Elmasri v Transport for NSW [2021] NSWSC 929

Supreme Court New South Wales

Medium Neutral Citation: Elmasri v Transport for NSW [2021] NSWSC 929 Hearing dates: 13, 16 and 23 July 2021 Date of orders: 26 July 2021 Decision date: 29 July 2021 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Direct the parties to confer within 7 days in relation to the appropriate order as to costs; (2) In the event that agreement is reached on the appropriate order, the parties to file the proposed order on or before 7 August 2021; (3) In the event that no agreement is reached on the appropriate order as to costs, each party to file and serve: (a) their proposed order as to costs and any submissions in support of the proposed order that are not to exceed 4 pages on or before 12 August 2021; (b) any submissions in reply that are not exceed 4 pages on or before 19 August 2021; (4) Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the basis set out in s 8(1)(e) thereof, the Court orders that the following information contained within the evidence in these proceedings is not to be published or disclosed until 30 November 2022: (a) the rate per square metre referrable to any offer made or analysis concerning: (A) 316 Clifton Avenue, Kemps Creek, New South Wales; and (B) 373-381 Clifton Avenue, Kemps Creek, New South Wales; (b) the amounts of any offers, and any amounts agreed between Transport for NSW and any landowner, for the proposed acquisition or acquisition of the following properties pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW): (A) 316 Clifton Avenue, Kemps Creek, New South Wales; and (B) 373-381 Clifton Avenue, Kemps Creek, New South Wales; (c) the acquisition submission of Transport for NSW in respect of the property at 316 Clifton Avenue, Kemps Creek, New South Wales dated 13 July 2021; and (d) the acquisition submission of Transport for NSW in respect of the property at 373-381 Clifton Avenue, Kemps Creek, New South Wales dated 1 July 2021. (5) Order 4 is to operate throughout the Commonwealth. Catchwords: ACQUISITION OF PROPERTY – judicial review – compulsory acquisition – validity of proposed acquisition notice – requirement for relevant authority to make a "genuine attempt" to acquire land by agreement for at least six months prior to issue of notice– jurisdictional precondition to issue of acquisition notice – time period over which genuine attempt to be assessed – meaning of genuine attempt – good faith – scope of negotiations – whether negotiations concern compensation payable for compulsory acquisition or are to be conducted on some other basis – urgent hearing – not shown that defendant did not make genuine attempt – proceedings dismissed Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Land Acquisition (Just Terms Compensation) Act 1991 Cases Cited: Cannon v Griffiths (No 2) [2015] NSWSC 1329 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 Macquarie v SSWAHS [2010] NSWCA 268 Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196 Spencer v The Commonwealth of Australia (1907) 5 CLR 418 Strickland v Minister of Lands for Western Australia (1998) 85 FCR 303 Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; 46 NSWLR 55 United Group Rail Services United v Rail Corporation New South Wales (2009) 74 NSWLR 618 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 Category: Principal judgment Parties: Omar Elmasri (First Plaintiff) Laila Elmasri (Second Plaintiff) Transport for NSW (Defendant) Representation: Counsel: S Prince SC; T Wong (Plaintiffs) B Tronson; M Harker (Defendant)