Kudrynski v Orange City Council

[2024] NSWCA 33

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kudrynski v Orange City Council [2024] NSWCA 33

Hearing dates:

15 February 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Before:

Meagher JA at [1];
Kirk JA at [2];
Griffiths AJA at [3]

Decision:

The appeal is dismissed, with costs.

Catchwords:

APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement

COMPULSORY ACQUISITION – Compensation – vacant land acquired by local council for public purpose of stormwater harvesting project – highest and best use of land for rural residential development – appellants sought $160 million compensation below and on appeal

Legislation Cited:

Criminal Appeal Act 1912 (NSW) Pt 3

Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 56(1)(a), 66

Land and Environment Court Act 1979 (NSW) ss 56A, 57

Local Court Act 2007 (NSW) ss 39, 40

Orange Development Control Plan 2004

Orange Local Environmental Plan 2011

Uniform Civil Procedure Rules 2005 (NSW)

Water Management Act 2000 (NSW) s 52

Cases Cited:

Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314

B&L Linings v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187

Crawford v Demertjis & Ruhs Pty Ltd [2024] NSWSC 48

Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230

Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73

Edyp v Brazbuild Pty Ltd [2011] NSWCA 218

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32

Kudrynski v Orange City Council [2023] NSWLEC 9

Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8

Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162

Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108

Roads & Traffic Authority (NSW) v Peak [2007] NSWCA 66

Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335

Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223

Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416

Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40

Category:

Principal judgment

Parties:

Alexandra (Alicia) Kudrynski (First Appellant)
Julius Kudrynski (Second Appellant)
Orange City Council (Respondent)

Representation:

Counsel:
J Kudrynski (First Appellant)
N M Eastman SC/A Richards (Respondent)

Solicitors:
Marsdens Law Group (Respondent)

File Number(s):

2023/71664

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 3

Citation:

[2023] NSWLEC 9

Date of Decision:

17 February 2023

Before:

Pepper J

File Number(s):

2020/330687

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 11 September 2020, certain vacant land (the Land) owned by Mrs Alexandra (Alicia) Kudrynski was compulsorily acquired by the NSW government for the public purpose of a stormwater harvesting project (the Project). The parties were unable to agree compensation, and the Valuer-General subsequently determined the market value of the Land to be $450,000. Mrs Kudrynski and her husband, Mr Julius Kudrynski (the second applicant and Mrs Kudrynski’s agent), challenged this determination in the Land and Environment Court (LEC), claiming that the market value of the Land was $160 million.

Before the primary judge, Mr Kudrynski claimed that the Land was to be valued having regard to the value of the water for harvesting. Orange City Council (the respondent) contended that, by operation of the statutory disregard in s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991, any subsequent value derived from the carrying out of the Project had to be excluded from the amount of compensation. The primary judge accepted the Council’s position as correct, and further determined the $160 million figure relied upon by Mr Kudrynski was not supported by any expert evidence, preferring the Council’s expert valuer’s figure of $560,000 (with the highest and best use of the land being a four lot rural residential subdivision). This evaluation took into account features including the Land’s liability to flooding, it being affected by easements, and its position opposite public housing.

On appeal, two preliminary procedural issues rose for consideration, namely whether Mr Kudrynski had notice of the hearing date and the authenticity of the supplementary appeal books. The central substantive issue for determination was whether any of the 24 grounds of appeal disclosed a challenge to a decision or order of the primary judge on a question of law, pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW).

The Court (Griffiths AJA, Meagher and Kirk JJA agreeing) held, dismissing the appeal, with costs:

Procedural issues:

1. Mr Kudrynski’s procedural complaints were not supported by the evidence or Court’s internal records: [1] (Meagher JA), [2] (Kirk JA), [15] (Griffiths AJA).

Substantive issues:

1. No ground of appeal identified a question of law which was the subject of any order or decision of the primary judge: [1] (Meagher JA), [2] (Kirk JA), [99] (Griffiths AJA).   

2. In any event, the substantive issues were without merit.

JUDGMENT

1. MEAGHER JA: I agree with Griffiths AJA.

2. KIRK JA: I agree with Griffiths AJA, save to note that the appropriate construction of s 57(1) of the Land and Environment Court Act 1979 (NSW) was not the subject of argument in this matter and it is not necessary to express any concluded view on the issue.

3. GRIFFITHS AJA: This appeal is from orders dated 17 February 2023 made in the Land and Environment Court (LEC): see the reasons for judgment of Pepper J in Kudrynski v Orange City Council [2023] NSWLEC 9 (PJ or primary judgment). By s 57 of the Land and Environment Court Act 1979 (NSW), the right to appeal is against “an order or decision…of the Court on a question of law”.

4. The proceeding below invoked the LEC’s Class 3 jurisdiction. At issue was the amount of compensation to which the owner of certain land in Orange (the Land) was entitled under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) after the Land was compulsorily acquired by the respondent (the Council). The Land (which is vacant land situated at 280-284 Phillip St, Orange and has an area of 7.606 ha) was acquired for the purpose of a Council project, being the Blackmans Swamp Creek Stormwater Harvesting Project (the Project).

5. The registered proprietor of the Land is Mrs Alexandra (Alicia) Kudrynski. Although Mrs Kudrynski’s husband, Mr Julius Kudrynski, is named as the second applicant and second appellant in the Class 3 application and notice of appeal respectively, as the primary judge noted at PJ[6], he does not hold a proprietary interest in the Land. The Council made no formal application to have Mr Kudrynski removed as a party to the proceeding below or on appeal. Moore J gave him leave to act as his wife’s agent in the underlying proceeding. At the commencement of argument on appeal, this Court granted Mr Kudrynski leave to make submissions on behalf of his wife.

6. These reasons for judgment are structured as follows:

1. why Mr Kudrynski was given leave to make submissions on behalf of his wife;

2. some preliminary procedural issues;

3. summary of background facts;

4. the primary judge’s reasons for judgment summarised;

5. some issues with the notice of appeal;

6. consideration and disposition of the appeal; and

7. conclusion.

(a)   Why Mr Kudrynski was given leave to make submissions on behalf of his wife

7. Mr Kudrynski has no legal or valuation qualifications or expertise. He is aged in his late 70s, has suffered at least two strokes and he says he sometimes has memory issues.

8. No objection was taken by the Council to Mr Kudrynski appearing for his wife in the appeal (however, he requires further leave to do so). Many of the principles guiding the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant are summarised in Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 at [69]-[86] per Stein JA, with whom Mason P and Sheller JA agreed. As Stein JA stated at [82], the authorities suggest “that higher courts should be very chary at giving leave”.

