Simpson v Kelly - [2006] NSWSC 678

No judgment structure available for this case.

CITATION: SIMPSON v KELLY [2006] NSWSC 678

HEARING DATE(S): 22 November 2005

JUDGMENT DATE :
5 July 2006

JUDGMENT OF: Hulme J at 1

DECISION: Each of the Plaintiffs' actions is dismissed.

PARTIES: James David SIMPSON and Lynne Elizabeth SIMPSON
The Hon Anthony KELLY
Warwick WATKINS
Thomas McCUE

FILE NUMBER(S): SC 30058/05; 30065/05

COUNSEL: G Laughton SC
N Perran

SOLICITORS: EC Abernethy
IV Knight

- 68 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No: 30058/05
30065/05
HULME J

Wednesday, 5 July 2006

James David Kingsley SIMPSON and Lynne Elizabeth SIMPSON v The Honourable Anthony KELLY
MINISTER FOR LANDS and ORS

JUDGMENT

1 HIS HONOUR: At some stage between December 1995 and early 1997, a neighbour of the Plaintiffs, a Mr Borg, made application pursuant to the provisions of s182 of the Roads Act to the Department of Lands for the opening of a road over neighbours’ land. On or about 16 April 1997, Mr Simpson made a similar application over a piece of land between the property he and his wife own and land the subject of Mr Borg’s application. After a number of intermediate steps including survey, in 2003 the Department of Lands advised persons who had purchased Mr Borg’s land and the Plaintiffs to the effect that the applications could proceed and that the next step was for those applying and those whose land was liable to be affected to agree on compensation.

2 In late 2003 and 2004 some of those persons whose land was liable to be affected made representations to the Minister or his assistants and in November 2004 the Director General of the Department purported to rescind the approval. No-one had advised the Plaintiffs what was afoot and they then commenced proceedings 30117/2004 against the Minister, the Director General, a Mr Bagnall and Ms Stevenson. Those proceedings were settled. On 13 May 2005, consent orders were made including:-

1. That the decision purporting to rescind the approval for the land acquisition proposal made by the Plaintiffs be set aside.

2. The Minister for Lands and the Director-General of the Department pay the Plaintiffs an amount for costs.

3. Otherwise the proceedings against the Minister and Director-General be discontinued, and

4. The proceedings against the third and fourth Defendants, Mr S D Bagnall and Ms L L Stevenson be discontinued with no order as to costs.

3 At some later time but prior to 6 July 2005, Karen Hembrow, described as “Manager, Crown Lands NSW, Grafton (Delegation 31D.1.59)” “For and on behalf of the Minister for Lands” purported to make a reference to the Local Land Board. She executed an undated document in terms:-

MINISTERIAL REFERENCE TO LOCAL LAND BOARD

In the matter of an application by James D Simpson under Part 2 Division 1, Roads Act 1993 for the opening of a Crown Public Road within Lots 21, 64, 75, 40, 22 and 23 DP 755547, Parish Medlow, County Raleigh, as shown by red colour on attached diagram “P”.

The Minister for Lands refers to the Local Land Board for the land district of Bellingen (the word is unclear in the copy tendered) the following questions:-

(a) Whether the circumstances warrant the opening of the road shown by red colour diagram “P” having regard to the merits of the objections; (sic)

(b) Whether any alteration to the proposal is desirable; and

(c) Whether there are any special circumstances relative to the matter that should be brought before the Minister for his information;

and the said Local Land Board is hereby required to inquire into and report upon the matters so referred in pursuance of the provisions of Section 260, Roads Act 1993.”

4 In proceedings 300058 of 2005, Mr and Mrs Simpson seek orders against the Minister for Lands, The Director General of the Department of Lands, and the Chairperson of the Local Land Board for the Land District of Grafton:-

(i) Setting aside the decision to refer to the Local Land Board,

(ii) Restraining the Minister and the Director General from taking any step to interfere with, rescind or abandon the approval to which reference has been made, and

(iii) Restraining the Chairperson of the Local Land Board from doing anything to inquire into and/or report to the Minister and/or the Director General pursuant to s260 of the Roads Act or at all in relation to the approval.

5 Following the commencement of those proceedings on 19 July 2005, there was conversation between the solicitor for the Plaintiff, a Mr Abernethy and Mr Callaghan of the Legal Department of the Department of Lands. It is the Plaintiffs’ contention that in that conversation agreement was reached as to the orders to be made in those proceedings. There being disagreement as to that, on 3 August 2005 proceedings 300065 of 2005 were commenced. In those proceedings, Mr and Mrs Simpson seek, against the same three defendants, inter alia, the following:-

1. A declaration that proceedings No. 30058/05 were settled upon terms and conditions contained in the Affidavit of Edwin Campbell Abernethy sworn 2 August, 2005, and

2. An order that that agreement be specifically performed.

6 Much of the foundation for the claim in proceedings 300058 of 2005 lies in a series of events, many involving the Department of Lands and extending as far back as 1995 or 1996. To appreciate and decide the issues that arise it is accordingly necessary to detail much of this history.

7 The land Mr and Mrs Simpson own is in northern New South Wales and is lots 62 and 63 in DP 755547. As a map at page 7 of Exhibit A, and paragraph 9 of the affidavit of Mr Callaghan of 1 September make clear those parcels are not accessible from the Council public road. (Mr Callaghan’s affidavit contains a mistake in his reference to lot “53”.) The parcels are bordered on their east by Taylors Arm Creek and other lands lie between the creek and Taylors Arm Road which lies further to the east. It is common ground that on other sides of Lots 62 and 63 there are other private lands. There is however a Crown Road which runs through Lots 62 and 63 and other properties to the south until it joins up with Taylors Arm Road. Moving from north to south, lot numbers (and earlier numbers in brackets) which are presently adequate to identify the properties, and their owners or former owners are as follows:-

63 Mr & Mrs Simpson

23(39) Mr Bagnall and Ms Stevenson and formerly by Mr G R Stack and Ms Grezelezak. Some of the documents suggest that a Mr Hawley may be a part owner with Mr Bagnall and Ms Stevenson although it does not seem necessary to decide this.

22 (33) Mr Oakley and formerly by Mr and Mrs Hansen.

40 (25) Mr Bagnall and Ms Stevenson and formerly, A G Sessions.

76 (19) Mr NJ Stack and Mrs SG Stack.

64 (9) Mr NJ Stack and Mrs SG Stack.

8 Immediately to the west of the Plaintiffs’ land is Lot 115, formerly owned by Mr Borg and now by a Mr Smith and a Ms Kuhl. An offshoot of the Crown Road runs through the Plaintiffs’ property to Lot 115.

9 Immediately to the north of Lot 62 is lot 31 (sometimes referred to as lot 8), owned by persons named Brown prior to 1993, Young (from 1993 to 1996) and Wayne and Dixie Irvine since 1996. This land borders Taylors Arm Road.

10 About half way along the eastern boundary of Lot 62, the Crown Road crosses Taylors Arm Creek at a very acute angle, passing through another lot or lots until it again joins Taylors Arm Road.

11 Thus subject to the Crown Road, the Plaintiffs’ properties are landlocked, that is surrounded by other privately owned land.

12 The Crown Road is of limited use. On lot 23, immediately to the south of the Plaintiffs’ property, the road crosses a gully which is only traversable in dry weather by 4-wheel drive vehicles. Also, a number of structures encroach onto the Crown Road. On the boundary of lots 23 and 22 is a structure or structures variously called in survey reports (pages 41, 96 and 194 of Exhibit A) a shed or garages. In his affidavit of 29 July 2005, Mr Simpson referred to what I take to be these items as a “shed/garage and old sawmill”. On lot 22 there is also a house partly on the Crown Road. Mr Simpson says that there is also a stockyard on the Road. On lot 76 the survey plan at page 41 of the exhibit shows 2 houses almost wholly blocking the Road.

13 In his affidavit, Mr Simpson refers to a survey plan showing the encroachments being in an exhibit to his affidavit. That exhibit was not tendered but I was informed by counsel that Exhibit A contained it and the relevant pages were identifiable. In the case of some documents, including that survey plan, I have not been able to do so. However the survey plans to which I have referred in the immediately preceding paragraph clearly demonstrate the existence of substantial encroachments on the Crown Road.

14 Taylors Arm Creek, or presumably its centre line, is the boundary between lots 64 and 1. At that boundary the Crown Road crosses the Creek. However, the crossing is not at 90 degrees but to a substantial degree along the line of the Creek and there is no bridge at that location.

15 Along much of the Crown Road, a track, created by use, exists or at least existed prior to events referred to below. It would seem that up until about 10 years ago, common sense and good neighbourliness prevailed. Where the Crown Road was impossible or impracticable to use persons (and thus the track) diverted off the Crown Road and onto the privately owned land nearby. In some cases the diversions were relatively small but that which avoided the gully on Lot 39 was substantial. At the northern end of that diversion in Lot 39 the track forks, one part heading substantially west to Lot 115 and the other east-north-east, to the southern boundary of the Plaintiffs’ land at a place where the Crown Road intersects that boundary.

16 There is another diversion in the areas of Lots 64 and 1 where the Crown Road crosses Taylors Arm Creek. There the track diverts so as to align with a bridge not on the Crown road which has been constructed across the Creek, at something close to a right angle.

17 According to evidence from Mr Simpson that was unchallenged, from 1982 to July 1995, Mr Borg had frequently graded the track using his tractor and he and Mr Simpson, with other neighbours had participated in repairs to the bridge near the boundary of lots 64 and 1. Mr Simpson said that he had contributed to the cost of materials used in that repair.

18 At times the Plaintiff has had access to his properties at the north. Between about 1982 and 1987, the Plaintiffs crossed a bridge and travelled across the south-eastern corner of lot 8 to Taylors Arm Road. However Mr Simpson said that he during this period he also, from time to time used access to the south. In about 1987, Mr Brown burnt down the bridge and chain-sawed the remains. Then, until about 1995, the Plaintiff used the Crown Road and the track to the south. With the exception of a 2 weeks period in August 1997, between July 1995 and 2003, the Plaintiffs again used the northern access (the bridge having been replaced). In 2003, a fire brigade truck caused the collapse of the bridge. Mr Simpson’s northern neighbour then fenced off his land. Since then the Plaintiffs’ means of access has been over a Crown Road to the west which can be used only by 4 wheel drive vehicles and involves an extra 30 minutes drive to Macksville, the nearest town.

