Pacific Bay Beach and Golf Resort Association Incorporated v Transport for NSW

[2024] NSWLEC 9

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pacific Bay Beach and Golf Resort Association Incorporated v Transport for NSW [2024] NSWLEC 9

Hearing dates:

14 December 2023

Date of orders:

15 February 2024

Decision date:

15 February 2024

Jurisdiction:

Class 3

Before:

Pritchard J

Decision:

The Court orders that:

(1) The respondent’s notice of motion filed 11 December 2023 is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application – notice of motion for injunctive relief – restrain applicant from accepting offer of compensation under s 42 of the Land Acquisition (Just TermsCompensation) Act 1991 (NSW) – ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (NSW) – serious question to be tried – balance of convenience

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 149B

Land Acquisition (Just TermsCompensation) Act 1991 (NSW) ss 11, 41, 42, 43A, 44, 51, 56, 66, 67, 68

Land and Environment Court Act 1979 (NSW) ss 16, 20, 22, 23, 24, 25

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) Part 25, r 18.4

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58

CGU Insurance Ltd v Blakely (2016) 90 ALJR 272; (2016) 327 ALR 564; [2016] HCA 2

Council of the City of Ryde v Azizi [2019] NSWSC 1605

Council of the City of Ryde v Azizi (2021) 248 LGERA 204; [2021] NSWCA 165

Gosford City Council v Valuer-General (1996) 90 LGERA 413

Greensill Capital Pty Limited v BCC Trade Credit Pty Limited [2021] NSWSC 167

Hunters Hill Council v Valuer General NSW [2005] NSWCA 185

Niezabitowski v Roads and Traffic Authority of NSW (2006) 147 LGERA 417; [2006] NSWLEC 462

Ray Fitzpatrick Pty Ltd v Minister for Planning (No 4) [2008] NSWLEC 161

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Roads and Maritime Services v Allandale Blue Metal Pty Ltd (2016) 212 LGERA 307; [2016] NSWCA 7

Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806

Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] ALR 357;[1956] HCA 7

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Pacific Bay Beach and Golf Resort Association Incorporated (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
M Hall SC (Applicant)
J Emmett SC and A Poukchanski (Respondent)
Solicitors:
Project Lawyers (Applicant)
Clayton Utz (Respondent)

File Number(s):

2023/188810

Publication restriction:

Nil

JUDGMENT

Introduction

1. By notice of motion filed on Monday, 11 December 2023 (the notice of motion), Transport for NSW, the respondent to these Class 3 proceedings and the applicant on the notice of motion (TfNSW), seeks the following interlocutory relief against Pacific Bay Beach and Golf Resort Association Incorporated, the applicant in these Class 3 proceedings and respondent to the notice of motion (the Association):

1. The Applicant be restrained from accepting the Offer of Compensation issued by the Respondent to the Applicant under section 42 of the Land Acquisition (Just TermsCompensation) Act 1991 (Just Terms Act), dated 14 July 2023 (Compensation Notice) until this proceeding is finally determined or further order of the Court.

2. In the notice of motion, TfNSW also seeks that:

2. The requirements of Rule 18.4 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to the time for service of this Notice of Motion be dispensed with and leave be granted for short service of:

(a) this Notice of Motion; and

(b) the supporting Affidavit of Alison Frances Packham affirmed 11 December 2023,

by email and by no later than 5pm 11 December 2023 to the Solicitors for the Applicant in these proceedings and the Solicitors for the Applicant in Land and Environment Court Proceedings No. 2023/00179139.

3. In these proceedings and proceedings 2023/00179139, separate questions are to be determined regarding the interest in the acquired land of Pacific Bay Resort Pty Limited and of the Pacific Bay Beach and Golf Resort Association Incorporated.

4. Prayers 1 and 2 of this Notice of Motion be returnable instanter.

5. Any other order that the Court deems appropriate.

3. The Association commenced these Class 3 proceedings by application filed on 13 June 2023 pursuant to s 67 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). The Class 3 application was amended on 4 August 2023. The Association appeals the amount of compensation offered by TfNSW in its offer of compensation dated 14 July 2023 pursuant to s 66 of the Just Terms Act in relation to the acquisition of Lots 2 to 6 inclusive in Deposited Plan 1281817 and an easement in gross for services over Lot 6 in Deposited Plan 1281817 (the acquired land and easement for the Coffs Harbour bypass). The acquired land is at Charlesworth Bay, Coffs Harbour, coloured red in the following diagram included in the Association’s points of claim filed on 23 September 2023:

4. On 14 July 2023, TfNSW notified the Association as registered proprietor of its entitlement to compensation for the acquired land and easement and the offer of compensation (as determined by the Valuer-General) pursuant to s 42 of the Just Terms Act in the amount of $1,594,010.94 (the offer of compensation), being an amount of $750,000.00 for market value (s 55(a)) and an amount of $844,010.94 for disturbance (s 55(d)).

5. In prayer 1 of the notice of motion filed on 11 December 2023, TfNSW seeks that the Association be restrained from accepting the offer of compensation. In prayer 3, TfNSW seeks that separate questions (the separate questions) be determined in relation to the legal interests in the acquired land and easement held by the Association and by Pacific Bay Resort Pty Limited (PBR), the applicant in related Class 3 proceedings 2023/179139 (the related proceedings). On 20 October 2023, Moore J made a direction that these proceedings and the related proceedings run together.

6. The Association is an incorporated association of landowners. According to a letter dated 10 February 2023 from the Association’s solicitor to the Valuer-General, PBR is a “Developer Member” of the Association.

7. As at the commencement of the hearing of the notice of motion on 14 December 2023, TfNSW had not provided to the Court any proposed form of separate questions it seeks to have determined.

8. On Monday, 11 December 2023, upon the filing of the notice of motion, the Registrar of the Court received a telephone call from the solicitor for TfNSW. TfNSW’s solicitor informed the Registrar that he was instructed that TfNSW wished to move on the notice of motion on an ex parte basis. The Registrar brought the notice of motion to the attention of the duty judge, and I as duty judge declined to hear the notice of motion ex parte. The Registrar informed the solicitor for TfNSW accordingly, and that TfNSW was required to inform the Association of the notice of motion.

9. On Tuesday, 12 December 2023, in chambers as duty judge, I granted the relief sought in prayer 2 of the notice of motion, and listed the matter for hearing before me on Thursday, 14 December 2023, and made orders for the filing of submissions and evidence.

10. At the hearing on Thursday, 14 December 2023, the Court enquired as to the relationship between the Association and PBR. Senior counsel for the Association responded as follows:

SENIOR COUNSEL: I don't think, your Honour, that it would be worthwhile by plunging now into evidence from the bar table to deal with that, but it's an ongoing development with stages of development, and it's operating as a resort and it's open for business at the moment with the [applicant] managing the common property, not in the technical sense, but the property that's used by the owners of the various elements, and the rules provide for future stages of development that may occur, and those references you have seen to the rules are to‑‑

HER HONOUR: Yes, to develop for members ‑ member and landowner members and the rest of the rules which I wasn't taken to.

…

SENIOR COUNSEL: I’m afraid, your Honour…by deliberate forensic decisions which have been dealt on both sides, we have not chosen to take you into the detail of the ownership or of the competing claims as to market value, and we are...therefore stuck with and content with the idea that you will determine this application without detailed knowledge of what the contentment of the relevant parties are beyond what my friend took you to.

11. Also at the hearing on Thursday, 14 December 2023, the Court asked senior counsel for TfNSW whether the Valuer-General and PBR had been notified of TfNSW’s notice of motion. Senior counsel informed the Court that the Valuer-General was notified of the notice of motion and did not wish to be heard. However, a representative of the Valuer-General was present throughout the hearing. TfNSW later in the hearing tendered email correspondence from Chris Shepherd, director – valuation practice of Valuation NSW, stating:

The formal role of the Valuer General ends on issuing the final determination. The Valuer General does not wish to be heard in relation to [TfNSW’s] application.

12. Senior counsel for TfNSW also informed the Court that PBR had been served with all the primary documents and TfNSW’s submissions, but had not yet provided a response. I requested that the matter be called three times. There was no attendance by or on behalf of PBR.

Evidence relied on in support of the notice of motion

13. At the hearing on 14 December 2023, TfNSW read an affidavit of Alison Packham, solicitor employed by the solicitor for TfNSW, affirmed 11 December 2023, in support of the notice of motion. Ms Packham set out the history of this proceeding and of the related proceeding in which PBR is the applicant.

