Rizzo v Head, Transport for Victoria
[2020] VSC 89
•4 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2018 00840
| FRANCESCO RIZZO and FRANCESCA RIZZO | Applicants |
| v | |
| HEAD, TRANSPORT FOR VICTORIA | Respondent |
---
JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 February 2020 |
DATE OF JUDGMENT: | 4 March 2020 |
CASE MAY BE CITED AS: | Rizzo v Head, Transport for Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 89 |
---
VALUATION AND COMPENSATION – Amendment to Hume Planning Scheme – Imposition of Public Acquisition Overlay for Outer Metropolitan Ring/E6 Transport Corridor – Referral of disputed claim for compensation for loss on sale under Pt 5, Planning and Environment Act 1987 (Vic) – Claim made before completion of contract for sale of land – Proceeding held to have no real prospect of success as presently framed – Whether applicants can amend notice of claim – Whether applicants can amend referral notice – Court’s jurisdiction limited to determining ‘disputed claim’ under Land Acquisition and Compensation Act 1986 (Vic) – Application for leave to amend notice of claim and referral notice refused – Planning and Environment Act 1987 (Vic) ss 98(1), 99(b), 105, 106(1) – Land Acquisition and Compensation Act 1986 (Vic), ss 37, 80, 89 – Plunkett v Roads Corporation [2019] VSC 39.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr CJ Delany QC with Ms J Watson | Minter Ellison |
| For the Respondent | Mr S Goubran with Ms C Dermody | Russell Kennedy Lawyers |
HER HONOUR:
The applicants, Francesco and Francesca Rizzo, seek compensation for loss on the sale of land at 555 Donnybrook Road, Mickleham, under ss 98(1) and 106 of the Planning and Environment Act 1987 (Vic) (Planning Act). Part of the land is affected by a Public Acquisition Overlay, introduced into the Hume Planning Scheme in August 2010, which reserved land to be acquired by the Roads Corporation (the Authority)[1] for the Outer Metropolitan Ring/E6 Transport Corridor (PAO 3). Mr and Mrs Rizzo claim to have sold the land on 8 August 2016, when they entered into a contract for the sale of the land.
[1]Now titled ‘Head, Transport for Victoria’.
On 21 December 2016, the applicants served a notice of claim on the Authority, claiming compensation of $24,140,000 for loss on sale of the land. The Authority did not respond within the prescribed time, and was taken to have rejected the claim.[2] In a letter dated 24 October 2017, the Authority provided its substantive response that the claim was premature because the sale of the land would not occur until final settlement of the contract of sale, due to occur on 8 August 2020.
[2]Planning and Environment Act 1987 (Vic) (Planning Act), s 105; Land Acquisition and Compensation Act 1986 (Vic) (Compensation Act), ss 37(4), 37(8).
On 8 March 2018, Mr and Mrs Rizzo referred their disputed claim to this Court for determination, under s 80(b) of the Land Acquisition and Compensation Act 1986 (Vic) (Compensation Act). By agreement between the parties, no steps were taken in the proceeding until after delivery of my judgment in Plunkett v Roads Corporation.[3]
[3][2019] VSC 39 (Plunkett).
Plunkett involved the determination of a separate question as to when the ‘sale of land’ for the purposes of ss 99 and 106 of the Planning Act occurred in that case. On 7 February 2019, I gave an answer to the separate question:[4]
… on the proper construction of sections 99 and 106 of the Planning and Environment Act 1987 (Vic), the ‘sale of land’ took place on 17 October 2017, upon completion of the contract of sale.
[4]Plunkett, [7].
On 15 April 2019, the Authority applied for summary dismissal of this proceeding, under s 63(1) of the Civil Procedure Act 2010 (Vic). The summary dismissal application was heard by Derham AsJ on 30 July 2019, and judgment was given on 25 November 2019.[5] His Honour concluded that the proceeding as it was then framed had no real prospects of success.[6] He was not satisfied that the claim should nevertheless proceed to trial, under s 64 of the Civil Procedure Act.[7] Additionally, his Honour was not persuaded that the proceeding should be put off until after completion of the contract of sale.[8]
[5]Rizzo v VicRoads [2019] VSC 770.
[6]Rizzo v VicRoads, [75]–[77].
[7]Rizzo v VicRoads, [106].
[8]Rizzo v VicRoads, [115]–[116].
However, the applicants also contended that, because the contract of sale provides for completion of the sale in four separate stages, the referral could be amended so as to relate to each separate stage. His Honour found that this argument was not fanciful. Taking an appropriately cautious approach, he held that it was not possible to conclude that an amended claim would have no real prospect of success.[9]
[9]Rizzo v VicRoads, [96]–[98].