19 Counsel appearing for the Defendants before me accepted that the Plaintiffs now have no practical legal access.

20 In 1995 or thereabouts it appears that the spirit of good neighbourliness broke down and since then one or more to the landowners to the south of the Plaintiffs have restricted or prevented the Plaintiffs’ use of the track. A gate or gates have been erected and locked and soil has been bulldozed up or otherwise piled on the track. In about 1995 when the owners of Lot 39 objected to Mr Simpson (and possibly Mr Borg) using the diversion in their property, Mr Simpson commenced proceedings in the Equity Division of this Court against Mr G R Stack and Ms Grzelezak (the then owners of lot 23) and Mr N J and Mrs S G Stack (the owners of lots 76 and 64). The principal relief sought was a declaration that pursuant to s4(2) of the Inclosed Lands Protection Act, the centre of the existing formed track be deemed to be the centre of the Crown Road. As it happened, the proceedings came before me and in October 1996, I decided them against Mr Simpson on the ground that that Act “was not directed to the civil remedies for trespass, nor the topic of access generally to land, nor to the establishment of roads or other means of access”.

21 Although somewhat out of chronological order, it might be mentioned that Mr Simpson appealed. On 5 August 1997, the appeal was settled on terms, viz.-

“1. Appeal allowed.

2. Each party pay their own costs of the appeal.

3. The costs in the court below to be in accordance with the orders numbered 2 and 3 of His Honour Justice Hulme dated 15 October 1996.

4. The Second Respondents undertake not to deliberately obstruct the southern access route.

5. The Appellant undertakes not to permit or allow any vehicle weighing more than 3 tonnes to cross the bridge at the southern access route or to use the route in an unreasonable manner.”

22 The document appears to have been signed by the Solicitor for the Appellant and the Solicitor for the First and Second Respondents, the Defendants mentioned above. The Court file, to which I have had regard, indicates that the undertakings were undertakings to the Court although the signed document does not say so. The difference is not material to the issues before me.

23 Commencing in 1995, discussions were held between officers of the Department of Conservation and Land Management, the Plaintiffs and Mr Borg. Practical difficulties in constructing an acceptable roadway along the route of the Crown Land and arising from the gully and the presence of buildings on the Crown Road were recognised and one or more officers of the Department suggested that an application to open a Crown Road over the existing track be made to at least bring matters to a head. It was pointed out that parties affected would be able to object and the Local Land Board might be involved in considering the proposal. Correspondence and internal Departmental documents indicate that the Department was willing to survey a new road and waive administrative costs.

24 On 7 December 1996 Mr Borg made application to the Department for the opening of a road pursuant to the provisions of s182 of the Roads Act. The copy of the application in evidence did not have the diagram which had accompanied the original but it is apparent from the plans in Exhibit A, and conceded, that the proposed road was along the route of the track through the properties to the south of the Plaintiffs’ land that I have listed. It seems that this application did not cover that, relatively small, part of the track which led to the Plaintiffs’ property and not to Mr Borg’s.

25 On 18 December 1996, the topic was the subject of consideration in a Departmental Memorandum prepared by Mr Hambly, the Manager State Lands Services, North Coast. He observed that a number of landowners, in addition to the ones I have mentioned were indirectly affected and that Mr Nevile Stack had commenced proceedings under s88K of the Conveyancing Act against Mr and Mrs Young to obtain a right of way across their property to lot 62. It was noted that those proceedings were settled but the Plaintiffs here, who were not party to the proceedings, were not willing to pay all the costs and compensation contemplated by the settlement.

26 In January 1997 the Department wrote to Mr Borg acknowledging receipt of his application. It would seem that a decision to deal with Mr Borg’s application was made. In February 1997 the Department commenced to advertise that fact and invited the lodgement within 42 days of objections and any claims of interest in the land proposed to be acquired pursuant to the application. It appears that there was some amendment of the application and further advertising commenced in early March. On 6 March letters were written by the Department including one to Peter Hawley, c/o GR Locke, solicitor. The letter referred to the purchase of Lot 23 DP 755547 by Peter Hawley, Stephen Bagnell and Loris Stevenson, to Mr Borg’s application, to amendments to it, enclosed a copy of the formal notification of the application and advised that all persons interested were invited to set forth in writing within 42 days any objections or submissions which might appear to them to exist to the proposed opening of the road and also to make any claims of interest in any land proposed to be acquired.

27 On or about 16 April 1997, Mr Simpson made application for the opening of a road. Again no copy of the diagram referred to in the application is attached but Mr Simpson said, and it seems common ground, that his application related to the area of the track from his southern boundary to the location of the track which was the subject of Mr Borg’s application. Mr Fish, the District Manager of the State Lands Services Assets Administration in Grafton wrote to Mr Simpson on 12 May advising that the Minister had decided to deal with Mr Simpson’s application. A Departmental Cover Sheet records that there were no objections – I infer from the Department – to the application, that the application was advertised on 15 May 1997 and that notices were sent to persons apparently interested, including “Peter Hawley and others, c/o G R Locke, solicitor”

28 The advertisement and notification of Mr Borg’s application had produced some responses.

29 On behalf of Mr and Mrs NJ and GJ Stack and Mr and Mrs CA and LM Hansen, a solicitor Mr Leach wrote to the Department on 27 March 1997. He said that in principle, and subject to adequate compensation being paid, his clients had no objection. However, his letter went on to assert that his clients’ understanding was that if the proposal went ahead, the Council would be responsible for construction and maintenance of the new road, including the bridge at or near the land owned by the Bowraville Land Council. Mr Leach went on to say that the Stacks wished the new road to pass through, and not merely stop at Mr Borg’s land and sought that an earlier unsuccessful application in that regard should be reconsidered.

30 A reply from Mr Ford of the Department to that letter said that his office was investigating the opening or relocating of access in order to avoid the existing structures having to be demolished and removed from the existing Crown Road and in order to rationalise the road system. Mr Ford added that if Mr and Mrs Stack wished a new road to be opened through Mr Borg’s property they should make application and a form was included for them to do so. The letter also observed that although Mr Leach’s letter indicated that his clients had no objection, later conversation between Mr Ford and Mr Stack indicated otherwise.

31 On 11 April 1997 Mr Locke, a solicitor, wrote on behalf of Mr Bagnall, Ms Stevenson and possibly Mr Hawley registering his clients’ interest and advising that they would be instructing him in relation to further objections. However, there seems to have been no further communication until 15 May.

32 On or about 15 May 1997 the application by Mr Borg was dealt with by the Department. A Minute of that date records the fact of the application by Mr Borg and that it was the result of a long running dispute between Mr Borg and Mr and Mrs Simpson on the one part, and Mr N G and Mrs S G Stack on the other and that Mr and Mrs Simpson had also lodged a supplementary application, that both applications should be treated as one proposal and their aim was to achieve outcomes which the State Lands Services desired, viz. “to establish legal and practical access to both Borg’s and Simpson’s properties” and in connection with the proposed road opening, closing unnecessary sections of existing Crown public roads and granting them to the adjoining land owners, and thereby “to legalise existing structures, particularly those currently owned by Mr Stack within the existing Crown roads”. The Minute also records:-

“The application by E P Borg has now been advertised and the statutory period for submissions has expired. Claims of interest have been lodged by N J and S G Stack; C A and L M Hassen (sic); and S D Bagnall, L L Stevenson and P E Hawley.

There have been no objections to the proposed road opening lodged. (This was followed by a handwritten note, “see minute hereunder”)

There are no objections to the acquisition of the affected lands for the purpose of road in principle subject to survey being effected of the proposal and subsequently to successful agreements to compensation being reached between the applicant and any affected landowners.

Actual acquisition will only be effected after survey and following the receipt and approval by the Minister of any compensation agreements between the applicant and all claimants listed on Schedule “Y”.

There are no objections to the closing of the blue coloured roads.

The proposed road opening by J D Simpson is currently being advertised and it is anticipated that it will be able to be finalised concurrently with Mr Borg’s proposal, if it is successful.

2. The State Lands Services undertake all survey work needed to define the road opening proposals by EP Borg and JD Simpson.

3. The claims of interest listed on Schedule “Y” are herby determined as valid.

4. Subject to survey of the proposal being undertaken, and to subsequent successful compensation agreements being reached between the applicant and all valid claimants, and being approved, the lands shown by red colour diagram “C” be acquired for public road and the roads shown by blue colour be closed and subsequently transferred to the adjoining landowners in connection with compensation.”

33 The Minute records that it was prepared by Graeme Ford. It was signed by Mr R Fish on 15 May, and on 16 May 1997 was “approved (in accordance with action agreed to date)” by Mr W.S. Hambly.

34 A handwritten annotation at the end of the document also signed, it would appear, by Mr Fish on 15 May 1997 records:-

“Mrs Stack advised by phone today 15/5/97 that their submission via David G Leach Solicitor, was a conditional agreement to the proposal. See paragraphs 2 and 3 of David Leach’s letter. Stacks in other words consider this to be an objection if ongoing management/maintenance is not addressed and resolved during the opening process.

GR Locke on behalf of Bagnall and others also called today indicating that they have objections that will be made during the exhibition period of Simpsons application.

Under these circumstances action on recommendation (2) and (4) above should be deferred until exhibition period of Simpson’s application has expired and also given that this report suggest both applications should be treated as one.”

35 Three groups of claimants were listed in Schedule Y, viz. N J and S G Stack, C A and L M Hansen and thirdly, S Bagnall, P Hawley and L Stevenson (sic).

36 Mr Locke wrote again on 25 June. It is not clear from the heading of the document whether the application relates to Mr Borg’s application although the tenor of the contents tends to so indicate. Mr Locke referred to his letter of 11 April and said that his clients wished to raise objections. His letter proceeded:-

“I also refer to my telephone conversation with your Department and that my understanding was that we had given you notice in writing of the fact that objections were to be raised and did this on the basis that they could be submitted at a later date as the matter progressed.

I note from my conversations with your staff that the actual grounds for these objections need to be set forth in writing and I would see your forbearance to include these objections in relation to this matter and also note that to some extent they overlap a related application being made by Simpson.

My clients wish to raise the following submissions and objections:-

1. The location of the reserved road or proposed reserved road through their property, Lot 23, would create both noise and dust from traffic along the road. This arises from the fact that the reserved road would run too close to the existing dwelling on the land. It is noted in that regard, that the Nambucca Shire Council requires a set back of 300 metres for residences from unsealed roads.

2. Proposals for alterations and extensions for the house by my clients include extra rooms which may bring the home even closer to the present position of the reserved road and also includes an inground pool which would also be effected by any dust problem.

3. My clients’ submissions would require that any approval granted would ensure that any road is constructed to the Nambucca Shire Council Engineer’s standards to provide an all weather road so that any vehicles using the reserved road would be able to remain within the boundaries of the road and not have to travel across any other part of my clients’ property in the event of sections of the road becoming boggy or impassable.