14. The Association read an affidavit of Mayssa Parrino, solicitor for the Association, affirmed 13 December 2023, in which she deposed to her instructions that “it was always [the Association’s] intention to call for the 90% advance payment by the [r]espondent under section 68 of the [Just Terms Act].”

Background to the notice of motion

15. To the extent that I can discern from the material relied upon by the parties, the relevant background to the notice of motion filed on 11 December 2023 is as follows.

16. On 1 July 2022, TfNSW gave written notice to the Association of its intention to acquire the acquired land and easement by compulsory process pursuant to s 11 of the Just Terms Act (the proposed acquisition notice). The covering letter provided:

The acquisition notice will extinguish your interest in the subject land and convert that interest into an entitlement to compensation, and any prior offers to purchase the land will be withdrawn. The Valuer General will then determine the amount of compensation for your interest in the land. I will write to you once again once the Valuer General’s determination is made.

To assist in the determination of compensation payable to you, please complete the attached claim for compensation form and return it to the address shown at the bottom of the page by 10 September 2022. If you do not return the claim form, the Valuer General will value your interest without the benefit of your assistance.

17. On 13 September 2022, PBR lodged a claim for compensation pursuant to s 39 of the Just Terms Act in the amount of “at least $8,738,100”, comprising the market value of the acquired land and disturbance costs, and of which $6,098,100 is attributed to market value.

18. On 14 September 2022, the applicant as the registered proprietor also made a claim for compensation pursuant to s 39 of the Just Terms Act in the amount of $14,664,621.05, comprising the market value of the acquired land and disturbance costs, and of which $12,000,000 is attributed to market value. In relation to the question in the claim for compensation form “are you aware of any other persons or corporations that may have an interest in the land:”, the applicant ticked the box “Yes”, and provided details of such persons and incorporations, including “Pacific Bay Resort Pty Ltd”, that is, PBR.

19. On 21 October 2022, TfNSW compulsorily acquired the acquired land and easement by notice of compulsory acquisition of land published in the NSW Government Gazette. The notice provided relevantly as follows in relation to the acquisition of Lots 2 to 6 in Deposited Plan 1281817:

Schedule 1

All those pieces or parcels of land situated in the Coffs Harbour City Council area, Parish of Coff and County of Fitzroy, shown as Lots 2 to 6 inclusive Deposited Plan 1281817, being parts of the land in Certificate of Title 6/1112654, exclusive of any existing easements.

The land is said to be in the possession of Pacific Bay Beach and Golf Resort Association Incorporated (registered proprietor) and Pacific Bay Resort Pty Ltd (equitable interest owner).

And in relation to the easement for gross in services the notice of compulsory acquisition of land, inter alia:

Schedule 2

An easement in gross for services as provided in Schedule 4A of the Conveyancing Act 1919, over the land situated in the Coffs Harbour City Council area, Parish of Coff and County of Fitzroy, described below:

Land Burdened

The site designated [CCC] in Deposited Plan 1281817 and described therein as “proposed right of way & easement for services variable width”, being part of the land in Certificate of Title 6/1112654.

The land is said to be in the possession of Pacific Bay Beach and Golf Resort Association Incorporated (registered proprietor) and Pacific Bay Resort Pty Ltd (equitable interest owner).

20. On 27 January 2023, the Valuer-General gave preliminary determinations in relation to claims for compensation resulting from the acquisition of the acquired land and easement (the preliminary determinations). The Valuer-General determined on a preliminary basis that the Association was entitled to nil compensation, and PBR was entitled to an amount of $876,535.25 in compensation.

21. On 10 February 2023, the Association’s solicitor wrote to the Valuer-General. Ms Packham deposes that the letter “asserted that PBR’s interest in the Acquired Land is limited by constraints created by the Objects of the [Association’s] Rules.” The Association’s Rules were not before me in evidence.

22. On 26 April 2023, TfNSW received a copy of a letter from the Valuer-General addressed to PBR, stating that the Valuer-General had formed the preliminary view that PBR did not have an interest in the acquired land and easement within the meaning of the Just Terms Act.

23. By email dated 9 May 2023, Samantha Webb, statutory land transactions manager of TfNSW, provided a response to the Valuer-General’s letter of 26 April 2023 as follows:

Transport for NSW’s Senior Project Officer – Valuation and Acquisitions, John Morton, has advised that “Transport for NSW has no objection to the VG’s findings as detailed in their letter dated 26 April 2023.”

24. On 5 June 2023, PBR commenced the related Class 3 proceedings pursuant to s 67 of the Just Terms Act appealing the Valuer-General’s deemed refusal of its claim for compensation.

25. On 4 August 2023, PBR amended its Class 3 application, objecting to the amount of compensation offered to PBR by TfNSW in the compensation notice dated 9 June 2023 under s 66 of the Just Terms Act.

26. Also on 5 June 2023, the Valuer-General gave a final determination in relation to PBR’s claimed interest in the acquired land, assessing the compensation payable to PBR as nil. On 8 June 2023, the Valuer-General gave a final determination letter to PBR, stating that “based on the material supplied to me, the contractual rights held by [PBR] are not an interest in land as defined in the [Just Terms Act]”.

27. On 13 June 2023, the Association commenced these Class 3 proceedings pursuant to s 67 of the Just Terms Act appealing the Valuer-General’s deemed refusal of its claim for compensation.

28. On 16 June 2023, the Valuer-General gave a revised preliminary valuation report to the Association in relation to the Association’s entitlement to compensation, assessing the Association’s entitlement to compensation in the amount of $1,532,665.39, comprising $750,000 in market value and the balance in disturbance (revised preliminary valuation report).

29. On 30 June 2023, TfNSW responded to the Valuer-General’s revised preliminary determination report, stating as follows in relation to the Association’s interest:

There has been a dramatic change in assessed compensation between the VG’s initial preliminary Determination Report with s.55(a) at $nil and the VG’s revised preliminary Determination Report at s.55(a) at $750,000.

In reply TfNSW Land Access considers the VG’s initial s.55(a) at $nil is closer to fair and reasonable compensation for the Owner, Pacific Bay Beach & Golf Resort Assoc Inc.

And the following in relation to PBR’s interest:

We refer to the related acquisition of Pacific Bay Resort Pty Ltd’s (PBR) interest in land. TfNSW wishes to clarify its position in respect of PBR’s interest in land.

TfNSW's position is that PBR does have an interest in land. This is despite Samantha Webb's email of 9 May 2023, which says that Transport for NSW's Senior Project Officer - Valuation and Acquisitions, John Morton, has advised that "Transport for NSW has no objection to the VG's findings as detailed in their letter dated 26 April 2023", which says that PBR has no interest in land.

30. On 14 July 2023, the Valuer-General gave a final determination of the applicant’s interest in the acquired land and easement, assessing the compensation payable to the Association to be in the amount of $1,594,010.94, comprising $750,000 in market value and $844,010.94 in disturbance.

31. On 14 July 2023, TfNSW wrote to the Association making a statutory offer of compensation in accordance with s 42 of the Just Terms Act in the amount of $1,594,010.94 (referred to herein as the statutory offer of compensation).

32. On 18 July 2023, TfNSW wrote to the Association offering to make a 90% advance payment of the amount of the offer of compensation in accordance with s 68 of the Just Terms Act, and requesting that the Association complete and return a direction as to payment and claim form. The Association did not respond to that letter. On 22 August 2023, TfNSW paid the amount of the statutory offer of compensation into a trust account maintained in accordance with s 51 of the Just Terms Act.

33. On 22 August 2023, PBR filed points of claim in the related proceedings. PBR did not plead a position in relation to any interest of the Association in the acquired land. In the related proceedings, PBR claims compensation in the amount of “at least $8,738,100”, of which $6,098,100 is attributed to the market value of the acquired land. At the hearing on 14 December 2023, senior counsel for TfNSW took me to the following paragraphs in PBR’s points of claim which appear to rely on the “Association Rules” (which were not before me in evidence on the hearing of the interlocutory application):

36. The ‘Development Period’ is defined under the [Association] Rules to mean (rule 1.1.21):

1.1.21. Development Period means the period commencing on the date of incorporation of the Association and ending on the date when the Developer has finished developing and marketing the Pacific Bay Precinct, being a date determined by the Developer (acting reasonably).

…

40. [PBR] as a Developer Member of the Association has an ‘interest in land’ in the Acquired Land and the Burdened Land as defined in section 4 of the Just Terms Act.

Further Particulars

(a) The Developer Member has powers, rights and/or privileges under the Rules of the Association that are legally binding, transferable and enforceable.