9. In my view, in the particular circumstances here, where the appeal is not one of significant complexity, it was appropriate to grant leave. As an appellant in his own right, Mr Kudrynski is entitled to represent himself without the need for leave, and in that capacity could speak for his wife, assuming their ownership interests were the same. However, although he is named as an appellant, Mr Kudrynski has no legal interest in the compulsorily acquired land. Nevertheless, it is apparent from the way in which the underlying proceedings and appeal have been conducted that he and his wife treated the property as “theirs”. In that circumstance, his wife being present at his side during the hearing and consenting to his making argument on her behalf, the Court granted leave for Mr Kudrynski to represent his wife. The Court also took into account that the Council did not object to Mr Kudrynski presenting the appeal on behalf of both himself and his wife; that he had obtained leave to act as agent in the proceeding below; that he was well familiar with the background to the matter; and that had prepared both the notice of appeal and written submissions. Although leave to appear as a non-legal practitioner for another person should not be given as a matter of course in a higher court, that consideration should not be determinative where, as here, the relevant litigant would otherwise remain unrepresented and has consented to her spouse making arguments on her behalf, is present when this occurs, and they have a common interest in the subject matter and outcome of the proceeding.

(b)    Some preliminary procedural issues

10. On the appeal, Mr Kudrynski appeared by audio-visual link (AVL). He complained that he was not aware that the appeal would be heard on 15 February 2024. He also complained that when he tried to file some appeal books on or before 16 October 2023, as directed, they had been rejected by the Court. He acknowledged that the respondent had filed supplementary red, blue, black and orange appeal books on 22 January 2024 and 29 January 2024, and that he had been served with copies of those materials. He submitted, however, that these supplementary appeal books needed to be authenticated. At this point in the appeal, the Court took a brief adjournment. When the hearing resumed, Mr Kudrynski proceeded to make oral submissions in support of his appeal. He did not seek to have the hearing vacated.

11. In his oral submissions, Mr Kudrynski returned several times to complain that his appeal books had been rejected and that he was not aware until very recently that the hearing would proceed as fixed. The Court then took a further adjournment to allow the parties to review any relevant correspondence and other matters relating to these complaints.

12. When the hearing resumed in the afternoon the Council tendered a bundle of correspondence and other documents relating to whether Mr Kudrynski had sufficient notice in advance of the hearing date. That bundle became Exhibit A in the appeal. In brief, this material together with Court records establishes that:

1. There was a directions hearing before the Registrar on 13 November 2023, which Mr Kudrynski attended. Orders were made that day for the service of various materials and the matter was listed for hearing on 15 February 2024. The Court’s own records also confirm that Mr Kudrynski was present on 13 November 2023, when those orders were made.

2. The Court’s records also show that on 13 November 2023, a letter was sent to Mr Kudrynski at a West Wollongong address informing him of the orders which were made on 13 November 2023, including the order listing the appeal for a one day hearing on 15 February 2024.

3. On 15 November 2023, the Council’s solicitor emailed Mr Kudrynski and made specific reference to the fact that the matter was listed for hearing on 15 February 2024.

4. On or about 30 January 2024, the parties were sent an email by the Court Registry informing them that the matter was listed for directions on 31 January 2024 and that if the parties did not appear, the matter could be dealt with in their absence. Mr Kudrynski accepted that he had received that email.

5. Mr Kudrynski did not appear at the directions hearing on 30 January 2024. However, at 6.30pm on 31 January 2024 the Council’s solicitor emailed him and made reference to the fact that the Court was “concerned to ensure that the matter was ready to proceed on 15 February 2024 when it is listed for hearing”.

13. Having regard to these matters, it is likely that Mr Kudrynski was confused in his recollection of these events. His procedural complaints are not supported by the evidence or records of the Court. There is overwhelming evidence that he was given ample notice of the fact that the hearing would take place on 15 February 2024.

14. As to his complaints regarding the appeal papers, when Mr Kudrynski was asked to identify any specific document in the supplementary appeal books which he claimed lacked authenticity, he said that there were none. There is no evidence to support Mr Kudrynski’s assertions that the supplementary appeal books, as filed, could have been “tampered with” or “doctored”. Finally, Mr Kudrynski accepted that all the documents in his appeal books (which were rejected for filing by the Court) were contained in the supplementary appeal books subsequently filed by the Council.

15. For all these reasons, Mr Kudrynski’s procedural complaints concerning the hearing date of the appeal and the preparation and use of the supplementary appeal books are rejected.

(c)   Summary of background facts

16. By notice published in the NSW Government Gazette on 11 September 2020, the Land was compulsorily acquired for the purpose of the Project.

17. The parties were unable to agree compensation. The Valuer-General subsequently determined the compensation to be $450,000, representing the market value of the Land with no additional compensation for disturbance (and none was sought).

18. The Kudrynskis lodged an objection to the amount of compensation awarded by this determination pursuant to s 66 of the Just Terms Act. Proceedings were therefore commenced in the LEC, in which the applicants claimed that the market value of the Land was $160 million. This figure was not supported by any expert evidence but it reflected a letter written by Mr Kudrynski which is referred to by the primary judge at PJ[5]. The $160 million figure was the amount arrived at by Mr Kudrynski’s personal valuation of the Land. The basis for that valuation was that the Land would be used by the Council for the harvesting of water. Thus, Mr Kudrynski arrived at his valuation with reference to the amount and value of the water that the Council would be able to harvest from the Land for the purposes of the Project.

19. As will emerge, the primary judge accepted the Council’s submission that the effect of the statutory disregard in s 56(1)(a) of the Just Terms Act meant that any increase in the value of the Land resulting from the carrying out of the public purpose for which it was acquired was not to be taken into account.

(d)   The primary judge’s reasons for judgment summarised

20. I will focus upon those parts of the primary judgment which are relevant to the appeal.

21. The primary judge referred to two preliminary issues at PJ[11] and [12]. The first concerned Mr Kudrynski’s complaint that there had been no site visit to the Land. Her Honour noted that no party had requested a site visit as far as her Honour was aware. It may be interpolated that in the course of case management Moore J’s associate informed the parties that the hearing could be held in Sydney “as a site inspection in Orange does not appear to be necessary, given that air photos would be available of the land and of any other sites needed to be considered for valuation purposes”. The primary judge also referred to the fact that the initial hearing date in the LEC had to be vacated in October 2021 because of Mr Kudrynski’s ill-health. It was further noted that, when a new hearing date was allocated, Mr Kudrynski successfully requested that the hearing occur via AVL on the basis that he was incapable of leaving home. Accordingly, the hearing occurred virtually and, unsurprisingly, there was no site inspection. Her Honour also noted at PJ[11] that there were in evidence aerial photographs and contour diagrams which Mr Kudrynski conceded in oral submissions were relevant to the valuation task.

22. The second preliminary matter concerned Mr Kudrynski’s complaint that his preparation for the hearing had been “sprung on” him. Her Honour pointed to the fact that the original hearing was vacated at Mr Kudrynski’s request because of his ill-health and, on 12 October 2021, the hearing was set down to occur some five months later. Moreover, in February 2022, Mr Kudrynski successfully asked that the hearing proceed by AVL. The three day hearing subsequently commenced in that manner on 14 March 2022.