On 9 December 2019, Derham AsJ made orders giving the applicants leave to apply by summons to amend their referral notice dated 8 March 2018 in a manner consistent with his reasons for decision. His Honour directed that the summons be made returnable before me, and adjourned the Authority’s summary dismissal application to the return date of the applicants’ summons.
On 17 January 2020, Mr and Mrs Rizzo filed a summons seeking leave to file and serve an amended notice of claim and notice of referral. The summons also sought orders that the proceeding be adjourned until after settlement of the final stage of the contract of sale scheduled for 8 August 2020, and sought directions for the hearing and determination of an appeal against part of the orders made by Derham AsJ on 9 December 2019.
The Authority opposed the application to amend and any adjournment. It submitted that the proceeding should be summarily dismissed.
I have concluded that the applicants cannot amend their notice of claim or the referral notice in the manner proposed. The notice of claim was created and served outside the Court’s processes, and is not a ‘document in a proceeding’ that the Court can give leave to amend. As to the referral notice, the Court’s jurisdiction in the proceeding is limited to determining the ‘disputed claim’ referred to it in accordance with s 80 of the Compensation Act. That jurisdiction cannot be enlarged by amending a referral to include a claim that is not a ‘disputed claim’ for the purposes of the Compensation Act.
I agree with the Authority that the proceeding has no real prospect of success and should be summarily dismissed.
Compensation under Part 5 of the Planning Act
Part 5 of the Planning Act provides for the payment of compensation for the effect of reserving land for a public purpose. This case, like Plunkett, concerns a claim for compensation for ‘loss on sale’ under s 98(1)(a) of the Planning Act.
Under s 98(1) of the Planning Act, an owner or occupier of land may claim compensation for loss caused by a planning prescription that designates the land to be used for a public purpose. An owner or occupier of land reserved for a public purpose under a planning scheme has an ‘inchoate right’ to claim compensation,[10] which matures into an entitlement to be paid compensation on the happening of one of the ‘trigger’ events in s 99.
[10]Halwood Corporation Ltd v Roads Corporation (1995) 89 LGERA 280, 286; Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 447–448 (Tadgell JA, Brooking and Ormiston JJA agreeing).
The relevant trigger event here is the ‘sale of the land concerned under section 106’.[11] Section 106 provides that the owner of land may claim compensation under s 98 after the sale of the land, if the owner of the land sold it at a lower price than might reasonably have been expected if the land or part of the land had not been reserved.
[11]Planning Act, s 99(b).
In Plunkett, I concluded that the ‘sale of the land’ in ss 99 and 106 meant completion of the contract for the sale of the land, when the full purchase price is paid and the contract becomes unconditional.[12] I rejected the alternative construction put forward by the claimants in that case, which was that the ‘sale of the land’ occurred upon entry into the contract of sale.
[12]Plunkett, [62], [71], [76].
Section 105 provides for the mechanism for making a claim for compensation:
Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary changes, apply to the determination of compensation under this Part as if the claim were a claim under section 37 of that Act.
Section 37 of the Compensation Act provides for the making of a claim for compensation where no offer has been made by the relevant authority:
(1) If a person is entitled to claim compensation under this Part, and the Authority has not made an offer to that person under section 31, that person may make a claim for compensation under this section.
(2) Subject to section 106(1), a claim for compensation under this section must be made within two years after the date of acquisition.
(3) A claim for compensation under this section must be in the same form and contain the same particulars as a notice under section 35.
(4) Subject to section 106(1),[13] the Authority must, before the expiration of three months after the day on which a notice of claim is served upon it under subsection (1), serve upon the claimant a statement in writing replying to the notice of claim.
[13]Section 106(1) of the Compensation Act provides for the extension or abridgment of time specified by a provision of the Act.
(5) The Authority may in that statement—
(a) admit the claim; or
(b) make an alternative offer of compensation; or
(c) reject the claim.
(6) If the Authority makes an offer under subsection (5), the offer must be accompanied by—
(a) the information referred to in section 31(4); and
(b) if the claimant has provided the Authority with a copy of a certificate of valuation and the information required in section 35(f), a statement explaining the difference between the Authority's offer and the valuation on which the claimant's claim is based, together with a copy of any certificate of valuation relied upon by the Authority and a statement setting out the method and basis of that valuation.
(7) The Authority may admit the claim in full or in part, leaving specified matters subject to negotiation and, to the extent that the Authority admits the claim, it is liable to satisfy the claim.
(8) If the Authority fails to reply to the notice of claim within the prescribed time it is to be taken to have rejected the claim and the claim becomes a disputed claim for the purposes of this Act.
(9) Subject to section 106(1), if the Authority makes an offer of compensation under subsection (5), the claimant must within two months after the date of service of the offer—
(a) accept the offer; or
(b) reject the offer.
