Still v Transgrid - [2005] NSWLEC 531

Land and Environment Court

of New South Wales

CITATION:
Still v Transgrid [2005] NSWLEC 531

PARTIES:
APPLICANT:
A F Still
RESPONDENT:
Transgrid

FILE NUMBER(S):
30911 of 2005

CORAM:
Bignold J

KEY ISSUES:
Compensation :- compulsory acquisition of easement for transmission line—compensation claim lodged 9 years after compulsory acquisition—whether statute barred.

LEGISLATION CITED:
Public Works Act 1912, ss 42, 45, 102-104, 126
Limitation Act 1969, ss 14(1)(d), 63(1), 68A

CASES CITED:
Australia in Rosenbaum v The Minister (1965) 114 CLR 424;
Blackwell v Railway Commissioner for NSW (1931) 31 SR (NSW) 302;
Commissioner for Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118;
Dobinson v Lake Macquarie City Council (1994) 82LGERA 16;
Edwards v Chief Commissioner for Railways (1912) 12 SR (NSW) 117;
MacMahon v Minister for Public Works (1995) 86 LGERA 344;
McKain v R W Miller and Company (South Australia ) Pty Ltd (1991) 174 CLR 1;
Robinson v Department of Main Roads (1987) 64 LGRA 78;
Public Trustee v Penrith City Council (1976) 33 LGRA 47;
The Commonwealth v Dixon (1988) 13 NSWLR 601;
The Commonwealth v Mewett (1997) 191 CLR 471

DATES OF HEARING: 17/08/2005

DATE OF JUDGMENT:

09/23/2005

LEGAL REPRESENTATIVES:
APPLICANT:
J Webster, SC Barrister
SOLICITORS
McIntosh McPhillamy & Co.
RESPONDENT:
N Hemmings, QC
SOLICITORS
Allens Arthur Robinson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

23 September 2005

30911 of 2005 A. F. STILL v TRANSGRID
JUDGMENT

1 HIS HONOUR: On 5 August 2005, the Applicant commenced class 3 proceedings pursuant to the Public Works Act 1912, s 104 by way of an action for compensation in respect of the resumption under that Act by the Respondent (or its predecessor in title) of an easement for transmission line over land owned by the Applicant at Black Springs, Oberon. That resumption was effected by notification published in the Government Gazette dated 7 December 1990 pursuant to the Public Works Act 1912, s 42.

2 It was not until 20 May 1999 that the Applicant served on the Respondent his claim for compensation in the form required by the Sixth Schedule to that Act (the Public Works Act 1912, s 102 required the service of the claim within 90 days from publication of the gazette notification “or at any time afterwards that a Judge of the Court may appoint”).

3 On 10 August 1999 the Crown Solicitor advised the Applicant that he had completed his report on title and had forwarded it to the Respondent in accordance with s 103 of the Act.

4 Thereafter, by notice dated 23 June 2000, the Respondent notified the Applicant that the easement acquired over the Applicant’s land had been valued by the State Valuation Office in the sum of $122,000. The Respondent also advised the Applicant that it was prepared to pay an additional sum of $6,000 “for inconvenience and disturbance”.

5 By letter dated 3 July 2005, the Solicitors then acting…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWLEC 531
Decision Date: 09/23/2005

CaseChat Overview and Summary

Still v Transgrid is a case concerning a claim for compensation regarding the compulsory acquisition of an easement for a transmission line by Transgrid over land owned by A. F. Still at Black Springs, Oberon. The Land and Environment Court of New South Wales was tasked with deciding whether the Applicant's compensation claim, lodged nine years after the compulsory acquisition, was statute-barred. The central legal issues revolved around the interpretation of the Limitation Act 1969, s 14(1)(d) and the discretion conferred by the Public Works Act 1912, s 102 to extend the time for the service of the compensation claim. The court examined conflicting decisions from Dobinson v Lake Macquarie City Council and MacMahon v Minister for Public Works to determine the applicability of the Limitation Act to the compensation claim under the Public Works Act.

Bignold J held that the court had the jurisdiction and power to extend the time for the service of the Applicant's compensation claim but could not extend any relevant limitation period imposed by the Limitation Act 1969. The court found that the decision in Dobinson, which held that the Limitation Act 1969, s 14(1)(d) did not apply to compensation claims under the Public Works Act 1912, s 104, was more persuasive as it was informed by relevant reports of the NSW Law Reform Commission. The court reasoned that since the limitation period under the Limitation Act 1969, s 14(1)(d) bars the remedy rather than the cause of action, and since the Respondent did not plead or raise the effect of the Limitation Act, the court had jurisdiction to entertain the Applicant's claim. The court also noted that the cause of action to recover compensation under the Public Works Act 1912 first accrued when the parties did not agree on the amount of compensation, which had not yet expired at the time of the hearing. Consequently, the court exercised its discretion under the Public Works Act 1912, s 102 to extend the time for the service of the Applicant's Notice of Claim. The court dismissed the Applicant's claim for a declaration that the claim was not statute-barred and made no order as to costs.

Orders