23. Turning now to the primary judge’s reasons concerning more substantive issues, her Honour identified the Land, summarised the statutory framework for compensation under the Just Terms Act, and then summarised relevant parts of the Orange Local Environmental Plan 2011 (which recorded that the Land was zoned R5 Large Lot Residential) and the Orange Development Control Plan 2004 (which recorded that the Land was flood affected).

24. Her Honour noted that, unlike the Council, Mrs Kudrynski did not rely on any expert town planning evidence. The Council’s town planning expert, Mr Nick Juradowitch, prepared a report dated July 2021. Mr Juradowitch opined that under the R5 zone, which included water supply systems as a use permitted with consent, the highest and best use of the Land (ignoring the public purpose) was for rural residential subdivision.

25. Her Honour then noted at PJ[40] various site development constraints which materially affected the development potential of the Land. These included the fact that 54% of the Land was impacted by a 1:100 year flood level, the presence of easements, problems with the topography of the Land, the need for a riparian corridor along Blackmans Swamp Creek (which bisected the Land), and traffic noise.

26. Mr Juradowitch (who was cross-examined at considerable length) opined that Mrs Kudrynski might likely be granted consent for a four lot subdivision, but any such subdivision would involve development costs for items such as the connection of services, vehicle access, land filling etc. Her Honour summarised at PJ[46]ff Mr Juradowitch’s cross-examination.

27. As far as valuation evidence is concerned, the primary judge noted that Mrs Kudrynski initially sought to rely on two reports, with only the first having been prepared by a registered valuer. The tender of that report was later withdrawn by Mr Kudrynski and nothing more needs to be said about it. This left as the only valuation evidence relied upon by Mrs Kudrynski a report entitled Comparative Analysis Summary 280-284 Phillip Street, Orange NSW 2800. The report is dated 23 October 2012 and was prepared by Mr Nigel Strutt from PRD Nationwide (PRD report). Her Honour noted at PJ[50] that this report was admitted into evidence notwithstanding that the author was not a registered valuer and that the report was dated some eight years prior to the Land being acquired. Moreover, the report did not comply with the requirements concerning expert reports set out in the Uniform Civil Procedure Rules 2005 (NSW).

20. Her Honour explained at PJ[52] why she gave the PDR report “very limited weight”. In addition to the deficiencies described immediately above, the primary judge also noted that Mr Strutt had made no adjustments to the comparative sales. More significantly, the valuation provided in that report was in the amount of $540,000 to $560,000, which was no higher than the Council’s compensation figure of $560,000.

21. The primary judge described at PJ[54]ff oral evidence given by the Council’s chief executive officer, Mr Timothy Waddell, who had been subpoenaed by the applicants, and Mr Waddell’s written answers to two questions which were sent to him after the hearing (see at PJ[57]).

22. At PJ[58]ff, the primary judge summarised at some length the expert valuation report dated 11 August 2021 by the Council’s expert valuer, Mr Geoff McGuirk, who also underwent a lengthy cross-examination. Mr McGuirk valued the land at $560,000 based on the highest and best use of the land being as a four lot rural residential subdivision with each allotment having frontage to Jilba Street. Mr McGuirk’s valuation also took into account that the Land was liable to flood, affected by transmission line easements and located directly opposite public housing. Her Honour noted at PJ[67] evidence given by Mr McGuirk under cross-examination, which included his confirmation that his valuation disregarded the public purpose, being the Project. The primary judge also noted Mr McGuirk’s evidence that a water licence was required in order to extract water from the Land for purposes other than domestic consumption and stock watering (see s 52 of the Water Management Act 2000 (NSW)), and there was no development approval or licence to extract water from the creek when his valuation was done. Nor was there any suggestion that Mrs Kudrynski could get a licence to extract water for the purpose of selling to the Council.

23. After summarising the parties’ respective submissions, her Honour explained why she accepted the Council’s valuation of $560,000 and rejected the $160 million figure claimed by Mrs Kudrynski. It is well to set out PJ[70] which contains those reasons (without alteration):

My reasons for rejecting Julius Kudrynski’s submissions are as follows:

(a)   first, as explained to Julius Kudrynski, the Court cannot have regard to the public purpose, that is, the reason why the land was acquired, namely, for the purpose of harvesting stormwater. The value of any stormwater harvest or to be harvested from the land must be ignored by the Court in assessing the market value of the land. Similarly, because the Court must ignore the public purpose, the feasibility of the stormwater harvesting project is not a matter that I can take into consideration in determining the compensation payable.

(b)   second, in any event, as Waddell stated in his oral evidence, the water  coming onto the land did not comprise only rain or water from  the  creek on the land. It also included water emanating from  upstream  washing across the land. In other words, as Julius Kudrynski acknowledged, it was not all of Kudrynski’s water that would be harvested (T154:01-03);

(c)   third, as at the date of the acquisition, no water was being harvested or pumped from Kudrynski land. The stormwater harvesting projects in existence at that time were not located on the land;

(d)   fourth, there was no, or no cogent, evidence before the Court to support a valuation of the land of $160 million (T154:50-155:10);

(e)   fifth, the Court did not have regard to the $450,000 valuation by the Valuer-General. Rather, the value arrived at by the Court is based upon the evidence adduced by the parties, in particular the PRD report, the Juradowitch report and the McGuirk report, and the cross-examination of the latter two witnesses and Waddell. Importantly, McGuirk did not base his valuation of the land on the Valuer-General’s determination;

(f)   sixth, for the reasons explained by McGuirk, which I accept, the land could not, particularly for reasons relating to zoning and the fact that the land was flood affected, be subdivided into 30 lots. Even if the land were able to be rezoned to accommodate a subdivision of that size, this would not occur in the foreseeable future;

(g)   seventh, nowhere was a $4 million dollar bridge proposed in any valuation calculation. On the contrary, access to Jilba St by way of a property purchased by the developer was part of the consideration highest and best use of the land as proposed by McGuirk;

(h)   eighth, McGuirk did not accept that the land had a favourable outlook for the reasons that he gave, which I accept;

(i)   nineth, the land was constrained by sewerage and electricity easements, traffic noise requiring attenuation, and its proximity to public housing. It was also flood affected. These constraints had the effect of depressing the value of the land, especially compared to the other sales that McGuirk analysed;

(j)   tenth, there was no evidence before the Court that the land had been acquired for anything other than the stated public purpose of stormwater harvesting in order to, as Waddell gave evidence of,  drought-proof Orange. There was no evidence that the Council acquired the land to subdivide and sell it for a profit. Waddell’s evidence was to the contrary. Likewise, there was no evidence that the harvested water would be sold by the Council. Again, Waddell’s evidence was to the contrary;

(k)   eleventh, there was no evidence before the Court that the stormwater harvesting project was not technically possible or was unfeasible by reason on the topography of the land or otherwise. In any event, this was not a relevant consideration in determining the amount of compensation to be paid for the acquired land;

(l)   twelfth, Waddell’s evidence was emphatic, namely, that no part of the grant money from the State for the stormwater harvesting project could be used to acquire land;

(m)   thirteenth, the land was not zoned for mining purposes and could not be valued as such;

(n)   fourteenth, from a valuation perspective, as both McGuirk and Juradowitch indicated, there was no example that they could locate within Australia of where a private individual was harvesting stormwater and selling it to a local government entity such as the Council; and

(o)   fifteenth, as explained to Julius Kudrynski at the pre-trial directions on 3 March 2022, Class 3 of the Court’s jurisdiction to hear and determine claims for compensation does not extend to the judicial review of administrative decision made under the Just Terms Act (see s 20(2) of the LEC Act).