4. In the event of any approval being granted to Mr Borg, my clients’ submissions would be that the road should be located further away from their dwelling so as to alleviate problems relating to road noise and dust so as not to effect the amenity of anyone residing on the property.”

37 Pausing there, in the letter Mr Locke made no reference to the letter of 6 March to Mr Hawley, the contents of which I have referred to, nor to the 42 day period for objection specified in that letter (and, I infer, also specified in the formal notice enclosed in the letter and also published in the local paper). He gave no evidence in the proceedings before me and accordingly, there is no explanation as to how he reconciles the statements just quoted with the intimations of 42 days.

38 It is not clear what happened in the immediately following months. A file memo of 23 June records that the advertising period for the Plaintiffs’ application had not expired. A memo of 19 November indicates Mr Borg was concerned about delay, that Mr Leach was contacted and he did not think his clients had any “real” or “new” (the handwriting is unclear) objections but would confirm as soon as possible.

39 On a date which is unclear but, from the terms of the conversation recorded was clearly after 5 August 1997, and may well have been 19 November 1997 Mr Leach advised that he did not think that his clients had any real objection but he would confirm this in writing as soon as possible.

40 On 21 November 1997, Mr Locke faxed to the Department a copy of a survey plan showing the position of the house relative to the reserved road. The plan also showed the position of a steel shed on the road alignment and on the boundary of Portions 22 and 23.

41 Mr Borg’s application seems to have been the subject of full reconsideration soon thereafter. A Departmental memorandum of 27 November 1997 dealt at some length with the history of the matter and reasons for recommendations made. For present purposes it is unnecessary to repeat these matters beyond the following. It was recorded that an objection had been lodged by S D and L L Bagnall (sic) and a conditional consent lodged by N J and S G Stack but that the remaining affected landowners had not lodged any objections. In an annexure to the document the 4 objections raised in Mr Locke’s letter of 25 June were dealt with at a little length. Inter alia it was noted that the formed track fell within the existing Crown Road in the vicinity of the dwelling, both were in existence when Mr and Mrs (sic) Bagnall had purchased and Mr Borg’s application effected no alteration in that area, that the application was purely to legalise an existing track, not create a Council standard road and that there was no objection to the major road deviation in the western part of their property. In light of what is to be seen on the plan attached, that expression is clearly directed to the substantial length of proposed road to the west of the gully through which the existing Crown Road ran.

42 The Departmental memorandum of 27 November 1997 concludes:-

“RECOMMENDED for approval in accordance with delegation 31D.1.25

1. The State Lands Service waives all Departmental administration costs associated with the Road Opening Applications lodged by EP Borg and by JD Simpson including any Land Titles Office and Valuer Generals fees.

2. The State Lands Services undertake all survey work needed to define the road opening proposals by EP Borg and JD Simpson.

3. The claims of interest listed on Schedule “Y” are hereby determined as valid.

4. The objections by SD and LL Bagnall and NJ and SG Stack (conditional consent) be overruled and the application by EP Borg be allowed to proceed.

5. Subject to survey of the proposal being undertaken, and to subsequent successful compensation agreements being reached between the applicant and all valid claimants, and being approved, the lands shown by red colour diagram “D” be acquired for public road and the roads shown by blue colour be closed and subsequently transferred to the adjoining landowners in connection with compensation.

43 On 3 December 1997 Mr Ford of “Land NSW, Grafton” wrote to the Plaintiffs. The letter advised that Mr Borg’s application had been approved subject to survey and satisfactory agreements being reached regarding compensation. The letter also advised that “your” application is still being processed and “is currently awaiting confirmation from you to continue with your proposal”.

44 On 8 December, Mr Simpson replied to the effect that he had no choice but to proceed as the road was still blocked “Tree across road, 2 extra gates – one locked, speed/drainage humps, extra dam next to road, extra building on road at N. Stacks, etc”. The letter went on to specify reasons for his need for the road.

45 The documents in evidence do not include any further communication of objections by or on behalf of Mr Bagnall and Ms Stevenson to Mr Simpson’s application. However a Departmental Memorandum of 13 May 1998 deals at length with the question of whether Mr Simpson’s application should be granted, referring inter alia to the history of the relationship between the parties, the existence of the track, and Mr Simpson’s need for the road opening. The document asserts that the only objections were by the owners of Lot 23 DP 755547, i.e. Mr Bagnall and Ms Stevenson and contains an annexure entitled “Comments on Objections by S D Bagnall and L L Stevenson” which appears to set out a number of objections. Given the nature of the document and the extent of the detail in it, it is a reasonable inference that all objections by these persons to Mr Simpson’s application are there recorded. They are:-

1. There is an existing means of access from the Burrapine public road to Mr Simpson’s land being lots 62 and 63 DP 755547. My clients instruct me that Mr Simpson has an option to take up a right of carriageway across his neighbour’s land between his property and Burrapine Road over which he presently exercises his right of carriageway. My clients’ instructions are that at his election Mr Simpson can take up a registered right of carriageway which would provide him with legal access over his current entry across this land to his property and would be a direct link to the Burrapine Road.

2. The abovementioned current means of access would involve a distance of approximately 114 metres from Burrapine Road across Lot 31 in DP 852700 to the boundary of portion 62 also owned by Mr Simpson which adjoins Lot 63. I am instructed this access is serviced by a bridge across a watercourse mainly within Simpson’s land but located at the boundary of the properties which is in good serviceable condition.

3. The access route proposed by Mr Simpson’s application affecting Lot 23, would involve traversing private land by way of reserved roads to a distance of approximately 1.6kms.

4. If Simpson were to take up this option for the right of carriageway across Lot 31 DP 852700 (previously part Portion 8), it would be a private right of carriageway not requiring Council approval nor any specific standard of construction. This proposed right of carriageway or access road, is across suitable terrain and provides easy access to the Applicant’s property.

5. My clients also object to the fact that any road opening granted pursuant to this application, would increase traffic along the proposed reserved road and would have an adverse effect on the living conditions and the land owned by my clients. My clients’ instructions are that the current reserved road runs too close to the residence on the property and would create problems in relation to dust, living environment and similar factors.

6. The application by Simpson would appear to be reliant upon the application by Borg and any approval if it were granted to Mr Borg would require considerable road works and if conditions imposed in regard to construction of a bridge or road works were not met by Mr Borg the application by Simpson may subsequently be ineffectual. At this time the objector’s submission is that it would be inappropriate to grant the application to Mr Simpson until there was an existing serviceable Crown road from which he could seek such access.

7. In general the owners of Lot 23 object to the application on the basis that there is a more appropriate and more viable route to the Applicant’s property than the one sought in the current application.

46 That the above is a comprehensive account of the objections of Mr Bagnall and Ms Stevenson is confirmed by a combination of 2 further letters. In a letter of 19 May to Mr Locke from the Department informing him of the Department’s decision to grant Mr Simpson’s application all objections other than the one I have numbered 6 were canvassed to greater or lesser extent. A letter from Mr Locke to Mr Bagnall and Ms Stevenson of 25 May raised with them the possibility of an appeal from the Department’s decision but did not suggest that any objection by them had not been dealt with by the Department

47 A Departmental memorandum of 13 May 1998 comments on those objections and the merit of the application and concludes:-

Recommendation – For approval in accordance with delegation 31D.1.25

1. The claim of interest by SD Bagnall and LL Stevenson (now Bagnall) shown on Schedule “Y” be determined as valid.

2. The objection by SD Bagnall and LL Stevenson (now Bagnall) be overruled and the application by JD Simpson be allowed to proceed.

3. Subject to survey of the proposal being undertaken and to the subsequent successful compensation agreement being reached between the applicant and the valid claimants, and being approved, the lands shown by red colour diagram “B” be acquired for public road under the provisions of the Roads Act 1993.

48 I cannot identify the person who made the recommendation beyond his description of “District Manager, LAND NSW, GRAFTON”. Again the recommendation was approved by Mr Hambly, the “Area Manager, LAND NSW, HUNTER/NORTH COAST”.

49 An annexure to the memorandum deals at length with the 7 objections listed above. Each was considered separately. I do not regard it as necessary to repeat here all that was said in that regard but some reference is appropriate.

50 The comments in respect of objections 1 and 7 largely reflect the contents of a note of conversations with Mr Irvine the owner of the land said in the first objection to be subject to an option to take up a right of carriageway and with his solicitors. The note is dated 6 April 1998 and refers to a conversation of that day. The note proceeds:-

“Both Mr Irvine and his solicitors … explained that he (Irvine) did sign an agreement with the Simpsons to the effect that he would grant them a right of way over lot 8 DP 75547 if their current action (at that time) in the Supreme Court failed.

This action under the Inclosed Lands Act was successful in that the Simpsons obtained some form of legal agreement to gain access across the Bagnall’s property.

Mr Irvine is apparently not very keen to grant them the right of way as the area involved is the only part of his property where he has access to water…

Therefore the statement No. 1 made by Solicitor Locke in his letter of 25 June 1997 is not completely correct in that it would be quite lengthy and may be very difficult for the Simpsons to gain a right of way through Mr Irvine’s property.”

51 The response to the second objection was that the proposed right of way would not give access to one of the lots owned by Mr Simpson. The matters quoted in the immediately preceding paragraph, if accurate, would also provide an answer to this second objection. The response to objections 3, 5 and 6 was that the section of road proposed in Mr Simpson’s application was between 100 and 150 metres long only, Mr Borg’s application having been approved and issues of traffic and closeness to Mr Bagnall’s dwelling having been dealt with then. The response to objection 4 was that the application was only about legalising an existing practical access track in lieu of an impractical one and that issues of standard of construction did not arise unless the road was transferred to the local Council, an event regarded as highly unlikely.

52 On 19 May 1998, Mr Ford wrote to the Plaintiffs. He said that after consideration of all submissions the proposed road opening might proceed subject to firstly a survey and secondly to successful compensation agreement being reached between Mr and Mrs Simpson and affected land owners. Mr Ford recorded that the claim of interest lodged by Mr Bagnall and Ms Stevenson in respect of the lands proposed to be acquired had been accepted by the Minister and following completion and registration of the plan of survey the Simpsons would be notified to commence necessary compensation negotiations. The letter advised that the Department would arrange for the completion of a survey as shown on a diagram attached and the subsequent registration of a plan at the Titles Office and that a Departmental Surveyor was in the process of undertaking the survey in conjunction with Mr Borg’s application.

53 By a letter of the same date Mr Locke was also advised of the Departments decision that Mr Simpson’s application might proceed subject to survey being undertaken and to successful agreement being reached regarding compensation. The letter included an account of what the Department had been told by Mr Irvine and of other reasons for disagreement with the objections.

