Simpson v Kelly - [2006] NSWSC 678

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

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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

Roads Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simpson v Kelly

Details

AGLC: Simpson v Kelly [2006] NSWSC 678
Case: [2006] NSWSC 678
Decision Date: 5 July 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Hulme J dismissed the actions brought by James David Simpson and Lynne Elizabeth Simpson against the Minister for Lands, the Director General of the Department of Lands, and the Chairperson of the Local Land Board. The Plaintiffs sought orders to set aside a decision to refer their application to open a road to the Local Land Board, to restrain the Minister and the Director General from interfering with their approval, and to restrain the Chairperson of the Local Land Board from inquiring into and reporting on the approval. The court found that the Minister had the discretion to refer the matter to the Local Land Board under s260 of the Roads Act 1993, and the decision to do so was not unreasonable, unfair, or inconsistent with the approval given in 1997. Additionally, the Plaintiffs' claim of estoppel and waiver was rejected as the Minister's actions were not inconsistent with the approval, and there can be no estoppel against the exercise of a statutory discretion. Finally, the Plaintiffs' claim in a second proceeding, seeking to enforce an alleged agreement with the Department of Lands to settle the matter, was dismissed as the person purporting to make the agreement did not have the authority to do so.

Orders