(b) The powers, rights and/or privileges of the Developer Member constitute an equitable estate or interest in the Land, or in the alternative, constitute an easement, right, charge, power or privilege over, or in connection with, the Acquired Land and the Burdened Land.

34. On 12 September 2023, the Association filed points of claim in these proceedings. The Association likewise did not plead a position in relation to any interest of PBR in the acquired land. However, Ms Packham says that the Association has in the past asserted that PBR’s interest in the acquired land is “limited by implied constraints created by the Objects of the Rules”, and “appears to proceed on the basis that [it] is entitled to 100% of the market value of the [a]cquired [l]and”.

35. On 5 October 2023, TfNSW filed points of defence in these proceedings and in the related proceedings. In its points of defence in these proceedings, TfNSW added the following in relation to the principal issues to be determined:

19. In response to paragraph 19 of the [points of claim], the respondent:

…

b. says further that the following will also be principal issues in the proceedings:

…

ii. the apportionment of the market value of the Acquisition Land and the Easement as between the Applicant and the competing interest in land claimed by Pacific Bay Resort Pty Limited in the Land and Environment Court proceedings number 2023/00179139 (Potential PBR Interest).

36. In her affidavit of 11 December 2023, Ms Packham says that TfNSW “has now obtained counsel’s advice”, and that TfNSW’s current position is that “there is considerable force in the contention of PBR’s pleading regarding its interest in the [a]cquired [l]and”, and that “the [Association] appears to take a different position, apparently contending that the [Association] is entitled to 100% of the market value of the [a]cquired [l]and”. Accordingly, TfNSW’s position is that there is an unresolved legal issue between the Association and PBR that is affected by doubt. If PBR’s contention is correct, Ms Packham says, the determinations of the Valuer-General are infected by errors of law as to the extent of the respective interests of the Association and PBR in the acquired land at the date of acquisition.

37. Accordingly, TfNSW considers a question of law to arise as to the extent of the respective interests of the Association and PBR in the acquired land and easement, and TfNSW is concerned that if the Association purports to accept the offer of compensation before the question of law regarding the parties’ “asserted and potentially competing interests in land is determined, it would be accepted in circumstances where the VG’s determinations may be amenable to judicial review”.

38. On Monday, 11 December 2023, TfNSW filed the notice of motion and supporting affidavit of Ms Packham affirmed 11 December 2023. Ms Packham also deposed that:

28.   The Respondent takes this step in the first instance ex parte because if the Statutory Offer was accepted, the Respondent recognises there may be scope for argument about whether the acceptance could be set aside later by this Court or by the Supreme Court. The Respondent is mindful of its duty to protect public funds.

29. The Respondent is also mindful of the statutory requirement under s 56(2) of the Just Terms Act that compensation paid to multiple interest owners in the same land not exceed the total market value of the land. That statutory policy might be frustrated if:

(a)   the Association accepted the Statutory Offer;

(b)   it were later held that there was no power to set aside that acceptance; and

(c)   PBR ultimately succeeded in establishing that it has an interest in the Acquired Land such that the Association should not have been assessed as being entitled to 100% of the market value.

30.   The Respondent is aware of current authority from Payne J's decision in Council of City of Ryde v Azizi [2019] NSWSC 1605 (Azizi) suggesting (at [170] -[175]) that this Court does not have power to stay the operation of a VG's determination. The Respondent contends that the view expressed by Payne J in Azizi is consistent with this Court having power to enjoin a party from accepting the statutory offer, including in particular in the context of this case, if the acceptance could frustrate the statutory requirement of section 56(2) of the Just Terms Act.

Separate Question

31.   Due to the Respondent's intention to seek an injunction with immediate effect to protect public funds from the risk that the Association might accept the Statutory Offer in circumstances where there is a live issue as to whether PBR holds a competing interest in the Acquired Land that would entitle it to that same compensation, we have not raised this issue with the Association or PBR in advance of filing an ex parte application. The Respondent's intention is to inform the Association and PBR of the application upon service of this affidavit (together with any orders this Court may be persuaded to make ex parte).

39. On Monday, 11 December 2023, the Court communicated to the parties that noting the evidence of Ms Packham that TfNSW is mindful that “there is no general right for an acquiring authority to challenge the VG Determinations other than by judicial review”, the relief in the notice of motion ought to be sought in the Court’s Class 4 jurisdiction. The Court proposed timetabling orders for the preparation of the notice of motion for hearing, including by the filing of a summons commencing Class 4 proceedings.

40. On Tuesday, 12 December 2023, the solicitor for TfNSW wrote to chambers as follows:

1. It is the Respondent's contention that this Court does not have Class 4 jurisdiction to review the Valuer-General's determinations of compensation. Any proceedings seeking judicial review of those determinations would need to be commenced in the Supreme Court.

2. Notwithstanding her Honour's position that the Respondent should commence Class 4 proceedings to obtain the injunctive relief it seeks, the Respondent does not have instructions to make that application nor to commence proceedings in the Supreme Court.

3. Consistent with her Honour's timetable, the Respondent will file replacement submissions (limited to 5 pages) before 12pm today, which will address its position as to why it cannot commence Class 4 proceedings but that this Court has power to grant the injunctive relief sought in the Notice of Motion in the proceedings as currently constituted.

...

41. At the hearing on Thursday, 14 December 2023, TfNSW gave the usual undertaking as to damages.

42. Accordingly, it arises for the Court to determine whether the Court has jurisdiction and power to grant and if so, in the exercise of its discretion ought grant, the relief sought in prayers 1 and 3 of TfNSW’s notice of motion, namely whether:

1. the Association ought be restrained from accepting the offer of compensation given by TfNSW to the Association under s 42 of the Just Terms Act dated 14 July 2023 until this proceeding is finally determined or further order of the Court; and

2. in these proceedings and the related proceedings, separate questions arise to be determined regarding the interest in the acquired land and easement of PBR and of the applicant.

Relevant statutory provisions and principles in relation to the grant of an interlocutory injunction

Statutory scheme in the Just Terms Act

43. Section 42(1) of the Just Terms Act provides in relation to notice of the entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General):

42   Notice of compensation entitlement and offer of compensation

(1)  An authority of the State which has compulsorily acquired land under this Act must, within 45 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General).

44. Section 43A of the Just Terms Act provides in relation to the amendment of a compensation notice (emphasis added):

43A   Amendment or rescission of compensation notice

(1)  An authority of the State may, by a further notice, amend a compensation notice to correct a clerical error or obvious mistake.

(2)  An authority of the State must, by a further notice, amend a compensation notice to correct the amount of compensation offered if the Valuer-General changes his or her determination of the amount of compensation to be offered.

(3)  A further notice under this section is to be given in the same manner as the compensation notice concerned was given.

(4)  A compensation notice cannot be amended under this section after the offer of compensation in the notice has been accepted.

45. Section 44(1) of the Just Terms Act provides in relation to the acceptance of an offer of compensation:

44   Acceptance of offer of compensation

(1)  A person entitled to compensation under this Part may accept the amount of compensation offered by the authority of the State in the compensation notice.

46. Subsections 56(1) and (2) of the Just Terms Act provide (emphasis added):

56   Market value

(1)  In this Act—

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)—

(a)  any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and

(b)  any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and

(c)  any increase in the value of the land caused by its use in a manner or for a purpose contrary to law.

(2)  When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.

Statutory provisions in relation to the Court’s jurisdiction and powers

47. In relation to the jurisdiction of the Court generally, including its ancillary jurisdiction, ss 16(1) and 16(1A) of the Land and Environment Court Act 1979 (NSW) (LEC Act) provides (emphasis added):

16   Jurisdiction of the Court generally

(1)  The Court shall have the jurisdiction vested in it by or under this or any other Act.

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

48. Section 22 of the LEC Act provides in relation to the determination of matters completely and finally:

22   Determination of matter completely and finally

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

49. Section 24 of the LEC Act provides in relation to the determination by the Court of claims for compensation in compulsory acquisition cases:

24 Claim for compensation in compulsory acquisition cases

(1) If—

(a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and

(b) no agreement is reached between the claimant and the authority required to pay the compensation,

the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise.

(2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation.

50. Section 25 of the LEC Act provides in relation to the hearing and disposition of claims referred to in s 24:

25 Determination of estate, interest and amount

(1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled.

(2) In the exercise of its jurisdiction under subsection (1), the Court may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party to the proceedings and may then proceed to determine the nature of the estate or interest of that person and the amount of compensation (if any) to which the person is entitled.

