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Roads and Maritime Services v Desane Properties Pty Ltd

Roads and Maritime Services v Desane Properties Pty Ltd

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Case Copied 6 September 2018 81 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196
Hearing dates: 28 and 29 June, 3 July 2018
Date of orders: 06 September 2018
Decision date: 06 September 2018
Before: Bathurst CJ, Ward JA, Payne JA
Decision:
(1)   Appeal allowed.
(2)   Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders:
(a)   Summons and Further Amended Commercial List Statement be dismissed.
(b)   The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed.
(3)   The respondent to pay the costs of the appellant of the appeal as agreed or assessed.

Catchwords:
PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition

PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice

STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69
CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid
Legislation Cited: Constitution (Cth), s 51(xxxi)
Interpretation Act 1987 (NSW), ss 5(2), 80(1)
Lands Acquisition Act 1955 (Cth)
Lands Acquisition Act 1989 (Cth)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 4, 5, 7, 7B, 10A, 11, 12, 13, 14, 15, 16, 19, 20, 31, 33, 36, 37, 39, 41, 42, 47, 54, 55, 56, 60, 69
Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW)
Local Government Act 1993 (NSW)
Mining Act 1978 (WA), ss 74, 74A, 75, 116
Mining Amendment Act 2012 (WA)
Public Works Act 1912 (NSW), s 42
Roads Act 1993 (NSW), s 177
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7
Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Campbell v Municipal…

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: [2018] NSWCA 196
Decision Date: 06 September 2018

CaseChat Overview and Summary

In *Roads and Maritime Services v Desane Properties Pty Ltd*, the Court of Appeal of New South Wales considered a dispute concerning the compulsory acquisition of land by Roads and Maritime Services (RMS). Desane Properties Pty Ltd (Desane) challenged the validity of a proposed acquisition notice issued by RMS, alleging non-compliance with statutory requirements and an improper purpose for the acquisition.

The central legal issues before the Court of Appeal were whether the proposed acquisition notice complied with the requirements of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW), specifically regarding the form approved by the Minister and the statement of the public purpose of the acquisition. The court also had to determine whether compliance with these procedural requirements was an essential pre-condition to the validity of the acquisition, and whether substantial compliance with the approved form was sufficient. Furthermore, the court considered whether the land was sought to be acquired for an improper purpose under section 177(1) of the *Roads Act 1993* (NSW), and whether this purpose should be assessed at the time of acquisition or the time of the notice.

The Court of Appeal found that the proposed acquisition notice substantially complied with the approved form and that the Act did not mandate the inclusion of the specific public purpose in the notice itself, but rather in subsequent documentation. The court also determined that the purpose for which the land was sought was a proper one, assessed at the time of the notice. Consequently, the court allowed the appeal, setting aside the primary judge's orders and dismissing Desane's summons and further amended commercial list statement.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders:

(a) Summons and Further Amended Commercial List Statement be dismissed.

(b) The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed.

(3) The respondent to pay the costs of the appellant of the appeal as agreed or assessed.

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:	Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196
Hearing dates:	28 and 29 June, 3 July 2018
Date of orders:	06 September 2018
Decision date:	06 September 2018
Before:	Bathurst CJ, Ward JA, Payne JA
Decision:	(1) Appeal allowed. (2) Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders: (a) Summons and Further Amended Commercial List Statement be dismissed. (b) The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed. (3) The respondent to pay the costs of the appellant of the appeal as agreed or assessed.
Catchwords:	PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69 CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid
Legislation Cited:	Constitution (Cth), s 51(xxxi) Interpretation Act 1987 (NSW), ss 5(2), 80(1) Lands Acquisition Act 1955 (Cth) Lands Acquisition Act 1989 (Cth) Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 4, 5, 7, 7B, 10A, 11, 12, 13, 14, 15, 16, 19, 20, 31, 33, 36, 37, 39, 41, 42, 47, 54, 55, 56, 60, 69 Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW) Local Government Act 1993 (NSW) Mining Act 1978 (WA), ss 74, 74A, 75, 116 Mining Amendment Act 2012 (WA) Public Works Act 1912 (NSW), s 42 Roads Act 1993 (NSW), s 177 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Campbell v Municipal…