54 In fact instructions to a surveyor seem to have been given on or about 28 November 1997. By 23 December 1997, he was writing to affected landowners, including Mr Bagnall and Ms Stevenson and Mr H J and Mrs S G Stack, informing them of his intentions.

55 In what I have said so far, I have concentrated on the Plaintiffs’ interests and specific objections raised by Mr Bagnall and Ms Stevenson. There were however other matters which the Department seems to have considered. One was that future owners (I infer of many of the lots referred to in paragraph 7 above) would have to take into account the lack of practical legal access. A second, as has been said, was the desirability of legalising existing structures built on the existing Crown Road.

56 Things then seemed to have slowed down. On 4 May 1999 the Nambucca Shire Council wrote asking “whether surveying of the above road and gazettal of the road widening as Crown Road has been completed”. On 6 May the Department replied saying that drafting of the linen plan was being “finalised”, copies of the registered plan would be provided as soon as practicable and also to affected parties so that negotiations for compensation could proceed or, if necessary that topic brought before the Land and Environment Court. In September 1999, a letter in materially the same terms was sent to Mr Borg. On 18 July 2000 the Department wrote to Mr Abernethy saying that sufficient time had been allocated to complete the survey “this financial year”.

57 There was more litigation to which I shall refer below. Mr and Mrs Simpson lost and lodged an appeal. In anticipation that the Court of Appeal might wish to know the then current status of the road opening proposal, their solicitor wrote to the District Manager, Land and Water Conservation, Land NSW Grafton on 1 and 19 March and 10 May 2001, and telephoned on 20 August enquiring. On 21 August 2001 Mr Fish replied to the effect that the Department had limited resources, that unavoidable delays continued to be experienced and it was not expected that the necessary work would be completed until late November 2001.

58 On 5 February 2003 a Departmental memorandum from a surveyor to the “Manager Land NSW Operations Far North Coast” records that the survey of the Borg application was completed in August 1998 and the additional work required for the Simpson application was completed in November 2001. Then difficulties were encountered in the drafting of the plan and the author of the memorandum undertook the task himself. The resultant plan was forwarded with the memorandum to the Manager Land NSW Operations for the Far North Coast for appropriate action.

59 The litigation to which I referred was further proceedings in the Equity Division commenced in March 2000 by Mr and Mrs Simpson as plaintiffs and Mr S D Bagnall and Ms L L Stevenson as defendants. The Plaintiffs sought a declaration that pursuant to s4(2) of the Inclosed Lands Protection Act that the centre of the track traversing the defendants’ property be deemed to be the centre of the existing Crown Road and alternatively an order pursuant to s88K(2) of the Conveyancing Act imposing an easement over that part of the defendant’s property as was the site of the track.

60 In a reserved judgment of 5 October 2000 - Simpson & Anor v Bagnall & Anor [2000] NSWSC 930 - Bergin J found there was no power in the Inclosed Lands Protection Act to make the first order sought. Her Honour declined also to make the second order for a number of reasons. One was that she was satisfied that “the effective use of the Plaintiffs’ land could be achieved without the easement, by access through the northern route as has been the manner of ingress and egress for the last 5 years” – at [103]. Her Honour was also not satisfied that the Plaintiffs had made any reasonable attempt to obtain an easement over that northern route – at [106]. A third reason was that, because the easement sought was over only the property of Mr Bagnall and Ms Stevenson, and not through the other properties between their’s and Taylor’s Arm Rd, and also that the Crown Road through some of those properties was blocked by structures, her Honour was not satisfied that the easement sought would facilitate access to the Plaintiffs’ property – at [110], [114]. A fourth reason was referred to by her Honour in these terms:-

115 - “A most significant matter which precludes the Plaintiff from succeeding in this application is the decision of the Minister to approve the opening of the road on the whole of the southern route, including that part of the track on the defendant’s property. The only steps that need to be taken prior to the opening of that road are the registration of the plan and the agreement or determination of compensation.”

116 - Certainly the delay is regrettable but having regard to the letter of 18 July from the Department to the Plaintiffs’ solicitor it seems that the Department intends to finalise this matter within a very short time frame. It seems to me that this process should be expedited not only in the interests of the parties to this litigation but in the public interest. Buildings across the Crown road have been tolerated for years and the sooner the road is open in this area enabling the property owners to have appropriate access along the road the better.

Roads Act 1993

119 – Irrespective of the view I have formed as to the plaintiffs’ failure to make all reasonable attempts to obtain an easement, this circumstance persuades me that an easement over the defendants’ property is not reasonably necessary for the effective use and development of the plaintiffs’ property.”

61 The letter of 18 July referred to was one of 18 July 2000 to which, I have referred. The “northern route” referred to was across a bridge over the Taylor’s Arm River at the northern border of the Plaintiffs’ property with the property next door and then about 100 metres diagonally across the south-eastern corner of that property – see [31].

62 As has been said, Mr and Mrs Simpson lodged an appeal from the decision of Bergin J. Proceedings in the Court of Appeal were settled. On 14 September 2001, the Court noted the agreement of the parties embodied in the (then) unsigned Short Minutes of Order and by consent made orders 2 and 3 as set out in that document. The document provides:-

NOTE

1. The Respondents shall do nothing to prevent or to obstruct the roads being gazetted in the nature of that depicted on the Plan annexed and marked in yellow and by dotted line also marked in yellow.

BY CONSENT

2. The appeal in the Supreme Court between the parties being No. 40844 of 2000 be dismissed with no order as to costs of the appeal.

3. The Appellants pay the costs of the Respondents of the hearing at first instance in the agreed sum of $23,519.66 with no interest to run on that sum if paid within 28 days of the date of this Agreement.”

63 The Appellants were Mr and Mrs Simpson and the Respondents were Mr Bagnall and Ms Stevenson. Although the Plan referred to was not annexed to the copy of the Short Minutes of Order contained in Exhibit A before me, having regard to the way in which the proceedings before me were conducted, I have no doubt that the Plan was one that showed at least that portion of road the subject of Mr Borg’s and Mr Simpson’s application as passed through the lots owned by Mr Bagnall and Ms Stevenson. There were a number of copies of such a plan in evidence.

64 By the time of the Departmental memorandum of 5 February 2003 forwarding the survey plan to the Manager Land NSW Operations for the Far North Coast for appropriate action or soon after, Mr Borg had sold his land. A Mr Smith and Ms Kuhl had purchased it. On 20 May 2003 the Department wrote to Mr Smith and Ms Kuhl advising that formal approval to proceed with Mr Borg’s application to open the road had been granted on 27 November 1997, that there had been delays, that the survey was now finalised but before the road opening could proceed all parties must agree to the apportionment of compensation, that the Department was prepared to make available the unnecessary sections of Crown Road earmarked for closure but that otherwise compensation was a matter entirely for negotiation between the parties. The letter went on to ask whether Mr Borg’s interests in the road opening application lodged by him had been transferred to Mr Smith and Ms Kuhl.

65 The evidence does not reveal what occurred in the next 6 months but on 5 November 2003, the Department wrote to Mr and Mrs Simpson advising that following consideration of all submissions it had been decided to continue with the proposed acquisition of affected land, that the survey was complete, and that the Minister had accepted claims of interest lodged by:-

1. Mr S D Bagnall and Miss L L Stevenson

2. Mr C A Hansen and Ms L M Hansen

3. Mr N J and Ms S G Stack

4. Bowraville Aboriginal Land Council

66 The letter identified the lots each of these groups held and the areas of land involved. In the case of Mr Bagnall and Ms Stevenson the areas of land required for road opening and closing were stated to be 23,239.4 m2 and 10,001.5 m2, i.e. about 2¼ and 1 ha. respectively. The letter recorded that the acquisition of land for road purposes could not proceed until compensation had been agreed with the affected landowners and approved by the Minister Assisting the Minister for Natural Resources (Lands) and that Mr and Mrs Simpson and Mr Smith and Ms Kuhl, “the other party to the road opening” should contact the persons listed. The letter went on to say that the Department was prepared to grant the sections of Crown Road proposed to be closed and that, given that the areas of land affected were in favour of the last 3 groups listed above, monetary compensation was not necessary in their case. The situation was different in the case of Mr Bagnall and Ms Stevenson because the area of land required for a new road was greater than the area proposed to be closed. An offer was made to have the affected areas valued by the State Valuation Office. It was pointed out that if agreement could not be reached within 12 weeks, either party could refer the matter to the Land and Environment Court and that no further action would be taken in respect of the application until the matter of compensation was finalised.

67 On 24 November 2003 Mr Abernethy appears to have written to Mr and Mrs Hansen and Mr and Mrs Stack and, on 4 December to the Bowraville Land Council with a view to reaching agreement as to compensation. A copy of a letter of 25 November from Mr Abernethy to Mr Bagnall and Ms Stevenson confirms a conversation of that day including conversation to the effect that:-

“The Simpsons may not have access across your land, other than by means of the Reserve Road, until compensation has been paid ‘if it gets that far’ and you intend to fight ‘it’ all the way.”

68 On 26 November 2003, Mr Stoner MP wrote to the Minister Assisting the Minister for Natural Resources (Lands) on behalf of Mr Bagnall and Mr Stack, seeking a meeting with the Minister about the road opening application. It is convenient to defer the details of what was then said.

69 On 12 March 2004, the Department asked the Area Manager of the NSW Department of Commerce to provide for each affected owner, valuations of the total areas of land to be opened and closed as an incident of the proposal.

70 On 31 May 2004, Mr Taylor of the Grafton Office of the Department wrote to the Plaintiffs’ solicitor referring to a letter of 31 March and acknowledging that the interests relating to Mr Borg’s road opening application had been transferred to the Plaintiffs as provided for under s73 of the Roads (General) Regulation. The letter also advised that a copy of a valuation obtained from the Property Valuation Services of the NSW Department of Commerce was enclosed and had been provided to all parties.

71 The valuation gives a large number of lot descriptions. It is not simple, or perhaps possible merely by reference to the valuation to determine which of these lots is owned by which of the landholders affected but when regard is had also to a schedule to the letter of 12 March, it is apparent that the values attributed to the lands within the property of Mr Bagnall and Ms Stevenson intended for Road Opening and Closing are $7,000 and $3,000 respectively.

72 The valuation is said to have regard to the highest and best use of the subject land allowable under its zoning and reflects a home-site value. The valuer opines that the addition of the extra Crown Road land would be of only nominal benefit. It might be noted also that the valuer asserts that in the case of Mr Bagnall and Ms Stevenson, the total area of the main holding is 113.31 ha. and that the valuer’s calculation of the area to be taken for road opening is 2.31 ha, slightly more than the area referred to circa [66] above.

