Land and Environment Court of New South Wales CITATION : Still v Transgrid [2005] NSWLEC 531 APPLICANT: A F Still PARTIES : 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. Public Works Act 1912, ss 42, 45, 102-104, 126 LEGISLATION CITED: Limitation Act 1969, ss 14(1)(d), 63(1), 68A 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; CASES CITED: 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 APPLICANT: J Webster, SC Barrister SOLICITORS McIntosh McPhillamy & Co. LEGAL REPRESENTATIVES: 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 for the Respondent informed the Applicant's then Solicitors that following their review of their clients' file in relation to "the negotiations over the past several years in an attempt to finalise this matter" they had advised their client that "even if leave to lodge the Notice of Claim out of time were granted, Mr Still's claim for compensation would be statute barred on 18 August 2005 being three months and six years after the Notice of Claim was lodged". 6 Following receipt of this letter, the Applicant's current Solicitor had a number of discussions with the Respondent's then Solicitors before writing to them on 12 August 2005 noting their further advice to the Respondent that the Applicant's claim was "out of time" because when he lodged his claim in May 1999, more than six years had expired following the relevant resumption on 7 December 1990. 7 It was in these circumstances that the Applicant's current Solicitor filed a Notice of Motion on 12 August 2005 seeking the following orders: 1. Declaration that the Applicant's Notice of Claim for compensation was validly lodged with the Respondent. 2. Alternatively, a declaration that the Respondent is estopped from claiming that the Applicant's Notice of Claim for compensation was lodged out of time. 3. Declaration that the Application for compensation filed herein is validly brought. 4. Alternatively that the Applicant have leave to lodge Notice of Claim for compensation out of time. 5. Further in the alternative that the Applicant have leave to bring these proceedings out of time. 6. Such further of other Order as the Court sees fit. 7. Costs. 8 When the Motion came on for hearing on 17 August 2005, Mr Hemmings QC acting for the Respondent informed the Court that the Respondent was not taking the point that the Applicant's proceedings were statute barred but was duty bound to draw the Court's attention to two reported decisions of this Court which were in conflict as to whether the Limitation Act 1969, s 14(1)(d) applied to proceedings such as the current proceedings, being "an action for compensation" under the Public Works Act 1912, s 104 which Act continued to apply despite the enactment of the Land Acquisition (Just Terms Compensation) Act 1991, by dint of the express savings provision contained in cl 2 of Part 2 of Schedule 3 to that Act. 9 The decisions to which my attention was drawn are:— (i) the decision of Stein J in Dobinson v Lake Macquarie City Council (1994) 82LGERA 16; and (ii) the decision of Bannon J in MacMahon v Minister for Public Works (1995) 86 LGERA 344. 10 Mr Hemmings QC also submitted on behalf of the Respondent that the discretion conferred upon the Court by the Public Works Act 1912, s 102 was available in the present case and that on this issue also, the Respondent did not wish to advance any case against the exercise of that discretion in favour of the Applicant. 11 I do not understand these accommodating submissions advanced on behalf of the Respondent to suggest or imply that the discretion conferred upon the Court to extend the time for the service on the Respondent of the Applicant's compensation claim beyond the 90 day period specified by s 102(1) to operate as a means of extending any relevant limitation period that may be imposed by the Limitation Act 1969 cf Public Trustee v Penrith City Council (1976) 33 LGRA 47. 12 Accordingly, the required adjudication upon the Applicant's Notice of Motion is to be undertaken upon the basis that whereas the Court is undoubtedly vested with the jurisdiction and power to extend the time for the service upon the Respondent of the Applicant's compensation claim (to the date when it was actually served, ie on or about 20 May 1999, and no case is advanced by the Respondent opposing the exercise of that discretion in favour of the Applicant), there is undoubtedly no power vested in the Court to extend any relevant limitation period imposed by the Limitation Act 1969 and in particular, the limitation period of six years imposed by s 14(1)(d) of that Act which provides as follows: (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: ………. (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture. 13 In Dobinson, it was held that the Limitation Act 1969, s 14(1)(d) did not apply to an action for compensation brought in this Court pursuant to the Public Works Act 1912, s 104 but in MacMahon, the opposite was held. 14 In MacMahon at 347 Bannon J made the following observation Unfortunately, I have the misfortune to differ from the conclusion of my brother Stein J in Dobinson v Lake Macquarie City Council (1994) 82 LGERA 16 at 19. However, I hasten to add that none of the authorities to which I have referred, were cited to him and notably he was not given the High Court's decision on the Tasmanian appeal in Crisp & Gunn Co-operative Ltd v Hobart Corporation. 15 A consideration of the reasons for the opposite results reached in those two cases clearly explains how those results were yielded. 16 In Dobinson Stein J in interpreting the Limitation Act 1969, s 14(1)(d) had recourse to two relevant reports of the NSW Law Reform Commission which made it clear that the limitation period imposed by s 14 was specifically not intended to apply to proceedings for the determination of compensation for the resumption of land (at 19). 