32. The primary judge explained at PJ[71] why she gave only limited weight (if any) to the PRD report, which suffered from the three deficiencies referred to at [27] above.

33. Finally, on the issue of costs, the primary judge ordered the Council to pay the applicants’ legal costs, if any, noting that they were not legally represented.

(e)   Some issues with the notice of appeal

34. Without disrespect, the notice of appeal is seriously deficient in several ways. These deficiencies stem from an apparent failure by Mr Kudrynski to appreciate the nature and extent of an appeal brought under s 57 of the Land and Environment Court Act, which relevantly provides:

57   Class 1, 2, 3 and 8 proceedings—appeals

(1)    A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law.

(2)   On the hearing of an appeal under subsection (1), the Supreme Court shall—

(a)   remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or

(b)   make such other order in relation to the appeal as seems fit.

…

35. A notable deficiency with the notice of appeal is that it fails to identify any question of law which is the subject of order or decision of the LEC. These concepts are fundamental to this Court’s jurisdiction to entertain an appeal from Class 3 proceedings in the LEC. I will return to discuss this important matter shortly.

36. A related deficiency is the failure to articulate clear grounds of appeal. The notice of appeal refers to an attached sheet which purports to identify 24 grounds of appeal. The last three pages of that document comprise submissions in support of the appeal, not grounds of appeal. These three pages are identical to an outline of the appellants’ written submissions filed on 12 September 2023, which is included in the appellants’ Red Book. The so-called grounds of appeal on the first page of the attached sheet bear reproduction without correction in order to reveal their significant shortcomings:

Ground of appeal

1.   No price comparison was allowed. The Judge should not have allowed any other values’

2.   The only evaluation which was sought was the current valuation of $160 million.

3.   This valuation wasn’t considered. This valuation is only one judge should have considered.

4.   Questions which tried to establish the current value when address to the CEO of Orange Council were met with contempt; “I don’t know and I can’t remember”

5.   the PRD report used here for comparison was not so intended and was only used against Council when they refused to increase their original offer of $300,000 and would not discuss the matter further. The JUDGE should have ordered the CEO to answer the prepared questions

6.   We had no choice but to appeal the matter to this court.

7.   The question of the electricity and easements not allowed and should have been allowed by the Judge.

8.   The PRD report was a number of valuations which were used in negotiations and was the lowest number ever submitted and should not be allowed by the judge on the age of the report and the qualifications of the person making it. It was 10 years old.

9.   The land being resumed, connects two adjacent Council properties and should have been factored in.

10.   The hillside cannot be used for the purpose of water storage but can be used for subdividing into 30 blocks of land. With the addition of 70 blocks belonging to Council would make this a valuable proposition.

11.   The $4 million Road is just a distraction as access to this property is already available through public land.

12.   Council was only putting up a smoke screen to hide the real value of the land they were compulsory acquiring.

13.   The only question that was allowed concerning water levels shows the project is just a pipe dream.

14.   From the time the Judge removed himself from the case until the next directions hearing and then for the case to resume under another judge was seven days. Seven days is not long enough for me to prepare for a three-day hearing.

15.   Orange City Council prepared the case for me and including material which was against me including the PRD report which was some 10 years old.

16.   I was no shown the final submissions of counsel nor given any chance of responding to them. She should have done so.

17.   I did not make any final submissions myself and the judge should have allowed it. All

18.   the Judge should have ordered the CEO to answer the prepared questions.

19.   by answering the prepared questions that had been given to the CEO he was giving tacit approval to my submission.

20.   The judge should have at least delayed the trial when she was shown I had not received their emails on which this trial depended’.

21.   By default the judge should have allowed these calculations submitted by me.

22.   Because of the boundaries that have been crossed in this judgment I should not have costs awarded against me but council should.

23.   Under the previous judge water levels were the main issue but were not allowed under present judge and should have been.

24.   By connecting those three parcels of land this now constitutes a mining area.

37. The problems presented by the notice of appeal include the following matters:

1. Some of the grounds are argumentative and opaque (e.g., 5, 7, 12, 13, 19, 21 and 23).

2. At least one of the grounds (6) does not state any ground of appeal at all.

3. Some of the grounds are patently inconsistent with the facts (e.g., 3, 14, 16, 18 and 22).

38. The Council raised no formal objection to the notice of appeal. It was evidently content to respond on the basis that the notice of appeal be read as raising 24 grounds of appeal which it suggested fall largely within two categories, namely challenges to evidentiary findings and procedural fairness complaints.

39. The appellants’ failure to identify one or more questions of law, as required by s 57(1) of the Land and Environment Court Act, is more fundamental. That is because it goes to the very heart of this Court’s jurisdiction to entertain the appeal, a matter which cannot be avoided simply because the parties may agree to proceed on a different basis.

40. The relevant parts of s 57 of the Land and Environment Court Act are set out at [34] above. Importantly, this section provides for an appeal to this Court against an “order or decision” of the LEC on a question of law. Thus it is the order or decision of that Court, and not the appeal, which must be on a question of law (see Roads & Traffic Authority (NSW) v Peak [2007] NSWCA 66 at [139] per Basten JA; B&L Linings v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [70] (Allsop P, Giles and Basten JJA agreeing); ISPT Pty Ltd v Valuer General [2009] NSWCA 31; (2009) 165 LGERA 25 at [3] (Allsop P); Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 at [6] (Beazley P), at [165] (McColl JA)).

41. The structure and terms of s 57 are different from other statutory provisions which, for example, provide for an appeal “on a question of law”, or “on a ground involving a question of law” (see, e.g., Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 and Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416). It is also notably different from relevant provisions in Pt 3 of the Criminal Appeal Act 1912 (NSW) (which, for example, provides in s 5(1)(a) for an appeal on “a question of law alone”, as to which see Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [31]ff per Bathurst CJ and Bell P). Similarly, ss 39 and 40 of the Local Court Act 2007 (NSW) draw a distinction between an appeal as of right from the Local Court to the Supreme Court “but only on a question of law” as opposed to an appeal on “a ground that involves a question of mixed fact and law”, for which leave is required (see Crawford v Demertjis & Ruhs Pty Ltd [2024] NSWSC 48 at [17]-[23] per Adamson JA and the authorities referred to therein).

