Western Australian Planning Commission and Coogee General Store Pty Ltd
[2007] WASAT 182
•13 JULY 2007
WESTERN AUSTRALIAN PLANNING COMMISSION and COOGEE GENERAL STORE PTY LTD [2007] WASAT 182
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 182 | |
| LAND ADMINISTRATION ACT 1997 (WA) | |||
| Case No: | DR:411/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 13/07/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Proceedings adjourned to await outcome of related proceedings | ||
| B | |||
| PDF Version |
| Parties: | WESTERN AUSTRALIAN PLANNING COMMISSION COOGEE GENERAL STORE PTY LTD |
Catchwords: | Practice and procedure Application for stay or adjournment of proceedings pending outcome of related Supreme Court proceedings Proceedings for compensation for taking of land Challenge to validity of taking order Consequences of successful challenge to validity of taking order Possibility of duplication of proceedings |
Legislation: | Land Administration Act 1997 (WA), s 222(1), s 177, s 211, s 186, s 179, s 241(2) State Administrative Tribunal Act 2004 (WA), s 32(5), s 32(7) |
Case References: | Hamersley Iron Pty Ltd v Lovell (No 2) [1998] 20 WAR 79 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43 |
Orders | 1. The matter is adjourned for further directions at 10 am on 27 June 2008 in order to await the outcome of the appeal in relation to Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43.,2. Either party has liberty to apply for earlier directions in the event of any material change in circumstances concerning the appeal or otherwise. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LAND ADMINISTRATION ACT 1997 (WA) CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION and COOGEE GENERAL STORE PTY LTD [2007] WASAT 182 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 13 JULY 2007 FILE NO/S : DR 411 of 2006 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION
- Applicant
AND
COOGEE GENERAL STORE PTY LTD
Respondent
Catchwords:
Practice and procedure - Application for stay or adjournment of proceedings pending outcome of related Supreme Court proceedings - Proceedings for compensation for taking of land - Challenge to validity of taking order - Consequences of successful challenge to validity of taking order - Possibility of duplication of proceedings
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Legislation:
Land Administration Act 1997 (WA), s 222(1), s 177, s 211, s 186, s 179, s 241(2)
State Administrative Tribunal Act 2004 (WA), s 32(5), s 32(7)
Result:
Proceedings adjourned to await outcome of related proceedings
Category: B
Representation:
Counsel:
Applicant : Ms R Howlett
Respondent : Mr A Papamatheos
Solicitors:
Applicant : State Solicitor's Office
Respondent : Maxim Litigation Consultants
Case(s) referred to in decision(s):
Hamersley Iron Pty Ltd v Lovell (No 2) [1998] 20 WAR 79
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43
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Summary of Tribunal's decision
1 Proceedings were commenced in the Tribunal by the Western Australian Planning Commission seeking an order that Coogee General Store Pty Ltd accept an offer of compensation for the compulsory acquisition of land in which Coogee General Store had a leasehold interest. The owner of the other land taken by the same notice had commenced proceedings in the Supreme Court seeking a declaration that the taking order was invalid. Coogee General Store commenced similar proceedings, and a Registrar of the Supreme Court ordered that no steps be taken in those proceedings pending the finalisation of the proceedings by the other owner.
2 The owner of the other land was unsuccessful in the Supreme Court proceedings, but lodged an appeal. That appeal is unlikely to be dealt with within 12 months. Coogee General Store sought the WAPC's agreement to stay or adjourn the Tribunal proceedings for compensation pending the outcome of the appeal. WAPC did not agree, and wished to pursue the compensation proceedings. Coogee General Store then applied to the Tribunal for an order staying or adjourning proceedings.