17 His Honour's recourse to the reports of the Law Reform Commission was authorised by the Interpretation Act 1987, s 34(2)(b) in circumstances where his Honour had found that the meaning of the Limitation Act 1969, s 14(1)(d) was "obscure of ambiguous" (at 19). 18 In his reasons for judgment in MacMahon, Bannon J makes no reference to the reports of the Law Reform Commission relevant to the Limitation Act 1969 in undertaking his task of statutory construction. In these circumstances, his interpretation of the Limitation Act 1969, s 14(1)(d) (enlightened by his Honour's scholarly review of decided cases in Australia and in England) not surprisingly radically diverged from that adopted in Dobinson. 19 The key to appreciating the reasons for the opposite results reached in the two decisions of this Court as to the true meaning of the Limitation Act 1969, s 14(1)(d) is that in Dobinson the interpretation was assisted (and virtually settled) by recourse to the content of the relevant reports of the Law Reform Commission whereas in MacMahon there was no such recourse made to those reports or indeed any reference to them. 20 Nor, with respect to the reasons advanced by Bannon J, was there any attempt to say why in Dobinson the recourse to those reports might be considered to be unjustified or wrong. 21 Thus the position that clearly emerges from a consideration of the two conflicting decisions of this Court is that the true meaning of the Limitation Act 1969, s 14(1)(d) entirely depends upon whether in undertaking the Court's task of statutory construction recourse is, or is not, had to the relevant reports of the Law Reform Commission. 22 In my respectful judgment, the recourse made in Dobinson to the relevant reports of the Law Reform Commission reflects a legitimate use of extrinsic materials cf Pearce and Geddes "Statutory Interpretation in Australia" 5th ed at par 3.12 and that recourse fully justifies the interpretation of the Limitation Act 1969, s 14(1)(d) adopted in that case which clearly yielded a meaning different from the "ordinary" meaning of that provision which was the meaning adopted by Bannon J in MacMahon (unassisted by recourse to the relevant reports of the Law Reform Commission). 23 It follows from the foregoing analysis that if I were required to choose between the opposite interpretive results yielded by the two previous decisions of this Court, I would choose the result in Dobinson. 24 However, the required adjudication in the present case does not compel me to make a choice between the conflicting decisions. This is because, unlike the position in those two earlier cases, in the present case, no defence is raised based upon the Limitation Act 1969. The significance of this vital forensic distinction is that in the present case since any potential operation of the Limitation Act 1969, s 14(1)(d) is "to bar the remedy" it operates "neither to deprive the Court of jurisdiction, nor to automatically prevent judgment being given on the claim. (Rather), it affords protection to a defendant to the extent that it is called in aid and made out - only incidentally does it protect the courts against stale claims ": per Gaudron J in McKain v R W Miller and Company (South Australia ) Pty Ltd (1991) 174 CLR 1 at 57. To similar effect is the following statement from the judgment of Mahoney JA in The Commonwealth v Dixon (1988) 13 NSWLR 601 at 619: And the effect of such a limitation is to grant to a defendant a privilege, which he may invoke at his option, to defeat the plaintiff's right. If he invokes it then the plaintiff's right is, to that extent, qualified or defeated. 25 In his judgment, in The Commonwealth v Mewett (1997) 191 CLR 471, Dawson J in an extended discussion of "statutes of limitation" commencing at 505 after noting (at 508) that it was clear that the Limitation Act 1969, s 14(1), standing alone merely bars the remedy; it does not extinguish the underlying cause of action" proceeds (at 509) to discuss the effect of s 63 of the NSW Act which provides that….on the expiration of a limitation period fixed by or under this Act" (my emphasis) the cause of action is extinguished. It is clear that when s 63(1) takes effect it has a substantive rather than a procedural operation by extinguishing the right rather than by barring the remedy. 26 However, in the same manner that the procedural effect of the limitation period fixed by s 14(1) must be raised by way of defence so as to defeat a statute barred claim, so the extinction of the right wrought by s 63(1) is not effective in any legal proceedings unless the party benefiting by such statutory extinction has pleaded the extinction of that right: vide the Limitation Act 1969, s68A. 27 Accordingly, in the present case where the Respondent does not plead or raise any effect of the Limitation Act 1969 on the Applicant's claim, there is no want of jurisdiction or power in this Court to entertain the Applicant's claim and to determine the amount of compensation that is payable in respect of his claim, in accordance with the requirements of the Public Works Act 1912, s 124. 28 For completeness, I would make some additional observations in relation to the potential operation of the Limitation Act 1969, s 14(1)(d) on the assumption that such potential exists in relation to the present proceedings. My observations concern the question of the date on which the cause of action (to recover money recoverable by virtue of an enactment) "first accrues to the plaintiff" within the meaning of that statutory expression. 