(10) An offer of compensation under subsection (5) may specify some matters of compensation to be left to be determined by negotiation.
(11) The claimant may accept the offer subject to any matters left to be determined by negotiation.
(12) To the extent that the claimant rejects an offer of the Authority or the Authority rejects a claim by the claimant, the claim becomes a disputed claim for the purposes of this Act.
(13) If the claimant fails to accept or reject the offer within the prescribed time, the claim becomes a disputed claim for the purposes of this Act.
Section 37 appears in Pt 3 of the Compensation Act, which provides for compensation for acquisition. Section 30 confers an entitlement to compensation on acquisition of an interest in land. The balance of Pt 3 sets up a process of offer and response in relation to a claim for compensation. Section 31 requires the authority to make an initial offer in writing to each claimant of whose entitlement to compensation it is aware. A claimant who has received an offer under s 31 must, in accordance with s 33, serve on the authority a notice of acceptance or a notice of claim.
Sections 34 and 35 set out the formal requirements for a notice of acceptance and a notice of claim, respectively. Each requires the provision of specified information by the claimant.
Where a claimant serves a notice of claim, s 36 prescribes how the authority is to reply. The authority must reply within three months, and under s 36(2) may:
(a) admit the claim as to whole or to part;
(b) offer to vary the amount of the compensation previously proposed in relation to the claimant’s interest; or
(c) reject the claim and repeat its offer under s 31.
Section 36(6) requires a claimant to either accept or reject an increased offer made under s 36(2)(b), within two months of service of the revised offer.
Disputed claims for compensation
Under s 37, a claim becomes a ‘disputed claim’ for the purposes of the Compensation Act in several specified circumstances.[14] Section 36 makes similar provision.[15] The Compensation Act specifies a number of other circumstances in which a claim for compensation becomes a ‘disputed claim’ for the purposes of the Compensation Act.[16]
[14]Compensation Act, s 37(8), (12), (13).
[15]Compensation Act, s 36(5), (9).
[16]Compensation Act, ss 32(4), 33(2). See also ss 44(5), 48(6), 48(8).
The concept of a ‘disputed claim’ is central to Pt 10 of the Compensation Act, which deals with the determination of disputes. Section 80 provides:
The Authority or the claimant may—
(a) apply to the Tribunal for determination of a disputed claim in accordance with this Act; or
(b) refer a disputed claim to the Court for determination in accordance with this Act.
Whether the disputed claim is determined by the Victorian Civil and Administrative Tribunal or the Court depends upon the amount in dispute,[17] subject to the discretionary transfer of proceedings between the Court and the Tribunal.[18]
[17]Compensation Act, s 81.
[18]Compensation Act, s 84A.
Section 82 requires a notice of referral to the Court under s 80 to be in the prescribed form and must be accompanied by copies of:
(a) the notice of acquisition (if appropriate);
(b) the initial offer of compensation made by the Authority (if any);
(c) the claim made by the claimant; and
(d) the reply (if any) of the Authority to the claim.
Section 89 of the Compensation Act confers jurisdiction on the Court and the Tribunal to determine a disputed claim:
(1) On an application or referral of a disputed claim under this Part, the Tribunal or Court is to determine the amount of compensation in accordance with this Act to be paid in respect of the claim and may make any orders necessary to give effect to that determination.
(2) An appeal to the Court of Appeal from a determination or an order made by the Court under this section lies only on a question of law and with leave of the Court of Appeal.
If a disputed claim is dismissed or struck out for want of prosecution, the claimant is to be taken to have accepted the amount of compensation offered by the relevant authority immediately prior to the claim becoming a disputed claim.[19]
[19]Compensation Act, s 98.
Contract of sale
The contract for the sale of the land in this case was signed by Mr and Mrs Rizzo on 8 August 2016 — the ‘day of sale’ for the purposes of the contract. It was varied by a deed of variation dated 8 May 2017, and a variation of contract dated 27 April 2018.
The contract is a good deal more complex than the contract of sale in Plunkett. It was conditional on the registration of one of two proposed plans of subdivision, within 48 months after the day of sale. Most significantly, the contract as varied provides for settlement of the sale in four stages, as follows:
(a) Stage 1 is settlement of Parcel A and Parcel B on the later of 12 months from the day of sale, or 10 business days after registration of the relevant plan of subdivision;
(b) Stage 2 is settlement of Parcel C, 24 months after the day of sale;
(c) Stage 3 is settlement of Parcel D, 36 months after the day of sale; and
(d) Stage 4 is settlement of Parcel E, 48 months after the day of sale.
The total agreed purchase price for the land was $30,500,000. The agreed price for each stage of settlement was $7,625,000. The contract provided for payment of a deposit of $3,050,000. The balance of the purchase price was to be paid in four equal instalments of $6,862,500, with an instalment to be paid on settlement of each of the four stages.
