Scharer v State of New South Wales

[2000] NSWSC 1031

Reported Decision: 111 LGERA 124

New South Wales

Supreme Court

CITATION:	Scharer v State of New South Wales [2000] NSWSC 1031
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4143/99
HEARING DATE(S):	20/10/00, 24/10/00, 25/10/00
JUDGMENT DATE:	25 October 2000
PARTIES :	Geoffrey Francis Scharer (Plaintiff) State of New South Wales (Defendant)
JUDGMENT OF:	Santow J

COUNSEL :	J Ireland, QC (Plaintiff) M Leeming (Defendant)
SOLICITORS:	Eddy & Maloney (Plaintiff) Vivienne Ingram, Solicitor for The National Parks and Wildlife Service (Defendant)
CATCHWORDS:	LOCAL GOVERNMENT — Is jurisdiction of Supreme Court excluded in favour of Land & Environment Court to adjudicate a claim to establish and enforce a pre-existing right of way now in a National Park — Relevance of power to award damages.
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979, s20; s71; s72; National Parks & Wildlife Act, s153(3)
CASES CITED:	Law Society of New South Wales v Weaver [1974] 1 NSWLR 271 National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd in (1990) 71 LGRA 286
DECISION:	Matter transferred to Land & Environment Court.

REVISED — 7 November, 2000
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 4143/99
GEOFFREY FRANCIS SCHARER
Plaintiff
STATE OF NEW SOUTH WALES
Defendant
JUDGMENT — ex tempore

25 October 2000

INTRODUCTION

1    Essentially the issue before me concerns whether the Land and Environment Court has jurisdiction to the exclusion of this Court in relation to the adjudication of an application by the Plaintiff for relief of various kinds, including damages, in relation to a claimed right-of-way. What raises that issue is the fact that, if the right-of-way exists, it exists now in a National Park though on the Plaintiff’s case the right-of-way pre-dates the declaration of that National Park.

MATERIAL FACTS

2    These can conveniently be taken from the Plaintiff’s written submissions of 20 October 2000 which, so far as relevant, are set out below:

1. By Notice of Motion dated 12 October 2000, the defendant seeks an order pursuant to s72 of the Land and Environment Court Act 1979 transferring to the Land and Environment Court or alternatively in order that the proceedings be dismissed for want of jurisdiction. The plaintiff opposes the application.

2. The point in issue is whether the present proceedings are within the jurisdiction of the Supreme Court of New South Wales in light of s72 of the Land and Environment Court Act 1979.

3. The plaintiff's claim is set out in the statement of claim filed in the proceedings. The relief claim includes a declaration to establish the existence of a general right of way over Crown land, orders in the nature of mandatory injunctions and an enquiry before the Master as to the damages suffered by the plaintiff.

4. The plaintiff's land is land-locked by unalienated Crown land which became part of the Nattai National Park in 1991. The defendant argues that the operation of s153(3) of the National Parks & Wildlife Act deems the right of way alleged by the plaintiff to be granted under s153. It was first enacted in 1974 (Act No. 80, 1974). The provisions are in the following terms:

"(1) The Minister may upon such terms and conditions as the Minister thinks fit grant for joint or several use easements or rights of way through, upon, or in a national part, historic site, state recreation area, regional park, nature reserve, state game reserve or karst conservation reserve for the purpose of providing access to any area included in any lease or licence within the park, site, area or reserve, or for the construction of pipelines, or for the erection of standards, posts, wires and appliances for the conveyance or transmission of electricity, or for any other purpose deemed necessary.
(2) The Minister may from time to time revoke or vary any grant under this section.
(3) Any easement or right of way over lands in the National Park historic site, state recreation area or regional park reserved under this Act, which was in force immediately before the lands were reserved as, or as part of, the park, site or area, as the case may be, shall continue in force and shall be deemed to have been granted under this section.
(4) Any easement or right of way over lands in a nature reserve, state game reserve or karst conservation reserve dedicated under this Act, which was in force immediately before the land was dedicated as, or as part of, the nature reserve, state game reserve or karst conservation reserve shall continue and shall be deemed to have been granted under this section."
RESOLUTION OF LEGAL QUESTION

3    It is convenient that I first set out those sections of the Land and Environment Court Act 1979 ("the Act") which are relied upon by the Defendant as excluding the jurisdiction of the Supreme Court and vesting that jurisdiction exclusively in the Land and Environment Court, save possibly as to damages, as to which I deal later.

“ 71 Proceedings in Supreme Court
(1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.
(2) (Repealed)”

4 Under s20(1)(e) of the Act the Land and Environment Court is expressed as having jurisdiction "to hear and dispose of ….. proceedings referred to in subsection (2)" 5 Subsection (2) relevantly provides as follows:

“(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and
(d) whether or not as provided by section 68 of the Supreme Court Act 1970— to award damages for a breach of a development contract.”
Pausing there, one might have thought “the same civil jurisdiction” would thus at least impliedly embrace the Supreme Court’s jurisdiction inter alia to award damages. But the absence of express reference to that jurisdiction proved fatal to that proposition, when put on the basis of pendent jurisdiction, though whether that case can be distinguished from the present claim remains to be considered; see National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd in (1990) 71 LGRA 286 at 292 per Gleeson CJ discussed in 12 and 13 below.

