Michelotti v Roads Corporation
[2009] VSC 195
•14 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CIVIL JURISDICTION
VALUATION COMPENSATION AND PLANNING LIST
No. 5482 of 2009
BETWEEN
| GUISEPPE MICHELOTTI and TECLA MICHELOTTI | Plaintiffs |
| V | |
| ROADS CORPORATION | Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2009 | |
DATE OF JUDGMENT: | 14 May 2009 (Revised reasons published 19 May 2009) | |
CASE MAY BE CITED AS: | Michelotti & Anor v Roads Corporation | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 195 | |
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Resumption and acquisition of land – Compensation – Application to Supreme Court for extension of time to claim – Whether prior administrative decision of Minister to refuse extension precludes application to Court – Factors relevant to discretion – Extension granted - Land Acquisition and Compensation Act 1986 ss 6, 7, 8, 22, 37(1), 37(2) and 106(1) - Interpretation of Legislation Act 1984 s 40(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G Garde QC with Dr R Sadler | Rennick & Gaynor |
| For the Defendant | Mr M Wright QC with Ms J Forsyth | Garland Hawthorn Brahe |
HIS HONOUR:
This an application for an order under s 106(1)(d) of the Land Acquisition and Compensation Act 1986 (“the Act”) that the time fixed by s.37(2) of the Act within which the plaintiffs may make a claim for compensation pursuant to s.37(1) of the Act be extended until 30 days after the date of the hearing and determination of this proceeding. The time fixed by s 37(2) is two years from the date of the acquisition.
The plaintiffs rely on four affidavits which are on file and which I have read and taken into account, as I have the single affidavit which was filed on behalf of the defendant.
The plaintiffs are the registered proprietors of the land being Lot 1 of Plan of Subdivision No.138677, more particularly described in Certificate of Title Volume 09445 Folio 613 at Stephens Road, Officer (“the plaintiffs’ land”).
From 1983 until at least the commencement of the events in question in February 2006, the plaintiffs were in adverse possession of land of approximately 1600 square metres north of the boundary of and adjoining the plaintiffs’ land (“the occupied land”). By reason of their adverse possession the plaintiffs were, as at February 2006, entitled to be registered as the proprietors of the occupied land. The occupied land is part of land in Lot 4 on Plan of Subdivision LP143617 then registered in the name of Jean Caroline Richardson (“the Richardson land”).
By notice of acquisition published in the Government Gazette on 3 February 2006 the defendant compulsorily resumed the Richardson land including the occupied land. The compulsory acquisition was for the purpose of construction of the Pakenham Bypass. The plaintiffs have not at any time been served with any notices or statements in the prescribed form setting out their rights in respect of the acquisition.[1]
[1]Cf ss 6, 7, 8 and 22 of the Act. However the plaintiffs eschewed any suggestion that the absence of such notices or statements rendered the acquisition invalid. On the other hand, Senior Counsel for the defendant, without prior notice to the plaintiffs, suggested briefly during his address that his own client’s acquisition of the land might be invalid for lack of notice, and that the consequence might be that no claim for compensation could be made. However, after some discussion, Senior Counsel did not persist with this suggestion.
Nearby land owned by Robin and Judith Hocking was also compulsorily acquired on 3 February 2006 for the same purpose. The plaintiffs sought advice from Mr Hocking (who is a valuer) and he wrote a letter dated 26 April 2006 on behalf of the plaintiffs to the defendant informing the defendant of the plaintiffs’ interest.
From May 2006 to February 2007 Mahonys Solicitors acted for the plaintiffs and sent several letters to the defendant including letters asking whether the defendant “proposed to serve the usual notices on our clients”, without any response. As I have said, no such notices have been served on the plaintiffs.
In July 2007 the plaintiffs engaged Rennick & Gaynor to act on their behalf. Their solicitor at Rennick and Gaynor told them that he also acted for Mr Hocking. After a short period Mr Hocking agreed that the planning advice he was obtaining for the purposes of the Hockings’ claim could also be used by the plaintiffs. This assisted the plaintiffs as they, according to their affidavits, did not have the money to pay for consultants.