The deposit was paid in accordance with the contract. On 5 November 2017, Stage 1 of the contract of sale settled, on payment of $6,862,500. Parcels A and B, totalling 11.589 hectares, were transferred to the purchaser, who became the registered proprietor of both parcels on 6 December 2017.
Stage 2 of the contract settled on 8 August 2018, on payment of a further $6,862,500. The purchaser became the registered proprietor of Parcel C, an area of 11.34 hectares, on 11 September 2018.
On 8 August 2019, Stage 3 of the contract settled, on payment of another instalment of $6,862,500. I infer that the purchaser is now the registered proprietor of the 11.22 hectares of the land designated as Parcel D.
The final stage is due to settle on 8 August 2020. On that date, if the last instalment of $6,862,500 is paid, the purchaser will become entitled to be registered as the proprietor of Parcel E, the remaining 49.345 hectares of the land.
The part of the land that is affected by PAO 3 is entirely within Parcel E.
Disputed claim referred to the Court
As mentioned, the applicants served a notice of claim on the Authority in December 2016. The notice of claim stated:
We are the registered proprietors of the land comprised in Certificate of Title Volume 9829 Folio 358, known as 555 Donnybrook Road, Mickleham (“the Land”).
We have suffered loss or expenses as follows:
We sold part of the Land by Contract of Sale dated 8 August 2016 at a lower price than we might reasonably have expected to get if the Land had not been subject to Public Acquisition Overlays PAO1 and PAO3 under the Hume Planning Scheme.
We claim compensation of $24,140,000 based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2016) plus the cost and expenses of this claim (valuer’s costs to date $28,006; planner’s costs to date $31,900; legal costs to date $26,794).
A certificate of valuation was provided together with the notice of claim. There is no suggestion that the notice did not meet the requirements of s 35 of the Compensation Act.
The notice of claim was served after the applicants had entered into the contract of sale, but before Stage 1 settled. Because the Authority did not respond within the prescribed three months, the claim was taken to be rejected, and became a disputed claim for the purposes of the Compensation Act.[20] The Authority advised in October 2017 that the claim was premature, because the ‘sale of the land’ would not occur until 8 August 2020, when the contract of sale was due to be completed.
[20]Compensation Act, ss 37(4), 37(8).
Mr and Mrs Rizzo, through their solicitors, disputed the Authority’s position. On 8 March 2018, they referred the disputed claim to the Court for determination. The notice of referral was in the prescribed form and was accompanied by the requisite information.[21] The notice of referral stated:
The claim in dispute is in respect of land described as Lot 1, 555 Donnybrook Road, Mickleham, Victoria 3604 being Lot 1 on unregistered plan of subdivision PS743460U or in the alternative Lots A, C, D, E and F on unregistered plan of subdivision PS803939G, being part of the land contained in Certificate of Title Volume 9829 Folio 358.
[21]Compensation Act, s 82; Land Acquisition and Compensation Regulations 2010 (Vic), Schedule 2, Form 16. See also r 8.15, Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic).
Mr and Mrs Rizzo’s claim from the outset has been for loss on the sale of the whole of their land.
Proposed amendments
The applicants’ summons dated 17 January 2020 seeks leave to amend both the notice of claim and the notice of referral.
A proposed amended notice of claim was exhibited to the affidavit filed in support of the summons.[22] It reads as follows:
[22]Exhibit RB-6 to the affidavit of Rebecca Louise Bedford dated 17 January 2020.
1.We were previously the registered proprietors of all of the land comprised in Certificate of Title Volume 9829 Folio 358, known as 555 Donnybrook Road, Mickleham (“the Land”).
2. In August 2010, a Public Acquisition Overlay was introduced into the Hume Planning Scheme, reserving land to be acquired by the Authority (PAO 3).
3.PAO 3 affects a part of the Land.
4. We sold 88.2 hectares of the Land by Contract of Sale dated 8 August 2016 for the sum of $30,500,000, being a lower price than we would reasonably have expected to get if the Land had not been subject to PAO 3. The contract of sale provided for a two lot plan of subdivision, with us to retain the “dwelling lot”, and the balance to be sold to the purchaser. The part which we retained is approximately 5.53 hectares and we continue to reside on that land in our home.
5. Before selling 88.2 hectares of the Land we gave the Authority not less than 60 days’ notice in writing of our intention to sell that part of the Land.
6. Pursuant to section 98(1) of the Planning and Environment Act 1987 (Vic), we claim compensation from the Authority for financial loss suffered as the natural, direct and reasonable consequence of the Land being reserved for a public purpose under the planning scheme.