6 Section 20(3) provides that "for the purposes of subsection (2), a planning or environmental law is:

"(a) ….
National Parks and Wildlife Act 1974
…. "

7    It is long established as a principle of statutory construction that a superior court of law such as the Supreme Court will not be deprived of jurisdiction except by express words or necessary implication; see Law Society of New South Wales v Weaver [1974] 1 NSWLR 271 where the Court of Appeal so found. 8 The critical question is whether the earlier cited legislative provisions do provide the necessary express language or necessary implication. This is in a context where, as the Defendant presses, the subject matter of the application is a claimed right-of-way in a National Park which the legislation allocates to the specialist expertise of the Land and Environment Court. Thus the Defendant contends that the scheme of the Land and Environment Court Act in ss71 and 72 is for such jurisdiction to be exclusive to that specialist court. 9 The effect of s153(1) of the National Parks and Wildlife Act would in the case of an actual Ministerial grant of a right-of-way, be clear enough. Depending as it does not on a deeming provision but on an actual grant of a right-of-way by the Minister, there could be no doubt that the privative provisions of s71 read with s20 of the Act would vest exclusive jurisdiction in the Land and Environment Court. 10 In those circumstances such a "right" would be "conferred" by a "planning or environment law" within s20(2)(a). It would be clearly capable of being made the subject of a declaration of right as well as enforcement of that right, leaving aside the question of damages, exclusively in the Land and Environment Court. 11 However, when it comes to a right-of-way which is by statutory fiction deemed to "continue in force" and "deemed to have been granted under this section", is there sufficient ambiguity in that deemed conferment of a right as to take it outside the subject matter of s71 insofar as defined by s20(2)(a) and (c)? That is to say, is the expression "conferred … by a planning or environment law" in s20(2)(a) sufficient in the way of express language as to include a right the subject of deemed grant under the relevant planning or environmental law, namely s153(3) of the National Parks and Wildlife Act? 12    The Plaintiff presses upon me that one strongly countervailing consideration to an affirmative answer to that question is that the Land and Environment Court would not have jurisdiction on existing Court of Appeal authority binding upon me to award damages; see National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (supra) at 294. That case concerned a claim for a declaration in which the Land and Environment Court held that it had pendent jurisdiction to entertain claims for damages for negligence and breach of statutory duty in granting the relevant consent in relation to a subject matter within s20(2) of the Land and Environment Court Act. The Court of Appeal concluded that the Court did not have such jurisdiction, the Chief Justice concluding (at 294):

“However, where it is s20(2) that is the basis of the application to the court, then the available powers to grant relief are to be found in the terms of the subsection, read together with s22. In this connection s22 is not to be understood as extending the jurisdiction of the court, but as conferring on it full power to exercise a jurisdiction that is granted elsewhere. There may be cases in which a question will arise as to where to draw the line between a proper exercise of the power conferred by s22 and an impermissible excursion beyond jurisdiction. The present case, however, presents no such difficulty. The resolution of a claim for damages for negligence or breach of statutory duty is well beyond the jurisdiction of the Land and Environment Court. The appeal on the principal issue should succeed.”

13    The Defendant whilst attempting to distinguish that decision on the basis that here the claim for damages is merely incidental to the principal subject matter of the claim, being one for a declaration while in Stables Perisher it was the main claim, conceded that the question of jurisdiction to award damages in the Land and Environment Court must be a matter of doubt. That concession was rightly made, though it is not for this Court in the present interlocutory proceedings to attempt any determination of that important question beyond noting the broad ambit of the decision in Stables Perisher. 14    The Defendant essentially says that even if it be right that the Land and Environment Court would lack jurisdiction over that part of the Plaintiff’s claim as seeks damages, the quantum of that claim according to the affidavit evidence of the Plaintiff must inferentially be an insignificant aspect of the litigation given that the Plaintiff has been prevented from accessing his property on but two occasions and there is currently an arrangement allowing the Plaintiff to get a key from the Park Ranger and return it to him. Though interlocutory, that arrangement in the absence of contemplated sale would appear such as to diminish a claim for damages. Nonetheless one could not reach any firm conclusion as to whether a claim for damages might still be substantial, including diminution of potential sale value. 15    While the apparent inability of the Land and Environment Court to award damages were it to have exclusive jurisdiction, is an argumentum ab inconventi, it is not to my mind the kind of ambiguity which would deprive the otherwise express words of their effect. Those express words I believe inescapably drive one to the conclusion that the expression "conferred" in s20(2) of the Act include the situation where a right is deemed to be conferred by a planning or environmental law, even if it be the case that the pre-existing right is not entirely subsumed by s153(3) but continues to exist also in some parallel or inchoate form. However, I prefer the view that the right is entirely subsumed, consistent with the mandatory language of s153(3) (“any easement or right of way” “shall be deemed to have been granted under this section” and the creation of the statutory fiction by the word ‘deemed’”). The opposite construction has its own problems including the deprivation of a specialist court of a matter which must be central to its expertise, namely the adjudication of rights-of-way in National Parks. It would create an anomalous situation between pre-existing rights-of-way which, on the Plaintiff’s construction, were outside that exclusive jurisdiction. Also by a similar logic it would anomalously preserve from revocation or variation such pre-existing grants, notwithstanding s153(2) of the National Parks and Wildlife Act. 16 Whilst such grandfathering is not unknown in other contexts, the clear thrust of s153(3) appears contrary to any such preserved privilege here. There are, as the Defendant says at least four reasons why the contrary construction should not be accepted:

