Noto & Anor v Roads Corporation

[2008] VSC 419

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

No. 8053 of 2008

GIOVANNI NOTO AND ROSETTA NOTO	Plaintiffs
v
ROADS CORPORATION	Defendant

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JUDGE:	Osborn J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2008
DATE OF RULING:	26 September 2008
CASE MAY BE CITED AS:	NOTO v ROADS CORPORATION
MEDIUM NEUTRAL CITATION:	[2008] VSC 419

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Application pursuant to s.81(1)(c) Land Acquisition and Compensation Act 1986 for claim to be uplifted from the Victorian Civil and Administrative Tribunal to the Supreme Court of Victoria – distinguished from s.23(3) of the Valuation of Land Act 1960 – whether claim raises questions of ‘unusual difficulty’ – land acquired for a bypass and divided by a bridge – ‘unusual difficulty’ carries its ordinary meaning and in the circumstances is ultimately a question of fact – matter relates to unusual difficulties concerning specific statutory provisions, questions of causation and quantification of pecuniary loss

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Delany SC with Mr P. Chiappi	Aitken Partners
For the Defendant	Mr C. Wren SC	Garland Hawthorn Brahe

HIS HONOUR:

1. In this matter the plaintiffs make application pursuant to s.81(1)(c) of the Land Acquisition and Compensation Act 1986 for an order that a disputed claim be uplifted from the Victorian Civil and Administrative Tribunal to this Court.  The relevant section provides, "A disputed claim must be determined by the Court irrespective of the amount in dispute if the Court is satisfied on the application of any party that the claim raises questions of unusual difficulty or of general importance".

1. That provision is to be contrasted with the provision contained in s.23(3) of the Valuation of Land Act 1960 which provides for the uplifting of rating valuation appeals to this court.  It provides that, "A matter that could be the subject of an application under s.22 to the tribunal may be treated as an appeal to the Supreme Court if, on the application of any party, if the court is satisfied that the matter raises questions of unusual difficulty or of general importance".

1. The distinction between the two provisions lies in the use of the word "must" in s.81(1) of the Land Acquisition and Compensation Act.  The question, which is in dispute between the parties, is thus not what order I should make in the exercise of a discretion but whether I should be satisfied that this is a disputed claim which must be determined by the court because it raises questions of unusual difficulty.

1. The plaintiffs are the owners of the land at Craigieburn which has been bisected by the Craigieburn Bypass Hume Highway link.  On 20 June 2002 Roads Corporation acquired a substantial area of the plaintiff's land for the purpose of construction of the bypass.  As a result, the plaintiff's land was divided into two parcels, respectively north and south of the bypass.  The southern parcel is some 37 hectares.  The size of the northern parcel is 121 hectares.

1. Roads Corporation also caused a seven metre wide bridge to be constructed over the bypass at the time of construction of the bypass.  The bridge connects the two separate parcels.  The northern parcel has no other direct road access.  The 7 metre bridge is not as wide as was sought by the plaintiffs prior to its construction and was built by Roads Corporation in the knowledge that the plaintiffs contended a wider bridge was appropriate.

1. In my view, the phrase "unusual difficulty" as it appears in the relevant section carries its ordinary meaning and its application to particular circumstances is ultimately a question of fact.  It's intended to have flexible protean quality which embraces different fact situations as they may emerge from time to time.

1. This ordinary meaning is illustrated by the dictionary definitions to which Gobbo J referred in the decisions of Rex Tyre & Auto Services Richmond Pty Ltd v. Country Roads Board 1979 VR 608 and Dale Park Pty Ltd v. Roads Corporation 1994 2 VR 524. Most relevantly the concept of “unusual” can be paraphrased as meaning "not often occurring". It can be seen however that in a fundamental sense that paraphrase simply reflects the plain meaning of the words.

1. I should add however that the consideration which Gobbo J has given to this provision in the past, is of assistance in that I respectfully agree with His Honour that the phrase is apt to embrace difficulties of both a legal and factual nature. 

1. Moreover, it seems to me that in the present case the provisions of s.43(2) and (4) of the Land Acquisition and Compensation Act relating to bridges, are provisions which to the best of my understanding, have not been the subject of consideration by this Court and can be said to give rise to some unusual questions of construction.

1. Those provisions govern both the authority’s obligation to provide a bridge and obligations consequent upon the provision of the bridge including consequences for a land owner if a bridge is provided.  I suspect that if this matter proceeds to hearing both the plaintiffs and the defendant will submit to the Court that the provisions are simple and their meaning is plain, but they will not agree as to that meaning.  In my view, they are not free from difficulty.

1. It also seems to me that this case does give rise to unusual difficulties with respect to questions of causation and quantification of pecuniary loss.  It may or may not be that in the ultimate they are capable of ready resolution, but it is apparent at this point that the parties join issue both as to the conceptual framework within which those questions should be resolved and with respect to the factual outcome which should result within particular conceptual frameworks.

1. It seems to me that it is inappropriate for me to elaborate in any detail any preliminary views with respect to these matters lest it be taken that the court has prejudged some of them.  They are sufficient in my view however to say that in the present case the question of how the construction of a bridge by the authority, which the plaintiffs assert is inadequate, should be taken into account in the valuation exercise does give rise when looked at broadly and fairly to issues of unusual difficulty.

1. Accordingly, I propose to make the order which the plaintiffs seek with respect to the transfer of the proceeding from the Tribunal to this Court.

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