7. Pursuant to a Notice of Claim dated 20 December 2016, we claim compensation of $24,140,000 based on a Loss on Sale Compensation Assessment prepared by Urbis Valuations Pty Ltd (‘Urbis’) (valuation date 8 August 2016) plus the cost and expenses of this claim (valuer’s costs to date $28,006; planner’s costs to date $31,900; legal costs to date $26,794).
8. In the alternative to the claim in paragraph 7, we claim compensation as follows:
a. $8,600,000, on the settlement of Stage 1, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 5 November 2017);
b. $8,255,000, on the settlement of Stage 2, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2018);
c. $7,525,000, on the settlement of Stage 3, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2019);
d. Financial loss in an amount to be advised following the settlement of Stage 4, which is scheduled to occur on 8 August 2020.
9. Further or in the alternative to the claim in paragraph 7, which claim assumes that the deposit of $3,050,000, is properly apportioned equally between the four stages at settlement of those stages, if instead, the whole of the deposit is taken into account on the settlement of Stage 1, then we claim compensation as follows:
a. $6,312,500, on the settlement of Stage 1, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 5 November 2017);
b. $9,017,500, on the settlement of Stage 2, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2018);
c.$8,287,500, on the settlement of Stage 3, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2019);
d. Financial loss in an amount to be advised following the settlement of Stage 4, which is scheduled to occur on 8 August 2020.
10. Further or in the alternative to the claim in paragraph 7, if it is appropriate only to assess financial loss in respect those parts of the land sold, where at the date of settlement of that particular stage the market value has been impacted by the presence of PAO 3 on part of Land sold by the Contract of Sale, then:
a. $0, on the settlement of Stage 1, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 5 November 2017);
b. $0, on the settlement of Stage 2, based on a Loss on Sale Compensation Assessment prepared by Urbis valuation date 8 August 2018);
c. $560,000, on the settlement of Stage 3, based on a Loss on Sale Compensation Assessment prepared by Urbis (valuation date 8 August 2019);
d. Financial loss in an amount to be advised following the settlement of Stage 4, which is scheduled to occur on 8 August 2020.
11. Further or in the alternative to the claim in paragraph 7, if it is appropriate to assess financial loss only after the settlement of Stage 4, then we claim the difference between the market value of the whole of the land sold by the Contract of Sale, assessed at the date of settlement of Stage 4, currently scheduled to occur on 8 August 2020, less amounts paid pursuant to the Contract of Sale.
12. Attached to this amended claim is a copy of the certificate of valuation by Urbis to support the original claim made as per paragraph 7 set out above. So far as the alternative claims are concerned, a copy of the January 2020 report by Urbis in support of the quantification of those alternative claims is available on request.
The proposed amended referral notice provided in support of the application describes the claim in exactly the same way as it is described in the original referral notice. The only amendments proposed are the addition of three documents to those already annexed to the referral, namely two valuation reports prepared by Urbis dated 8 August 2016 and 15 January 2020, and the proposed amended notice of claim.
Should the applicants have leave to amend their notice of claim?
I am puzzled by the application to amend the notice of claim.[23] Service of a notice of claim is a step in the process that gives rise to a disputed claim for the purposes of the Compensation Act, and precedes the referral of a disputed claim to the Court.
[23]While Derham AsJ appears to have assumed that the applicants would have to amend both the notice of claim and the referral notice, the question was not the subject of submissions before his Honour. See Rizzo v VicRoads, [65], [78].
The Authority submitted that the Court does not have power, express, implied or inherent, to permit an amendment to a notice of claim served under s 37 of the Compensation Act. It argued that the notice of claim is a precursor to the referral notice, and must come into existence before there can be a disputed claim that can be referred to the Court.
In response, the applicants submitted that, because the Court has jurisdiction to determine the disputed claim referred to it, it ‘has power, in the proper exercise of judicial discretion, to permit any necessary or appropriate amendment to the form of the application filed’.[24] They pointed to the general power of amendment in r 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and to the overarching purpose stated in s 9 of the Civil Procedure Act 2010 (Vic).
[24]Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, 707.
The applicants’ submissions on this question were not to the point. It may be accepted that, if the Court has jurisdiction to determine a disputed claim, it has power to permit an amendment to the originating process in order to facilitate the resolution of the real issues in dispute. That is what occurred in Yong Jun Qin v Minister for Immigration and Multicultural Affairs.[25] In that case the ‘matter’ in respect of which the Federal Court had jurisdiction was an application to review the relevant tribunal decision. Since it was clear that it had jurisdiction, it also had power to amend the application so that the correct party was named as the respondent.[26]
[25](1997) 144 ALR 695.
[26]Yong Jun Qin, 706–707.