“(a) First, if the common law or equitable basis remained in force, there would be no need for the deeming provision.
(b) Secondly, the contrary construction is inconsistent with the evident purpose of vesting exclusively in a specialist court jurisdiction in relation to all rights concerning land in National Parks.
(c) Thirdly, this construction gives rise to an immediate inconsistency, in that the exercise by the Minister of his or her power to revoke or vary under s153(2) would apply only to the deemed statutory right of way, but not to the equitable or common law right.
(d) Fourthly, the construction was expressly intended by the Minister for Lands when the provision was first introduced in 1967. Contrary to what was suggested by the plaintiff in Court, s153(3) was not altered or amended following Packham v Minister for the Environment (1993) 31 NSWLR 65. The section remains in relevantly identical form as it took when first enacted in 1974. That enactment was, as its short title indicates, a consolidation of certain previous legislation, including the National Parks and Wildlife Act 1967. Section 31(3) of the 1967 Act was identical to s153(3) of the 1974 Act. When introducing the legislation into the Legislative Assembly in 1967, the Minister for Lands said:
‘The Minister will also be empowered to grant revocable easements or rights of way in a national park, state park, historic site or nature reserve for any purpose deemed necessary. Any existing easement or right of way will be deemed to have been granted by the Minister and will continue in full force and effect unless subsequently revoked" (Parliamentary Debates, Legislative Assembly, 16 August 1967, p503.’”

17 That of course still leaves the difficulty that if the Land and Environment Court has exclusive jurisdiction in respect of rights of way in a National Park, whether they pre-date or post-date the declaration of that park, that court if lacking jurisdiction to award damages would leave the parties in the position where this Court, if any court, would have to adjudicate the claim for damages once any declaration of right had been made. There may even be an argument that the deprivation of this Court’s jurisdiction has left damages in a black hole with neither court having jurisdiction, though I do not consider that argument correct. 18 The short answer to that argument is that were it to be determined that the Land and Environment Court lacks jurisdiction to determine damages in the present context, the principle to which I have earlier referred (7 above) concerning the deprivation of jurisdiction of a superior court of record would come into play. This Court would have the jurisdiction to award damages, though not for the balance of the proceedings. It would mean that s20(2)(a) would operate with s71 to give exclusive jurisdiction for only such enforcement proceedings excluding damages as were within the jurisdiction of the Land and Environment Court by express conferment. 19 Thus it follows that it will be for future determination whether the damages claim can be entertained with the other claims in the Land and Environment Court or whether that damages aspect of the Plaintiff’s case will be remitted here. It must also be for future determination whether, as the Plaintiff suggests, s153(2) would produce the result that revocation of a pre-existing right of way would be without compensation. This is on the basis that the compensation provisions of the National Parks & Wildlife Act (Part 11) which import the Land Acquisition (Just Terms Compensation) Act 1991 do not extend to a revocation of an easement under s153(2). Even if true, it does not overcome the effect of the express deprivation of jurisdiction here. 20 Finally I should simply note that s72 of the Land and Environment Court Act gives this Court the discretionary jurisdiction to transfer proceedings from the Supreme Court to the Land and Environment Court. If I am correct in my earlier conclusion that the Land and Environment Court already has exclusive jurisdiction (save as it may be for damages), then the power to order that the relevant proceedings be transferred to the Land and Environment Court would be available simply as a machinery provision to facilitate those proceedings being heard in the court with exclusive jurisdiction. But if I were wrong in my earlier conclusion as to these privative provisions, I would exercise my discretion to transfer the proceedings to the Land and Environment Court. In either case this would be without prejudice to either party to make a future application for damages to be dealt with in this Court after the Plaintiff’s other claims were adjudicated in the Land and Environment Court.

CONCLUSION AND ORDERS

1. The Plaintiff’s proceedings in No. 4143 of 1999 are transferred to the Land and Environment Court, being of the opinion that such proceedings commenced in this Court could or should have been commenced in the Land and Environment Court.

2. I give leave to the Plaintiff to make application following the adjudication by the Land and Environment Court of the Plaintiff’s claims for any outstanding claim in relation to damages to be dealt with by this Court.

3. Costs of the Defendant’s application before me should follow the event and the Plaintiff pay the Defendant’s costs, though noting that the matter may be referred to the Minister to see whether in view of the public interest in clarifying this issue involving public policy any ex gratia concession may be made in that regard.
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Last Modified: 11/09/2000