42. Unlike an appeal “on a question of law”, it is not enough for the purpose of s 57 to show error of law at large. Rather, appeals under s 57(1) are predicated on the existence of an order or a decision on a question of law. This necessarily requires close attention to be paid to the primary judge’s reasoning in support of the impugned order or decision.

43. However, the “decision” does not have to be explicit, as held by the High Court in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32. An appeal was available if a decision on a question of law was “necessarily implicit” in making the finding that was made (at [69] per Hayne, Heydon, Crennan and Kiefel JJ).

44. To similar effect, French CJ stated in Kostas at [23] that a question of law could arise in “decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal”.

45. A “decision on a question of law” may also be intermingled with decisions of fact and opinion. In Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8, a decision involving s 56A of the Land and Environment Court Act which allows appeals to the LEC from a Commissioner and is relevantly identical to s 57, McHugh, Gummow, Kirby, Hayne and Callinan JJ stated at [8] that:

[q]uestions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters…

46. In that case, a valuation decision which raised a question of “mixed law and fact” was enough to enliven the appeal.

47. Applying Kostas and Maurici, it may be possible to work backwards from whatever error is said to affect the primary judge’s reasoning, and from there determine what kind of decision, implicit or otherwise, that error affected. Allsop P recognised as much in Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [57] (emphasis added):

Whether or not a decision on a question with respect to a matter of law exists will generally be discerned from the nature of the asserted error giving rise to the plaintiff’s dissatisfaction. From the error, the question and decision will be identifiable. Each of the question and decision may be express (or implied in the way described by the High Court in Kostas)…

48. Given the significance of the wording of the conferral of jurisdiction by s 57 of the Land and Environment Court Act, it is critical that an appellant clearly identify the question of law which is the subject of the appeal. This was emphasised by this Court in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] per Meagher, Payne and White JJA, albeit in a different statutory context:

Although an appeal to the Supreme Court only lay as of right on a question of law, the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong (TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; [1988] FCA 119 ; B & L Linings Pty Ltd v Chief Cmr of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 ; Colby Corporation Pty Ltd v FCT (2008) 165 FCR 133; [2008] FCAFC 10 at [13]; Osland v Secretary, Dept of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]; Hoe v Manningham City Council [2011] VSC 37 at [3]–[4]; Smalley v Secretary, Dept of Health and Ageing [2011] FCA 302 at [10] ff); Ferella v Chief Cmr of State Revenue [2014] NSWCA 378 at [6], [22]) (Feralla) [sic]. As Leeming JA said in Ferella at [6]:

Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.

49. It is also well settled that in an appeal under s 57, an appellant must establish not only an error of law, but also demonstrate that the error is material and vitiates the decision (see Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335 at [22] per Handley JA, Mason P and Bryson JA agreeing).

50. Whether or not there is an appeal against an order or decision of the LEC on a question of law for the purposes of s 57 should be approached as a matter of substance and not merely form. As the Full Court of the Federal Court said in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [107] (albeit in a different statutory context) if, as a matter of substance, there exists a question of law, the Court has a procedural discretion, to be exercised judicially and where it is in the interests to do so, to direct its formal notification in an amended notice of appeal even where the question of law has not been identified before the primary judge. This approach appears broadly consistent with that of the Court of Criminal Appeal in R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [57]-[69] per Spigelman CJ, Mason P, McLelland CJ at CL, Hidden and Howie JJ agreeing.

51. Similarly, where an appellant is unrepresented (as is the case here), it may be appropriate to adopt a more generous or benevolent approach in assessing whether a notice of appeal adequately identifies a question of law (see, e.g., Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77] per Mortimer J, as approved in Haritos at [104]).

49. Adopting such a benevolent approach, it is possible to discern from the notice of appeal that one or more of the grounds raises the subject of procedural fairness (i.e., grounds 14-20), which might involve a question of law in respect of the LEC’s order or decision. I will address these particular grounds on that basis below.

50. As will be developed, even allowing some latitude for Mr Kudrynski’s lack of legal qualifications, it is not possible to discern any question of law in the remaining grounds of appeal (see further below).

51. Before addressing the individual grounds of appeal, it is appropriate to note a further deficiency with the notice of appeal. It relates to the relief sought in prayer 2 of that document, namely:

Increase proposed compensation for appellant to the amount sought.

55. This proposed order appears to assume that s 57 involves a rehearing, which is contrary to authorities, including B&L Linings at [74]-[76] per Allsop P.

56. This Court will correct an order or decision of the LEC in a s 57 appeal only if there is error in the identified question of law. In proceedings involving an appeal against a valuation decision, this may include an error on the part of the valuer in ignoring a principle which is commonly applied in the practice of valuation.

57. Thus, to sum up, the position seems to be as follows: the subject matter of the appeal is a question of law decided below either explicitly or implicitly and this Court can intervene to correct errors in any such order or decision, including traditional “errors of law” and, in some instances, a question involving “mixed fact and law”.

58. This does not mean, however, that this Court can effectively conduct a rehearing of the matter and substitute its own fact finding process for that of the court below. Thus, in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162, Basten JA (Macfarlan JA agreeing) suggested, at [70], that this Court’s powers when conducting an s 57(1) appeal are limited as follows:

(a) despite the apparent breadth of sub-s (2), the kind of orders permitted will be limited by reference to the subject matter of the appeal;

(b) because the appeal is limited to a decision by the Land and Environment Court on a question of law, the orders should properly be limited to that which is appropriate to correct an erroneous decision in that Court;

(c) a finding of error does not open a gateway to reconsideration of factual findings made in the Land and Environment Court;

(d) nor is a review of factual findings permitted under s 75A of the Supreme Court Act 1970 (NSW);

(e) on the other hand, the Court is not necessarily limited to orders of the kind which would be appropriate on judicial review;

(f) in particular, the Court may make orders disposing of the proceedings on the basis of facts fully found by the Land and Environment Court or otherwise agreed, or (arguably) on the basis of findings which are the only ones reasonably open in the circumstances, and

(g) the Court may exercise a discretionary judgment in disposing of costs orders in the Land and Environment Court.

(f)   Consideration and disposition of the appeal

59. Mr Kudrynski provided an additional 16 page written submission in support of the appeal (see also at [36] above). His written submissions were supplemented by oral submissions.

