person whose land or property is injuriously affected by the making of a town planning scheme can apply for compensation. By a combination of s 11 and s 12 of that Act and s 36(2) of the Metropolitan T P Act the Town Planning Commission ("the Commission") may, at its option, elect to acquire the land so affected instead of paying compensation. If it does that, and the parties cannot agree on the price, then the value of the land can be determined in a number of ways, one of which is by the Supreme Court.
6 In July 1996 the defendant offered to purchase the land from the plaintiffs and requested the plaintiffs to advise the amount they would be willing to accept. Various offers then flowed between the defendant and the plaintiffs and counter offers were made but the parties were unable to reach agreement on a figure. On 2 September 1997 the defendant elected to purchase the land under to s 36(2)(b) of the Metropolitan T P Act instead of paying compensation for injurious affection under s 11 of the T P Act. The various offers and counter offers continued and discussions continued between the parties, until the present time. It is somewhat surprising that the parties have not been able to agree on a figure or have the court decide a fair figure. The plaintiffs consider they have a number of claims at common claim, equity and under the Fair Trading Act 1987 (WA) and Trade Practices Act 1975 (Cth) which would give more compensation apart from their statutory claim for compensation under s 36(2b) of the Metropolitan T P Act.
7 The defendant concedes that the plaintiffs have a cause of action for the value of the land to be fixed by the Supreme Court under s 36(2b) of the Metropolitan T P Act. The defendant, however, contends that the plaintiffs do not have any other causes of action. Under O 20 r 19, an amendment to a pleading should not be allowed if it discloses no reasonable cause of action or is scandalous, frivolous, vexatious, or may prejudice, embarrass or delay the fair trial of the action or is otherwise an abuse of the process of the court. A cause of action is a lawyer's tag for a set of facts which will produce a remedy from the court. A cause of
(Page 5)
- action is not the same as a grievance. Not every grievance or series of grievances amounts to a cause of action. The courts have defined "no reasonable cause of action" by a number of alternative phrases eg: "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument", "discloses a case which the court is satisfied cannot succeed": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. At the same time, a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.
8 There are numerous causes of action pleaded in the minute which is 100 pages long. At the outset I mention that there is a close relationship between the defendant, the Western Australian Planning Commission, and the Ministry of Planning and in my discussion the two can be regarded as synonymous. I also mention that the pleading refers to the Valuation of Land Act 1978 (WA) as VOLA I propose to summarise the more important facts asserted in the minute and I will later discuss the causes of action said to arise from those facts.
9 In par 10 it is pleaded that the plaintiffs received on 7 July 1996 a letter from the Ministry for Planning signed by Mr T Hillyard. (I have seen the letter which is dated 5 July 1996.) The letter contained the following statements:
"I refer to your submission regarding the above property ... .
... [Y]our submission has been interpreted as a request to purchase the property now rather than later. To this end valuations have been requested from two valuation companies who will contact you soon to gain access to the property.
In the meantime would you please advise the amount you would be willing to accept for the transfer of the property to the Commission. It is understood that you will be requesting payment of certain costs associated with your purchase of the land and these will be identified and be considered along with the request to purchase."
10 Paragraph 10(a) of the minute pleads 10 implied representations arising out of that letter.
(Page 6)
11 In pars 11 and 12 it is said that on 9 July 1996 the plaintiffs and Thomas (who is a neighbour), met with Pedersen and Lecht of the Ministry at the office of June Van De Klashorst (MLA for Swan Hills) to discuss the planned proposal. During the course of those discussions Pedersen, on behalf of the Ministry, said to the plaintiffs:
"i) The Ministry was aware of the failure to properly notify the plaintiffs of the planned proposal.
ii) The Ministry had no sent notification of the planned proposal to the plaintiffs.
iii) In all likelihood this was because the transfer of title was not complete either when the mailing lists for notifications were prepared or when the notifications were posted to the land owners.
iv) The Ministry recognised the imposition of the Scheme and wanted to complete the purchase as quickly as possible.
v) These cases were 'one in a million chances' and ways and means to close the legislation were being investigated.
vi) The defendants were willing to purchase the properties at Lot 1 and 2 prior to enactment of Metropolitan Region Scheme Amendment 978/33 [I add here that Mr Thomas was the owner of Lot 2].
vii) The properties at Lots 1 and 2 were considered to be of such significance that their deletion from the planned proposal was unlikely.
viii) The Ministry would not restrict development until the enactment of the planned proposal.
ix) They were unable to advise whether capital gains might apply to the sale at the Valuer General's figure of $89,000." (I should add that the plaintiffs had discovered that this was the Valuer General's valuation of the land.)
12 In par 12a the following implied representations or statements are said to flow from those statements of Pedersen:
(Page 7)
- "i) The onus was on the Ministry to purchase the property immediately the Commission was aware of its value.
ii) The Ministry and the Commission were aware of the unfortunate circumstance and the foreseeable hardship and in recognition of same would act speedily to settlement.
iii) The Ministry would act expeditiously in recognition of the problems created by the failures to notify the plaintiffs in writing of the proposal.
iv) The authority to act was within the statute at Part V s 37 of the Metropolitan T P Act."
13 In par 15 it is pleaded that the statements made in par 10, ie in the letter of 5 July 1996 were false, because:
"i) The planned proposal was not fait accompli - opportunity existed for a amendments to the planned proposal.
ii) It was not understood that the plaintiffs' concerns were founded in past, immediate and foreseeable future costs of money and losses as to time.
iii) The requisite action 'now' was referenced to purchase and was outside the defendant's capability and intent.
iv) The valuations requested and received by the defendant were affected by the planned proposal and were so not for the highest and best use.
v) The valuations were to be assessments and the value of the property was already known to the defendant."