3 The Tribunal considered the consequences of allowing the compensation proceedings to continue. It considered that, if the appeal by the owners were successful, the likelihood was that the compulsory acquisition process would be undertaken afresh, and that Coogee General Store would be entitled to compensation by reason of that fresh taking. The Tribunal concluded that the assessment of compensation might involve different considerations under a new taking order compared to those under the existing taking order. There was, therefore, a risk that further compensation proceedings might be necessary and that the present proceedings might be duplicated, at least in part. It decided that, on balance, it was preferable to await the final outcome of the proceedings relating to validity of the taking before subjecting the parties to the costs of running the present proceedings. It considered that the prejudice faced by the WAPC, namely the possibility that interest might accrue on an amount in excess of advance payments already made, did not outweigh the potential prejudice to the applicant in meeting the costs of proceedings which may ultimately be of limited utility. Accordingly, the Tribunal agreed to adjourn the proceedings for compensation pending the outcome of the appeal by the owners.
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Background
4 These proceedings are brought by the Western Australian Planning Commission (WAPC or applicant) pursuant to s 222(1) of the Land Administration Act 1997 (WA) (LA Act). That section enables the WAPC to apply to the State Administrative Tribunal for a direction that an applicant for compensation who fails to institute an action for compensation be requested to accept an offer made by the WAPC, or alternatively for the Tribunal to determine the amount of compensation. For reasons which will emerge, the respondent, Coogee General Store Pty Ltd (Coogee General Store or respondent), seeks to adjourn or stay the proceedings pending the outcome of related Supreme Court proceedings. These reasons are directed to that application.
5 Coogee General Store formerly carried on business from leased premises at 346 Cockburn Road, Coogee. The freehold interest in the premises belonged to Mr Graeme and Mrs Doreen Lohman (the Lohmans).
6 On 26 October 2005, a taking order was issued in relation to the Lohmans' land pursuant to s 177 of the LA Act. The land was taken for use as a primary regional road. On 10 November 2005, the respondent made a claim for compensation under s 211 of the LA Act. It is apparent that the applicant took possession of the premises around mid-January 2006. It is common ground that the premises are now demolished and roadworks have taken place on the land.
7 An initial offer of compensation was made to the respondent, but rejected in April 2006. An advance payment was then made in early June 2006, and a deed of partial discharge executed. No agreement was reached in relation to the final compensation amount.
8 By letter dated 20 October 2006, the State Solicitor, acting on behalf of the WAPC, wrote to Coogee General Store advising that it proposed to apply to the State Administrative Tribunal to initiate proceedings to finalise the claim for compensation within 30 days of the date of the letter. On 14 November 2006, the directors of the applicant responded, advising that the Lohmans were about to commence an action in the Supreme Court to determine the validity of the taking order and suggesting that any action in relation to Coogee General Store's claim for compensation should be delayed until that decision was handed down. The State Solicitor's Office replied to that letter on 20 November 2006 and indicated that it proposed to proceed with its application to the Tribunal, and noted that Coogee General Store had not indicated any
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- intention to challenge the validity of the taking order. As foreshadowed in that letter, proceedings were commenced by the applicant on 21 November 2006.
9 On 22 November 2006, the respondent's directors commenced proceedings against the WAPC in the Supreme Court (Action CIV 2253 of 2006). Proceedings were commenced by the Lohmans as the first plaintiffs, and the directors of Coogee General Store as second plaintiffs. Some time earlier, however, proceedings challenging the notice had been commenced in the Supreme Court by the owner of other land compulsorily acquired under the same notice (Action CIV 1037 of 2006). That matter had been tried in July and August 2006, and the decision reserved. On 17 January 2007, a case management registrar ordered that all further case management in CIV 2253 of 2006 be suspended until the decision in CIV 1037 of 2006 was handed down. The decision in CIV 1037 of 2006 was delivered on 23 February 2007 (see Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43). Le Miere J found that the taking order was valid. The plaintiff in those proceedings then instituted an appeal. It is anticipated that that appeal will not be heard until some time in the first half of 2008.
