SIMPSON v KELLY [2006] NSWSC 678

New South Wales Supreme Court

CITATION : SIMPSON v KELLY [2006] NSWSC 678

HEARING DATE(S) : 22 November 2005

JUDGMENT DATE : 5 July 2006

JUDGMENT OF : Hulme J at 1

DECISION : Each of the Plaintiffs' actions is dismissed.

James David SIMPSON and Lynne Elizabeth SIMPSON PARTIES : The Hon Anthony KELLY Warwick WATKINS Thomas McCUE

FILE NUMBER(S) : SC 30058/05; 30065/05

COUNSEL : G Laughton SC N Perran

SOLICITORS : EC Abernethy IV Knight

- 68 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No: 30058/05 30065/05 HULME J

Wednesday, 5 July 2006

James David Kingsley SIMPSON and Lynne Elizabeth SIMPSON v The Honourable Anthony KELLY MINISTER FOR LANDS and ORS

JUDGMENT 1 HIS HONOUR: At some stage between December 1995 and early 1997, a neighbour of the Plaintiffs, a Mr Borg, made application pursuant to the provisions of s182 of the Roads Act to the Department of Lands for the opening of a road over neighbours' land. On or about 16 April 1997, Mr Simpson made a similar application over a piece of land between the property he and his wife own and land the subject of Mr Borg's application. After a number of intermediate steps including survey, in 2003 the Department of Lands advised persons who had purchased Mr Borg's land and the Plaintiffs to the effect that the applications could proceed and that the next step was for those applying and those whose land was liable to be affected to agree on compensation. 2 In late 2003 and 2004 some of those persons whose land was liable to be affected made representations to the Minister or his assistants and in November 2004 the Director General of the Department purported to rescind the approval. No-one had advised the Plaintiffs what was afoot and they then commenced proceedings 30117/2004 against the Minister, the Director General, a Mr Bagnall and Ms Stevenson. Those proceedings were settled. On 13 May 2005, consent orders were made including:- 1. That the decision purporting to rescind the approval for the land acquisition proposal made by the Plaintiffs be set aside. 2. The Minister for Lands and the Director-General of the Department pay the Plaintiffs an amount for costs. 3. Otherwise the proceedings against the Minister and Director-General be discontinued, and 4. The proceedings against the third and fourth Defendants, Mr S D Bagnall and Ms L L Stevenson be discontinued with no order as to costs. 3 At some later time but prior to 6 July 2005, Karen Hembrow, described as "Manager, Crown Lands NSW, Grafton (Delegation 31D.1.59)" "For and on behalf of the Minister for Lands" purported to make a reference to the Local Land Board. She executed an undated document in terms:- " MINISTERIAL REFERENCE TO LOCAL LAND BOARD In the matter of an application by James D Simpson under Part 2 Division 1, Roads Act 1993 for the opening of a Crown Public Road within Lots 21, 64, 75, 40, 22 and 23 DP 755547, Parish Medlow, County Raleigh, as shown by red colour on attached diagram "P". The Minister for Lands refers to the Local Land Board for the land district of Bellingen (the word is unclear in the copy tendered) the following questions:- (a) Whether the circumstances warrant the opening of the road shown by red colour diagram "P" having regard to the merits of the objections; (sic) (b) Whether any alteration to the proposal is desirable; and (c) Whether there are any special circumstances relative to the matter that should be brought before the Minister for his information; and the said Local Land Board is hereby required to inquire into and report upon the matters so referred in pursuance of the provisions of Section 260, Roads Act 1993." 4 In proceedings 300058 of 2005, Mr and Mrs Simpson seek orders against the Minister for Lands, The Director General of the Department of Lands, and the Chairperson of the Local Land Board for the Land District of Grafton:- (i) Setting aside the decision to refer to the Local Land Board, (ii) Restraining the Minister and the Director General from taking any step to interfere with, rescind or abandon the approval to which reference has been made, and (iii) Restraining the Chairperson of the Local Land Board from doing anything to inquire into and/or report to the Minister and/or the Director General pursuant to s260 of the Roads Act or at all in relation to the approval. 5 Following the commencement of those proceedings on 19 July 2005, there was conversation between the solicitor for the Plaintiff, a Mr Abernethy and Mr Callaghan of the Legal Department of the Department of Lands. It is the Plaintiffs' contention that in that conversation agreement was reached as to the orders to be made in those proceedings. There being disagreement as to that, on 3 August 2005 proceedings 300065 of 2005 were commenced. In those proceedings, Mr and Mrs Simpson seek, against the same three defendants, inter alia, the following:- 1. A declaration that proceedings No. 30058/05 were settled upon terms and conditions contained in the Affidavit of Edwin Campbell Abernethy sworn 2 August, 2005, and 2. An order that that agreement be specifically performed. 6 Much of the foundation for the claim in proceedings 300058 of 2005 lies in a series of events, many involving the Department of Lands and extending as far back as 1995 or 1996. To appreciate and decide the issues that arise it is accordingly necessary to detail much of this history. 7 The land Mr and Mrs Simpson own is in northern New South Wales and is lots 62 and 63 in DP 755547. As a map at page 7 of Exhibit A, and paragraph 9 of the affidavit of Mr Callaghan of 1 September make clear those parcels are not accessible from the Council public road. (Mr Callaghan's affidavit contains a mistake in his reference to lot "53".) The parcels are bordered on their east by Taylors Arm Creek and other lands lie between the creek and Taylors Arm Road which lies further to the east. It is common ground that on other sides of Lots 62 and 63 there are other private lands. There is however a Crown Road which runs through Lots 62 and 63 and other properties to the south until it joins up with Taylors Arm Road. Moving from north to south, lot numbers (and earlier numbers in brackets) which are presently adequate to identify the properties, and their owners or former owners are as follows:-