14 It is pleaded in par 17 that the statements impliedly made by Pedersen at the meeting held on 9 July 1996 were also false, in that:
"i) The defendant never believed or never had reasonable grounds to believe that the statements were in fact accurate or likely to be accurate.
ii) The defendant had not made any adequate enquiries to establish the statements were reliable and well informed.
(Page 8)
- iii) The defendant did not know of any facts or sufficient facts which would justify the making of the statements.
iv) The defendant did not have sufficient experience and expertise in giving advice with respect to the Metropolitan T P Act or Valuation of Lands Act (VOLA) so as to be able to give informed and reliable advice to the plaintiffs.
v) The defendant by its servants or agents made the statements without all due skill and care by failing:
(a) to have any or any proper regard to the true position as pleaded in para 16 above; and
(b) to advise the plaintiffs of the matters pleaded in 18, 18a and 18b below."
"i) That the Commission was in possession of knowledge of the declared value of the property as a statutory requirement of the defendant or its agents with respect to Part VII and in particular s 41 of the Metropolitan T P Act.
ii) That the Executive Finance and Planning Committee (EFP) were to include commission budgetary/financial considerations in the negotiations to settlement and not to consider payment of compensation as required by the policy guidelines particularised below at para 18b (i), (ii), (iii).
iii) That the operations of the Ministry, the Commission and the EFP were further regulated by internal policy and practice guidelines which are particularised later.
iv) That the valuations requested would have regard to statutes of the VOLA, s 36(2b) of the Metropolitan T P Act, s 13 of the T P Act and the Land Acquisition and Public Works Act (LAPWA) and accordingly the
(Page 9)
- defendant had confidence in the methodology and accuracy of the valuations and would be bound by them.
- v) That the Commission would not exercise its interest in the property until settlement."
16 In par 18b the plaintiffs refer to 11 policy guidelines prepared by the Commission. Mr Devir told me that these policy guidelines were given to him by Mr Simon Holthouse, the Chairman of the Commission, at one of their meetings. The guidelines given to the plaintiffs were as follows:
"Policy Guideline 101 - Purchase of Vacant Reserved Land
Policy Guideline 102 - Reference to Arbitration
- Policy Guideline 103 - Claims for Compensation for Injurious Affection Arising from Development Refusal or with Approval Subject to Conditions Unacceptable to the Applicant
- Policy Guideline 104 - Use of Section 36 of the MRTPSA
Policy Guideline 105 - Rent Free Occupation of Property Acquired
Policy Guideline 106 - Five Percent Negotiating Margin
Policy Guideline 122 - Quantum of Offer Where Vendor has not Sought Professional Advice
- Policy Guideline 123 - Third Valuation Opinion
Policy Guideline 124 - Valuer's to Meet
"(a) The defendant in disregarding the promise and constructive knowledge of acceptable counter offer for value proceeded to assume to reserve the property;
(b) having accepted the promise the plaintiffs were induced to make less of their objections to the proposed plan of the submission hearings;
(Page 10)
- (c) the defendant took an opportunity to give inadequate consideration of same and misrepresented the facts to the Minister to obfuscate their negligent failures pursuant to s 33(2c) of the Metropolitan Town Planning Act to promote the amendment 33/978 to promulgation;
(d) the defendant in assuming to have affected the proposed plan 'pursuant to s 33 of the Metropolitan T P Act, utilised as supportive argument the formation of the reserved Darling Range Regional Park when promoting the Regional Forest Agreement;
(e) the plaintiffs might have disregarded the 'in principle agreement', rescinded the contract and continue with plans to develop the property along intended lines."
18 In par 19 it is pleaded that in breach of the duty of care referred to in par 18, above, the defendant, through its agents or servants, failed to advise the plaintiffs of any of the matters referred to in pars 18, 18a, 18b or 18c, above, and by reason thereof the applicant suffered loss and damage, full particulars of which will be provided before trial.
19 On or about 23 August 1996 the Shire of Mundaring issued the plaintiffs with an annual rate notice showing the unimproved value of the property as $89,000. The notice is annexed to the pleading and it is dated 12 August 1996.
20 On 26 August 1996 the plaintiffs received an offer from the Commission to purchase the land for $80,000 (par 23). The letter of offer is annexed to an affidavit and is dated 21 August. The letter contains this statement:
"Please note that as the property is not being resumed, but is being purchased by negotiation under the provisions of the Metropolitan T P Act consideration and payment of a solatium is not applicable."
21 Paragraph 23a pleads five implied statements arising out of that letter. Three of the implied statements were: (1) that the Commission had received valuation assessment from valuers pursuant to VOLA, Metropolitan T P Act and the T P Act (the relevant Acts); (2) that the valuation assessments were based on valuations of rural land, taking into consideration the highest and best use of the land; and (3) that the purchase offer was negotiable.
(Page 11)
22 In par 25 it is pleaded that the implied statements mentioned were false in that:
"i) The valuations were not done with regard to those things which, but for the making of the planned proposal would have been done;
ii) the valuations were not in accordance with rural land valuation practices - they were not for highest and best use."
23 In par 25a it is pleaded that the implied representations were false and five particulars of that are given, one of which was that the defendant never believed or never had reasonable grounds to believe that the statements it made were accurate or likely to be accurate. Another is that the defendant, by its servants and agents, did not have sufficient experience and expertise in giving informed and reliable advice to the plaintiffs. The defendant, it is said, made those statements without due skill and care and without having any proper regard to the true position as pleaded in par 25.
24 At par 33 it is pleaded that on 9 September 1996 the plaintiffs refused the Commission's offer of $80,000. They invited total settlement by a counter offer in the vicinity of $200,000.
25 Mr Devir told me in oral argument that in August 1996 the neighbours, Paul and Roslyn Thomas, owners of Lot 2 Old Northam Road, which was the same size as the owners' Lot 1, were also offered $80,000 for their land. They refused. They were then offered $80,000 for the land plus $5,000 in associated costs in September or October 1996 which they accepted.