In this case, the ‘matter’ in respect of which the Court has jurisdiction is the disputed claim referred to it for determination under s 80(b) of the Compensation Act. While the notice of claim was a necessary precondition to the existence of the disputed claim, it is not a ‘document in the proceeding’ for the purpose of r 36.01 of the Rules. It was created and served before the proceeding was commenced, for purposes outside the Court’s processes, and is not a document that the Court can give leave to amend.
Mr and Mrs Rizzo do not need the Court’s leave to serve on the Authority a notice of claim in respect of any of the three stages of the contract that have settled. In respect of Stage 1, for example, they could have served a notice of claim on the Authority at any time since 5 November 2017. They can still do so, in respect of Stages 1, 2, and 3.[27] If they do, the Authority will be obliged to respond in accordance with s 37 of the Compensation Act. If the Authority does not respond within three months, or if it rejects the claim, the disputed claim can be referred to the Court for determination.
[27]While there is a two-year limitation period prescribed by s 37(2) of the Compensation Act, the Authority has advised the applicants’ solicitors that it would not rely on that limitation period in respect of the earlier stages of the contract.
This does not mean that I have reached a concluded view about the timing of the ‘sale of the land’ under this contract of sale.
The Authority’s position is that the ‘sale of the land’ will not take place until 8 August 2020, on settlement of the fourth and final stage of the contract of sale. It accepts that, after Stage 4 has settled, the applicants will have a right to compensation for loss on sale of the whole of their land.
Mr and Mrs Rizzo’s alternative position is that the sale of the land has taken place in stages, and that they are presently entitled to compensation for loss on the sale of Parcels A, B, C, and D.[28] As Derham AsJ found, this position is arguable.[29] However, it encounters the difficulty that none of these parcels of land is affected by PAO 3. The Authority contends that the applicants have no entitlement to compensation unless and until Parcel E, which is affected by PAO 3, is sold.
[28]Their primary position is that the sale of the land took place upon entry into the contract of sale, and that the conclusion I reached in Plunkett was wrong.
[29]Rizzo v VicRoads, [96]–[98].
I did not hear argument about these competing positions, and do not express any conclusion about them. I observe, however, that the Authority’s position has the considerable advantage of simplicity. A single claim made after settlement of the final stage of the sale may be the most efficient vehicle for resolution of the real issues in dispute between the parties — namely, what financial loss was suffered by Mr and Mrs Rizzo as a result of the reservation of their land for a public purpose, and what compensation is payable to them.
Should the applicants have leave to amend their referral notice?
Mr and Mrs Rizzo seek leave to amend their referral notice in circumstances where they have not made the alternative claims they seek to include in accordance with s 37 of the Compensation Act. They have not followed the process prescribed by s 37 in respect of their alternative claims, none of which has become a ‘disputed claim’ for the purposes of the Act. Even if the proposed amended notice of claim is taken to have been served on the Authority on 17 January 2020, the Authority has not yet responded, three months have not yet elapsed, and the proposed new claims have not yet become disputed claims.
The applicants submitted that s 37 of the Compensation Act should not be understood to deprive the Court of jurisdiction to determine a claim in respect of which there has not been strict compliance with the pre-referral procedure. They argued that s 37 is merely a procedural provision, and not a precondition to the Court’s jurisdiction to adjudicate their claim. They relied on the analysis of the High Court in Berowra Holdings Pty Ltd v Gordon[30] in support of this argument.
[30](2006) 225 CLR 364 (Berowra).
Berowra involved a proceeding in the District Court of New South Wales, claiming common law damages for a work-related injury. The proceeding was commenced contrary to s 151C of the Workers Compensation Act 1987 (NSW), which provided that a person ‘is not entitled to commence court proceedings for damages … until 6 months have elapsed since notice of the injury was given to the employer’. The employer did not raise the provision until the day before the matter was fixed for hearing, when it applied for summary dismissal on the ground that the proceeding was a nullity. The judge summarily dismissed the proceeding. The Court of Appeal upheld the worker’s appeal, and the employer appealed to the High Court.
A central question for the High Court was whether a contravention of s 151C meant that the court had no jurisdiction to determine the proceeding. The jurisdiction at issue was jurisdiction to adjudicate the worker’s claim for damages in negligence. This jurisdiction existed independently of the Workers Compensation Act, but was to be exercised subject to its provisions.[31]
[31]Section 151 provided that the Workers Compensation Act 1987 (NSW) ‘does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.’
The plurality observed that ‘the question of statutory construction cannot easily be severed from that of jurisdiction because s 151C concerns the submission of contested rights to a court for curial adjudication in an adversarial system’.[32] This was to be distinguished from the situation in Project Blue Sky Inc. v Australian Broadcasting Authority,[33] which concerned the consequences of a breach of a statutory direction addressed to an administrative decision-maker, and not the jurisdiction of courts. It is a ‘basic rule’ that the legislature does not intend to cut down the jurisdiction of the courts unless it says so expressly or by necessary implication.[34]
[32]Berowra, [28] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[33](1998) 194 CLR 355 considered in Berowra, [28] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[34]Berowra, [31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), citing Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [72] and Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391 (Dixon J).