73 It might be convenient at this stage to observe that also in the papers in evidence was another valuation which appears to have been obtained on behalf of Mr Bagnall and Ms Stevenson. It values lot 23 which it describes as having an area of approximately 73 ha as having a value of $245,000 but of only $195,000 if 2.4 ha. were resumed for a road, due to the nuisance of the extra traffic. The valuation seems to attribute to the land proposed to be resumed, a value of $6,000.

74 As has been said, on 26 November 2003, Mr Stoner MP wrote to the Minister Assisting the Minister for Natural Resources (Lands) on behalf of Mr Bagnall and Mr Stack, seeking a meeting with the Minister about the road opening application and saying, inter alia:-

“Mr Bagnall argues that his best country is involved and that no amount of compensation in dollar terms would compensate for the loss of the intrinsic value of his property.”

75 On 16 March 2004 Lorraine Stevenson and Shirley Stack, purportedly on behalf of all the residents of Apple Tree Glen, Burrapine wrote to a Mr Fenn, described as a Senior Policy Advisor and apparently at the same level and in the same building as the Minister, making a number of assertions including that there had been a number of significant changes since what was said to be the approval in 1997 of the opening of the road and seeking a meeting. On 16 April further representations were made in a letter by Stephen Bagnall and Lorraine Stevenson and in another letter apparently by Neville and Shirley Stack.

76 The persons mentioned in the preceding paragraph are not parties to these proceedings and it is unnecessary that I say more about the representations than that is a deal of evidence, beyond that emanating from the Plaintiffs, that a number of the statements made were wrong. One statement, although I have no knowledge whether this one was right or wrong, was that Mr Stoner had already assured Ms Stevenson and Ms Stack that the road opening would not proceed.

77 Between the time of Mr Stoner’s letter and 18 November 2004, a number of internal Departmental memoranda were prepared and it would seem forwarded to the Minister’s office or to one or more of his advisors. Some of the contents of these memoranda and the attitude of the Minister’s advisors are worthy of note. A memorandum with reference No: MIN03/5237 and dated 3 December 2003, includes the following:-

1. A meeting between Mr Bagnall, Mr Stack and the Minister was identified as the issue to which the memo was addressed;

2. Some background was provided and in paragraph 2.5 it was said “it is considered that the road opening is in the best interests of all parties involved”;

3. In paragraph 2.7 it was said that Messrs Bagnall and Stack had been central to the conflict with the road opening proponents, Mr Stack owns a residence which encroaches on the road and the existing road reserved within Mr Bagnall’s block is impractical to construct;

4. In paragraph 2.8 it was said that both applications were approved by the Minister’s delegate (subject to survey) in 1997 and “there are no grounds on which to appeal the decision”;

5. In paragraph 2.9 it was said that “due to limited technical resources, completion of the survey plan was not finalised by the Department until January 2003”;

6. In paragraph 3.1 it is recorded that Mr Michael Smith purchased the Borg property in 2003 and is committed to finalising the road opening. There followed reference to the topic of compensation, that all parties had been provided with a copy of the survey plan and requested to negotiate, and that compensations could be determined by agreement or the Land and Environment Court; and

7. Recommendation

4.1 That in order to maintain neutrality in the matter and to help facilitate negotiations, the Department of Lands issues instructions to the State Valuation Office to assess compensation for all affected landowners.

4.2 In the meeting the Minister re-affirm the avenues for resolving compensation.

78 The memorandum bears a notation that the contact officer is Robert Fish of the Grafton Office and, as best as I can decipher the signature, seems to be signed by a G Harding described as “General Manager, Crown Lands NSW”. Spaces and the description of office holders indicate that it was contemplated that the document might be signed by or on behalf of the Director General and the “Minister (Attention: Stephen Fenn)”.

79 A Memorandum of 1 April 2004 describes the issue being addressed as a letter to Stephen Fenn for Lorraine Stevenson and Shirley Stack concerning a road opening application. It referred to the memo MIN03/5237 and says, inter alia:-

“A Crown road is available for use by the public. In this instance the Department is effectively “moving” the location of the Crown Road so that the existing track will be situated within a legal road corridor.”

80 This document referred to Graham Taylor of the Grafton Office as the Contact Officer, and appears to have been signed by a T (or I or J) St George above the description “General Manager, Crown Lands, NSW”, by someone else whose name I can’t decipher on behalf of the Director General and by another person, whose signature is also indecipherable, on behalf of the Minister.

81 Another memorandum of or about 1 July bears the references MIN04/3487 MIN04/3488 and included the following:-

1, The issue is said to be representations by Mr Bagnall and Ms Stevenson and Mr and Ms Stack;

2. In paragraph 2.2 it is said that those parties seek the Minister’s approval to rescind an approval given under delegation to open a Crown road through their properties;

3. In paragraph 3.1 it is recorded that “the Department has acknowledged that there are additional avenues of access (but not necessarily legal and practical access) for relevant parties associated with the road opening at Burrapine. However, this road opening application has been negotiated and ultimately determined to resolve issues relating to the formalisation of the current access track, which is located mainly on freehold land; and to legalise building encroachments onto the existing Crown road”;

4. In paragraph 3.4 the sale by Mr Borg to Michael Smith and Miss Kuhl is referred to and it is said “these current owners of Lot 115 have indicated that they no longer wish to proceed with the application commenced by Mr Borg;

5. In paragraph 3.5 that Mr and Mrs Simpson have advised that the interests relating to Mr Borg’s application have been transferred to themselves as provided for in Section 73 of the Roads (General) Regulation 2000;

6. In paragraph 3.6, that Mr and Mrs Simpson gain access to the northernmost section of their property by way of an existing track located partly within the Crown road system and partly through their neighbours’ freehold land. “Consequently, it does not provide legal practical access in its entirety. Legal practical access to the southern section of their property (Lot 63) would appear to be achievable only if the current application reaches fruition”;

7. In paragraph 3.7, that there was a possibility of the Department being liable for compensation should the approval be rescinded;

8. In paragraph 3.10, that as shown on two identified diagrams the Stack’s house currently unlawfully encroaches on a Crown road and the finalisation of the application would resolve that situation;

9. In paragraph 3.13, that “Lot 17 of the survey plan, diag(ram) B and C represent the legal position of the public road providing access to Lot 42 DP 755547 owned by Rodney John and Elizabeth Suzanne Jarmain. The road is only minimally affected by the current proposal and any action to reposition the legal road so as to be coincident with the track in use would be the subject of a separate application; and

10. A recommendation that the Senior Policy Advisor sign the attached letters.

82 The contact officer noted in that memorandum was Mr Graham Taylor described as “MPO, Crown Lands NSW Far North Coast”. It seems to have been signed also by a J St George “for General Manager Crown Lands NSW” and by someone else whose name I can’t decipher on behalf of the Director General.

83 The letters referred to are to Mr Bagnall and Ms Stevenson and Mr and Mrs Stack and say that the Minister would not be prepared to recommend rescission of the road opening approval. The letters are crossed through.

84 As Mr and Mrs Jarmain have not previously been referred to in these reasons, I should record that their land is situate to the south of lot 64 owned by Mr N J Stack and Mrs S G Stack. Access to their property is along a Crown Road which is an offshoot from that with which the Borg and Simpson applications are concerned. The offshoot leaves what I may call the main Crown Road just to the north of the boundary of lots 76 and 64 and, moving south, crosses the track at a point where the track is not on the site of the main Crown Road and then crosses lot 64 to and beyond the southern boundary of that lot. The evidence before me does not reveal how far the offshoot Crown Road extends although in the letter from Mr and Mrs Stack of 16 April 2004, the writers observe that without using the writers’ property for access, the Jarmains would be landlocked. In that letter, Mr and Mrs Stack also observe that “the bridge and road are on my private property as it is impossible to use the crown road in its present position. … to use the crown road would necessitate building a major bridge over the river plus two other minor bridges, and use some of my private land to do this”. The bridge referred to is that between lots 64 and 1 and it would thus seem that, unless Mr and Mrs Jarmain have some easement or other formal legal arrangement with Mr and Mrs Stack and with the Bowraville Local Aboriginal Land Council, they need the consummation of that part of the Borg/Simpson application as relates to lots 64 and 1.

85 Another memorandum of the 4 August 2004 from a Charlie Micali described as a Senior Ministerial Liaison Officer in the Office of the Director General and addressed to Graham Harding the General Manager Crown Lands includes the following:-

“This matter has been returned from the Minister’s office because Stephen Fenn doesn’t understand the mechanics nor what the proposal is trying to achieve…

Given that the original applicant has withdrawn and the affected landowners have always opposed this road opening, is there someway Lands can mediate an alternate outcome for this matter.

If this application had been lodged today it would have been refused and the applicant advised to proceed via Section 88K of the Conveyancing Act …

I have spoken to Mr Bagnall. He would like someone from the Department, but not the Grafton office, to meet him on site so that he can personally explain his position. I agreed that this could be arranged and suggested that Craig Barnes who is relatively new to the region should attend.

I also suggest that the Grafton office satisfy Craig that all of the elements of Part 12 Division 2 of the Roads Act 1993 have been properly complied with. Also is too late to continue via section 88K of the Conveyancing Act. (sic) …”

86 The next Departmental memo appears to have been prepared by the “Regional Manager – North Coast” and signed on 2 September 2004. It bears notations “Endorsed by G Harding 8/9/04” immediately above the printed words “General Manager Crown Lands NSW” and “Endorsed by M Mafchett for” immediately before the printed words “Director General” and then the date 17/9/04. (“Mafchett” is my best interpretation of the signature.) A little lower there are the printed words “Minister (Attention; Stephen Fenn) but no signature endorsed. This memorandum includes the following:-

1. The issue was again identified as representations by Mr Bagnall and Ms Stevenson and by Neville and Shirley Stack.

2. Some of the background, including the statement that practical use of the (Crown) Road is constrained in a number of locations, including the Stacks house, and a gully on the Bagnall property. There was mention also that in 2003 Borg sold his property to Smith and Kuhl who created their own access and no longer wished to proceed with Borg’s application.

3. Included under the heading “Current Situation” is the statement that Stack and Bagnall would like the Minister to rescind the approval given in 1997 and a paragraph which reads as follows:-

3.3 On direction from the Director General’s office the regional manager – North Coast met with Stack and Bagnall separately on August 25, 2004 and inspected the site. They advised as follows:-

* Each has received notice from the Land and Environment Court…

* Bagnall seeks to stop the Simpson’s access through his property claiming it will damage his only useable land (debatable – limited potential) and that Simpson has other more appropriate access. (See blue arrows on plan.)