26 On 23 September 1996 the defendant sent a letter acknowledging receipt of the plaintiffs' offer and countered with an offer of $85,000 made up of $80,000 realty and $5,000 associated costs. The letter stated that: "The Commission is not liable for payment of any compensation other than the current market value."
27 The plaintiffs plead in par 35 that that offer from the defendant contained five implied representations and, in par 36, that those representations were false. It also pleaded in par 38 that in making that statement the defendant breached its duty of care to advise the plaintiff of five matters, one of which was:
(Page 12)
- "That the Commission was in possession of knowledge of the declared value of the property as a statutory requirement of the defendant or its agents, with respect to statute of Metropolitan T P Act Part VII, ss. 38 and 41."
28 In par 48 the plaintiffs say that they advised the Ministry in late October 1996 that they refused the Ministry's offer. The plaintiffs said that they refuted the valuer's assessments.
29 On 7 November 1996 Mr Devir, on behalf of the plaintiffs, wrote to the Minister for Planning (the Hon K R Lewis), regarding the concerns of the plaintiffs in respect of the Commission resiling from its promise of 5 July. On 25 November 1996 the Ministry replied that it was willing to continue negotiations to purchase and advised that the amendment to the scheme was effective on and from 14 November. The Commission also advised that the valuations carried out by the two valuers were of its highest and best use at current market value. It was said that the reports were requested and paid for by the Commission. The Commission said that the plaintiffs had been offered $5,000 for associated costs on top of the purchase price of $80,000
" ... in recognition of the circumstances in which you find yourselves.
The associated costs have been offered for reimbursement of your purchasing costs when you purchased the above property. They are not intended as ongoing expenditure by the Commission."
- The letter also stated:
"The amount you paid for the property while not being the basis for the figure offered by the Commission, does have relevance in that it is a recent sales evidence in the area and must be included in the valuer's advice."
31 In par 50 it is stated that the plaintiffs received a letter from the Commission dated 22 November 1996 advising that the modified amendment and the Commission's report on submissions were tabled
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- before both Houses of Parliament as is required by statute. During that time no notice of motion to disallow the amendment was carried and therefore the amendment to the Metropolitan Region Scheme became effective on and from 14 November 1996. A notice to that effect was published in the Government Gazette on 22 November 1996 and this now concludes the amendment procedure and the zones and reservations will appear in the Metropolitan Regional Scheme.
32 On 27 November 1996 the plaintiffs received a land tax assessment for the land of $297.40 based on an unimproved value of $89,000. The annexed brochure shows that the valuation was fixed by the Valuer General as at 30 June 1996.
33 In early December 1996 the plaintiffs received a reply from the Minister for Planning . The letter itself is dated 30 November 1996. The letter stated:
"[Thankyou for your letter of] 7 November 1996 regarding the current negotiations with the Commission to purchase your property which is reserved for parks and recreation ...
The amendment was effective on and from 14 November 1996 with the notice being gazetted on Friday 22 November 1996.
I am aware that the offer made by the Commission to purchase your property followed advice from two independent valuers based on current market values. The Ministry has advised me that the issues raised in your letter of 19 October 1996 are being considered and you will be advised shortly.
The Ministry has suggested that you might prefer to have the matter of purchase price determined by means of arbitration. May I suggest [you contact the Commission and advise them if you are in agreement with this process].
... "
34 In par 54a four implied statements are pleaded arising out of the Minister's letter. In par 55, five implied representations are pleaded arising out of that letter and other matters. In par 56 it is pleaded that the implied statements were false and 28 particulars of that are given. I will cite a few of them as examples:
(Page 14)
- "i) The Commission were not negotiating in that they had twice offered the same price and not moved in the bargaining;
ii) the Parliament are unable to legislate that which was not statutory fact;
iii) the amendment and a particular proposal M4 were not statutory fact;
iv) the valuations were not done in accordance with statutory requirements required by s 36(2b);
v) no comparable sales evidence was available without taking into account lots 1 and 2 and the respective mitigating circumstance;
vi) the basis for valuation is statutory under s 36(2b) and VOLA;
vii) the applicants referred to a singular property of equal size. [This might be a reference to Mr Thomas' property.];
viii) the area of the property and the scarcity were of issue to its value as was returning to the position enjoyed prior to discovery of the planned proposal;
...
xii) $5,000 associated costs cannot be both as recognition of circumstance and ex gratia reimbursement;
xiii) the associated costs as reimbursement of purchasing costs would have to cover interest paid on mortgage until settlement and is ongoing;
...
xvi) the evidence of the sales is only evidence if the mitigating circumstances are accounted for;
xvii) no other comparative sales evidence was contained in the Valuer's advice of 1996 with regards lots 1 and 2;
(Page 15)
- xviii) the evidence for the purchase of lot 2 is the total offer not the registered purchase price."
35 Further paragraphs plead the falsity of the implied representations and the substantial advantage to the defendant in entering into purchase and compensation negotiations under their guidelines. This part of the plea is summed up in 61, which states that in breach of the duty of care pleaded in par 60 the defendant, through its servants and agents, failed to advise the plaintiffs of any of the matters referred to in pars 60, 60a, 60b or 60c, above, and by reason thereof the plaintiffs suffered loss and damage, full particulars of which will be provided before trial.
36 In par 62 it is pleaded that the plaintiffs submitted a development application to the Mundaring Shire on 3 January 1997. The application was to move and clear the building envelope site and to prepare for a soil assay. The Shire referred the letter to the Commission. Permission was refused, as the land is reserved for parks etc.
37 In a letter dated 22 February 1997 the Commission invited the plaintiffs to claim compensation under s 36(3) of the Metropolitan T P Act. A form for compensation was enclosed and had to be lodged within six months. The form, Form 4, was headed "Claim for Compensation for Injurious Affection".