Relevant provision and principles in relation to the granting of an interlocutory injunction

51. Section 23 of the LEC Act provides as follows in relation to the making of orders by the Court:

23   Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

52. The principles in relation to the grant or refusal of an application for an interlocutory injunction are well settled. In Castlemaine Tooheys Ltd v South Australia (Castlemaine Tooheys),^[1] Mason ACJ identified the following three questions:

1. whether there is a serious question to be tried or that the plaintiff has made out a prima facie case;

2. whether the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and

3. whether the balance of convenience favours the granting of an injunction.

   1. (1986) 161 CLR 148 at 153; [1986] HCA 58 (Mason ACJ).

53. In Tegra (NSW) Pty Ltd v Gundagai Shire Council (Tegra),^[2] Preston CJ identified the following factors the Court may consider relevant in determining the balance of convenience: whether irreparable injury will be caused (at [18]); whether damages are an adequate remedy (at [26]); whether undertaking as to damages are offered (at [29] to [31]); where the status quo lies (at [35]); the nature of interlocutory relief sought (at [37] to [38]); the relative strength of each party’s case (at [41]); equitable considerations (at [43]); prejudice to third parties (at [51]); the public interest (at [54] to [56]); and the time period before a final hearing (at [58]).

Whether the Court has jurisdiction and power to grant the interlocutory injunction sought by TfNSW in these Class 3 proceedings

2. (2007) 160 LGERA 1; [2007] NSWLEC 806 (Preston CJ).

54. Before considering whether there is a serious question to be tried and the balance of convenience (including the question of irreparable injury as a factor relevant to the balance of convenience), the Court first considers whether it has jurisdiction and power to grant the interlocutory injunction sought by the applicant. The determination of that question will be dispositive of TfNSW’s application.

55. TfNSW contends that the Court has “power to grant the injunction sought” on the basis that it is a matter ancillary to the substantive Class 3 proceedings it has brought, relying on s 16(1A) of the LEC Act. Alternatively, the respondent contends that the interlocutory injunction sought is a remedy falling within the duty of the Court pursuant to s 22 of the LEC Act to determine all matters in controversy between the parties finally and completely.

56. In oral address, Mr Emmett SC, senior counsel for TfNSW, also referred to ss 42, 44 and 56 of the Just Terms Act as follows:

Critically for present purposes, s 44 is the provision that a person may accept the amount of compensation. At the heart of our application is we say that needs to be reconciled, that statutory provision needs to be reconciled with another statutory provision, s 56(2).

57. And further:

... if s 44 confers an unqualified right, and parliament intended that right, that is the right to accept the offer, to be unrestricted at all times up to judgment in this Court, then my client loses. The question is how to reconcile those two statutory provisions ‑ that is, 42 and 44 on the one hand with 56 on the other.

58. TfNSW’s senior counsel placed emphasis on s 56 of the Just Terms Act as follows:

... this Court in the exercise of its jurisdiction needs to give effect to s 56(2), and, because of the starkness of this case, the one thing this Court knows is that the Valuer General's determination was 100% Association, nil PBR. So if PBR succeeds in any amount, it can only do so in circumstances where that determination was in error, and PBR succeeding in any amount, if the statutory offer is accepted, will lead to, or may lead to, more than 100% of market value being awarded, and that's why we say, in the particular facts of this case, this Court's power to make interlocutory orders is engaged, because this Court is, among other things, charged with giving effect to s 56.

59. TfNSW orally submitted that the Court has “power” to grant the relief sought in the notice of motion:

At the heart of it is reading ss 16 and 22 alongside s 25 of the [LEC Act], understanding in that context what we say is the relationship between ss 44 and 56, particularly in light of the observations of the Court of Appeal [in Council of the City of Ryde v Azizi [2021] NSWCA 165] as to the role of this Court in giving effect to the rights to compensation in the Just Terms Act.

60. While TfNSW did not identify any case in which an interlocutory injunction has been granted in similar circumstances, it maintained that the relief it seeks is available in the proceedings as currently constituted.

61. In Council of the City of Ryde v Azizi (Azizi (Payne J)),^[3] council brought an administrative law challenge in the Supreme Court under s 69 of the Supreme Court Act 1970 (NSW), alleging jurisdictional error in the making of determinations of compensation given by the Valuer-General under the Just Terms Act. A judge of the Supreme Court had made orders by consent staying the effect of the Valuer-General’s determinations and, effectively, the further operation of the Just Terms Act (including the obligations of the acquiring authority under s 42 in relation to the giving of written notice of the acquisition to all former owners of the land, their entitlement to compensation, and the amount of compensation offered as determined by the Valuer-General), pending the outcome of the proceedings.

    3. [2019] NSWSC 1605 (Payne J).

62. Payne J held at [168] that the Supreme Court does not have jurisdiction to stay the continuing operation of a statute. His Honour said at [170] and [174]-[175]:

170. I am persuaded that Mr Kirk SC correctly identified the juridical problems with the Court granting a stay of the operation of a statutory scheme:

KIRK: You may or may not require a lot of persuasion to do that [grant an injunction], but you can injunct people. You can’t injunct an Act. At least it is not yet, to my knowledge, been established. I’m not saying it’s impossible, but it has not yet been established in Australian law you can injunct an Act; and if you can’t injunct an Act, you can’t stay an Act. The closest it came constitutionally, I think, was in the Castlemaine Tooheys’ litigation …

…

174. I am aware of no authority, which permits the grant of a “stay”, in effect, of the operation of an Act of Parliament. In particular I am unable to agree that the decision of Young JA (sitting on his own as referrals judge) in Re Kerry [2010] NSWCA 232 provides any support for the proposition that the Court has jurisdiction to stay the operation of a statute. In Re Kerry, what Young JA actually decided was that the Court had jurisdiction to grant a mandatory interim injunction (in that case permitting access to a child) ancillary to relief sought under s 69 of the Supreme Court Act. Assuming that is so, I do not think that the case supports the existence of a jurisdiction to stay the continuing operation of a statute.

175. I accept Mr Kirk's pithy analysis - “if you can't injunct an Act, you can't stay an Act”. The judgments in Castlemaine Tooheys and Elliott, which are inconsistent with the existence of such a jurisdiction, were apparently not brought to the attention of the Court when granting the stay. The stay of the “legal effect of the third defendant's determination of compensation” granted in this case, in my respectful view, should not have been granted. Whatever the form of injunction, if one had been sought, each of the matters described by Mason ACJ in Castlemaine Tooheys, including the undertaking as to damages and the balance of convenience, would necessarily have been addressed.

63. TfNSW submitted that the comments of Payne J in Azizi “were directed to an application to stay the requirement, under s 42 of the Just Terms Act, to issue a compensation notice”, and that the interlocutory injunction sought here is not an attempt to stay the operation of the Just Terms Act. Rather, it “restrains the [Association’s] response to an offer of compensation and not the statutorily-mandated process of the offer’s making”.

64. The Court does not consider that it is available to distinguish the decision in Azizi (Payne J). The relief sought by TfNSW here seeks in effect to stay the continuing operation of the Just Terms Act, in particular, the statutorily mandated process for the acceptance of an offer of compensation.

65. Council of the City of Ryde v Azizi (Azizi CA)^[4] concerned an application for leave to appeal from a decision of a judge of this Court requiring council to pay the respondents the sums required to be paid pursuant to s 68(2)(a) of the Just Terms Act, namely 90% of the amount of compensation offered in the notice of compensation as an advance payment within 28 days after the authority is given notice of the institution of the proceedings or (if the owner does not accept that advance payment) to pay 90% of that amount into the trust account kept under Part 3 of the Just Terms Act. Council acknowledged the statutory obligation to pay those amounts, but said it was satisfied in the case of each respondent by payment of at least a part into its own solicitor’s trust account to be held pending determination by the Court of the compensation to be paid. Amounts outstanding by way of unpaid rates and payable to the mortgagee of the three parcels of land were set off or paid away in reduction of the amounts paid to the respondents. The primary judge ordered council to pay to the respondents the full 90% of the amount of compensation offered in accordance with s 68(2)(a), and declined to make an order maintaining the status quo and to make a freezing order.

    4. (2021) 248 LGERA 204; [2021] NSWCA 165 (Basten JA, Meagher and Payne JJA agreeing).

