Rafailidis v Roads and Maritime Services (No 2) - [2014] NSWLEC 9

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9
Hearing dates: 3, 4, 5 February 2014
Decision date: 11 February 2014
Jurisdiction: Class 3
Before: Craig J
Decision:
1. Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
2. In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820.
3. Exhibits other than Exhibit 1A may be returned.

Catchwords: COMPULSORY ACQUISITION - determination of compensation for compulsory acquisition of land - land compulsorily acquired for the purpose of upgrading and widening a road - whether Roads and Maritime Services is an authority of the State for the purposes of the Lands Acquisition Act 1989 (Cth) - validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - what is just compensation - determination of market value - whether decrease in value of land at date of acquisition by reason of the roadworks - injurious affection - costs which qualify as 'loss attributable to disturbance'
Legislation Cited: Camden Local Environmental Plan 2010
Commonwealth Constitution
Constitution Act 1902 (NSW)
Judiciary Act 1903 (Cth)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW)
Lands Acquisition Act 1989 (Cth)
Roads Act 1993 (NSW)
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196
Durham Holdings Pty Ltd v The State of New South Wales [2001] HCA 7; 205 CLR 399
Johnston Fear & Kingham & Offset Printing Company Pty Ltd v The Commonwealth [1943] HCA 18; 67 CLR 314
Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; 149 LGERA 439
Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 467
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Rafailidis v Roads and Maritime Services [2013] NSWLEC 131
R v MSK and MAK [2004] NSWCCA 308; 61 NSWLR 204
The Queen v Phillips [1970] HCA 50; 125 CLR 93
Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; 142 CLR 397
Category: Principal judgment
Parties:
Koula Rafailidis (First applicant)
Efrem Rafailidis (Second applicant)

Roads and Maritime Services (First Respondent)
Attorney General for New South Wales (Intervenor)
Representation:
COUNSEL

Self represented (Applicants)
N Eastman (First Respondent)
B K Baker (solicitor) (Intervenor)
SOLICITORS
Self represented (Applicants)
Clayton Utz (First Respondent)
I V Knight, Crown Solicitor (Intervenor)

File Number(s): 30195 of 2013

Judgment

Koula and Efrem Rafailidis (the…

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.

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Details

Case: [2014] NSWLEC 9
Decision Date: 11 February 2014

CaseChat Overview and Summary

The case involved Mr Rafailidis, who challenged the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), and the Roads and Maritime Services, who were required to determine the compensation payable for the acquisition of Lot 2 in Deposited Plan 1170535. The dispute was heard in the Land and Environment Court of New South Wales. Mr Rafailidis contested the constitutional validity of the Act, asserting it was invalid as it did not sufficiently protect property rights and did not provide just terms for the acquisition of property. He also challenged the adequacy of the compensation offered under the Act.

The court examined whether the Act was consistent with the requirements of Chapter III of the Constitution, specifically section 51(xxxi), which deals with the acquisition of property on just terms. The court found that the Act was valid and in accordance with the Constitution. It held that the Act provided adequate protection for property rights and that the compensation process was fair and reasonable. The court rejected Mr Rafailidis' argument that the compensation offered was inadequate.

The court ordered that the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) be dismissed. It further determined the compensation payable by the Roads and Maritime Services for the acquisition of Lot 2 in Deposited Plan 1170535 on 16 November 2012 to be $153,820. The court allowed exhibits other than Exhibit 1A to be returned.

Orders

Orders of the court

1. Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

2. In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820.

3. Exhibits other than Exhibit 1A may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9
Hearing dates:	3, 4, 5 February 2014
Decision date:	11 February 2014
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1. Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). 2. In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820. 3. Exhibits other than Exhibit 1A may be returned.
Catchwords:	COMPULSORY ACQUISITION - determination of compensation for compulsory acquisition of land - land compulsorily acquired for the purpose of upgrading and widening a road - whether Roads and Maritime Services is an authority of the State for the purposes of the Lands Acquisition Act 1989 (Cth) - validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - what is just compensation - determination of market value - whether decrease in value of land at date of acquisition by reason of the roadworks - injurious affection - costs which qualify as 'loss attributable to disturbance'
Legislation Cited:	Camden Local Environmental Plan 2010 Commonwealth Constitution Constitution Act 1902 (NSW) Judiciary Act 1903 (Cth) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) Lands Acquisition Act 1989 (Cth) Roads Act 1993 (NSW) State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Transport Administration Act 1988 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154 Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196 Durham Holdings Pty Ltd v The State of New South Wales [2001] HCA 7; 205 CLR 399 Johnston Fear & Kingham & Offset Printing Company Pty Ltd v The Commonwealth [1943] HCA 18; 67 CLR 314 Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; 149 LGERA 439 Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115 Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 467 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Rafailidis v Roads and Maritime Services [2013] NSWLEC 131 R v MSK and MAK [2004] NSWCCA 308; 61 NSWLR 204 The Queen v Phillips [1970] HCA 50; 125 CLR 93 Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; 142 CLR 397
Category:	Principal judgment
Parties:	Koula Rafailidis (First applicant) Efrem Rafailidis (Second applicant) Roads and Maritime Services (First Respondent) Attorney General for New South Wales (Intervenor)
Representation:	COUNSEL Self represented (Applicants) N Eastman (First Respondent) B K Baker (solicitor) (Intervenor) SOLICITORS Self represented (Applicants) Clayton Utz (First Respondent) I V Knight, Crown Solicitor (Intervenor)
File Number(s):	30195 of 2013