* Simpson’s practical access to date (through portion 8) and marked blue arrow 1) has recently been blocked following a new dispute with that owner; and

* Stack claims the Department should resolve other issues relating to the access to the Jarmain property.

3.4 The Department has empathy with the situation of Bagnall. However, in the circumstances, it is not a viable option to intervene.

OPTIONS

Rescind the approval.

Allow the application to proceed and, later, allow Bagnall to close the new road.

Allow the application to proceed as approved.

RECOMMENDATIONS

5.1 It is recommended that the Senior Policy adviser sign the attached letters, if approved.

87 The last page of the document which includes paragraphs 3.4 to 5.1 was crossed through.

88 The letters referred to were drafted for signature by Mr Fenn, described as “Senior Policy Adviser, Minister for Lands”, are addressed to Mr Bagnall and Ms Stevenson and Mr and Mrs Stack, and their tenor is that the Minister is not in a position to rescind the 1997 approval and the road opening application must continue. These letters also are crossed through.

89 The next Departmental Memorandum in evidence is one which names as the Contact Officer “Charles Micali, Senior Ministerial Liaison Officer” and is apparently signed by the Director General on 18 November 2004. This memorandum identified the issue as Mr and Mrs Simpson’s application to open a road through the land of Mr Bagnall and Ms Stevenson and Neville and Shirley Stack and describes the current situation in the following terms:-

3.1 The original application was lodged in 1995 by Mr EP Borg who has since sold his property to Michael Smith and Laraine Kuhl. The new owners indicated to DLWC that they were not interested in pursuing the road opening application.

3.2 In 1996 the Simpsons applied to DLWC to open an additional road through lands owned by S Bagnall and L Stevenson to join with the road to be opened under Mr Borg’s application. With the sale of the Borg property and with the new owners having no interest in proceeding with the application, the Department, at the request of Mr Simpson’s solicitors, transferred all interest in the application to the Simpsons, pursuant to Clause 73 of the Roads (General) Regulation 2000.

3.3 The Department has always contended that an application by the Simpsons in isolation would never have been entertained without the prior consents of affected landowners as they are already able to access their property on the east via a track over Taylors Arm Creek to Taylors Arm Road.

3.4 Mr Bagnall, together with Mr and Mrs Stack, owners of the neighbouring property that is also affected by his proposal, have continued to voice their objections to the road opening through their respective properties.

3.5 There has been little progress on the application since its approval in 1997. The Department undertook survey at no cost to the applicants and arranged for valuations to assist the parties in their compensation negotiations. To date there has been no agreement on compensation and the case continues to be a consideration draw on the resources of the Department of Lands.

90 The memorandum concludes with a recommendation to the Director General as the Minister’s delegate under the Roads Act 1993 to rescind that approval and to sign the attached draft letters to the Plaintiffs, Mr Bagnall and Ms Stevenson and Neville and Shirley Stack.

91 On 18 November 2004 the Director General wrote to the Plaintiffs and to Mr Bagnall and Ms Stevenson referring to the application of Mr and Mrs Simpson to open a road through the properties of Stephen Bagnall and Lorraine Stevenson and of Neville and Shirley Stack and advising that he had rescinded the approval. The letters were in similar terms, that to the Plaintiffs reading in part:-

Given that the circumstances have substantially changed since 1997 when approval was given to open the abovementioned road, as the delegate of the Minister for Lands under the Roads Act, I have now rescinded that approval.

The circumstances to which I refer are that Michael Smith and Laraine Kuhl, the new owners of the former property of Mr EP Borg, the original proponent in this matter, had withdrawn any interest in opening the new road.

Furthermore, in the absence of the prior consents of the affected landowners, the Department of Lands would never have entertained an application by yourselves in isolation of the Borg application as practical access to your property has always been available via a track across Taylors Arm Creek to Taylors Arm Road.

92 Mr and Mrs Simpson seem never to have been informed that representations were being made by Mr Bagnall and Ms Stevenson or asked to comment on the subject matter. When told of the decision to rescind, on their behalf representations were made to the Department, canvassing inter alia the history, the issue of whether the Plaintiffs did have other access to their property and the absence of notice to them of the representations seeking rescission of the approval. Mr and Mrs Simpson’s representations fell on deaf ears.

93 On the evidence before me, the alternative of access via a track across Taylor’s Arm Creek seems first to have been advocated by Mr Barnes, and this following a meeting he had with Mr Bagnall and others and without notice to the Plaintiff. In a letter of 6 December 2004, Mr Barnes asserted that it was feasible for a low level crossing to be created across the Creek to facilitate practical and legal access and that when the original application was made, the Department had considered this was the most feasible practicable access but it was not pursued as it was not the preferred route of Mr Borg and Mr and Mrs Simpson. Certainly a Departmental memo of Mr Ford dated 9 October 1995 indicates that this was not the route preferred by the applicants but the numerous Departmental papers in evidence provide no support for Mr Barnes’ assertion that that route was then considered by the Department as the most practicable or feasible. If those papers are representative, in their silence, they contradict Mr Barnes’ assertion. In his letter of 19 November 2004, Mr Abernethy refers to Departmental views contradicting Mr Barnes and, while this route was mentioned by Bergin J, it does not figure in her Honour’s reasons as a reason why the easement she was asked to grant was not necessary.

94 In any event, in light of the concession of counsel for the Department before me that the Plaintiffs now have no practical legal access, I need not pursue the topic. No doubt it is something which can be raised if any hearing before the Local Land Board proceeds.

95 The Plaintiffs then commenced proceedings 30117/2004 against the Minister, the Director General, Mr Bagnall and Ms Stevenson upon the ground that there had been a breach of the rules of procedural fairness. Those proceedings were settled. On 13 May 2005, consent orders were made including orders to the effect:-

1. That the decision of the Minister’s delegate on or about 18 November 2004 purporting to rescind the approval for the land acquisition proposal made by the Plaintiffs is set aside.

2. The Minister and Director-General are to pay the Plaintiff $7,000 in respect of costs.

3. Otherwise the proceedings against the Minister and Director-General are discontinued.

4. The proceedings against Mr SD Bagnall and Ms LL Stevenson are discontinued with no order as to costs.

96 By letter of 1 March 2005, the Crown Solicitor wrote to Mr Abernethy. The letter included the following:-

“I am also instructed to advise you that the Minister intends to give fresh consideration to the land acquisition proposal after the conclusion of these proceedings (I.e. those in which the Minister’s decision to rescind the approval of the land acquisition proposal was set aside). All affected parties will be consulted and given an opportunity to make submissions to the Minister or the relevant delegate before any further decision is made.”

97 An internal memo of 4 May 2005 of Mr Callaghan, a senior legal officer of the Department, says that “The parties have been led to expect that the Department will be undertaking a review”. The Plaintiffs’ solicitor objected to this occurring but on 6 July 2005 the Director General wrote confirming that “In accordance with undertakings by the Minister and the Director General in Supreme Court matter 30117/04, the Minister will be undertaking a complete review of the road opening application and consider suitable variations if applicable” and “To this end the Minister has requested the Local Land Board to inquire and report pursuant to s260 of the Roads Act 1993”. Certainly someone decided that there should be a reference to the Local Land Board. Mr Abernethy deposed to having been told by Mr Callaghan that he had referred the matter to the Board, although in evidence Mr Callaghan denied that he had made the decision. In his affidavit of 2 September 2005, Mr Callaghan said that after the settlement he emailed Craig Barnes, General Manager, Northern Region in relation to the further consideration of the matter and that Mr Barnes decided that the matter should be so referred. In cross-examination, Mr Callaghan departed from this, saying that Mr Barnes only recommended to that effect. Mr Callaghan also said that although Ms Hembrow, who signed the reference the terms of which are set out in [3] above, was junior to Mr Barnes, she had a discretion whether to follow his recommendation.

98 Mr Callaghan said that prior to the reference, he had suggested mediation and then Mr Barnes, taking the view that the Local Land Board could mediate, came back with the suggestion that the matter be referred there. Ms Hembrow did not give evidence (although at a time when counsel for the Plaintiffs was giving consideration to amending there was some indication of what she would say).

99 On 14 July 2005 the Plaintiffs’ solicitor wrote to the Director General advising that an injunction would be sought on the following day to restrain the Minister, Department and Land Board. In fact on 15 July, leave was given to file the Summons in proceedings 30058 returnable for 25 July. As has been indicated, in those proceedings that plaintiffs seek, inter alia, to challenge the decision to reference to the Local Land Board and to restrain the Minister and the Director General from taking any step to interfere with, rescind or abandon the “approval” which they claim to have been given on 27 November 1997.

100 On and following 20 July 2005 there was conversation between the Plaintiffs’ solicitor Mr Abernathy and Mr Callaghan of the Legal Department of the Department of Lands on which the Plaintiffs rely as constituting an agreement. It is convenient to defer recounting this until later in these reasons.

101 In July also Mr Michael Smith and Ms Kuhl wrote to the Director General saying:-

“We, the undersigned, hereby advise you that, as the owners of the land, Certificate of Title Identifier 115/755547, formerly owned by Mr Edward Patrick Borg, we intend to stand in Mr Borg’s stead in the Road Opening Application. As it has always been our intention to use the road if granted, we will continue with the application. We continue to support Mr and Mrs Simpson’s application. To this end, we are arranging for Mr and Mrs J.D.K. Simpson to transfer to us the former interest of Mr Borg in the application.”

The Legislation

102 The legislation bearing on the issues that arise are a number of sections of the Roads Act, 1993. Part 12, containing most of these sections, deals with the acquisition of land. Under Section 182 any person who is not empowered to compulsorily acquire land may apply to the Minister for the acquisition of land for the purposes of a public road. Section 182(2) provides that an application may be transferred, in accordance with the regulations, to any person who is not empowered to compulsory acquire land. Section 182(3) provides that the Minister may, by notice published in the Gazette, acquire the whole or any part of the land to which such an application relates.

103 Under Section 183 the Minister may require an Applicant to lodge money to cover costs, any further information relevant to the application and a plan of survey at any time during the consideration of the application. Section 184 provides:-

(1) The Minister:

(a) must decide whether to deal with the application or whether to refuse to deal with the application, and

(b) must give notice to the applicant of the decision and (if the Minister decides to refuse to deal with the application) of the reasons for the decision.

(2) If the Minister decides to deal with the application, the Minister must cause notice of that fact:

(a) to be published in a local newspaper; and

(b) to be served on each person who is an apparent owner of the land affected by the proposed acquisition including…

(c) to be served on each person who is a registered native title claimant…

104 Subsection (3) set out requirements for the notice including identification of the land, that any person is entitled to make submissions and that the notice “must indicate the manner in which, and the period (being at least 42 days) within which, any such submission or claim should be made or lodged”.