The High Court concluded that s 151C should not be read as if the court’s jurisdiction to determine the claim for damages was pre-conditioned on commencing the proceeding after the passage of six months from giving the employer notice of the injury. This was because s 151C did not extinguish rights or create new rights, but rather postponed the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. A proceeding commenced in contravention of s 151C engaged the jurisdiction and procedural rules of the court concerned. Any application made by an employer in reliance on s 151C was to be dealt with in accordance with the court’s rules, in the circumstances of the particular case.[35]
[35]Berowra, [32]–[37] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), [84]–[100] (Kirby J).
In Berowra, the court’s jurisdiction was to adjudicate a common law damages claim. The Workers Compensation Act regulated the exercise of that jurisdiction, but did not confer it. By contrast, this Court’s jurisdiction to determine a disputed claim for compensation for loss on sale of land reserved for a public purpose is conferred by statute — specifically, ss 80(b) and 89 of the Compensation Act, as applied by s 105 of the Planning Act. The Court does not have a free-standing jurisdiction to award compensation for loss on sale; its jurisdiction to award compensation depends entirely on the statute that confers it. There is no question here of s 37 or any other provision of the Compensation Act limiting some jurisdiction of the Court that exists independently of the Planning Act and the Compensation Act.
In other contexts, the existence of jurisdiction conferred on a court by statute has been found to depend upon compliance with a pre-condition prescribed by the relevant statute. For example, in Grigor-Scott v Jones,[36] a Full Court of the Federal Court held that an application alleging unlawful discrimination, under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), could not be amended to join a person who was not a respondent to the complaint made to the Human Rights and Equal Opportunity Commission. The court did not have a general jurisdiction to hear complaints of unlawful discrimination; its jurisdiction could only be invoked in relation to a complaint made to the Commission, in accordance with the statute:[37]
The intention is to limit the complaint which is to be brought to the Court to the same complaint as was made to the Commission by the same complainants and against the same respondents. It is easy to understand why that is so. The intention is to ensure that the Commission is always the filter for claims of unlawful discrimination before they are brought to the Courts, unless the President is satisfied that the complaint involves a matter of public importance that should be considered by the Federal Court or the Federal Magistrates Court. In acting as that filter, the President attempts to conciliate every complaint of unlawful discrimination which is not lacking in substance and which has not been otherwise adequately dealt with or cannot be effectively dealt with by another statutory authority: s 46PH(1).
[36](2008) 168 FCR 450 (Grigor-Scott).
[37]Grigor-Scott, [19].
More recently, in Chopra v Department of Education and Training,[38] the Court of Appeal considered whether the referral of a question of law under s 96(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) required the consent of the Tribunal’s President to the specific question referred. It held that it did not have jurisdiction to determine questions referred without the President’s specific consent. This was because:[39]
… the language of s 96(1) of the VCAT Act, its subject matter and purpose indicate a legislative intention that in order for a referral of a question of law to be valid, that question of law must be the subject of specific consent by the President. Such a construction has the effect of safeguarding the integrity of the referral process by requiring the President to approve the wording of the question to be referred in order for the referral to be valid.
[38][2019] VSCA 298 (Chopra).
[39]Chopra, [67].
Here, the text, context, and purpose of the Planning Act and the Compensation Act all support a conclusion that the Court’s jurisdiction is only to determine a ‘disputed claim’ referred to it under s 80(b) of the Compensation Act. The process by which a claim becomes a ‘disputed claim’ is a filter for claims for compensation, before they can be brought to the Court or the Tribunal for determination.
As to the text, the Compensation Act gives the Court jurisdiction to determine a ‘disputed claim’, and makes detailed provision for the circumstances in which a claim becomes a ‘disputed claim’.[40] In order for there to be a ‘disputed claim’ for compensation for loss on sale that may be determined by the Court, the following must first occur:
[40]Compensation Act, ss 37, 80, 89 — set out at [17], [22] and [24] above.
(a) a claim for compensation must be made under s 37 by serving a notice of claim in the form prescribed by s 35;
(b) the Authority must, within three months after being served with the notice of claim, reply to the claim by either admitting the claim, making an alternative offer of compensation, or rejecting the claim;
(c) if the Authority makes an alternative offer of compensation, the claimant must within two months either admit or reject the offer.
The claim becomes a ‘disputed claim’ only if the Authority does not reply within three months, or if the claimant fails to accept an alternative offer within two months, or to the extent that the Authority rejects the claim or the claimant rejects an alternative offer.