66. The Court of Appeal, granting leave to appeal but dismissing the appeal, held that this Court has power to make such orders, but that there was no error on the part of the primary judge in declining to make orders in the terms sought. At [20], Basten JA (Meagher and Payne JJA agreeing) said:

20. The differences in position are relevant to the grant of leave to appeal. There is an issue of general importance as to whether the Land and Environment Court has jurisdiction to enforce statutory obligations under the Land Acquisition Act, or whether such orders can only be sought in the Supreme Court. Indeed, the respondents did not ultimately resist a grant of leave with respect to the grounds set out above.

67. At [22] Basten JA noted the terms of s 16(1A) and at [28] the terms of ss 22 and 23 of the LEC Act, and said at [29] (footnote omitted, emphasis added):

29. Section 22 reproduces the common form of provision which is also found, with the same number, in the Federal Court of Australia Act. As observed by Gibbs J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd,11 the history of s 22 suggested that it “deals with power and not with jurisdiction” (in contrast to s 32 of the Federal Court Act conferring jurisdiction in associated matters), and also that s 22 “assumed that there is a matter which the Federal Court has jurisdiction to hear and determine, and the section, on that assumption, gives the court the power and imposes on it the duty to dispose of the matter completely and finally.” The same reasoning applies with respect to ss 22 and 23 in the LEC Act: they confer powers but not jurisdiction.

68. And at [33] to [34] Basten JA said (emphasis added):

33. Looked at from the perspective of the Court, the jurisdiction expressly conferred is to hear and dispose of the claim for compensation. By way of contrast, an order to enforce a statutory entitlement to payment of 90% of the offer bears the hallmarks of a claim for mandamus against a statutory authority. The enforcement of such an obligation would naturally fall within class 4 jurisdiction of the Land and Environment Court, which includes jurisdiction to hear and dispose of proceedings “to enforce any right, obligation or duty conferred or imposed by a planning or environmental law …”: LEC Act, s 20(2)(a). That jurisdiction extends to commanding the exercise of a function conferred or imposed by a planning or environmental law and making declarations in relation to any such right, obligation or duty or the exercise of any such function: s 20(2)(b) and (c). However, such jurisdiction is not available in relation to rights, obligations or functions arising under the Land Acquisition Act, which does not fall within the definition of a “planning or environmental law” in s 20(3). On the other hand, the Land and Environment Court has all the powers of enforcement available under Pt 8 of the Civil Procedure Act 2005 (NSW) and the relevant Uniform Civil Procedure Rules 2005 (NSW). The provisions of ss 68(2) and 48(4) of the Land Acquisition Act could be said to involve the impositions of obligations enforceable in a court of general civil jurisdiction for payments of money; alternatively they could be seen as interlocutory steps which will only arise once proceedings have been commenced in the Land and Environment Court.

34. As a matter of principle, legislation should not be read narrowly in such a way as to create a division of jurisdiction between two institutions if an alternative reading allowing for matters to be disposed of in one court only can be adopted. That approach is consistent with the provision of complete and final relief in a single court, as reflected in s 20(2) of the Land and Environment Court Act and as reflected in the reasoning of Kirby P in Stables Perisher, referred to above. On that approach, the Land and Environment Court has jurisdiction both to enforce the obligation for payment of a proportion of the compensation offer, on an interlocutory basis, and, in making final orders, to provide for any overpayment that may have been made on an interim basis.

69. Here, TfNSW submitted that “[i]t must be stressed” that in Azizi CA the Court of Appeal was dealing with relief in connection with the procedure in s 68(2) of the Just Terms Act, whereas in these proceedings it seeks an order “less intrusive than a freezing order” on the basis that it is “necessary to avoid a risk of s 56(2) [of the Just Terms Act] being frustrated”. Nevertheless, it submitted, parity of reasoning supports a conclusion in the current proceedings that this Court “has the power to grant the injunction sought” in its notice of motion.

70. TfNSW submitted that the relief sought in its notice of motion is either ancillary to a matter falling within the Court’s jurisdiction because it is necessary to avoid an outcome in these proceedings and the related proceedings that would “frustrate the operation of s 56(2) of the Just Terms Act”, relying on s 16(1A) of the LEC Act, or that it is a related matter about which it is appropriate for the Court to make orders to “ensure all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings be avoided”, relying on s 22 of the LEC Act. TfNSW submitted that granting the relief sought would “[preserve] an aspect of the subject matter of the dispute” in both proceedings. If the Court does not have “power” to grant the relief sought, it would be necessary to commence judicial review proceedings in the Supreme Court contending that if PBR's contention is correct, the Valuer-General’s final determination for the Association is liable to be set aside on the basis of an error of law.

71. If such an application were made, TfNSW submitted, the Supreme Court would have “power to grant an injunction of the kind sought” and might then transfer the proceedings to this Court pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (CPA) given “the substantial overlap in issues between the putative sets of proceedings”. TfNSW submitted that such a “multiplicity of proceedings is undesirable when all [TfNSW] seeks is to preserve the status quo pending this Court’s exercise of its jurisdiction in relation to the overlapping claims of the [applicant] and PBR”. The observations of Basten JA in Azizi CA at [34] were submitted to be apposite.

72. In relation to the email from the Court to the parties dated 11 December 2023 suggesting that TfNSW commence Class 4 proceedings seeking judicial review of the Valuer-General’s determination in relation to the Association’s interest in the acquired land and easement, TfNSW submitted that such a course is not available to it. TfNSW submitted, and I accept, that judicial review of a Valuer-General’s determination does not fall within the Court’s Class 4 jurisdiction. On current authority, namely Ray Fitzpatrick Pty Ltd v Minister for Planning (No 4) (Ray Fitzpatrick),^[5] it is not available to a judge of this Court to undertake judicial review of a Valuer-General’s determination in proceedings commenced under the Just Terms Act. In Ray Fitzpatrick, Sheahan J said at [63] (emphasis added):

63.  Any challenge to a Valuer General’s determination under the JTC Act may be brought only as a judicial review case in the Supreme Court of NSW (where the Valuer General would be a Defendant), and not by way of valuation appeal/review proceedings in this Court (where again the Valuer General would be a Respondent), nor by way of a collateral challenge in JTC Act proceedings before this Court, where the Court sits as a judicial valuer under s 66 of the JTC Act and s 19(e) of the Court Act (and the Valuer General is not a party). The JTC Act is clear. As Mr Coles submitted (T47 LL28–32), there is no evidence of any Parliamentary intent to subject “the important efficacy of the statutory offer to the vagaries of its underpinning process”. (There is no challenge pleaded to the offer as such, but I believe that any such challenge would also have to be by way of judicial review proceedings in the Supreme Court).

5. [2008] NSWLEC 161 at [63] (Sheahan J).

73. Referring to the decision of Biscoe J in Niezabitowski v Roads and Traffic Authority of NSW (Niezabitowski)^[6] Sheahan J in Ray Fitzpatrick at [77] said that there was “nothing in Biscoe J’s carefully considered and carefully worded judgment in Niezabitowski” which his Honour “could not wholeheartedly accept” on the question before him at that stage of this matter.

    6. (2006) 147 LGERA 417; [2006] NSWLEC 462 (Biscoe J).

74. In Niezabitowski, the former owner sought to discontinue proceedigs under the Just Terms Act and accept the Road Transport Authority’s statutory offer after discovering that the Road Transport Authority would be arguing for an amount of compensation less than half the statutory offer. Biscoe J said at [32] to [34] (emphasis added):

32 Section 66(2) of the Just Terms Act does not refer to, but does not preclude, payment of compensation in accordance with an agreement between the parties, for that is expressly provided for in s 68(1) of that Act and in s 24(1) of the Court Act.

33 In my view, a textual analysis tends to support the construction that the time for acceptance of the statutory offer under s 44(1) of the Just Terms Act is unlimited. Section 44(1) provides that a person entitled to compensation may accept the amount of compensation offered, but prescribes no time limit within which acceptance must occur. By contrast, s 66(1), which is also a permissive provision, permits lodgement of an objection with the Court within 90 days.

34 Lapsing or rejection of a statutory offer are not concepts to which the provisions of the Just Terms Act refer. There is no provision that the statutory offer lapses or is rejected when an objection is lodged with the Court. There is a distinction between a statutory offer which has not been accepted, as referred to in s 45(1)(a), and an offer which has been rejected. There is no provision that the statutory offer can be withdrawn, rescinded, amended or varied. In contrast, there are express provisions in the Just Terms Act that a proposed acquisition notice can be withdrawn (ss 14, 16, 17, 69) or be deemed to be withdrawn (s 14(2)), rescinded (ss 31, 70) or amended (s 16(3)). There are express provisions for compensation claims to be withdrawn (ss 39(4), 71(3)). There are express provisions that, in certain circumstances, an authority can reject a claim for compensation (ss 46, 67, 71) and for a deemed rejection of a claim for compensation (ss 46(3), 67(1)).