105 Section 185 requires that the Registrar General be notified of the Minister’s decision to deal with an application. Section 186 provides for the making of claims of interest by those who believe they had any interest in the land proposed to be acquired and that any person may make submissions with respect to the proposed acquisition. Section 187 provides:-

(1) After considering any submissions that have been duly made with respect to the proposed acquisition of land, the Minister:

(a) must decide whether to continue with, or to abandon, the proposed acquisition, and

(b) if the Minister decides to abandon the proposed acquisition, must give notice to the applicant of the decision and of the reasons for the decision.

139 However, the particulars of the matters relied on in this connection included in the Amended Points of Claim are such as to exclude reliance on most of the matters to which I have just referred and, although it is there said that further particulars would be supplied after discovery and the return of subpoena, so far as I am aware, the basis for the allegation was not expanded. The particulars included in the pleading are mainly asserted instances of failure to notify the Plaintiffs of, and give them an opportunity to be heard in relation to, various matters including:-

(i) The undertakings given in proceedings 30117/04 referred to in the Department’s letter of 6 July 2005;

(ii) The basis for undertaking a complete review of the road opening application and any suitable variations;

(iii) The “matter that had arisen” within s260(1);

(iv) His intention to make the decision to refer; and

(v) The fact and time of the “approval” on 27 November 1997, the completion of the survey on 30 November 2003, and the commencement of proceedings in the Land and Environment Court on 30 July 2004

140 While other matters are also referred to by way of particulars of the “bad faith” allegations, they are either of substantially lesser weight or so obviously answered by documents to which I have referred that I need not extend these already lengthy reasons by dealing with them seriatim.

141 It should also be mentioned that during the hearing that counsel for the Defendants made it clear that he was holding the Plaintiff to his Particulars and there was no request for leave to rely on other matters.

142 The evidence of the giving of “undertakings” is the statement to that effect in the Department’s letter of 6 July 2005 which, apart from what is to be inferred from events, is also the only evidence of what the undertakings were. It appears from Mr Abernethy’s reply of 14 July that such undertakings were not given to him. It is a reasonable inference from the absence of any suggestion to that effect and the extent of correspondence between Mr Abernethy and the Department at that time that no such undertakings were given to the Plaintiffs. Thus, it is to be inferred that undertakings were given to other persons, and as no one else seems a likely recipient, it is also to be inferred that these persons were one or more of the Bagnall and Stack interests.

143 Although the Department may not have spelled it out in terms, it is, and must have been obvious to the Plaintiffs, what the Department or the Minster regarded as the basis for “a complete review of the road opening application and any … suitable variations”, an expression obviously taken from the Department’s letter of 6 July 2005. The Department’s letters of 18 November and 6 December 2004 and the information otherwise communicated by the Department and referred to in Mr Abernethy’s letters after 18 November to my mind make this clear. Mr Abernethy’s letters also make it clear that the Plaintiffs also had an opportunity to respond at least to some extent to matters inspiring the Department’s changed stance.

144 The matters canvassed in the documents referred to in the immediately preceding paragraph also provide a reasonable indication of what it was that the Minister or Department thought was the “matter that had arisen” within s260(1).

145 It certainly seems to be the case that the Plaintiffs were given no advance notice that the Minister was contemplating a reference to the Land Board. However, in the circumstances prevailing, it is not possible to regard this as evidence of some bad faith. From no later than the time of the Director General’s decision on 18 November 2004, the Director General and the Minister were in an invidious position. The Director General had made a decision in a contentious matter without hearing from one side. Although that decision had been set aside, any involvement by him in the redetermination of the same question would clearly give rise to queries as to pre-judgment or interest in not accepting that that earlier decision was or may have been erroneous.

146 The Minister’s position was not materially different once regard is had to the history revealed in the documents in evidence before me. Those documents make it abundantly clear that the Director General’s decision was, to a large extent the result of influence from the Minister’s Office. Three times - 3 December 2003, 1 July 2004 and 2 September 2004 - the Department had recommended that the road opening application(s) be allowed to continue, but the Minister or his advisers, Messrs Fenn and Micali would have none of that stance.

147 Furthermore, as is apparent, both the Minister’s office and the section of the Department then considering the matter, were privy to the approach of not giving the Plaintiffs advance notice that reconsideration of their application(s) was underway.

148 In these circumstances, if reconsideration was to be given to the road opening application at all, a reference to someone not involved in the representations by the Bagnall and Stack interests or in the responses to those representations, cannot be regarded as evidence of bad faith. Of course that conclusion does not provide a reason why the Plaintiffs’ could not or should not have been informed that a reference to the Local Land Board was in contemplation. However it does go a long way towards dispelling an inference of bad faith from the fact that the Plaintiffs were not advised of what was in mind.

149 Nor in the circumstances is it possible to infer from the group of matters referred to in paragraph 139(v) above, either in combination with one another or in combination with any of the other matters particularised in this section of the pleadings, that the decision to refer matters to the Local Land Board was made in bad faith. The events and time period embraced by the matters referred to in paragraph (v), certainly argue against any reconsideration of the road opening application but, taken at face value, information to the effect that the Plaintiffs did have other practical access to their land, and that it was the owners of only one of the parcels of land intended to benefit from the road opening applications that remained interested may not unreasonably be considered as arguing in favour of another look at the question. Thus it is that I am unable to draw the inference that the Plaintiffs seek from the matters referred to in paragraph (v).

150 In short, the pleaded case of bad faith fails.

Failure to take into account relevant considerations

151 The 3 matters referred to in paragraph (v) at the commencement of the last section of these reasons are the only matters relied on here. There is no evidence that these matters were not taken into account.

The Decision was unreasonable

152 In this area of judicial review of administrative decisions the test is whether the decision is so unreasonable that no reasonable person could have come to it – see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 230, 233-4; Minister forAboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 208-9.

153 In considering this ground, again it is essential to bear in mind that the decision was one requiring the Local Land Board to inquire and report, not a decision which in any meaningful way affected the Plaintiffs’ rights and that, by reason of s199 of the Roads Act, the Minister was entitled “at any time and (subject to the constraints to which I have earlier referred) for any reason” to abandon the proposed acquisition.

154 It is also necessary to consider what the circumstances were at the time the decision was made. I do not intend to re-canvass all of the matters to which I have referred. The factors which led to the Department’s favourable view of the proposals back in and about 1995 to 1997, the fact that objections had been then made, considered and overruled and the reasons for then overruling them, and the fact that the delays were due to the Department rather than the Plaintiffs argued strongly for allowing the proposals to proceed without further delay. The fact that most of the objections raised in 2003 and 2004 were either new and presumably had not been thought worth making in 1997 or thereabouts or had been then considered and rejected was a further reason why they should not be considered in 2005.

155 Arguing strongly in the same direction was the agreement of Mr Bagnall and Ms Stevenson, given as an incident of the settlement of the appeal from Bergin J, that:-

“(They) shall do nothing to prevent or to obstruct the roads being gazetted in the nature of that depicted on the Plan annexed … .”

156 As has been said, I have no doubt that that Plan depicted the road to which Mr Bagnall and Ms Stevenson were objecting and the Department had been informed of this agreement by Mr Abernethy in a meeting on 17 November and in his letter of 19 November 2004. Mr Barnes’ response in the meeting, recorded by Mr Abernethy in that letter, also indicates that he so understood the reference to the plan.

157 On the other hand, there was the fact that Mr Borg’s application was not being pressed by his successors in title. There was “new evidence” in the form of Mr Barnes’ opinion that the Plaintiffs had other practical and legal means of access that appeared to be much shorter. There were other claims by the Bagnall and Stack interests which in totality, and whatever their truth or accuracy or the conclusion one reaches about them, take some time to appreciate before they can be accepted or rejected. And even if, on the basis of the agreement just referred to, one ignored the Bagnall contentions, Mr and Mrs Stack had not been a party to that agreement.

158 There was also the history including the fact that the Department had favoured the application and helped it along for years, then purported to revoke the “approval” and that that decision had itself been revoked. There were the considerations to which I referred when dealing with bad faith and the position of the Minister and Department. In the face of all of these matters, I am unable to conclude that the decision to refer the matter to the Local Land Board where all parties will have an opportunity of putting their case, evidence and argument, on all of these matters, was unreasonable.

The Decision was wrongful in that it was made unfairly

159 The particulars given under this ground were all of the particulars given under the preceding grounds. Certainly, one can see an argument of unfairness in the Plaintiffs having had approval, albeit in the limited sense that has been indicated, for years but been delayed by the Department’s surveyor, then having further delay and the possibility of an unfavourable report and rejection thrust upon them effectively at the instigation of persons whose objections were considered and rejected years before in the ordinary course envisaged by the statute. A fortiori is this so, when most of what had recently occurred was without the Plaintiffs having a chance to object. However, whatever “entitlement” they may have had was always subject to the terms of s199(2)(a) and, faced with the sorts of issues that I have canvassed in the immediately preceding section of these reasons, and the nature of the Local Land Board enquiry, I am unable to conclude that the referral was made unfairly.

160 In any event, no authority was cited for the proposition that if the Plaintiffs could not succeed under any of the grounds, they were entitled to relief under this ground. I know of none.

Estoppel

161 The Plaintiffs’ also contended that the Minister and/or the Director General was estopped from taking any decision which was inconsistent with the approval and, alternatively, had waived any right to do so. It is not easy to distil from the pleading which reads more like a history of events than a pleading of the essential attributes of estoppel, what is said to be those essential ingredients. However, summarised, what is said is to the following effect:-

(i) There is reference to the “approval” on 27 November 1997;

(ii) That, from then until about 18 November 2004, the Plaintiffs, as they were entitled to do, believed and acted as though the application to open the road would continue;

(iii) Various events occurred including the findings by Bergin J in paragraphs [115] and [116] of her Honour’s reasons quoted above;

(iv) The appeal from Bergin J’s decision was settled by the Plaintiffs upon the basis they believed the Minister had approved the application and Bagnall and Stevenson could do nothing to obstruct the gazettal of the road;

(v) Acting on the faith of the approval and the absence of any indication to the contrary, the Plaintiffs’ have done or omitted to do a number of things, including not taking action to enforce a Deed entered into by the landowners to the north, commenced proceedings in the Land and Environment Court to have compensation determined and incurred valuation and legal fees in connection therewith.

