Kirkman v Minister Administering the Crown Lands Act (No. 2) [2020] NSWSC 1494

Supreme Court New South Wales

Medium Neutral Citation: Kirkman v Minister Administering the Crown Lands Act (No. 2) [2020] NSWSC 1494 Hearing dates: 28 November 2019 and 19 March 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Equity Before: Slattery J Decision: Some issues determined and parties are requested to provide further submissions on two subjects. Catchwords: ADMINISTRATIVE LAW – Bias rule – Actual or apprehended – Irrelevant and relevant considerations – the plaintiff holds an enclosure permit for part of a Crown road – second defendant also claims to hold an enclosure permit for that part of the Crown road – previous decisions of delegates of the Minister in 2008 and 2014 cancelling the plaintiff's enclosure permit are declared void in Supreme Court litigation in 2016 – delegate of Minister makes further decisions under the Roads Act 1993 in 2017 (a) to enclose that part of the Crown road and sell it to the second defendant pursuant to the second defendant's enclosure permit and (b) not to grant an easement to the plaintiff over other parts of the Crown road (the easement portion) – whether the delegate's decisions took into account irrelevant considerations, namely the 2008 and 2014 decisions and other physical features of that part of the Crown road – whether the delegate's decisions failed to take into account relevant considerations, including matters relevant to the grant of the easement portion and incompleteness of the second defendant's application to close the public road – whether the delegate denied the plaintiff procedural fairness – whether the delegate showed bias against the plaintiff. Legislation Cited: Civil Procedure Act 2005, s 60 Crown Lands Act 1989, ss 61, 64 Roads Act 1993, Part 2, Division 2, Part 4, ss 32B, 34(1)(a), 34(3), 35, 36, 37, 37(1), 38(1)(a), 38(1)(b) Uniform Civil Procedure Rules 2005, rr 6.11, 59.10(1), 59.10(2) Cases Cited: Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876 Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Jia Le Geng 205 CLR 507 Olsen v Olsen & Ors (2019) 101 NSWLR 225 Category: Consequential orders Parties: Plaintiff: Jennifer Kirkman First Defendant: Minister Administering the Crown Lands Act Second Defendant: Geoffrey Robert Wood & Jan Margaret Wood Representation: Counsel: Plaintiff: S. Berveling