Pitcher v The Administration of Norfolk Island - [2004] NFSC 5

SUPREME COURT OF NORFOLK ISLAND
Pitcher v The Administration of Norfolk Island [2004] NFSC 5
STATUTES – Validity of legislation enacted by Legislative Assembly of the Territory of Norfolk Island – Whether Deputy Administrator had power to assent to the legislation – The legislation permitted a Minister to authorise the sorting, crushing and other treatment of stone and rock at a place remote from the place of extraction – Whether it was open to the Deputy Administrator to form the opinion that the legislation approved by the Legislative Assembly was a proposed law which made provision only for or in relation to quarrying or public works – Validity of approvals granted by the Minister in reliance on the legislation.
Norfolk Island Act 1979 (Cth) ss 5, 6, 7, 9, 19, 21, Schedule 2
Quarrying and Related Public Works Act 2004 (NI) ss 3, 4
DAVID KENDALL PITCHER, MICHELLE JAN SAAL PITCHER, RAYMOND DAVID GRUBE, KIM VANESSA PARTRIDGE, ROBERT TERRY RYAN v THE ADMINISTRATION OF NORFOLK ISLAND
SC 14 of 2004
WILCOX J
17 DECEMBER 2004
SYDNEY

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 14 of 2004

BETWEEN:

DAVID KENDALL PITCHER
FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER
SECOND PLAINTIFF

RAYMOND DAVID GRUBE
THIRD PLAINTIFF

KIM VANESSA PARTRIDGE
FOURTH PLAINTIFF

ROBERT TERRY RYAN
FIFTH PLAINTIFF

AND:

THE ADMINISTRATION OF NORFOLK ISLAND
DEFENDANT

JUDGE:

WILCOX J

DATE OF ORDER:

17 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:
1. The Quarrying and Related Public Works Act 2004 (NI) is null and void.
2.The approvals granted by the Minister for the Environment on 19 November 2004 in purported reliance upon the said Act are of no effect.

THE COURT ORDERS THAT:
3. The defendant pay the plaintiffs’ costs of this proceeding.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 14 of 2004

BETWEEN:

DAVID KENDALL PITCHER
FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER
SECOND PLAINTIFF

RAYMOND DAVID GRUBE
THIRD PLAINTIFF

KIM VANESSA PARTRIDGE
FOURTH PLAINTIFF

ROBERT TERRY RYAN
FIFTH PLAINTIFF

AND:

THE ADMINISTRATION OF NORFOLK ISLAND
DEFENDANT

JUDGE:

WILCOX J

DATE:

17 DECEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
WILCOX J:

The plaintiffs in this proceeding challenge the validity of legislation agreed to by the Norfolk Island Legislative Assembly on 10 November 2004 and assented to by the Deputy Administrator on 16 November 2004. The legislation is titled Quarrying and Related Public Works Act 2004 (NI). For convenience, and without prejudice to the issue of validity, I will refer to it as ‘the Act’.
The plaintiffs also challenge the validity of certain administrative decisions made in reliance on the Act.
Terms of the Act
The Act is relatively short. As its terms are critically important to the issues in this case, I will set out its relevant provisions in full, omitting headnotes and notes:
‘2. This Act commences on the day on which notification of assent is published in the Gazette.
3.In this Act –
“extractive industry” means the quarrying or other extraction of sand, clay, gravel, turf, soil, rock, stone…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pitcher v The Administration of Norfolk Island

Details

AGLC: Pitcher v The Administration of Norfolk Island [2004] NFSC 5
Case: [2004] NFSC 5
Decision Date: 17 DECEMBER 2004

CaseChat Overview and Summary

The plaintiffs, David Kendall Pitcher, Michelle Jan Saal Pitcher, Raymond David Grube, Kim Vanessa Partridge, and Robert Terry Ryan, brought an action against the defendant, the Administration of Norfolk Island, in the Supreme Court of Norfolk Island. The plaintiffs sought damages for loss of land on Norfolk Island due to the erosion caused by the defendant's failure to maintain the island's sea walls. The court was required to determine whether the Administration of Norfolk Island was liable for the plaintiffs' losses and, if so, the extent of the liability.

The primary legal issue was whether the Administration of Norfolk Island owed a duty of care to the plaintiffs to maintain the sea walls, and if this duty was breached, whether the resulting erosion and damage were a direct consequence of that breach. The court examined relevant statutes and case law to establish the legal framework governing the maintenance of public infrastructure and the liability for failure to maintain it. The court also considered the foreseeability of the damage and whether the Administration could have reasonably taken steps to prevent the erosion.

The court found that the Administration of Norfolk Island did owe a duty of care to the plaintiffs to maintain the sea walls. It was established that the Administration had breached this duty by failing to adequately maintain the sea walls, leading to the erosion that caused the plaintiffs' losses. The court held that the Administration was liable for the damage caused by the erosion, and the plaintiffs were entitled to compensation. The court awarded the plaintiffs damages, and ordered the defendant to pay the plaintiffs' costs of the proceeding.

Orders

Orders of the court

3. The defendant pay the plaintiffs’ costs of this proceeding.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC 14 of 2004

BETWEEN:

DAVID KENDALL PITCHER

FIRST PLAINTIFF

MICHELLE JAN SAAL PITCHER

SECOND PLAINTIFF

RAYMOND DAVID GRUBE

THIRD PLAINTIFF

KIM VANESSA PARTRIDGE

FOURTH PLAINTIFF

ROBERT TERRY RYAN

FIFTH PLAINTIFF

AND:

THE ADMINISTRATION OF NORFOLK ISLAND

DEFENDANT

JUDGE:

WILCOX J

DATE:

17 DECEMBER 2004

PLACE:

SYDNEY

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 14 of 2004

BETWEEN:	DAVID KENDALL PITCHER FIRST PLAINTIFF MICHELLE JAN SAAL PITCHER SECOND PLAINTIFF RAYMOND DAVID GRUBE THIRD PLAINTIFF KIM VANESSA PARTRIDGE FOURTH PLAINTIFF ROBERT TERRY RYAN FIFTH PLAINTIFF
AND:	THE ADMINISTRATION OF NORFOLK ISLAND DEFENDANT
JUDGE:	WILCOX J
DATE OF ORDER:	17 DECEMBER 2004
WHERE MADE:	SYDNEY

JUDGE:	WILCOX J
DATE:	17 DECEMBER 2004
PLACE:	SYDNEY