75. TfNSW made no submission that the Court here would not follow the authority of Sheahan J in Ray Fitzpatrick or that of Biscoe J in Niezabitowski.

76. In summary, TfNSW’s submission was that by reference to the reasoning of Basten JA in Azizi CA, the Court has “jurisdiction” in these proceedings to determine which of the Association and PBR has interests in the acquired land and easement, the nature of those interests, and the entitlement to compensation for the acquisition of those interests under the Just Terms Act. TfNSW seeks to restrain acceptance of the offer of compensation to preserve the status quo (including having regard to s 56(2) of the Just Terms Act), and says that it is unnecessary to commence proceedings in the Supreme Court to have the Valuer-General’s determination in relation to the Association’s interest in the acquired land and easement set aside.

77. The Association opposes the granting of the interlocutory injunction sought in prayer 1 of the notice of motion. In oral address, senior counsel for the Association submitted that there are “three groups of propositions” upon which it relies in opposing the relief sought in the notice of motion.

78. The first group of propositions relied upon by the Association addresses the question of the Court’s jurisdiction and power to grant the interlocutory relief. Relying on the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats),^[7] the Association submitted that the Court “will not do on an interlocutory basis what it cannot or is not asked to do on a final basis”. Mr Hall, senior counsel for the Association, submitted as follows:

1. In relation to the granting of interlocutory relief, “the Court cannot adjudicate on the strength of the underlying claim in circumstances where it is not enunciated or brought forward”. In the absence of judicial review proceedings seeking to set aside the Valuer-General’s determination, the Court is “not told what the alleged grounds of error are [or] the material that would support them”, and therefore “cannot exercise the jurisdiction, if it does exist, because [the Court is] not equipped with the information that the Court would have to have to make the fundamentally important assessment of the strength of the case”.

2. The granting of the interlocutory relief sought would render TfNSW’s undertaking as to damages “completely illusory”. That is because when an undertaking as to damages is given, as here, “it’s because the final determination of the proceedings” might demonstrate that “the interlocutory injunction was not properly made”. On TfNSW’s application, “there will never be an adjudication by a competent court of the question of whether or not the Valuer-General’s determination of market value to [the applicant] was lawful or defective, or alternatively was affected by jurisdictional error”. Accordingly, an undertaking as to damages “may as well be ignored completely, because it can never be practically enforced”.

   7. (2001) 208 CLR 199; [2001] HCA 63 at [91] (Gummow and Hayne JJ).

79. In its written submissions, the Association submitted that “there is no jurisdiction to grant interlocutory injunctions at large”, relying on the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (O’Neill) at [54]:^[8]

54. …This Court affirmed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd…that, where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought. This meant, in particular, that the Supreme Court of Tasmania did not have jurisdiction to grant an interlocutory injunction when no legal or equitable rights were to be so determined.

8. (2006) 227 CLR 57; [2006] HCA 46 at [54] citing Lenah Game Meats at [91] (Gummow and Hayne JJ).

80. Further, the Association submitted that an applicant for an interlocutory injunction must demonstrate that “if the evidence remains as it is, there is a good arguable case that they will be entitled to the final relief sought”, and that TfNSW has not discharged its onus of proving that there is an arguable case. This is because the basis upon which TfNSW seeks to obtain interlocutory relief “is never fully articulated”.

81. In relation to TfNSW’s reliance on s 56(2) of the Just Terms Act, the Association submitted that s 56(2) “does not found any entitlement to relief on the part of [TfNSW]”. Rather, it is “an element to be taken into account” by the Valuer-General or the judicial valuer in the determination of the amount of compensation. It “does not derogate from the [Association’s] statutory entitlement to have a determination both by the Valuer-General and by the Court of the market value of its interest in the land”. Here, the Association and PBR proposed a case management regime, including that the two sets of proceedings travel together and that a joint s 34 conference be held. That arrangement, the Association submitted, is “more than adequate protection against the danger of the Court inadvertently awarding excessive market value compensation”.

82. In relation to the jurisdiction and power of the Court to grant the interlocutory relief sought in these Class 3 proceedings, the Court finds as follows:

1. Sections 22 and 23 of the LEC Act confer power, not jurisdiction, on the Court and assume that there is a matter that is within the jurisdiction of the Court to determine.

2. As the Court of Appeal emphasised in Azizi CA, there is a basic distinction between the jurisdiction of a court and a power that a court is required or permitted to exercise in the exercise of jurisdiction. In Rizeq v Western Australia,^[9] Bell, Gageler, Keane, Nettle and Gordon JJ said at [84]-[85], albeit in the context of considering the concept of “jurisdiction” in Chapter III of the Constitution but nonetheless presently relevant:

   9. (2017) 262 CLR 1; [2017] HCA 23.

84. More useful in delimiting the scope of operation of s 79 is the basic distinction between the “jurisdiction” of a court, in the precise and technical sense in which that term is used in Ch III in referring to federal jurisdiction and distinguishing it from State jurisdiction, and a “power” that a court is required or permitted to exercise in the execution of jurisdiction. ^[10]

10. CGU Insurance Ltd v Blakely (2016) 90 ALJR 272 at 281 [31]; 327 ALR 564 at 573; [2016] HCA 2.

85. Drawing that distinction, in a passage later quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Edensor,^[11] Toohey J said in Harris v Caladine:^[12]

11. (2001) 204 CLR 559 at 590 [64].

12. (1991) 172 CLR 84 at 136.

“The distinction between jurisdiction and power is often blurred, particularly in the context of ‘inherent jurisdiction’. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’.”

And at [87]: “Characteristically an exercise of jurisdiction is attended by an exercise of power”…^[13] See also Edelman J at [125]-[134] on the distinction between jurisdiction and power. ^[14]

13. Re Nolan; Ex parte Young (1991) 172 CLR 460 at 487; Edensor (2001) 204 CLR 559 at 590 [65].

14. See M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020) at 14.

3. The Class 4 jurisdiction of the Court under s 20(2)(a) of the LEC Act to command the exercise of a function conferred or imposed by a planning or environmental law, and under s 20(2)(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, is not available in relation to rights, obligations or functions arising under the Just Terms Act which do not fall within the definition of a “planning or environmental law” in s 20(3).

4. For the purposes of s 20(2) of the LEC Act, a planning or environmental law is not defined to include the Just Terms Act: s 20(3).

5. As acknowledged by TfNSW, judicial review of a determination of the Valuer-General in proceedings commenced under the Just Terms Act does not fall within the Class 4 jurisdiction of the Court. Any such challenge is not available in a valuation appeal or a collateral challenge in proceedings where the Court sits as judicial valuer under s 66 of the Just Terms Act. ^[15]

   15. Ray Fitzpatrick at [63].

6. Nor is the relief sought ancillary to a matter falling within the Court’s jurisdiction within the meaning of s 16(1A) of the LEC Act. As Pearlman J said in NR Australia Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC5 at [28(b)], the Court’s jurisdiction extends to all matters that are a step in the cause of action which this Court does have jurisdiction to determine “in the sense that those matters are incidental to the matter in which the Court has jurisdiction”. And at [28(d)] her Honour said that s 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter is properly within jurisdiction. ^[16] And in Niezabitowski, Biscoe J held that a statutory offer under the Just Terms Act does not lapse, and that the bringing of proceedings by the offeree does not constitute a rejection of the offer. His Honour said at [34]: “There is no provision that the statutory offer can be withdrawn, rescinded, amended or varied”. The only challenge available to an acquiring authority to the Valuer-General’s determination of compensation is by way of judicial review. ^[17] In Gosford City Council v Valuer-General,^[18] Powell JA (Priestley and Sheller JJA agreeing) observed “this apparently anomalous result was not intended by the Parliament”. However, as TfNSW here submitted, “no amendment has been made to the statute”.

7. It follows, as submitted by TfNSW, that the Association can purport to accept the offer of compensation “at any time” and in circumstances where the offer was made on the basis of a determination by the Valuer-General that is, on PBR’s contention, erroneous. As submitted by TfNSW, there would not appear to be “any authority that would suggest that an open statutory offer, once accepted, can be unwound even if it is later held to have been based on a [Valuer-General’s] determination that was liable to be set aside”. As submitted by TfNSW, the reasoning of Sheahan J in Ray Fitzpatrick at [63] “might reasonably be regarded as indicating to the contrary”. Neither party submitted that the decision of Sheahan J in Ray Fitzpatrick is distinguishable, and I would not follow it.