There was an issue raised in submissions filed by the defendant in this Court as to whether the plaintiffs had adduced sufficient evidence of their impecuniosity. However they have made the assertion that they could not afford to pay for the necessary consultants and they have said that the amount of research and work that would be required was extensive. That has been confirmed in affidavit material by their current solicitors (Rennick and Gaynor) and there has been no attempt to cross-examine the plaintiffs or their solicitors. I am prepared to accept their assertions as to their impecuniosity for the purposes of this proceeding.
From July 2007 until February 2008 the plaintiffs were waiting for the planning advice. As at 3 February 2008 the plaintiffs were not aware of the existence of the two-year limitation and the plaintiffs’ solicitor (with the care and conduct of the matter) was, according to his affidavit, still waiting for the planning report in relation to the Hocking acquisition and did not turn his mind to whether time had run against the plaintiffs. I have no reason not to accept that statement by the plaintiffs’ solicitor.
By letter dated 29 February 2008, Rennick & Gaynor wrote to the defendant stating that the matter had been held in abeyance as they were awaiting the Hocking planning advice which was common to both matters and seeking an extension from the defendant within which to make a claim for compensation under s.37(1) of the Act.
By letter dated 8 April 2008 Vic Roads stated that it accepted the claim for adverse possession.
By letter dated 7 May 2008 the defendant stated that it was "at law unable to grant an extension of any time". It appears from that letter that at that stage the defendant was proposing to subdivide the adversely possessed land and to consolidate it with the plaintiffs’ land, effectively giving the land back to the plaintiffs.
From time to time the defendant agreed to extend time in respect of the giving of particulars by the Hockings in relation to their case, until ultimately that matter was referred as a disputed claim to the Victorian Civil and Administrative Tribunal (VCAT) in March of 2009. The Hockings did not require any extension of time for the initial making of a claim, as distinct from the giving of particulars, because, being on title, they were of course given relevant notices in the first instance.
By letter dated 14 August 2008 the plaintiffs applied to the Minister administering the Act (the Attorney-General, the Honourable Mr Hulls) to extend time under s.106(1)(b) of the Act. By letter dated 4 December 2008 Mr Hulls simply stated that he “refused to exercise [his] discretion to extend the time within which [the plaintiffs] may make a claim for compensation under s.37(1) of the Land Acquisition and Compensation Act”. No reasons were given, or sought.
The issues in the matter before me are: first, a legal issue as to whether this Court has jurisdiction to entertain the plaintiffs’ application for extension of time that was made by the originating motion filed on 17 March of this year; second, whether the discretion, if it exists in this case, ought to be exercised in favour of the plaintiffs; and, finally, if an extension is granted, what order should be made about costs.
Section 106 of the Act is the critical provision. It reads:
“(1). If it is provided in this Act that an act or thing may be or is required to be done within a specified time, or not before the expiration of a specified time, and that provision is stated to be subject to this sub-section -
(a)the Governor-in-Council may abridge that time; or
(b)the Minister, after consultation with the Minister administering the special Act, may extend that time; or
(c)that time may be extended or abridged by agreement between the Authority and the other party concerned in the matter; or
(d)in the case of sections 37(2) and 47(2) the Court or the Tribunal may extend that time.
2. The Court, Tribunal or Minister may extend time under sub-section (1) despite the fact that the time prescribed by this Act for the doing of an act or thing has expired.”
Sub-section (2) of s.37 is expressed to be subject to s.106(1). The legal point that arises in this matter is whether the mere fact that the plaintiffs by letter from their solicitors sought an extension of time from the Minister and were refused by the Minister is sufficient to preclude their coming to this Court under s.106(1)(d) seeking an extension of the time period for making an application under s.37(2) of the Act.
I am of the very firm view that the mere fact that a decision was made by the Minister under s.106(1)(b) does not deprive this Court of the jurisdiction and power that is conferred by s.106(1)(d). I think that that conclusion is pointed to by the very words of the section (read in the light of the Interpretation of Legislation Act 1984), by the purpose and policy of the Act as a whole, by the purpose and policy of the section itself and by clear legal principle.