The statutory context indicates that Pt 3 of the Compensation Act is intended to facilitate the timely resolution of claims and, where it is not possible to resolve a claim, to define the matters in dispute. The scheme of the Compensation Act is that only those claims that are not resolved through the prescribed process may be referred to the Court or the Tribunal for determination. By the time a claim becomes a ‘disputed claim’, the process has assisted the parties to identify the scope and content of the dispute to be determined. Hence, a notice of referral to the Court must be accompanied by copies of the documents that must be exchanged under s 37 — specifically, the claim made by the claimant and the Authority’s reply.
This conclusion is also consistent with the relevant purposes of the Planning Act and the Compensation Act. The objectives of the planning framework established by the Planning Act include providing for compensation when land is set aside for public purposes.[41] Part 5 of the Planning Act gives effect to that purpose, striking a balance between the private interests of owners and occupiers of affected land, and the public interest in ‘fair, orderly, economic and sustainable’ land use and development.[42] The relevant purpose of the Compensation Act is ‘to provide for the determination of the compensation payable’.[43] That purpose is served by determining compensation in accordance with the provisions of the Compensation Act, and not otherwise.
[41]PE Act, s 4(2)(l).
[42]PE Act, s 4(1)(a). See further Plunkett, [56]–[57].
[43]Compensation Act, s 1(b).
By contrast, the applicants’ position — that the Court can determine a claim for compensation that has not been made in accordance with s 37 of the Compensation Act, and has not become a ‘disputed claim’ — is contrary to the statutory text, and is not consistent with its context or its purpose.
I should make it clear that this case does not involve some minor oversight, such as a failure to use the proper form. Indeed, the applicants’ claim for compensation in this proceeding was made using the prescribed forms.[44] The amendment application has been made without any attempt to follow the claim procedure prescribed by the Compensation Act. None of the alternative claims that the applicants wish to add to the proceeding has been made or responded to in accordance with s 37, and none of them has become a ‘disputed claim’ for the purposes of the Compensation Act.
[44]As noted at [34] and [36] above.
It follows that the proposed amendments do not relate to disputed claims that the Court has jurisdiction to determine under s 89 of the Compensation Act. For that reason, I will not give leave to amend the referral notice.
Should the proceeding be adjourned until after settlement of Stage 4?
Mr and Mrs Rizzo also sought an order adjourning the proceeding, and their appeal from part of Derham AsJ’s orders, to a directions date in September 2020. They sought these adjournments so that all legal and valuation questions and disputes could be heard and determined in the Trial Division at the same time, consistent with the overarching purpose of the Civil Procedure Act. The affidavit in support of their summons conveyed their wish to spend as little time in court hearings, and as little money on legal costs, as could reasonably be achieved. Understandably, they have no desire to continue to be involved in complex and protracted disputes, in the Trial Division, or in the Court of Appeal.
As I have already observed, there is much to be said for the simplicity of determining a single claim for compensation, for loss on sale of the whole of the land, after completion of the contract of sale. Mr and Mrs Rizzo can, if they choose, make that claim after final settlement of Stage 4, due to occur on 8 August 2020. If the claim becomes a disputed claim, it can then be referred to the Court for determination.
However, as Derham AsJ found, the present proceeding has no real prospect of success. The claim was made prematurely, at a time when the applicants had not yet sold their land, and were not entitled to compensation for loss on sale. Although the applicants have possible alternative claims for loss on the sale of Parcels A, B, C, and D, these claims have not become disputed claims that the Court has jurisdiction to determine. For that reason, their application cannot be amended to include those alternative claims. In these circumstances, there is no point in adjourning the proceeding to a date after final settlement of the contract of sale.
In the alternative, the applicants sought that the questions in the appeal from Derham AsJ’s orders be reserved for the consideration of the Court of Appeal, under s 17B of the Supreme Court Act 1986 (Vic). The only substantive order appealed from is his Honour’s order that the applicants are to pay the Authority’s costs of the summary dismissal application. I am not inclined to reserve a costs question for the consideration of the Court of Appeal.
It appears from the notice of appeal that the applicants’ real purpose in appealing the costs order was to contest Derham AsJ’s conclusion that the proceeding has no real prospects of success. If that is the case, a more direct way to achieve that purpose — and to argue that Plunkett was wrongly decided — would be to seek leave to appeal to the Court of Appeal from this judgment and my orders.
Disposition
I will make the following orders:
(a) The applicants’ summons filed 17 January 2020 is dismissed;
(b) Pursuant to s 63(1) of the Civil Procedure Act, the proceeding is summarily dismissed.
I will hear the parties on the question of the costs of the proceeding and the applicants’ summons, and the disposition of the appeal.
2
9
0