38 On 15 August 1997 the plaintiffs delivered the claim form to the Commission. They claimed $140,000 realty and $30,060 compensation.
39 On 12 August 1997 Mr Devir, on behalf of the plaintiffs, spoke with the Hon Graham Kierath, Minister for Planning, by telephone on talkback radio.
40 On 8 September 1997 the Commission advised that it had resolved to elect to purchase the whole of the property in lieu of paying compensation. The date of the election to purchase was 2 September 1997. The letter said that the Ministry had arranged for licensed valuers to inspect the property and provide market valuations. The letter advised that the Ministry was currently obtaining up-dated valuations, following which an offer would be put to the plaintiffs.
41 In par 73a, the plaintiffs plead 15 implied statements said to arise out of that letter, which are falsified in par 76a.
42 To go back a little, on 20 August 1997, Mr Devir, on behalf of the plaintiffs, wrote to the Minister for Planning and reminded him of the
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- conversation on talk-back radio and invited him to make good his offer to take an interest in the matter between the Commission and the plaintiffs. In mid September 1997 the Minister replied. The letter stated, inter alia:
"Further the Ministry ... suggested ... the value be resolved by arbitration ... This was further suggested ... on 30 November 1996. However, I am advised that you have never responded to the offer of arbitration as a means of concluding negotiations.
It is impossible for the Ministry and the Commission to progress or conclude negotiations with you for the purchase of your property if you choose not to respond to the proposals put to you.
Accordingly, I consider that no claim exists against the Ministry or the Commission in respect of s 12A of the Town Planning Act and that your claims of deliberate delays and improper negotiation methods by the Ministry and Commission in relation to the purchase of your property are unfounded."
44 At par 81 it is stated that the plaintiffs received correspondence from the Commission on 8 October 1997 offering or re-offering $80,000. Mr Devir, for the plaintiffs, phoned the Commission and a meeting to thrash out a compromise was arranged on 11 December 1997.
45 In par 82a it is pleaded that Mr Devir wrote to His Excellency the Governor, asking that he might intercede under s 80 of the Land Acquisition and Public Works Act 1902 (WA) and consider trading a similar parcel of Crown land to the plaintiffs to help resolve the matter and alleviate some of the hardships created.
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46 At the meeting held on 11 December 1997 Mr Hillyard, on behalf of the Commission, made a number of statements to the plaintiffs. I quote from part of those statements:
"Your property was legally reserved in the Metropolitan Region Scheme whether you liked it or not. It went through the process and is now reserved. As a result of that reservation the Commission does have a statutory obligation to consider your position at any stage ... At the time you owned the block it was a vacant site and at that stage you could have approached the Commission to say 'You know, you've reserved my property and I can't now do what I wanted to do with it any more. So therefore I'd like you to purchase my property or compensate me - whatever.'
Now the Act specifically requires the Commission to do that in one of two major ways. One is that you wish as a result of the reservation - you can't do what you want to do - you now want to sell the property and as a result of the reservation it has been devalued and therefore there is a process where you can be paid compensation. You sell at a lesser price, it doesn't have to be to the Commission, to anyone. That's one method.
The other is you lodge a development application to do what you would otherwise be able to do on the property. It gets refused and therefore you can lodge a claim for compensation. That's what you've done.
The Commission in response to the claim has two options. One is that it elects to pay you an amount of injurious affection or compensate in another word; or it elects to purchase the property, that's its statutory opportunity.
Its [sic] taken the second of those, which is to elect to purchase. Having made that election the Commission processes - practices and procedure - is to go and get some valuations, it then resolves to make you an offer. That's where we're at. ... Our position is that we pay fair market value for the property."
47 In par 83a some 13 implied statements are pleaded arising out of that conversation. In par 85 it is pleaded that the express statements made by Mr Hillyard were false and 11 particulars of that are given. In par 86 it is pleaded that the implied representations were false and five particulars of that are given. At par 87 it is pleaded that the defendant was under a duty
(Page 18)
- of care at common law to advise the plaintiffs that the Commission was in possession of knowledge of the declared value of the property. As stated in par 59, on 16 December 1997 the plaintiffs sent letters to Mr Hillyard of the Ministry requesting the Commission to pay for the plaintiffs to have the property valued, as was agreed at the meeting on 11 December 1997.
48 On 19 December 1997 the plaintiffs received a letter from Mr Hillyard, for the Commission, (Par 90), as follows:
"I refer to your letter dated 15th ... and wish to confirm that the reservation of your property and rights to compensation for injurious affection arise under the [MRTPSA] in conjunction with the Town Planning and Development Act.
It is under the provisions of Section 36(2)(a) of the MRTPSA that the [WAPC] elected to purchase your property instead of paying compensation for injurious affection.
When you lodged a claim for injurious affection, the WAPC had the option of either paying an amount for injurious affection and taking an equitable interest in the property under Section 36(3), (6) and (7) of the MRTPSA or electing to purchase in lieu of paying the compensation.
The Ministry does not accept your interpretation that you are entitled to an amount of injurious affection in addition to the purchase price for the property. Section 36(2) is quite specific on this matter.
Further, Section 36(6) clearly states that the injurious affection is the difference between the value of the land with the reservation in place compared to its value if no reservation existed.
The statutory options to finalise this matter rests with yourselves, you may either:
(a) accept the WAPC offer (or counter offer with justifying sales evidence);
(b) arbitration;
(c) Supreme Court.
- At our meeting, I offered to have the Ministry pay for you to obtain your own valuation from a licensed valuer in order that a mutual agreement as to the value of your property might be
(Page 19)
- reached and thus avoid either Supreme Court or arbitration, both of which involve substantial costs.