The defendant’s written submissions repeatedly assert that multiple “applications” cannot be made under s 106. However s 106 is not framed in terms of an application or applications, but in terms of powers. It confers various powers on various specified repositories. Those repositories have significantly different constitutional positions. The Governor-in-Council, the specified Ministers and the defendant are, of course, all within the Executive branch of government. In its role under s 106(1)(d), VCAT may well be too. The Court, of course, is not. There are significant differences in terms of the levels of formality and cost involved in approaching the respective repositories of power. The powers in question are powers of abridgement of time, extension of time, or both, as the case may be, and they arise either in relation to the Act generally or in relation to specified provisions of the Act only, as the case may be. Grants of statutory power are to be read in accordance with s 40(a) of the Interpretation of Legislation Act 1984 which provides:
“40 Unless the contrary intention appears, where an Act or subordinate instrument confers a power or imposes a duty, the power may be exercised and the duty shall be performed —
(a)from time to time as occasion requires; … .”
In oral submissions the defendant acknowledged that the powers conferred by subsections (a) and (b) of s 106, at least, could be exercised by the relevant repository of its, his or her own motion, ie without any “application”. The defendant also acknowledged that a mere application to the Minister, if withdrawn before a decision was made, would not preclude an application to this Court. The defendant further acknowledged that any of the powers conferred by s 106 could be exercised in favour of (or against) the acquiring authority as well as in favour of (or against) the land holder. However the defendant seemed to submit that once the Minister had made a decision (to whatever effect) under s 106(1)(b) on a request or application for an extension of time or the Court had made a decision (to whatever effect) under s 106(1)(d) upon an application for an extension of time, the party concerned could not thereafter seek an extension, or a further extension, of the same time limit from any of the repositories of power. Senior counsel for the defendant expressly declined to rely on the doctrine of “functus officio”, conceding, apparently, that that doctrine related only to the question whether a particular repository of power could exercise a particular power more than once in a particular case.[2] On the other hand, Senior Counsel submitted that each repository had, relevantly, the same power, namely the power to extend time; and he seemed to go so far as to say that only one decision as to extension of time could ever be made, by the Minister, by the Tribunal or by the Court, even in a case where the time limit had not yet expired but the Minister, the Tribunal or the Court had refused (or had not fully granted) a previous request for a prospective extension.[3] His submission also necessarily involved the proposition that even a decision by the Minister, the Tribunal or the Court to grant an extension would preclude a further decision (by any of them) to grant a further extension.
[2]As to “functus officio” generally, see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-212 and 218-219 per Gummow J; compare Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [55]-[57].
[3]Senior counsel acknowledged, however, that in such a case an agreement for an extension could still be reached with the relevant Authority under s 106(1)(c): see further below.
In the end, the defendant’s submission amounted to little more than an assertion that, on the true construction of s 106, after an initial refusal of an extension of time, no extension could be granted under s 106(1)(b) or (d), regardless of the passage of time or any change of circumstances or any change of policy. In my view, there is little or nothing in the actual language of s 106 to support that assertion. Further, in my view, this is not a case where, for the purposes of s 40(a) of the Interpretation of Legislation Act 1984, “the contrary intention appears” in the statutory language.[4]
[4]See Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FLR 143, at 211-212, 218-219 per Gummow J; compare Kabourakis v Medical Practitioners Board [2006] VSCA 301, esp at [47]-[48], [55]-[57], [81]-[86].
The general policy of the Act is that persons who have their land compulsorily acquired shall be compensated, at least in the ordinary course.[5] It is true that there is a time limit for the making of claims, namely two years, but the very purpose of s 106 is to ensure that no injustice is done to persons who for one reason or another have not lodged their claims in time. It seems to me that there would be a gross injustice done to persons in the position of the plaintiffs if this Act were interpreted in such a way as to preclude them even applying to the Court for an extension.
[5]See esp ss 1 and 30.