60. I have taken all those submissions into account, where relevant. It should be noted, however, that many parts of the appellants’ submissions are more appropriately described as purported evidence, which cannot be relied upon in the appeal without leave. Other parts of the submission are scandalous, including the assertion that the primary judge was “a third party” to the proceeding and was the “silent partner” of the Council. The submissions are repetitive and some bear little relevance to the stated grounds of appeal. To give but one example, at [121], the appellants state (without alteration):

it is unique and contradictory to be able to have an enclave and still do see every interesting feature of life occurring in front of you that is until the trees in the creek outgrow your view; a road bypass, goings-on in the industrial area, the sewerage easements which are impossible to see, and the reason why you have an enclave are the inaccessibility issues. The floodplain would not just generate excitement for the birds it would generate excitement for the residents. It would probably force the relocation of transmission line easements.

1. Non-procedural complaints: grounds 1-13 and 21-24

61. As noted, even allowing appropriate latitude for Mr Kudrynski’s lack of legal qualifications, it is difficult to discern any question of law in these grounds of appeal. Some of the grounds appear, however, to raise mixed questions of law and fact.

62. Commencing with ground 1, on a beneficial reading this ground may raise a complaint relating to one or more principles of valuation. Mr Kudrynski’s complaint appears to be that the primary judge should only have considered his valuation of $160 million and should not have allowed evidence as to any other valuations. It also appears to contain a complaint of a factual nature, namely whether in fact the primary judge did not allow any “price comparison” and whether she “allowed any other values”. Assuming that a mixed question of law and fact is adequately raised, it is unclear what the appellants mean by their claim that “no price comparison” was allowed. The claim presumably relates to the $160 million valuation figure advanced by the appellants, which was partly based on Mr Kudrynski’s calculations regarding the value of the harvesting of stormwater as set out in his letter (see PJ[5]). When the primary judge asked Mr Kudrynski to explain how he arrived at that figure, he said: “…I don’t know how many years ago now and since then, my brain has bombed out by nobody questioned me about and it matched almost exactly the value that the council had published on their website”.

63. When asked where the Court could find that evidence, Mr Kudrynski said: “Blackmans Swamp, water harvesting area that was obtained by typing that word into…(not transcribable)..”.

64. When the Court pointed out that no such evidence was before it and that the figure of $160 million was entirely unsupported by any evidence, Mr Kudrynski said: “It was common knowledge”. Mr Kudrynski then complained that Mr Waddell did not disclose the readings on the pumps being used in the area. He said that this would establish “the area as a water harvesting area and it would give us an idea of what amount was being used at the time”. There then followed the following exchange:

HER HONOUR:    But as Mr Waddell said, that water that comes onto your property isn’t only just the water that falls from the sky or on your property or comes from the creek. It’s water that comes from upstream and washes across your property.

APPLICANT J KUDRYNSKI:   That is correct.

HER HONOUR:   Even on the way that you put the case, it’s not all your water.

APPLICANT J KUDRYNSKI:   No, definitely it’s not. No.

HER HONOUR:   Again, I come back to how do we get to $160 million?

APPLICANT J KUDRYNSKI:   It’s not just my water, it’s the water that is passing through the property that is not being harvested by – right at the end it’s picked up by council and pumped into the creek, pumped into the dam.

HER HONOUR:   I have to tell you now, Mr Kudrynski that on the evidence that you’ve put before the Court, there is no way the Court is going to find or can find – unless there’s something I’m missing – there’s no way that the Court can award you $160 million. You just simply haven’t given that evidence to the Court.

APPLICANT J KUDRYNSKI:   I cannot remember how I made the numbers up but I didn’t make it up and submitted them at the time to council and the Valuer General and no-one tested it or questioned it.

The primary judge did not err in disregarding Mr Kudrynski’s calculations.

65. Section 56(1)(a) of the Just Terms Act requires the Court to disregard any increase or decrease in the value of land caused by the carrying out of, or the proposal to carry out, the public purpose in question (see, e.g., Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5 and Mosca). Mr McGuirk made plain under cross-examination that he understood the effect of this provision was that he had to disregard the public purpose of the proposed use. Nevertheless, he explained that he had attributed some value to that part of the Land which was liable to flood. He said that he “recognised that that section of the land had lower utility because of the flood liability and coupled with the fact that a lot of the land, which is flood liable is also under the transmission line easement”. Mr McGuirk also explained that his valuation of $560,000 for the Land did not include any amount for water extraction independently of the Project. That was because, at the time of the resumption, the Kudrynskis had no legal right to extract water from the creek in that area and any applicant seeking approval to extract water would have to go through “a full approval process”. Consistently with what has been described as the “basic principle of compensation law”, Mr McGuirk valued the Land at the relevant date in its existing condition with “all its potentialities as potentialities” (see Mosca at [15]). The primary judge accepted Mr McGuirk’s evidence. She concluded at PJ[72] that his report “provided a sound and rational basis for the valuation figure that he arrived at” and she found him to be a reliable witness. No appellable error has been demonstrated.

66. In his latest written submissions, Mr Kudrynski said that the claim “was for existing use of the land, and had been in use for some eight years previously…”. He then submitted that “any blind man and his dog could see that the system was set up for existing values. The pumping station, the sewerage line, sewerage plant, associated water storage all blended in to make one working unit”. The difficulty with these submissions is that, as noted above, Mr McGuirk valued the Land on the basis of its existing use, with all its potentialities but then explained why he did not include any amount for water extraction for the reasons summarised immediately above. Her Honour accepted Mr McGuirk’s evidence. Her Honour also noted at PJ[70(c)] that, at the date of acquisition, no water was being harvested or pumped from the Land and the existing stormwater projects were not located on the Land – they were located downstream. Her Honour then added at PJ[70(n)] that both Mr Juradowitch (see [53] of his report) and Mr McGuirk (see [9.9] of his report) said that there were apparently no stormwater harvesting schemes in existence in Australia involving a private individual harvesting stormwater and selling it to a body such as the Council.

67. As to the complaint that the primary judge should not have “allowed any other values”, this seems to refer to the primary judge’s preference for the Council’s valuation evidence over that of the appellants. Absent further elaboration, this does not involve a question of law. It simply involves a challenge to the merits of the primary judge’s ultimate conclusion (at PJ[70]).

68. Ground 2 involves an assertion of fact, namely that the only valuation sought (presumably by the appellants) was at a figure of $160 million. It is difficult to see how this involves a question of law. In any event, the primary judge clearly understood, considered and rejected that figure and explained why she preferred the Council’s valuation figure. No error has been established.

69. Ground 3 is another factual assertion, namely that the primary judge did not consider the appellants’ valuation of $160 million. Not only does this ground fail clearly to identify a question of law, it is contradicted by the many references to that specific figure in the primary judgment in the context of her Honour explaining why that figure was rejected (see, e.g., PJ[8], [68(b)], [69] and [70(d)]).

70. Ground 4 is more in the nature of a submission than a ground of appeal. It does not identify a question of law. For completeness, it might also be noted that it is unsurprising that Mr Waddell responded to many of the questions put to him by saying “I don’t know”, given that many questions were of a technical and engineering nature, which he was unable to answer because of his lack of qualifications (see PJ[55]).