However, you need to obtain professional advice in respect of your view that you have a continuing right to claim injurious affection. Unless some understanding is reached on this point settlement is unlikely to be achieved.
I will await your further advice and a decision regarding the Ministry's offer to pay for you to obtain a valuation."
49 On 23 December 1997 the plaintiffs received copies of the sales evidence used to assess the value of the property in September 1997 by the valuers - Sullivan and another unmarked, but assumed to be Pember (par 93). Enclosed, too, was confirmation and conditions for the Ministry to pay for a valuation by Mr Charters of Independent Valuers of WA. Mr Devir wrote back on 23 December saying that he thought the agreement was to include the 1996 valuation information also. He further advised the defendant that this matter had begun with the promise in the Ministry's letter of 7 July 1996 to purchase the property. He requested to be heard at the next EFP meeting. (Mr Charters valued the property at the Commission's expense at $82,000 as at 15 July 1998 as a property reserved for a National Park. Mr Devir told me that in oral argument.)
50 On 7 January 1998 Mr Devir received a phone call from Mr Hillyard advising that there was no comparative sales report for the 1996 valuations. On 10 January the plaintiffs received a letter from Mr Hillyard. He said that specific comparative sales evidence did not exist for the July 1996 valuations and that the valuers had noted the purchase price paid by the plaintiffs and their then neighbour for lots 1 and 2 earlier in 1996 and general land sales and availability in the nearby Orchard Hills and Eagle Springs Estates in order to establish a level of value. He also advised that the Executive Finance and Property Committee ("EFP") did not meet with any of the parties. He enclosed a further written offer to purchase the property for $89,000, being $84,000 realty and $5,000 associated costs (par 96). The plaintiffs then plead a number of implied statements arising out of that letter and the falsity of those statements is pleaded in later paragraphs. Implied representations are also pleaded in par 100a and the falsity of those are also pleaded later.
51 On 19 January 1998 the plaintiffs wrote to Simon Holthouse, Chairman of the Commission, to arrange a meeting (par 103). He met with the plaintiffs on 4 February 1998. The plaintiffs asked him:
(Page 20)
- "Why haven't they offered $89,000 as the base rate? Had they offered it day one, we would have sold up and our problem would not exist."
- He replied:
"The valuations which are struck for purposes of raising land tax are as struck by the Valuer General.
When we elected to purchase, and bear in mind that at the time, let me remind you at the time, that your getting a land valuation that you actually purchased it at $76,000. Now when we elect to purchase any property then we seek independent valuation of the property at the time. The Valuer General when he strikes a rate strikes it on the basis of an averaged rate, and certainly doesn't go out and look at every individual property in order to establish a rate - a value.
Valuations were sought at the time the offer was made.
The tax is levied by another agency on behalf - on - is levied by the - the State through a different agency based on valuations determined by the Valuer General from time to time.
It's independent - it's independent of a process that we have control of through the town planning legislation. We are bound to seek independent valuation advice at the time of purchase.
We would as a normal practice seek independent valuation advice. We do not refer to the V.G.
We actually ask a valuer to go out and value the site, in other words - to look at the site and to look at sales evidence for that area and come to - and come to a conclusion.
Yes we have from time to time sought Valuer General's advice in certain circumstances. But simply to take a V.G. valuation for rating purposes as the latest V.G. valuation on that particular site is not appropriate.
Yes, the only thing is this is not an improvement plan area. It's not the subject of an improved plan.
We are not able to - and the offer is certainly not based on that sort of argument.
(Page 21)
- The process for levying property tax is a process which is administered outside the Commission's powers and responsibilities under its legislation. It is managed elsewhere.
Under the Act we can elect to purchase rather than pay compensation. Now when you believe that - or when you understand that the intent is to reserve all of the land, very often, let me use an example. - If there's a property for which a portion of the property is affected by reservation, you know, a road widening or something like that. There is a claim, maybe there's a development application to develop the property in whole and because of the reservation you can't. It [is] restricted. That then springs a claim for compensation for injurious affection. Now in that circumstance, the Commission can again consider whether to pay the compensation or to elect to purchase. Now if it's a relatively small strip and the operation of the property can continue - the development can continue albeit restricted to some extent, then it may be more appropriate to pay compensation because use of the property can continue.
In your circumstance really it's not feasible, not possible, because the injurious affection if you like - if there is a claim for that, affects the whole of the property. So it's not a matter of paying compensation in respect to that injurious affection because, if you like - the injurious affection is the use of the whole of the land. Which means - your then talking the valuation - the full valuation of the property. That is what is being offered. That's why the offers were made. That's why the election was made not to pay compensation but to elect to purchase."
52 Following that meeting, according to par 105, the plaintiffs "forwarded a resolve of the meeting" - I think that refers to a letter - saying that they believed they had established that the claim for compensation was "associated costs", not "injurious affection" and so not extinguished by s 36(2). It further confirmed advice during the meeting that if the Commission offered to pay $89,000 for the land, they could purchase it for that amount and associated costs would be determined under a breach of contract action.
53 On 18 April 1998 Hobhouse sent a letter to the plaintiffs, and I quote from it (par 106):
(Page 22)
- "Having regard to our previous meetings and those you have had with officers of the Ministry for Planning and the written information provided to you in respect of the application of compensation provisions, I am at a loss to understand your latest letter in particular your claim for $448,000.
Frankly your claim is frivolous and your continued pursuit of such a claim which disregards the provisions of the [MRTPSA] is not helpful.
If the Commission's offer of $89,000 is not acceptable to you there is little further the Commission can do and as previously advised must await you initiating action in the Supreme Court or agreeing to have the matter submitted to arbitration."
54 On 21 April the plaintiffs responded to that letter by accepting the offer of $89,000 to purchase the realty portion of the matter and suggested that the parties might now discuss the "associated costs" (par 107).