What was said by Gaudron J in Knight v FP Special Assets Ltd[6], as picked up and applied by the High Court in Mansfield v Director of Public Prosecutions for Western Australia[7], is directly applicable here. Gaudron J said:
“It is contrary to long-established principle and wholly inappropriate that the grant of power to a Court including a conferral of jurisdiction should be construed as subject to a limitation not appearing in the words of that grant [cases cited]. Save for a qualification which I shall later mention, the grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.”
[6](1992) 174 CLR 178 at 205.
[7](2006) 226 CLR 486 at 492.
Those observations might also be combined with the decision of the Court of Appeal in D.A. Christie Pty Ltd v Baker[8] where it was recognised that multiple applications, even to the same body, namely the County Court, could be made under s.23A of the Limitation of Actions Act, subject only to the doctrine of abuse of process. D.A. Christie Pty Ltd v Baker was discussed by the Court of Appeal of New South Wales in Nominal Defendant v Manning[9]. That case related to a statutory power of the courts of New South Wales to extend time for the bringing of a claim in respect of a motor accident. Once again, no doubt was expressed about the jurisdiction of the relevant court to hear a repeated application for extension. And, indeed, a slightly broader approach to the question of abuse of process – in line with the dissenting judgment of Charles JA in D.A. Christie v Baker - was taken. Those two cases and the ways in which they might be reconciled were considered by the Court of Appeal of this State in Phillip Morris Limited v Attorney-General.[10] In that case the Court of Appeal upheld the decision of Gillard J granting a declared vexatious litigant leave to bring a claim against Phillip Morris Limited on his ninth application for such leave.[11] In the light of those decisions, and given the beneficial purpose of s 106, there is nothing surprising about a construction of the section that would enable multiple applications to be made under it, or, in any event, a construction that would enable at least one application to be made to the Court regardless of any prior decision by the Minister. Of course, the fact of a prior decision or decisions might be significant in determining the manner in which the discretion should be exercised.
[8][1996] 2VR 582.
[9](2000) 50 NSWLR 139.
[10][2006] 14 VR 538.
[11]See also Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 (Hargrave J) where these authorities are discussed.
The defendant has referred me to cases which relate to the general principle that there should be an end of litigation, cases such as Jackson v Goldsmith[12], Rogers v The Queen[13], and Spellar v St George Motor Finance Limited No.6[14]. Each of those is a case relating to litigation properly so-called and, in particular, relating to the relationship between res judicata, issue estoppel and relitigation. This is a very different context. Until now, neither the plaintiffs’ claim for an extension nor, of course, the merits of their claim for compensation, have been litigated at all. Indeed the substantive claim has not been dealt with on its merits even in an administrative setting.
[12](1950) 81 CLR 446 at 446.
[13](1994) 181 CLR 251.
[14](2004) FCA 1699.
I simply do not accept that s 106 of the Act is intended to provide a single opportunity to make an application, with a choice between the Minister, VCAT and the Court whereby, once the first of those bodies approached makes a decision, the matter is necessarily concluded and the other bodies lose the powers that are expressly conferred on them by that section. It seems to me that that would be a very forced reading of the section, and quite contrary to the well-known principle referred to by Gaudron J in Knight.
I need not determine, finally, whether after this Court has given a decision on an application under s 106(1)(d), the parties might be free to go back to the Minister or to the Tribunal or to enter into an agreement with the relevant “Authority” (as defined). However, I note that Mr Wright for the defendant acknowledged that it would be open to a party who had failed to gain a prospective extension in the Court, as long as they were still within the two year period, to enter into an agreement with the relevant Authority for the giving of such an extension. I also note in passing that I agree with Mr Wright that the power of the relevant Authority to enter into an agreement for an extension of time is only exercisable within the period prescribed by the Act for the doing of the act or thing in question, but of course that does not make any more likely the overall construction of s 106 that the defendant urges on me, namely that s 106 “gives only one opportunity with three options as to how it can be exercised”[15].
[15]Transcript, 86.
I reject the submission that this Court lacks jurisdiction to entertain the present application.