10 On 1 June 2007, the respondent's present solicitors were engaged to represent the respondent in these proceedings. They suggested to the applicant's solicitors that the proceedings be stayed or adjourned pending the outcome of the appeal from Le Miere J's judgment. The applicant's solicitors advised that the applicant wished to proceed to have compensation assessed by the Tribunal, and did not wish the proceedings to be delayed pending the determination of the appeal.
11 In initially making the application to postpone the hearing, the applicant filed written submissions outlining a number of alternative bases upon which the Tribunal might effect a postponement of the proceedings. The respondent took no issue with the Tribunal's capacity or jurisdiction to delay the proceedings, and it is not necessary to deal with the various alternative ways that the applicant suggests that end might be achieved. For my part, the question to be determined is simply whether, in the circumstances of this case, it is appropriate to adjourn the proceedings pending the outcome of the appeal. There is no doubt that the Tribunal can take that course utilising its procedural powers under s 32(5) or s 32(7) of the State Administrative Tribunal Act 2004 (WA).
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The respondent's concerns
12 The respondent identifies seven factors which it contends should lead to postponement of the proceedings. They are:
"(i) Significant prospects that any SAT award of compensation or any other action based on an invalid Taking Order will have been unlawful and invalid;
(ii) Uncertainty of outcome if the SAT proceedings are not stayed or adjourned;
(iii) Any subsequent Taking Order is not to be assumed or assumed successful;
(iv) The Respondent's costs of 'double litigating' compensation in the Tribunal;
(v) Waste of Tribunal resources;
(vi) The 'double litigation' of an identical question in the SAT and Supreme Court proceedings;
(vii) Absence of prejudice sufferable by the WAPC if a stay or adjournment is granted;"
13 I do not propose to deal with each of those factors separately. Apart from the question of prejudice, the substance of the respondent's position is that, if the taking order is ultimately found to be invalid, there may be questions as to the validity, or at least utility, of the proceedings in, and any decision by, the Tribunal, that further compensation proceedings may be necessary if there is a subsequent taking of the land, and that some live issues in the appeal proceedings may overlap with issues in the Tribunal.
14 The WAPC argues that the validity of the taking order is established by the decision of Le Miere J, and the Tribunal should simply proceed on that basis. It contends that the utility of the proceedings would not be lost even if the taking notice was found to be invalid. The reason for that submission is that it is suggested that if the original taking order is found to be invalid, the likelihood is that the Minister would be requested to issue a notice of entry under s 186 of the LA Act. That provisions enables the Minister to authorise a person to enter land in circumstances where, because of the urgency of the work or the difficulty in tracing the proprietors of the land, it is unreasonable or impracticable to delay entry. Were the Minister to act under that section, he or she must determine the
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- interests in the land which it is necessary to take, and may make an appropriate taking order. It is suggested by the applicant that the Minister might, in this case, authorise an entry on the land as of mid-January 2006 "and subsequently take all interests in land from the date of occupation". On that basis, it is suggested that there would be little difference between the compensation payable as at the date of the original taking, 1 November 2005, and the date of occupation, mid-January 2006.
15 Given that the WAPC is now in possession of the land and has built a road on it, it would appear inevitable that, if the original taking was invalid, a fresh taking would be undertaken. How that might be done is uncertain. There is at least room for argument as to whether the suggested course of action under s 186 of the LA Act would be open to the Minister, and if it were, whether the effective date of taking, and thus the date for assessment of compensation, could be back-dated to the date of occupation in mid-January 2006. Taking orders have effect upon registration – see LA Act s 179 – not upon acquisition. It is on registration that the person's interest in the compulsorily acquired land is extinguished and converted into a claim for compensation. The compensation is to be assessed on the interest in the land as at the date of the taking – LA Act s 241(2).
16 It is not necessary in the context of this application to express any views as to the efficacy of action under s 186 in the event that the original taking order is found to be invalid. In my view, the consequences to the respondent's right to compensation of a successful challenge to the original taking order are presently quite uncertain. The applicant notes that Coogee General Store's claim for compensation relates to the value of the business lost through the resumption. That business ceased trading at the end of 2005. It is suggested by the applicant that the value of that business could only be ascertained by the trading records to that date, so that the value of the business, based upon trading history, will not change regardless of the date of valuation. That may or may not be correct. It may be, for instance, that historic trends can support projections as to the likely trading performance of the business from the date of its closure to the date of any future taking.