55 On or about 30 April the plaintiffs received a retraction of the offer referred to in the letter of 18 April and a re-submission of the earlier offer made of $84,000 for the realty, plus $5,000 for associated costs (par 108), (referred to in the pleading as the fourth offer).
56 At par 109 it is pleaded that the statements made by Mr Holthouse to the plaintiffs at the meeting held on 4 February 1998 were false, for the following reasons:
"i) The contract made and referred to in paragraph 10 above was to purchase 'now' and since this action has not occurred then now was not when an offer was made,
[I interpolate that par 10 refers to the Ministry's letter to the plaintiffs of 7 July 1996 which I have quoted from at par 9 of these reasons.]
ii) The valuations struck by the Valuer General are open to variation on the presentation of argument against them but are otherwise the clear value to be found in the land and used to assess the liability to pay taxes.
iii) The clear value was known prior to the [Commission's] acceptance of the 'offer to treat'.
(Page 23)
- iv) It is fraud to levy and accept taxes on a value more than is clearly represented in the land or known to the principal or agent.
v) Independent valuation may only come if no master-servant relationship exists and inquiry is made of the proposed use prior to the restriction of reservation.
vi) Other compensation or right to compensation is not extinguishable by an election to purchase pursuant to s 36(2).
vii) The value will be set at the time of sale and the advice sought by the [Commission] is a nullity."
57 At par 113 to par 121 the plaintiffs plead a case under a heading "THE PROMISE":
"113. The Plaintiffs say that there stands an agreement and promise made 5 July 1996, pursuant to MRTPSA section 37.4, and inclusive of condition being 'now.
114. In making the agreement or promise the Defendant, by its agents or servants, had taken an interest in the property and as the responsible public authority had each fiduciary duties and obligations, and a duty of care to the Plaintiffs.
115. The Defendant, possessed a constructive knowledge as to the value clearly contained in the land on the date of conveying the agreement or promise. The Defendant, procured a breach of contract, in seeking other valuation assessments.
116. The defendant had special knowledge and skill to examine methodologies of the assessing valuers reports which would have found them sufficiently erroneous as to be a nullity. Indeed the examination was a requirement under policy and practice guidelines.
117. The Defendant attempted to take unreasonable advantage of the superior position knowingly held by the defendant over the Plaintiffs. Its reliance upon Policy and Practice which do not and cannot interpret the law but merely an
(Page 24)
- understanding brings to bear the maxim - Ignorance of the law is no defence, ignorance of fact may be a defence.
- 118. The Defendant, without cause, has breached the conditions of the contract, and hence the contract.
119. The Defendant, in respect of its fiduciary obligations and duty of care, has failed to exercise all due skill and care.
120. By reason of the breach of the conditions of the agreement or promise, by the Defendant, the Plaintiffs have suffered loss and damage full particulars of which will be rendered before trial.
Particulars of Loss and Damage
1. costs of acquisition of the Land
2. all costs of maintaining the Land
3. all rates, taxes and other outgoings related to the Land
4. interest and bank charges paid pursuant to National Australia Bank mortgage secured against the Land
5. cost of alternative accommodation for the Plaintiffs due to the Defendant's refusal to permit the erection of a dwelling on the Land
6. Loss of opportunity to develop the Land for commercial rural purposes as originally intended when the Land was purchased
7. Loss of profits arising from the inability to use the Land for any purpose
8. Diminution in the resale value of the Land
9. Hardships, stresses and subsequent effects to the wellness of person from imposition of those burdens listed in 1 - 7 above.
121. The Plaintiffs say that specific performance so long after 'now', would be contrary to natural justice and equity
(Page 25)
- ought to ground rectification or compensation and provide damages against the Defendant in breach of contract."
58 At par 122 the plaintiffs plead that the defendant had constructive knowledge of the value of the property, namely: "the V G's unimproved value of $89,000, at the time of making the promise and the plaintiffs had advised the defendant of their willingness to sell at that price, rather than suffer any delays to settlement. The defendant has refused to perform its obligations and duties under the Promise".
59 At par 127 to par 130 the plaintiffs plead a case under the heading of "ESTOPPEL - RELIANCE ON THE PROMISE". This is a claim that there stands an agreement or promise made on 5 July 1996, pursuant to the Metropolitan T P Act s 37(4), and inclusive of a condition being "now", which purpose was to avoid the foreseeable hardships as raised in the submission and which was addressed by the promise, estoppel exists. By reason of the defendant's promise of 5 July 1996 the plaintiffs were induced to refrain from developing the land. In particular, they withheld development applications which would in all likelihood have been approved. They point out that the next door neighbour Thomas' application for development was approved on 12 August 1996. The plaintiffs also withdrew from contracts and agreements made between them and Thomas. They held up planned commercial ventures and they did not vigorously pursue their objections to the proposed amendment to the Town Planning Scheme at the submission hearings. So for those reasons, the defendant is liable to the plaintiffs for promissory estoppel. The plaintiffs have suffered loss and damage under the headings already quoted by me.
60 In para 131 to par 133 the plaintiffs say something under the heading of "MITIGATION". The plaintiffs say that in hope of mitigating their circumstances they advised the defendant that on receipt of an offer to purchase the land for the agreed minimum value of $89,000 they were prepared to either:
"i) have the value determined at that value plus consideration of compensation for rectification and against the breach of conditions, or
ii) have an arbitrated decision on the value between that minimum figure and the perceived value of $139,000,
(Page 26)
- plus compensation for rectification of the promise or contract."
61 In par 134 and following, the plaintiffs plead a case under the Fair Trading Act 1987 (WA). They plead why they have standing under that Act and quote from various sections of the Act.