71. Ground 5 appears to raise two separate complaints, the first relating to the PRD report and the second relating to Mr Waddell’s evidence (which appears to overlap with ground 4). Neither limb raises a question of law. In any event, the primary judge can scarcely be criticised for assessing the weight which should be given to the PRD report in circumstances where it was tendered by the applicants and relied upon by them in the LEC proceeding. In the appellants’ written submission, it is claimed that the appellants “did not tender the PRD report or know that it had been tendered”. Those claims are factually wrong, as the transcript of the hearing demonstrates (see, e.g., T7.32).

72. As to the prepared questions, which presumably refers to the two written questions which were put to Mr Waddell after the hearing, it is hardly surprising that he responded as he did (see at [71] above) given the technical nature of the questions and his lack of expertise. It was made clear in the hearing below that the two questions were directed to Mr Waddell personally and not to the Council at large.

73. Ground 6 does not raise a proper ground of appeal, nor does it identify a question of law.

74. Ground 7 appears to challenge the primary judge’s disallowance of questions regarding electricity and easements. No question of law is clearly identified. In the outline of written submissions, Mr Kudrynski claimed that the electricity transmission easement was present at the time of resumption. He claimed compensation for it, and that none has been forthcoming. The difficulty with this claim is that the Kudrynskis did not own the easement and had no entitlement to compensation in respect of it.

75. In any event, it is important to pay close attention to the transcript regarding the cross-examination of Mr McGuirk. Mr Kudrynski asked him numerous questions on the topic. Mr McGuirk repeatedly said that his valuation took into account that there was a transmission line, towers, and an associated easement within the Land. He explained at T134.35 that merely because the electricity authority had an easement over land did not mean that the owner lost their interest in the land. Rather, the owner was restricted in what he or should or could do within the easement. The primary judge did not interfere with these exchanges. Her Honour then disallowed Mr Kudrynski’s question to Mr McGuirk when he asked him why no compensation had been paid in relation to the easement. Her Honour quite properly disallowed the question on the basis that it was not a question which Mr McGuirk, as a valuer, could answer. Even if there was a question of law in relation to this matter, no error has been established.

76. Ground 8 appears to challenge the limited (if any) weight the primary judge gave to the PRD report. No question of law is identified. Ironically, the appellants appear to criticise the primary judge for having given any consideration to the document notwithstanding that it was tendered by them in support of their case.

77. Ground 9 is not easy to understand, but it appears to be a complaint that the primary judge erred in her fact finding in not taking into account the claim that the Land was connected to two Council properties. No question of law is identified. In any event, if the object of this ground was to question the stated public purpose for which the Land was resumed, the primary judge was correct in finding that this was not a relevant matter in the context of a Class 3 proceeding.

78. Ground 10 asserts that part of the Land could be subdivided into 30 blocks, which would add to the value of the Land when considered in conjunction with other blocks which already belonged to the Council. No question of law is identified. The primary judge acknowledged at PJ[68(b)] that Mr Kudrynski claimed that the Land could be divided into 30 allotments. Her Honour also summarised Mr McGuirk’s evidence on that issue at PJ[67(e)], which confirmed that a 30 block subdivision was not an available option based on the zoning of the Land. Her Honour accepted that evidence at PJ[70(f)]. The appellants have failed to establish any error.

79. Ground 11 is obtuse with its reference to a $4 million “road” in the context of access to the Land in circumstances where Mr McGuirk repeatedly said that such an expense had not been included in his valuation and did not form part of the highest and best use of the Land. The ground also fails to identify a question of law. In any event, it is difficult to discern any appellable error on the part of the primary judge in relation to this matter in circumstances where she correctly found at PJ[70(g)] that no valuation calculation relied upon a $4 million bridge (or road) as a means of access to the Land. Mr McGuirk had based his valuation of the Land on a four lot rural subdivision with each allotment having frontage to Jilba Street.

80. Ground 12 appears to be a complaint that the Council sought to disguise the real value of the Land. No question of law is identified with reference to any order or decision by the primary judge.

81. Ground 13 appears to challenge the feasibility of the Project but, as the primary judge repeatedly and correctly stated, that issue did not arise in the Class 3 proceeding, which was confined to the question of fair compensation.

82. Ground 21 appears to be a repeated complaint that the primary judge erred in not accepting Mr Kudrynski’s calculations in support of the figure of $160 million. No question of law is identified. In any event, the primary judge fully explained why she rejected those calculations (see PJ[70(a)-(d)]) and no error is demonstrated.

83. Ground 22 complains that the primary judge erred in awarding costs against the applicants and claims that costs should have been ordered against the Council. This ground is entirely baseless and irrational in circumstances where order 3 below actually required the Council to pay the Kudrynskis’ legal costs, if any (see PJ[76]).

84. Ground 23 complains that the primary judge erred in failing to accept that the main issue in the case related to water levels. It is difficult to discern any question of law. In any event, the ground must fail having regard to the statutory disregard (see also [66] and [67] above).

85. Ground 24 appears to be directed to a submission which was rejected by the primary judge, namely that the Land, together with two other nearby parcels, constituted a “mining area”. No question of law is clearly identified. The complaint appears to be one of fact. In any event, as the primary judge pointed out at PJ[70(m)], the Land was not zoned for mining purposes and could not be valued as such.

(ii) Procedural fairness grounds: grounds 14-20

86. In relation to ground 14, there is no factual foundation for the complaint that the appellants were given only seven days’ notice to prepare for the three day LEC hearing. To the contrary, the evidence is clear that they had at least five months’ notice of the relisted hearing, as is evident from the chronology of events set out at PJ[12].

87. In brief (and in support of that chronology), email exchanges between LEC staff and the parties (including Mr Kudrynski) during the period 1 October 2021 to 17 February 2022 establish the following:

1. On 1 October 2021, the parties were informed that Moore J had been assigned to hear and determine the compensation claim (evidently for a three day hearing commencing 9 November 2021). The parties were asked to advise when they could participate in a pre-trial directions hearing.

1. On 6 October 2021, Mr Kudrynski responded, saying that he had suffered “a stroke - breakdown one month ago” but still hoped that the case could proceed in November 2021 (as then scheduled). He then suggested that it might be preferable to defer the case until the coming New Year but if that could not occur, he would do his best to be there.

2. On 7 October 2021, Moore J’s associate responded and set out some tentative proposals for the hearing to occur in the COVID environment, which enabled Mr Kudrynski either to attend in person for a hearing in Sydney or via AVL, commencing on 9, 10 and 11 November 2021. Depending upon the parties’ response, the associate said that Moore J could raise with the Chief Judge whether the hearing should be deferred until 2022.

3. On 11 October 2021, Mr Kudrynski responded, saying that it would take 12 weeks to recover from his stroke and he asked for the hearing to be deferred until the New Year.