162 There are at least two reasons why this claim cannot succeed. Firstly, the “approval” on or about 27 November was, as I have indicated, of limited effect and was always subject to the exercise by the Minister of his powers under s199 and s260. The Minister’s actions the subject of complaint are not inconsistent with the “approval” properly regarded.

163 Secondly, there can be no estoppel against the exercise of a statutory discretion – Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111. Whatever qualifications there may be to that broad proposition, they cannot preclude the operation of the words “the Minister may at any time and for any reason abandon the proposed acquisition”.

164 These reasons are also an answer to the Plaintiffs’ claim of waiver.

165 In summary, none of the ground upon which the Plaintiffs challenge the decision to refer the matter to the Local Land Board is made out. Accordingly, subject to the issues raised by proceedings 300065/05 the summons in proceedings 300058/05 must be dismissed.

Proceedings 300065/2005

166 On 20 July there was conversation between the Plaintiffs’ solicitor Mr Abernathy and Mr Callaghan of the Department of Lands on which the Plaintiffs rely as constituting an agreement. The evidence as to the details of that conversation is largely that of Mr Abernethy. He deposes to conversation in which he recounted some of the history and the situation as he then saw it, including details of the state of affairs as between the Plaintiff and other affected landowners. He observed that the Plaintiffs had complied with the Act, waited something of the order of 10 years for the Department to complete its survey and then indicated a willingness to pay the compensation in accordance with the valuation obtained by the Department, and then, when there was no agreement as to that, commenced proceedings in the Land and Environment Court as provided for by the Act.

167 Mr Abernethy deposed to then adverting to the recent suggestion that the Plaintiffs’ could have access across the creek and provided reasons why that was not practicable, adding that one of the Department’s officers who had been involved in the matter originally could offer no reasonable reason for the Department going back on its original advice to use the southern access. Mr Abernethy said that conversation to the following effect ensued:-

“Mr Callaghan said “ I could arrange for the matter in the Land Board to be adjourned indefinitely”. I said “The matter should be finalised and the only way that can be done is for compensation to be determined by the Land and Environment Court that being the procedure laid down by the Act”. Mr Callaghan then said “What is it that you want?” and I replied (a) consent to the injunction. (b) The Minister’s decision to refer the matter to the Land Board under s.260 of the Roads Act be set aside.

I will be speaking to Counsel later. I will get back to you as to the terms of what I want.”

168 Mr Abernethy said that he had further conversation with Mr Callaghan on that day. He deposed to its terms:-

“I said to him ‘Mr and Mrs Simpson will settle the matter on the basis that:

Mr Callaghan said: ‘What is the procedure for settling the matter?’ I replied ‘The Crown Solicitor’s Office will know’, he said ‘I was thinking of doing it myself, I have to enter an appearance’. I said ‘All you would have to do would be to sign the terms and be present at Court on Monday when the Terms are handed up.’

Mr Callaghan said ‘What exactly is that you want?’ I replied:

I will have Counsel settle the Terms and contact you direct by telephone if that is acceptable’. Mr Callaghan said ‘that’s okay’. I then said ‘Is this firm’ and he replied ‘yes’.”

169 Mr Callaghan said that, subject to one matter, Mr Abernethy’s affidavit “reflects precisely, accurately and fully the content of our conversations”. The reservation is that Mr Callaghan says that he does not recall hearing or responding to the question, “Is this firm?”. He said that at that time he was thinking of a number of things such as the preparation of a Notice of Appearance and the terms of the consent order and “if that part of the conversation took place, I think I would have been agreeing to Counsel settling the terms and contacting me directly by telephone”.

170 On 21 July 2005 Mr Abernethy wrote to Mr Callaghan:-

“I refer to our telephone conversation of the 20th inst and would confirm your advice that the injunction proceedings has been settled on the following basis:

1. The First and Second Defendants (The Minister and the Department) consent to the decision to refer the matter to the Land Board under s.260 of the Roads Act be set aside.

2. the First and Second Defendants (The Minister and the Department) not to do anything to impede the progress of the compensation matter in the Land and Environment Court.

3. The Third Defendant (Land Board) consents to the injunction.

4. The Plaintiffs to pay $3,000 of their costs otherwise the same are to be paid by the defendants and the Plaintiffs costs are expected to exceed $3,000.00.

I would confirm your advice that such settlement is firm.

I would also confirm the Mr Laughton SC is to settle the wording of the Terms of Settlement and Short Minutes and that I will arrange for him to contact you by telephone regarding the same and the necessary arrangements for the signing and handing up of the Terms to the Court. I note that the Department will attend Court for the purpose of settling the matter.”

171 On 21 July, counsel for the Plaintiffs forwarded draft consent orders to Mr Callaghan. I accept Mr Callaghan’s evidence that these were received at 5.25pm and not seen by him until the following day. That leads me to the conclusion that it was on 22 July, and not 21 July, that Mr Callaghan, as he deposes, informed Mr Abernethy that he wanted to settle the matter but his boss had said, “No”.

172 The Draft Short Minutes of Order were in terms:-

1. Leave granted to the Plaintiffs to amend the Summons filed in Court on 18 July 2005, in accordance with the draft attached to these Short Minutes.

2. An order that the decision taken by the First Defendant (the “Minister”) on (date) to refer the matter of a road opening approval granted to the Plaintiffs on 27 November 1997 (the “Approval”) to the Grafton Land Board, pursuant to he Roads Act 260 be set aside.

3. An order that the Minister and/or the Second Defendant (the “Director-General”) their servants or agents be restrained from taking any step to interfere with, rescind or abandon the approval.

4. An order that the Third Defendant, his servants or agents, be restrained from doing anything to inquire into and/or report to the Minister and/or the Director-General pursuant to s.260 of the Roads Act or at all in relation to the approval.

5. An Order that the Plaintiffs pay their own costs up to an amount of $3,000 otherwise the Minister is to pay the Plaintiffs’ costs.

173 On 22 July an Assistant Crown Solicitor wrote to Mr Abernethy saying, inter alia,

“As I understand you are aware, I am instructed that the Minister does not propose of settle the matter but honour the undertaking made at the time the previous proceedings were finalised, namely, to review the matter, which process he had commenced. … I would note that any attempt to pursue the alleged settlement will have to be made in other proceedings.”

174 Proceedings 300065/2005 were, as I have said, commenced on 3 August 2005.

175 Because it may be relevant to the issue of whether the Court should enforce any agreement found to have been made, it is appropriate to quote the final paragraph of Mr Callaghan’s affidavit:-

“I am unable to explain why I agreed so readily with Mr Abernethy’s requests. I should have realised that I would need to get my supervisor’s approval. I knew that nothing could be finally agreed until I received the terms of settlement and that approval. I was not able, at the time, to consider all the legal consequences of settling the proceedings on the basis agreed. Nor was I thinking about the undertaking by the Minister and Director-General to review the whole matter and hear from all the interested parties, including Bagnall and Stevenson. I realised later, for example, that I could not bind the Land Board to the proposed agreement.”

176 Mr Callaghan was admitted as a solicitor in 1986 and at the time was employed as a senior legal officer in the Department of Lands and subject to the supervision of the Manager, Legal Services, an officer who had an unrestricted practicing certificate. Mr Callaghan had attained a grading of 5 in the Public Service. There is a grade 6 and there were other senior officers above him.

177 Subject to the question of Mr Callaghan’s authority and any constraints flowing from the terms of the Roads Act, there can in my view be no doubt that the terms of the conversations between Mr Abernethy and Mr Callaghan on 20 July were apt to constitute a contract settling proceedings 300058/2005 on the terms following Mr Callaghan’s question, “What exactly is (it) that you want?”. Those terms are also reflected in Mr Abernethy’s letter of 21 July.

178 I should record that this conclusion accords with neither the primary submission of the Plaintiffs’ counsel nor that of the Defendants’. The former submitted the agreement to have been that:-

(i) the decision of the Minister be set aside

(ii) there be an injunction restraining the Local Land Board from acting on the Ministerial Reference

(iii) the Minister would not interfere, (which is said to be the clear intent of order 1 of the Summons) and

(iv) costs over $3,000 were to be paid by the Minister.

179 So far as the submissions on behalf of the Plaintiff are concerned, both paragraphs (ii) and (iii) of the terms suggested go further than the agreement. Paragraph (iii) is also very much open ended as to what it was the Minister should not interfere with.

180 On the Defendant’s behalf it was submitted that the agreement was insufficiently precise to amount to a contract and the earlier conversations and subsequent documents, particularly in their departures from the terms of the conversation following “What exactly is (it) that you want?”, demonstrate that no contract was intended or effected in the conversation following those words. However those words and the later ones, “Is this firm?” and “Yes.” Provide sufficient differentiation from what went before and later efforts, either to seek more, or based on a misunderstanding of what was actually agreed, provide no basis for not giving to the words used, their natural operation.

181 Nevertheless, I have reached the conclusion that the Plaintiffs’ claim in these second proceedings also must fail. It seems clear from the evidence that Mr Callaghan did not have actual authority to make the agreement he purported to make. His evidence to this effect was not contradicted and I accept what he said. Nor was there any evidence of holding out by the Minister or the Director General of the existence of such authority so as to enable the Plaintiffs to succeed on the basis that Mr Callaghan had ostensible authority.

182 In relation to the topic of authority, counsel for the Plaintiff sought to argue by analogy from the situation of counsel but the differences between the position of Mr Callaghan and counsel retained is such that the analogy is not apt. Inter alia, although Mr Callaghan is a solicitor, he is also an employee well below the Minister and Director General, and was not someone retained or on the record as having entered an appearance.

183 In these circumstances, I do not need to embark upon the question whether the terms of the Roads Act precluded an agreement such as that relied on by the Plaintiffs or whether the presence as a third Defendant of the Chairperson of the Local Land Board operates so as to preclude any agreement such as is alleged.

184 Accordingly, each of the Plaintiffs’ actions fail and must be dismissed.

I so order.

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Citations

Simpson v Kelly [2006] NSWSC 678

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Simpson v Bagnall [2000] NSWSC 930

Kioa v West [1985] HCA 81

McCormack v Commissioner of Taxation [2001] FCA 1700

CITATION:	SIMPSON v KELLY [2006] NSWSC 678
HEARING DATE(S):	22 November 2005
JUDGMENT DATE :	5 July 2006
JUDGMENT OF:	Hulme J at 1
DECISION:	Each of the Plaintiffs' actions is dismissed.
PARTIES:	James David SIMPSON and Lynne Elizabeth SIMPSON The Hon Anthony KELLY Warwick WATKINS Thomas McCUE
FILE NUMBER(S):	SC 30058/05; 30065/05
COUNSEL:	G Laughton SC N Perran
SOLICITORS:	EC Abernethy IV Knight