8. Nor is the relief sought by TfNSW a related matter about which it is appropriate to make orders to “ensure all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings be avoided”. Section 22 of the LEC Act is, as the Court of Appeal held in Azizi CA, a provision which confers power not jurisdiction.

9. As this Court does not have jurisdiction to grant the relief sought by TfNSW, it would be necessary for TfNSW to commence judicial review proceedings in the Supreme Court contending that the Valuer-General’s final determination of compensation for the Association is liable to be set aside on the basis of an error of law. It would then be available to the Supreme Court to transfer the proceedings to this Court pursuant to s 149B of the CPA.

10. In any event, as submitted by the Association, TfNSW has not identified alleged grounds of error in the Valuer-General’s determination or material that would establish such grounds of error. Accordingly, if the Court had jurisdiction to set aside the Valuer-General’s determination (which the Court has determined it does not), it would not do so on an interlocutory basis what it is not asked to do on a final basis: Lenah Game Meats at [91]; O’Neill at [54]. The Court lacks the information necessary to make an assessment of the strength of TfNSW’s case.

    16. Nelson v Ballina Shire Council (1993) 80 LGERA 271; Figgis & Jefferson Pty Ltd v Mosman Municipal Council (1993) 81 LGERA 423; Mitchell v Waugh (1993) 82 LGERA 44; Butland v Cole (1995) 87 LGERA 122; N Stephenson Pty Ltd v Roads & Traffic Authority (NSW) (1994) 83 LGERA 248); Duncan v Moore (1999) 103 LGERA 312; Scharer v New South Wales (2001) 53 NSWLR 299; Michael Harold Connor v Smith Hire Service (Casino) Pty Ltd (2017) NSWLEC 7.

    17. Citing Hunters Hill Council v Valuer General NSW [2005] NSWCA 185 at [7]-[9] (Giles JA).

    18. (1996) 90 LGERA 413 at 422-423 (Powell JA, Priestley and Sheller JJA agreeing).

83. Accordingly, the Court has not accepted TfNSW’s submission that the Court has jurisdiction pursuant to s 16(1A) of the LEC Act or power, by way of ss 16 and 22 together with s 25 of the LEC Act, to grant an interlocutory injunction in order that separate questions, unarticulated, be heard to “preserve the status quo” or “avoid a risk of s 56(2) [of the Just Terms Act] being frustrated”. The Association is presently entitled, pursuant to s 44 of the Just Terms Act, to accept the offer of compensation made to it by TfNSW. Any challenge by TfNSW to the Valuer-General’s determination of compensation must, on current authority which the Court has not been asked to disregard, be brought in judicial review proceedings in the Supreme Court. That finding is dispositive of TfNSW’s application for an interlocutory injunction.

Whether there is a serious question to be tried or TfNSW has made out a prima facie case

84. In the event that the Court be wrong in relation to whether the Court has jurisdiction and power to grant the interlocutory relief TfNSW seeks, I proceed briefly to consider whether an interlocutory injunction ought be granted in the circumstances here: see above at [52] in relation to the questions identified by Mason ACJ in Castlemaine Tooheys. It would arise first to consider whether there is a serious question to be tried or that TfNSW has made out a prima facie case.

85. TfNSW submitted that these proceedings and the related proceedings “involve apparently irreconcilable claims” by the Association and PBR as to their respective interests in the acquired land and easement. The Association “appears to contend that it is entitled to compensation for 100% of the market value, claimed to be around $12 million ... whereas PBR claims that its interest in land has a substantial market value, claimed in an amount slightly over $6 million”. Notwithstanding the forensic decision of the parties to refrain from taking the Court to “the detail of the ownership or of the competing claims as to market value” between the Association and PBR, it is clear that “apparently irreconcilable claims” are involved.

86. In its written submissions, TfNSW says that “there is considerable force in PBR’s claim that it has an interest in the acquired land within the meaning of the Just Terms Act on the basis of the ‘Association Rules of the Pacific Bay Beach and Golf Resort Association Inc’”. Again, those rules were not in evidence.

87. On its application for an interlocutory injunction, TfNSW is required to demonstrate that there is a serious question to be tried or that there is a prima facie case. ^[19] TfNSW has not said how, or adduced evidence which establishes that, PBR has a valuable interest in the acquired land and easement. As the Association submitted, TfNSW has been unclear about its intention to commence judicial review proceedings in the Supreme Court. At the hearing of the notice of motion on 14 December 2023, TfNSW was not instructed to do so. Nor did TfNSW identify any arguable error in the Valuer-General’s determination of the market value of the interest of the Association in the acquired land and easement. The evidence was that TfNSW initially embraced the approach taken by the Valuer-General to the question of which of the two entities, the Association and PBR, has an entitlement to the market value of the acquired land and easement. It was not until 30 June 2023 that TfNSW contended that PBR has an interest in the acquired land and easement.

    19. Castlemaine Tooheys at 153 (Mason ACJ).

88. In Azizi (Payne J), Payne J at [113] identified limitations upon the making of a judicial review challenge to determinations by the Valuer-General of compensation as follows (emphasis added):

113. …The structure of the Just Terms Act reposed in the Valuer-General the responsibility for making the Determinations. The authorities, to which I will turn in detail in dealing with ground 2, make clear that decisions by the Valuer-General about the utility or weight of material before him or her will generally be a question of fact in the evaluative process. The Valuer-General is not bound by the rules of evidence. A “rejection” of material by the Valuer-General, particularly material of the kind propounded by the Council here which I have described at [38]–[40] above, should be understood to be a judgment by him or her that a body of material is unlikely to be of utility. It is, as such, a factual, rather than legal, conclusion. Acceptance of material before him or her, which material has an evident and intelligible basis, is not unreasonable.

And at [124] his Honour referred to the following observations of Dixon CJ in Turner v Minister for Public Instruction:^[20]

124. In Turner v Minister of Public Instruction (1956) 95 CLR 245 at 268; [1956] HCA 7, Dixon CJ observed that “valuation cannot be made to depend entirely on a logical process or formula and that in a valuation case questions of reasoning about matters of fact are not to be confused with questions of law”.

20. (1956) 95 CLR 245 at 268; [1956] ALR 367; [1956] HCA 7(Dixon CJ).

89. As noted above, TfNSW adduced no evidence to support a submission and made no submission to the effect that the Valuer-General adopted an incorrect approach to the determination of compensation or misconstrued their jurisdiction. Rather, TfNSW appears to contend, as submitted by the Association, that what was determined for market value ($750,000) was “too high”. That does not appear to be an available ground for judicial review of the Valuer-General’s determination, and hence raise a serious question to be tried.

90. The Court finds, as submitted by the Association, that the “closest that the submissions appear to get to asserting error by the Valuer-General is...where [TfNSW] says that potential acceptance of the offer would occur ‘in circumstances where the offer has been made on the basis of a V-G’s determination that was, on PBR’s contention, erroneous’”. It does not follow from the fact that PBR appears to assert and TfNSW now to accept that PBR has an interest in the acquired land and easement that the Association does not also have an interest in the acquired land and easement, and an entitlement to have that interest valued by the Valuer-General and on appeal by this Court.

91. TfNSW did not dispute that the Association, the registered proprietor of an estate in fee simple in the acquired land, has an interest in the land or that that interest has a market value. In its points of defence filed on 5 October 2023, TfNSW acknowledged that the Association is entitled to some compensation under the head of compensation in ss 55(a) and 56 of the Just Terms Act.

92. Finally, in relation to serious question to be tried, it is unclear what right or interest the interlocutory injunction sought by TfNSW seeks to protect. If it is the right of an acquiring authority to contend in Class 3 proceedings that the true amount of compensation should be less than the Valuer-General’s determination, any such right is, as submitted by the Association “always subject to the power of a dispossessed owner to bring it to an end by accepting the statutory offer”. There does not appear to be anything in the position of TfNSW here to differentiate it from that of any acquiring authority that forms the view that the Valuer-General has been too generous to a dispossessed owner.

93. Accordingly, if the Court be wrong in relation to the question of the Court’s jurisdiction and power to grant the relief sought in TfNSW’s notice of motion, TfNSW has not established, on the evidence on the interlocutory application, that there is a serious question to be tried.

