Elmasri v Transport for NSW - [2021] NSWSC 929

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Elmasri v Transport for NSW [2021] NSWSC 929
Hearing dates: 13, 16 and 23 July 2021
Date of orders: 26 July 2021
Decision date: 29 July 2021
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   Direct the parties to confer within 7 days in relation to the appropriate order as to costs;
(2)   In the event that agreement is reached on the appropriate order, the parties to file the proposed order on or before 7 August 2021;
(3)   In the event that no agreement is reached on the appropriate order as to costs, each party to file and serve:
(a)   their proposed order as to costs and any submissions in support of the proposed order that are not to exceed 4 pages on or before 12 August 2021;
(b)   any submissions in reply that are not exceed 4 pages on or before 19 August 2021;
(4) Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the basis set out in s 8(1)(e) thereof, the Court orders that the following information contained within the evidence in these proceedings is not to be published or disclosed until 30 November 2022:
(a)   the rate per square metre referrable to any offer made or analysis concerning:
(A)   316 Clifton Avenue, Kemps Creek, New South Wales; and
(B)   373-381 Clifton Avenue, Kemps Creek, New South Wales;
(b)   the amounts of any offers, and any amounts agreed between Transport for NSW and any landowner, for the proposed acquisition or acquisition of the following properties pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW):
(A)   316 Clifton Avenue, Kemps Creek, New South Wales; and
(B)   373-381 Clifton Avenue, Kemps Creek, New South Wales;
(c)   the acquisition submission of Transport for NSW in respect of the property at 316 Clifton Avenue, Kemps Creek, New South Wales dated 13 July 2021; and
(d)   the acquisition submission of Transport for NSW in respect of the property at 373-381 Clifton Avenue, Kemps Creek, New South Wales dated 1 July 2021.
(5)   Order 4 is to operate throughout the Commonwealth.

Catchwords:
ACQUISITION OF PROPERTY – judicial review – compulsory acquisition – validity of proposed acquisition notice – requirement for relevant authority to make a “genuine attempt” to acquire land by agreement for at least six months prior to issue of notice– jurisdictional precondition to issue of acquisition notice – time period over which genuine attempt to be assessed – meaning of genuine attempt – good faith – scope of negotiations – whether negotiations concern compensation payable for compulsory acquisition or are to be conducted on some other basis – urgent hearing – not shown that defendant did not make genuine attempt – proceedings dismissed

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010
Land Acquisition (Just Terms Compensation) Act 1991

Cases Cited:
Cannon v Griffiths (No 2) [2015] NSWSC 1329
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 929
Decision Date: 29 July 2021

CaseChat Overview and Summary

In the case of Elmasri v Transport for NSW, the plaintiff, Elmasri, sought a judicial review of a compulsory acquisition of his property by Transport for NSW. The matter was heard in the Supreme Court of New South Wales, where the primary issue was the validity of the compulsory acquisition notice issued by the defendant. Specifically, the court had to determine whether the defendant had made a genuine attempt to acquire the land by agreement for at least six months prior to issuing the notice, as required by statute. This requirement was a jurisdictional precondition to the issuance of the acquisition notice. The court also considered the meaning of "genuine attempt," the necessity for good faith, and the scope of negotiations, particularly whether they should concern compensation for the compulsory acquisition or be conducted on some other basis.

The court analysed the statutory provisions and relevant case law to interpret the requirement for a genuine attempt to acquire land by agreement. It found that the defendant had not been required to demonstrate an absolute failure to reach an agreement, but rather that it had to make a genuine attempt in good faith. The court also considered the time period over which the genuine attempt should be assessed and whether the negotiations should specifically concern compensation for the compulsory acquisition or be conducted on some other basis. After examining the evidence, the court concluded that the defendant had made a genuine attempt to acquire the land by agreement and that it was not shown that the defendant had not made such an attempt.

Consequently, the court dismissed the plaintiff's proceedings for judicial review, holding that the compulsory acquisition notice was valid. The court found that the defendant had satisfied the jurisdictional precondition by making a genuine attempt to acquire the land by agreement for at least six months prior to issuing the notice. The court did not find it necessary to determine the precise meaning of "genuine attempt" or the scope of negotiations, as it was satisfied that the defendant had met the statutory requirement. The court's decision upheld the validity of the compulsory acquisition and rejected the plaintiff's challenge to the acquisition notice.

Orders