29 In my opinion, having regard to the relevant provisions contained in the Public Works Act 1912 (presently to be mentioned) there is much to be said for the proposition that the Applicant's cause of action to recover compensation in respect of the Respondent's resumption of the easement interest in the Applicant's land, first accrued when the parties "did not agree as to the amount of compensation" following the Respondent's written notice dated 23 June 2000 given to the Applicant of the valuation of the resumed easement interest in the Applicant's land. Since six years following the date of giving by the Respondent of notice of valuation in respect of the resumed easement interest has not yet expired, no question of the Applicant's compensation claim being statute barred arises. 30 The relevant provisions of the Public Works Act 1912 are ss 45, 101, 102, 103, 104, 126. 31 By operation of s 45(2), the easement interest resumed from the Applicant's land by notification published in the Gazette of 7 December 1990 is converted into a claim for compensation "in pursuance of the provisions hereafter contained". (my emphasis) 32 By operation of s 45(3), the Applicant, upon asserting his claim "as hereinafter provided" and making out his title shall be entitled to compensation on account of such resumption "in the manner hereinafter provided" (my emphases). 33 Thus, both the statutory conversion of the resumed interest into a statutory claim for compensation and the statutory entitlement to compensation are predicated and conditioned upon the later statutory provisions governing the satisfaction and quantification of the statutory claim. These provisions are indisputably the provisions of Part VII ("Compensation") including ss 101, 102, 103, 104 and 126. 34 Section 101 provides an entitlement to the Applicant for "a sum of money by way of compensation" as shall be agreed upon or otherwise ascertained under the provisions of Div 1 of Pt VII of the Public Works Act 1912. 35 Section 102 requires the person claiming compensation to serve upon the resuming authority a notice of claim setting forth the nature of the interest in the land, together with an abstract of title and any claim for damage by reason of the resumption. Section 103 requires the Crown Solicitor to report to the resuming authority on the claimant's title and the resuming authority shall thereupon cause a valuation of the land to be made and shall inform the claimant of the amount of the valuation. 36 Section 104 provides that a claimant may institute proceedings in this Court in the form of an action for compensation where the parties "do not agree as to the amount of compensation". 37 Before this Court came into existence in 1980 and was vested with the jurisdiction to determine claims for compensation for the resumption of land (vide the Land and Environment Court Act 1979, ss 19(e), 24 and 25 as originally enacted) it had long been settled law that notification to the claimant of the statutory valuation was a condition precedent to the claimant's right to institute proceedings under s 104: see Edwards v Chief Commissioner for Railways (1912) 12 SR (NSW) 117; Blackwell v Railway Commissioner for NSW (1931) 31 SR (NSW) 302; and Commissioner for Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118. 38 In the light of the provisions of the Public Works Act 1912 so far discussed, it is arguably the case that the statutory cause of action to recover compensation by virtue of the provisions of the Public Works Act 1912 first accrued to the Applicant when he received from the Respondent on 23 June 2000 the statutory valuation of the resumed easement over the Applicant's land. 39 This is because the statutory claim to compensation created by s 45(2) and the entitlement to compensation in respect of it conferred by s 45(3) are both subjugated to the provisions of the Public Works Act 1912 contained in Part VII of the Act dealing with the making and processing of such a claim and leading to its ultimate quantification, in the manner I have outlined. 40 Moreover, it is to be noted that the ultimate entitlement to compensation depends upon the claimant "making out his title" (s 45(3) as to which see the judgment of Kitto J in the decision of the High Court of Australia in Rosenbaum v The Minister (1965) 114 CLR 424 at 428/429. 41 In so expressing the foregoing observations upon the potential operation of the limitation Act, I have not overlooked my decision in Robinson v Department of Main Roads (1987) 64 LGRA 78 where I held in a case where the Court's jurisdiction was disputed because the Applicant's claim to compensation had not generated the issue of a statutory valuation (because the Crown Solicitor's investigation into the Applicant's title had revealed no compensatable interest) that this Court's jurisdiction was nonetheless effectively invoked. 42 The result of all of the foregoing discussion means that the only claim in the Applicant's Notice of Motion requiring adjudication is the claim for the Court to extend the time for the service on the Respondent of the Applicant's Notice of Claim beyond the 90 day period principally prescribed by s 102 of the Public Works Act. 43 For the reasons set forth in the Applicant's affidavit filed in the proceedings and in the absence of any opposition from the Respondent, I am satisfied that it is just and appropriate that I exercise the statutory discretion in favour of the Applicant. 44 Accordingly, I make the following orders in respect of the Applicant's Notice of Motion— 1. Pursuant to s 102 of the Public Works Act 1912 appoint as the time for the service upon the Respondent of the Applicant's Notice of Claim the date upon which the Applicant's Notice of Claim and Abstract dated 20 May 1999 was served upon the Respondent. 2. In all other respects, dismiss the Motion. 3. No order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.