Whether TfNSW will suffer irreparable injury, whether the balance of convenience weighs in favour of granting the injunction

94. Likewise, if the Court be wrong in relation to whether it has jurisdiction and power to grant the interlocutory injunction TfNSW seeks, it arises to consider the balance of convenience. In relation to the balance of convenience, TfNSW submitted that the interlocutory injunction it seeks “would preserve the status quo”, and that the nature of the order, being “restraint on acceptance of the compensation”, is such that damages would be an adequate remedy. The harm to be avoided by granting the injunction was submitted to be the “unwarranted expenditure of public funds”, the Association presently remaining free to accept the statutory offer in circumstances where there is a “directly competing interest in land, and there is a real prospect that the payment of compensation to the [Association] could not later be unwound even if PBR’s contentions are successful”.

95. TfNSW submitted, and the Court accepts, that “[c]urrent authority indicates that payment of market value compensation to the [Association] may not preclude a requirement to pay overlapping market value compensation to PBR, should PBR succeed in the proceedings it has initiated”. ^[21] Likewise, the Court accepts that payment to two parties of compensation for the same market value, if the total exceeds 100% of the market value, would frustrate the policy of s 56(2) of the Just Terms Act, the statutory offer to the Association reflecting the Valuer-General’s determination of 100% of the market value of the acquired land and easement.

    21. Citing Roads and Maritime Services v Allandale Blue Metal Pty Ltd (2016) 212 LGERA 307; [2016] NSWCA 7 at [45] (Basten JA, Ward JA agreeing).

96. In the circumstances, TfNSW submitted that there would be limited prejudice to the Association if the injunction were granted, and that acceptance by the Association of the offer of compensation “carries a real risk of a substantial unwarranted expenditure of public funds”. Accordingly, the balance of convenience was submitted to favour the grant of interlocutory relief.

97. In oral address, senior counsel for the Association raised two other “groups of propositions” which were submitted to bear upon the balance of convenience, namely:

1. TfNSW’s delay in seeking the injunction and its failure to avail itself of an alternative procedure available pursuant to s 42 of the Just Terms Act; and

2. prejudice to the Association and its right to accept the statutory offer of compensation as central to the operation of the compensation scheme under the Just Terms Act.

98. In relation to delay, senior counsel for TfNSW submitted that it only received legal advice on 27 October 2023 in relation to the injunction, and it took TfNSW some weeks to determine what position to take. There was no evidence to this effect other than that of Ms Packham that as at the date of filing TfNSW’s points of defence on 5 October 2023 in the related proceedings, it had “sought advice from counsel and was awaiting that advice before substantively responding to PBR’s claim”. TfNSW accepted that delay is a matter that the Court would take into account on balance of convenience.

99. Again, if I be wrong on the question of jurisdiction and power, in relation to balance of convenience, notwithstanding some delay on the part of TfNSW, TfNSW has provided an explanation for its delay in seeking interlocutory relief. It is true that the possibility of potential claims by both PBR and the Association was identified in the letter of 10 February 2021 from TfNSW’s solicitor to PBR’s solicitor in which TfNSW’s solicitor noted that “as registered proprietor, the [Association] has an ‘interest in land’”, and advised that it was TfNSW’s view that PBR has an interest in the acquired land. It is also true that the issue was made clear by no later than 12 September 2023 when the Association filed its points of claim. However, the facts here are plainly distinguishable from those in Greensill Capital Pty Limited v BCC Trade Credit Pty Limited ^[22] where Stevenson J said at [39] to [43]:

39.  The other factor which, to my mind, weighed in the balance of convenience, was that despite the fact that the underwriters’ position was made clear eight months ago, apparently Greensill only sought legal advice about its position in London last Thursday, 25 February 2021, and in Sydney last Friday, 26 February 2021.

40. It is true that the evidence reveals that there have been without prejudice discussions in the meantime. But the evidence does not reveal when and how often those discussions took place (evidence which could have been revealed, notwithstanding the without prejudice nature of whatever was said).

41. Further, as I have said, Mr Narburgh’s evidence at [20] above suggests that, until “around 25 February 2021”, Greensill understood that the 1 September 2020 notice was valid and therefore had until then, understood that their policies would expire on 1 March 2021.

42. Nonetheless, relief was only sought within hours of cover expiring.

43. I found Greensill’s delay in bringing the matter to Court, when it has known of the underwriters’ position since the middle of last year, and by 1 September 2020 at the very latest, to be a factor weighing against granting interlocutory relief.

22. [2021] NSWSC 167 (Stevenson J).

100. Accordingly, any delay on the part of TfNSW in seeking the interlocutory injunction would not be a factor weighing against granting interlocutory relief.

101. The Association further submitted that weighing against the grant of interlocutory relief is “the significance, in the structure of the land acquisition and compensation regime, of the right to accept the offer in a compensation notice”. The Association submitted, correctly, that a dispossessed owner has an unqualified statutory right pursuant to s 44 of the Just Terms Act to accept the amount of compensation determined by the Valuer-General; and that where a claim for compensation is made, the Valuer-General must determine the amount of compensation and is to provide a copy of the determination of the amount of compensation (together with any report on the value of the land prepared by or for the Valuer-General) to the authority of the State concerned and the former owner to whom the compensation is payable pursuant to s 41.

100. In accordance with s 42 of the Just Terms Act, the acquiring authority must within 45 days after the publication of the acquisition notice give to the former owners of the land written notice of the compulsory acquisition, and the amount of compensation offered (as determined by the Valuer-General). Section 42 provides a procedure to protect the acquiring authority in circumstances where there is a number of persons claiming competing interests in the land concerned by permitting the authority of the State to delay in giving a compensation notice and for the payment of the compensation into a trust account maintained under Part 3 of the Just Terms Act.

101. There was no evidence that TfNSW availed itself of the procedure in s 42 here.

102. On current authority, the right to accept an offer of compensation pursuant to s 44 survives until the determination of a different amount of compensation by the Court. In Niezabitowski, Biscoe J at [41] pointed to the danger for a dispossessed owner if the case were otherwise. His Honour said:

41. On the other hand, on the construction for which the respondent contends, persons entitled to compensation who lodge objections are locked into litigation from which they cannot withdraw. They can only await the decision of the court or negotiate, if they can, an agreement with the respondent. This may have unfortunate consequences which counter those referred to above that may flow from the contrary construction. Persons entitled to compensation may find that they are unable to continue to fund the litigation, or may not wish to continue to run the risk of litigation, particularly in light of unexpected and perhaps unforeseeable evidence adduced by the respondent. Take the present case. The respondent’s points of defence contend for compensation which is only marginally lower than the statutory offer. Yet there has been a dramatic development whereby the respondent has served evidence which will lead it to seek to amend its points of defence to allege that the compensation should be less than half the statutory offer, about $2.7 million less than that initial offer. These sort of difficulties are even more acute in the hypothetical case of a person entitled to compensation who may experience difficulties in obtaining valuation advice within the statutory 90 day period and who therefore lodges an objection intended to be a holding objection to protect the person’s position.

105. Although his Honour was not making those observations in the context of an application for an interlocutory injunction, they weigh on the balance of convenience here. The Association submitted that if an interlocutory injunction were granted it “would force the [Association], a not-for-profit association of land owners, to run this litigation to its conclusion come what may, or capitulate to [TfNSW’s] view of its entitlements”.

106. The Association further submitted that although it “takes the view now that it will achieve a more just result by prosecuting this case it may in future decide that its limited resources are better deployed elsewhere, or for any other unforeseen reason wish to withdraw”, and that that is a loss for which the undertaking as to damages would provide no answer. In oral submissions the Association also referred to Brimaud v Honeysett Instant Print Pty Ltd ^[23] as authority for the proposition that it would not be simple for the Association to apply to vary any injunction if it later wished to accept the offer of compensation.

     23. (1988) 217 ALR 44 (McLelland J).

107. The Court accepts the Association’s submission that the significance in the structure of the land acquisition and compensation regime of the right to accept the offer in a compensation notice is a factor weighing against the granting of interlocutory relief in the circumstances here.

108. Accordingly, if the Court be wrong in relation to the Court’s jurisdiction and power to grant the relief sought in TfNSW’s notice of motion, and whether there is a serious question to be tried, the Court would determine on the evidence on the interlocutory application that the balance of convenience does not favour the granting of the interlocutory injunction sought by TfNSW.

Orders

109. The Court orders that:

1. The respondent’s notice of motion filed 11 December 2023 is dismissed.

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Endnotes

Decision last updated: 15 February 2024