17 If a new taking order were to be made at some time in the future, there may be a question, depending upon the current status of the lease, as to whether the applicant has any interest in the land as at the date of the taking. If the respondent has been turned out of its business by an unlawful taking of the land, there may be issues of damages which may or may not impact upon the approach to compensation in the context of the
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- LA Act. In my view, there is considerable uncertainty as to the consequences to the respondent's entitlement to compensation if the challenge to the taking order is ultimately successful. It follows that, if these proceedings continue on the assumption of a valid taking, there is a substantial risk that any determination by the Tribunal may be of limited, if any, utility. There is no doubt potentially significant costs to the parties, both in relation to legal costs and valuation costs, which might be wasted in that event.
18 In its written submissions, the WAPC repeatedly describes a finding of invalidity of the taking order by the Court of Appeal as "an unlikely event" and as having "little prospects of success". Those descriptions are applied in the absence of any submissions before this Tribunal, by either party, as to the substantive merits of the appeal, and it would be inappropriate for the Tribunal to proceed on the basis of any assumptions as to the likely outcome of the appeal.
19 The parties are agreed that, in the context of a stay of proceedings, the applicable principles were explained in Hamersley Iron Pty Ltd v Lovell (No 2) [1998] 20 WAR 79. There it was said that a stay will be granted where it is necessary to protect the subject matter of the litigation, refusal would create practical difficulties in the relief available, or where there is a real risk that it will not be possible for the successful litigant to be restored to his former position. It is the second of those alternatives that has application in this case. The practical difficulty in the present proceeding is that, if the taking order is ultimately found to be invalid, the underlying basis for the compensation disappears. Even assuming there would be a fresh taking order, the date of valuation would necessarily change. The practical difficulty that arises is that it cannot be said with any degree of confidence what, if any, relevance a determination by this Tribunal as to the compensation payable in relation to a taking in November 2005 might have if that taking is ultimately found to be invalid.
Prejudice to the applicant
20 The applicant wishes to have the matter resolved as soon as possible because of the possibility that, if the respondent is found to be entitled to compensation in excess of the amount offered, and paid as an advance payment, interest will run on the difference up until the date of determination of the compensation. The payment of interest is required in order to compensate a claimant for being deprived of the use of the compensation amount from the date of taking to the date of payment. The corollary to that proposition is that the acquiring authority has, at
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- least notionally, the use of the funds during that period. Notwithstanding that the acquiring authority has the benefit of the funds until paid, I accept that the ongoing liability for interest can constitute a prejudice flowing from delay in resolution of proceedings. I am not, however, persuaded that that prejudice outweighs the desirability of having the question of validity of the taking order settled before requiring the parties to undertake the expense and inconvenience of conducting these proceedings through to finality. In forming that view, I am influenced by the fact that an advance payment has already been made. Interest does not run on the advance payment which appears to have been for the full amount of the WAPC's offer in April 2006. No doubt that amount represents the full amount that the WAPC expects to be determined as the appropriate amount of compensation.
21 In all the circumstances, I am of the view that the proceedings should be adjourned pending the resolution of the issue as to the validity of the taking order. To grant the adjournment avoids the possibility of substantial costs being incurred by both parties in proceedings which might, if the challenge to the taking order is successful, be of little practical value. There should be liberty to apply in the event that the appeal proceedings are not being pursued or for any other reasons circumstances change.
Orders
1. The matter is adjourned for further directions at 10 am on 27 June 2008 in order to await the outcome of the appeal in relation to Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASC 43.
2. Either party has liberty to apply for earlier directions in the event of any material change in circumstances concerning the appeal or otherwise.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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