4. On 11 October 2021, Moore J’s associate responded, saying that postponing the hearing would be raised with the Chief Judge and without the need for Mr Kudrynski to file a notice of motion because he was self-represented. The Council’s solicitor was asked to provide his available dates for a hearing in February/March 2022.

5. On 11 October 2021, the parties were advised that there needed to be a telephone directions hearing regarding progress of the matter.

6. There is then a gap in the email correspondence, but it is evident that on 12 October 2021, at a directions hearing in which Mr Kudrynski participated, the matter was set down for hearing for three days commencing 14 March 2022.

7. On 25 January 2022, Mr Kudrynski sought AVL details that he would use on the day of the hearing.

8. On 28 January 2022, the Council’s solicitor responded saying that Mr Kudrynski should apply to the Court to participate by AVL.

9. On 31 January 2022, Moore J’s associate confirmed that Mr Kudrynski should take that course and added that “the matter has not been allocated a presiding member”. (It may be inferred that this was because the original hearing dates in November 2021 had been vacated). The associate added that Moore J could hear any application concerning AVL because he presided over the Land Valuation and Compensation List on Fridays.

10. On 7 February 2022, Moore J’s associate emailed Mr Kudrynski and confirmed that a trial judge had not yet been allocated, but that when this occurred that judge would conduct a pre-trial mention and the issue of Mr Kudrynski’s participation by AVL could be discussed then.

11. On 13 February 2022, Mr Kudrynski emailed Moore J’s associate stating that he awaited further correspondence.

12. On 14 February 2022, Moore J’s associate informed Mr Kudrynski that he should email any questions to the LEC Registry and not to Moore J’s chambers in circumstances where Moore J had not been allocated to hear the matter.

13. On 17 February 2022, Mr Kudrynski emailed Moore J’s associate stating:

I do not know of a more forceful way of asking the court for the use of its video link in the upcoming trial of 13, 14 and 15 of March and the arrangements that were made on 12 October 2021. I must be able to use the video link as I am not capable of leaving home.

15. On the same day, Moore J’s associate responded and asked again that Mr Kudrynski contact the LEC Registry because Moore J was “not the judge for your matter”.

16. It is undisputed that on 3 March 2022 the matter came before Pepper J (to whom the matter had been allocated), and it was confirmed at that time that the hearing would proceed as previously scheduled for three days commencing 14 March 2022.

88. All this evidence is clear. It may well be that Mr Kudrynski misunderstood the correspondence and events but, viewed objectively, his claim that the hearing was “sprung on” him is baseless.

89. Ground 15 is that the Council had “prepared the case for [Mr Kudrynski] and including much material which was against me including the PRD report which was some 10 years old”. As explained above, the applicants said that they wished to rely on the PRD report and it was them who in fact tendered it in their case. Accordingly, this complaint has no foundation.

90. Grounds 16 and 17 both raise procedural fairness claims concerning final submissions below. Neither has any factual foundation. As to the complaint that Mr Kudrynski was not shown the Council’s final submissions or given a chance to respond to them, the Council filed and served an original outline of submissions dated 9 March 2022, which is five days before the hearing commenced. An updated outline of submissions dated 15 March 2022 was then provided by the Council in response to the primary judge’s request that its submissions address Exhibits A and B, being the two reports which Mr Kudrynski tendered on the first day of the hearing. The primary judge referred to the Council’s updated submissions being received at the commencement of the second day of the hearing. Mr Kudrynski made no complaint that he had not received a copy. Mr Kudrynski was given a fair opportunity to respond to those submissions when he made his closing address the following day.

91. As to the complaint that Mr Kudrynski did not make any final submissions himself, this claim is also baseless. The transcript below confirms that Mr Kudrynski read out lengthy closing submissions on the final day of the hearing and that he emailed a hard copy of those submissions to the LEC during the course of his closing address. There were frequent exchanges between Mr Kudrynski and the primary judge in relation to parts of those submissions. The Council’s barrister then made closing oral submissions in response to those of Mr Kudrynski. Mr Kudrynski then availed himself of the opportunity to make oral submissions in reply. There was no procedural unfairness. Indeed it is evident from the transcript that the primary judge went to considerable lengths, including granting numerous adjournments, to assist Mr Kudrynski in his presentation of the applicants’ case.

92. Grounds 18 and 19 appear to relate to the manner in which Mr Kudrynski approached his oral examination of the Council’s CEO, Mr Waddell, who gave evidence pursuant to a subpoena issued by the applicants.

93. Mr Kudrynski examined Mr Waddell at length (over 43 pages of the transcript). At the conclusion of that examination, Mr Waddell was excused as a witness. The following day (being the second day of the hearing), Mr Kudrynski said that he would like to recall Mr Waddell. After hearing submissions, the primary judge disallowed that request but permitted Mr Kudrynski to prepare two questions in writing for Mr Waddell to answer. Both questions related to matters concerning pumping. Mr Waddell’s answer to both questions was: “I do not know”. The written questions and answers were then tendered as Exhibit 4.

94. It is difficult to understand these grounds in circumstances where the Court, Mr Waddell and the Council all acceded to Mr Kudrynski’s further questions in writing being provided to Mr Waddell after the hearing had finished. It appears Mr Kudrynski does not accept the substance of the answers given. This is a question of fact, not a question of law for the purposes of s 57(1) of the Land and Environment Court Act.

95. Ground 20 is another complaint of procedural unfairness in respect of the three day hearing commencing on 14 March 2022 and Mr Kudrynski’s claim that it was “sprung upon” him. It overlaps with ground 14 (see at [87] to [89] above). The complaint is baseless. The primary judge went to considerable lengths to clarify the circumstances in which the matter was relisted on 12 October 2021 to be heard by a different judge commencing on 14 March 2022. It is evident that, at the time, Mr Kudrynski misunderstood that although Moore J would no longer hear the matter once it was adjourned at Mr Kudrynski’s request because of his own ill-health, the hearing would nevertheless proceed before another judge commencing on 14 March 2022.

96. As the primary judge pointed out to Mr Kudrynski when he complained about these matters in oral address, there was a directions hearing before her Honour on 3 March 2022. Mr Kudrynski appeared at that time but said nothing about the hearing proceeding on 14 March 2022.

97. Finally, after a lengthy exchange with Mr Kudrynski concerning the case management history and the matter being relisted for hearing, the primary judge made clear to Mr Kudrynski that she did not accept that he had somehow been prejudiced in his preparation for the hearing, to which Mr Kudrynski responded:

Well, if that’s the case, I accept the result…

98. Although, on the face of it, this answer may accept the correctness of the primary judge’s assessment, it is not necessary to decide this issue by any such concession.

(g)   Conclusion

99. For these reasons, each of the 24 grounds of appeal is rejected. None describes or identifies a question of law which is the subject of any order or decision of the primary judge, let alone a question which was decided contrary to law. It follows that the appeal should be dismissed with costs.

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Decision last updated: 22 February 2024