62 I will now discuss some of the causes of action. The first are those of contract and estoppel. I can deal with them together. The Commission's letter of 5 July 1996 which is referred to in par 10 and elsewhere of the minute, and is quoted by me at par 9 of these reasons, is the foundation for these pleas. In pars 109(i), and 113 the promise contained in that letter is said to be a contract, namely that the Commission would purchase the property "now", meaning as I understand the argument, in the near future, in the next month or so. It is pleaded in par 118 that that was breached. The letter is also said to be the start of a plea of estoppel. It was a promise made to the plaintiffs (par 113) which they acted on to their detriment (pars 127 and 128). Believing that a promise or contract existed, the plaintiffs did not continue with their immediate plans to develop the property to build a house and to begin commercial ventures on the land.
63 I do not consider it arguable to say that the letter of 5 July 1996 amounts to a contract. It is clearly an invitation to treat only. The plaintiffs give a useful definition of estoppel in par 27 of their written outline:
"Estoppel is a doctrine whereby a person (W) who, either by words or conduct, wilfully does some act which causes another person to believe in the existence of a state of facts and induces him to act on that belief so as to alter his position, then W will be prevented from denying the existence of the state of facts.
Promissory estoppel prevents a promisor from resiling from the position which he has expressed or implied by words or acts and upon which the promisee has been induced into dealings with the promisor."
64 I consider that this plea is not arguable in this case. The letter of 5 July 1996 arguably amounts to a promise to purchase the land "now" and it is arguable to say that the plaintiffs acted on that to their detriment. But it is not arguable to say that the defendant resiled from that promise. The defendant offered to buy the land. It sent valuers to the land reasonably promptly. It offered $80,000 to purchase the land in August
(Page 27)
- 1996. This was land for which the plaintiffs had paid $76,000 in March 1996. The offer of $80,000 was rejected. The plaintiffs countered by asking for an offer in the vicinity of $200,000. In September 1996 the defendant offered $80,000 for the realty and $5,000 associated costs. That offer was rejected. In January 1998 the defendant offered $84,000 realty and $5,000 associated costs. That offer, too, was rejected. It is not arguable in these circumstances to say that the defendant reneged on its promise to purchase the land "now". It tried in mid-1996, and has been trying since then, to purchase the land. Purchase is, of course, not a resumption. It requires a willing vendor. The Commission elected to purchase the land as it is entitled to do under s 36(2)(b) of the Metropolitan T P Act on 2 September 1997. The parties have been unable to agree on the purchase price. The Act provides in that situation for determination by arbitration, or by the Local Court, or by the Supreme Court when the value of the land is more than $1,000. The plaintiffs did not want arbitration so now they are in the Supreme Court, which is appropriate. They have been tardy in getting to this Court. Their action, which could have been commenced in late 1996, was only commenced in April 1999. Section 36(2b)(b) provides that the application to the court, in order to fix the value of the land, is to be made by the owner of the land. The Commission cannot be blamed for the plaintiffs' tardiness in commencing this action and getting it to trial.
65 A third cause of action mentioned in the pleading is that the Commission has wrongly valued the property. The plaintiffs have a cause of action to have the value of the land determined by the Supreme Court under s 36(2b). The defendant has not contended to the contrary. A number of paragraphs in the minute are relevant to this cause of action. The defendant knew that the unimproved capital value of the land was $89,000 as per the Valuer General's assessment fixed as at 30 June 1996, yet this sum was not offered to the plaintiffs for the realty in late 1996 nor at any other time. Even the final offer received in January 1998 of $89,000 was not $89,000 for the realty but $84,000 for the realty and $5,000 for associated costs, being costs thrown away in purchasing the property. That would cover, for example, stamp duties and registration fees. Some of the arguments which the plaintiffs would like to run on valuation matters are set out in the written outline, and I quote from part of that outline, as follows:
"13. The defendant procured valuation assessments from two valuers, neither of whom made any enquiries of the plaintiffs regarding their purchase or plans for the rural property. Nor did the valuers investigate the
(Page 28)
- circumstances of the vendors' sale to the plaintiffs or their neighbours.
- 14. The plaintiffs say that the valuation assessments of both Sullivan and Pember are a nullity by reason of the incorrect methodologies used and hence the defendant had only the Valuer General's declared value to provide guidance.
...
18. The plaintiffs advised the defendant of their refusal to accept the valuation assessments of Pember and Sullivan as valid and suggested the defendant base the quantum of future offers at least on the Valuer General's figure."
66 A fourth cause of action pleaded is that of negligence and that is pleaded in pars 18, 19, 38, 60, 61, 87, 88, 101, 111, 112, 114, 119 and elsewhere. The negligence asserted is a failure of the Commission to advise the plaintiffs of certain matters. It is pleaded that that failure arose at the meeting with the Chairman of the Commission, Mr Holthouse, on 4 February 1998 (par 103) and in a letter sent by Holthouse to the plaintiffs dated 18 April 1998 and (par 106). It is pleaded in par 111 that the Commission was under a duty to advise the plaintiffs:
"(i) That the Commission was in possession of knowledge of the declared value of the property as a statutory requirement. See Metropolitan T P Act s 41.
(ii) That the Executive Finance and Planning Commission (EFP) of the Commission was to include the Commission's budgetary/financial considerations in the negotiations to settlement and not to consider payment of compensation as policy and particularised in certain of the Commission's policy guidelines, namely numbers 101, 102, 103, 104, 105, 106, 121, 122, 123, 124 and 125."
67 I do not consider that plea is arguable. I do not consider that the Commission had a duty to advise the plaintiffs that the Valuer General had valued the land as at 30 June 1996 at $89,000. In any event, where is the plaintiffs' loss, based on that failure to advise? The plaintiffs did not accept the initial offer of $80,000 because of the Commission's failure to advise of the Valuer General's higher figure. Nor is it arguable that the
(Page 29)
- Commission in fixing compensation was not entitled to take into account budgetary or financial constraints. Nor, do I think it arguable that the Commission was bound to follow its policy guidelines. They are internal documents and the plaintiffs cannot complain if they are not followed. I consider the plaintiffs have no arguable case for negligence.