Turning to the merits of the application, this was not a matter that the defendant fought as vigorously as the legal point. Indeed Mr Wright announced that the essential reason why the defendant was here, and with senior counsel, was to get a definitive ruling in respect of the construction of s 106. Nonetheless the plaintiffs’ application for the exercise of the discretion is opposed by the defendant.
In my view, however, this is a very clear case for the grant of an extension. It is a situation where virtually all of the criteria outlined in the leading case of Hunter Valley Developments v Minister for Home Affairs and Environment[16] are satisfied by the plaintiffs.
[16](1984) 58 ALR 305 at p.310.
The plaintiffs can show an acceptable explanation for the delay. They have said in their affidavit material, and there is no reason to doubt it, that they were waiting for the provision of complex advice of a planning nature and of a valuation nature, and that there was a sensible desire to achieve economies by linking up with the case that was being made by their neighbours, the Hockings. They had continued to keep the Roads Corporation informed of their intention in that regard, and so they satisfy the third Hunter criterion, namely whether they had taken actions that had continued to make the decision maker aware that they contested the finality of the decision, as distinct from allowing the decision maker to believe that the matter was finally concluded.
Although there was at one stage, apparently, something approaching an agreement by the plaintiffs to accept merely the return of the land and some restoration of the fencing together with the clipping of the trees on the boundary, any such agreement was never finally concluded. Certainly, well within the time, any such agreement was resiled from; and after that the Roads Corporation was made well and truly aware, once again, that the compensation claim was still being advanced.
There is no suggestion that the defendant has been prejudiced by the delay. There is no suggestion that the granting of an extension might unsettle other people or established practices. There is no suggestion that the substantive application has no merit. There is no suggestion that considerations of fairness as between the plaintiffs and other persons otherwise in a like position would point against the grant of the extension. It is in my view fair and equitable in the circumstances to extend time.
So, having looked at each one of the criteria referred to in the Hunter Valley case, albeit not exactly in the same order, I consider that they all favour the plaintiff’s claim. In the Appeal Division’s judgment in Dix v Crimes Compensation Tribunal[17] it was held that those criteria are merely guidelines, and that it would be wrong to elevate any of them to a determinative matter; and in particular that it is not necessarily essential for an applicant to show an “acceptable explanation of the delay”. That proposition was picked up again recently in Ansett v Moss[18] by the Court of Appeal, and it is now a well established rider on the principles stated in Hunter Valley. In any event, this is a case where the plaintiffs have shown an acceptable explanation for the delay.
[17](1993) 1VR 297.
[18][2007] VSCA 161 at [6] per Buchanan JA.
As I have said, this is a very clear case for the grant of the extension.
For these reasons there will be an extension granted for the period sought, namely one month from the date of the decision, which is today.
[Further discussion ensued about costs].
This is a case where both parties have necessarily had to come to court because the plaintiffs have sought an indulgence, namely an extension of time. The application has been unsuccessfully resisted, but the defendant points out that the usual principle is that it is only where the resistance to an application of the present kind is unreasonable that the Court would order costs otherwise than in favour of the defendant.[19] The plaintiffs do not deny that this is the principle that would generally apply to an application of the present kind.
[19]See Commonwealth v Lewis (2007) NSWCA 127 at [94].
I would not go so far as to say that the resistance to the application has been unreasonable but I do have a very firm view about the case and I do think the proper construction of s.106 of the Act is very clear, although I note the extensive nature of the material that was advanced on behalf of the plaintiffs, perhaps just to make triply sure that I didn't go wrong. It seems to me that, probably, senior counsel would not have been briefed in this case except for the legal point. In the public interest, the defendant felt that it required a ruling on that point and it sought one. It has obtained such a ruling now. In my view this is a reason for departing from the approach that the plaintiff should pay the full costs of the obtaining of the indulgence of an extension of time.
It seems to me that in these circumstances the fair thing is to order that each party bear their own costs, and I will so order.
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CERTIFICATE
I certify that this and the 11 preceding pages are a true copy of the revised reasons (published on 19 May 2009) for the Judgment of Cavanough J of the Supreme Court of Victoria given on 14 May 2009.
DATED this nineteenth day of May 2009.
Associate
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