Davey v North Sydney Council [2002] NSWSC 662

New South Wales Supreme Court

CITATION : Davey v North Sydney Council [2002] NSWSC 662 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5131/01 HEARING DATE(S) : Friday, 19 April 2002 JUDGMENT DATE : 26 July 2002

PARTIES : Leath Glenbury Davey (Plaintiff) North Sydney Council (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : S. Burchett (for Plaintiff) M. Allars (for Defendant) SOLICITORS : Cowley Hearne Lawyers (for Plaintiff) Mallesons Stephen Jaques (for Defendant) CATCHWORDS : Practice and Procedure - Cross-claim by Defendant against an entity which is not the Plaintiff - Application by Defendant for leave to cross-claim - Requirement that nature of cross-claim be told to the Court as soon as may be practicable - Plaintiff claims payment to her by Defendant of compensation for compulsory acquisition of land in amount determined by Valuer General - Defendant disagrees with amount so determined - Defendant seeks by proposed cross-claim to challenge validity and efficacy of that determination - Whether the Court in the exercise of its discretion should grant that leave - Whether proposed cross-claim discloses a reasonable cause of action - Whether proposed cross-claim is in a form which, if filed, would be liable to be struck out as embarrassing - Relevance of conduct of Defendant preceding the institution of proceedings - Whether Defendant in seeking leave approaches the Court with clean hands - Any dispute in respect to proposed cross-claim is a dispute in which the Plaintiff could have no practical participation - Conduct of Defendant is in contravention of legislative scheme disclosed in Land Acquisition (Just Terms Compensation) Act 1991 - True complaint of Defendant is its disagreement with the valuation performed by the Valuer General - Any challenge to the validity and efficacy of the Valuer General's determination must not be allowed to drift into an attack on the merits of the impugned decision - Exercise of Court's discretion to grant leave sought - Prejudice to Plaintiff - Application by Plaintiff for summary judgment - Defendant does not dispute factual basis of relief sought by Plaintiff. LEGISLATION CITED : Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR CASES CITED : Gosford County Council v Cunningham (29 April 1997, unreported) Hoffman-La Roche v Trade Secretary [1975] AC 295 National Mutual Holdings Pty Ltd v Sentry Corporation Inc. (1989) 22 FCR 209 Ousley v The Queen (1997) 192 CLR 69 DECISION : See paragraph 72.