68 I fifthly consider various causes of action pleaded under s 9, s 10, s 12, s 13, s 18 and s 23 of the Fair Trading Act 1987 (WA) and s 51A, s 52, s 52A, s 51AA and s 51AB of the Trade Practices Act.
69 I consider these pleas are all bad and I refer to my previous reasons in Devir & Anor v Western Australian Planning Commission [1999] WASC 130. I will, however, outline my reasons briefly in this application. Section 9 of the Fair Trading Act ("FTA") is a definition section. Section 10 and s 12 of the FTA only relate to actions done by a defendant in trade or commerce. For reasons given in my previous judgment, I do not consider the Commission in any of its actions referred to in this pleading was engaged in trade or commerce as that phrase has been defined judicially. Section 12 and s 13 are limited to defendants engaged in trade and commerce in connection with the supply or possible supply of goods or services. I do not consider it is arguable that the Commission was, or is, engaged in the provision of goods and services. In general terms, the FTA and the Trade Practices Act ("TPA") are designed to protect consumers and I do not consider that the Commissioner is a supplier of services to consumers. It is a statutory body authorised to perform its statutory duties. The plaintiffs cannot take advantage of s 18 of the TPA which only applies to a defendant engaged in trade or commerce. The plaintiffs cannot take advantage of s 23 of the Act which prohibits the use of physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer. As previously stated, I do not think it arguable that the Commission is in the business of supplying goods and services to consumers.
70 The plaintiffs' causes of action under the TPA are objectionable for similar reasons. Section 51A of that Act is an interpretation section. Section 52 of that Act proscribes misleading and deceptive conduct, but only where the defendant corporation is engaged in trade and commerce. As previously stated, I do not consider it arguable that the defendant, in negotiating with these plaintiffs to purchase the land etc, is engaged in trade or commerce. I am unable to find s 52A in my copy of the Act. Section 51AA relates to unconscionable conduct, but only where the defendant corporation is engaged in trade and commerce. Section 51AB
(Page 30)
- is likewise restricted to a defendant corporation engaged in trade or commerce.
71 I think I have discussed the major causes of action pleaded in the minute. There is a reference to breach of promise which I do not consider is arguable. There is a reference to breach of fiduciary duties. I do not consider it arguable that the Commission owes any fiduciary duty to the plaintiffs. It is not like an agent acting for and on behalf of the plaintiffs in their dealings with some third person which would make them vulnerable to abuse by the Commission of its position. The Commission is, as it were, the other party. There is no agent or middleman. The Commission exercised its statutory powers to purchase the land. At least it elected to purchase the land and has been negotiating with the plaintiffs as it is entitled to do - but unfortunately it has taken a very long time. The plaintiffs are partly to blame. They are the only ones who have the right to apply to the court to fix a proper value for the land.
72 The plaintiffs, in their pleading, rely on the 11 policy guidelines given to them by the Chairman of the Commission. I consider that the plaintiffs may be able to make some use of those guidelines in cross-examination; they may set out a proper way to value the land. But I do not consider that those guidelines can form an element of any cause of action. They should not be mentioned in the pleading.
73 Numerous misrepresentations are mentioned in the pleading. After nearly every letter from the Commission, or conversation between the plaintiffs and the Commission's staff, it is pleaded that the letter or the statements made by the officials contained numerous misrepresentations. None of them, in my view, are arguable.
74 In case I have omitted to discuss some of the causes of action pleaded in the minute, I consider in general terms that none of the causes are arguable except the one for determination of value under s 36(2b) of the Metropolitan T P Act.
75 The court is not concerned with grievances, only with causes of action. The plaintiffs have many grievances. The land was valued at $89,000 by the Valuer General as at 30 June 1996 and they have paid Council rates and land tax on that valuation, yet they were never offered that sum by the Commission. The highest offer they received was $84,000 for the land and $5,000 for associated costs. Because of the reservation of the land for national park shortly after they bought it, their plans to build a house on it and start a commercial venture on it failed.
(Page 31)
Because of the long delays in finalising their compensation claim they have not been able to achieve those aims elsewhere. They have wasted money on mortgage repayments, rates and taxes on the land, and rent of a house in which to live off the land. These are real grievances but the court does not have power to redress grievances, even a series of grievances, in a general sense. It must determine civil cases according to the law and, at this pleading stage the vital question is, have the plaintiffs got an arguable cause or causes of action? For reasons given above, the answer is "yes" in relation to the statutory cause of action under s 36(2b) of the Metropolitan Town Planning Act - but otherwise not.
- 76 I will hear the parties on what orders should flow from my reasons. A normal order would be to strike out the whole statement of claim and give the plaintiffs leave to produce a further minute. That minute would be vetted by the defendant and, if it had further objections, those objections could be ruled on by the court. That would be the third time the pleading has been scrutinised by the court. Another option open to me under O 29A r 3(2)(a) is to order that the plaintiffs proceed on a few only of the paragraphs in the present minute. Subject to further argument, I consider the relevant paragraphs to support a claim under s 36(2b) of the Metropolitan T P Act for the court to determine the value of the land are pars 1, 2a, 2b, 3, 4, 9, 10, 22, 23, 33, 34, 48, 52, 53, 73, 96, 96A, 96Aa, 107 and 108. I consider the claim for relief could ask to be paid the value of the land as at 2 September 1997 as determined by the court. It could also ask for associated costs, as the defendant has indicated that it is willing to pay a sum for associated costs. It could also ask for interest, pursuant to s 32 of the Supreme Court Act 1935 (WA). It could also ask for costs. The plaintiffs, as litigants in person, may not get much of a sum for costs but they are certainly entitled to ask for an order for costs.
0
9
4