Supreme Court New South Wales Medium Neutral Citation: Blacktown City Council v Concato (No 2) [2019] NSWSC 99 Hearing dates: 30 January 2019 Date of orders: 30 January 2019 Decision date: 30 January 2019 Jurisdiction: Common Law Before: Campbell J Decision: The plaintiff has leave to proceed on the further amended summons Catchwords: STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55 Entitlement to just compensation – s 59 legal costs reasonably incurred – construction of s 59(1)(a) – Civil Procedure Act 2005, s 56 overriding purpose of proceedings just, quick, cheap Legislation Cited: Civil Procedure Act 2002 (NSW) ss 56 to 60 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 26, 42, 43, 55, 59, 61 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; [1982] HCA 59 Category: Procedural and other rulings Parties: Blacktown City Council (Plaintiff) Lodovico Antonio Concato (Defendant) Vilma Concato (Second Defendant) Office of the Valuer General (Third Defendant) Representation: Counsel: P. Tomasetti SC with A. Hemmings and L. Nurpuri (Plaintiff) I. Hemmings SC with K. Lindeman (First and Second Defendants) L. Waterson (Third Defendant) Solicitors: Maddocks Lawyers (Plaintiff) JLC Law Group (1st and 2nd Defendant) Crown Solicitors Office (3rd Defendant) File Number(s): 2018/193605 EX TEMPORE Judgment REVISED 1. The plaintiff has sought leave to further amend the summons by which these proceedings for judicial review have been brought. This application for amendment was foreshadowed yesterday in circumstances where Mr Tomasetti SC , for the plaintiff, abandoned the ground of relief stated in ground 1(d)(ii) of the amended summons. That was couched in terms of allowances for disadvantage which are relevant matters required to be taken into account in appropriate cases when determining compensation in accordance with the provisions of s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("Just Terms Act") . The abandonment of that part of the claim represents, I think it is fair to infer, the acceptance of the position as contended for in the written submissions of the first and second defendants, which were filed on 7 December 2018, that the substance of the plaintiff's complaint about that matter, as set out at [44] and [46] of its submissions in chief filed on 30 November 2018, is not pleaded. 2. The proposed further amendment seeks to raise the matter squarely by adding a new para E to ground one (there is only one ground pleaded, with now five parts) in the following terms: "In determining that the first and second defendants should be compensated for loss attributable to disturbance, pursuant to s 55(D) of the Act, for legal costs, under s 59(1)(a) incurred in establishing hardship prior to an entitlement for compensation arising and thus falling within s 59(1)(a)." 1. The ground invokes the statement of principle by Bathurst CJ in Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411 at [59] ‑ [60]. It is unnecessary for me to set out those passages in full. His Honour, with the agreement of Simpson and Payne JJA stated that in the case of a hardship acquisition under the Just Terms Act legal costs incurred in establishing the hardship are incurred prior to an entitlement to compensation arising, and thus do not fall within s 59(1)(a). 2. Mr Tomasetti submits that although it is acknowledged the original pleading was deficient in this regard, that occurred through inadvertence, I think it is fair to say, effectively on his part as captain of the legal ship by not picking up the infelicitous pleading until it had been a pointed out. He relies upon a number of factors. First, when the matter was before me, as it happens, at an interlocutory stage for the purpose of an application to stay the legal process in relation to the acquisition pending disposition of the proceedings for judicial review, the matter was directly raised with me as one of the grounds of review that Mr Tomasetti submitted were at least fairly arguable. Although there is a transcript of that hearing available, neither Mr Tomasetti nor I have it here today. 3. It is true that in my summary of the arguments put forward by Mr Tomasetti, I made a reference at [18] to certain items being included in the valuation which were contrary to the provisions of s 61 of the Act. However I also note, at [19], referred specifically to Hoy, and indeed to the passage at [59] if not [60]. It seems to me that the matter of noncompliance with s 59(1)(a), or overreaching in respect of the true content of s 59(1)(a), if that is the right way of putting it, was fairly raised at that time. 4. I am also satisfied, although I acknowledge this is an area of some technicality where precision is generally sought, that the point was, in substance, raised before the decision‑maker in the plaintiff's submissions of 4 May 2018 to the Valuer‑General replicated at exhibit PN1, p 1330 to 1335. I acknowledge the force, given the technical nature of this area of jurisprudence, of Mr Hemmings SC' argument, that the matter was put in various ways which did not make it pellucid, that the Hoy decision was relied upon in relation to s 59(1)(a), rather than the erroneous reference to either general discretionary considerations arising under s 26 of the Act or, s 61 in this context. However, Hoy was clearly referred to at [2.3] and, perhaps, more specifically, the passage from the Chief Justice's judgment was set out in full with emphasis added at 2.23. 5. It is evident and not in dispute that, first, the material that was put before the decision‑maker to justify the allowance included tax invoices from the solicitors, including disbursements extending to counsels' fees for work done prior to the date of the council resolving to acquire the property on hardship grounds, 22 November 2017. It is clear that the decision‑maker allowed the full amount of the claim in respect of those legal costs. It is probably appropriate to say, at this time, that, on the material before me, that is an amount of around $54,000 of a total determination of compensation in the sum of $16,634,381. 6. Moreover, I am satisfied that, although the error in relation to s 61 may have continued to infect the written argument of 30 November 2018, for instance, at [20] and [21] where s 59 is referred to, s 61 was at the forefront of that part of the argument, as it is at [39] and following. However, notwithstanding that context, at [44] to [46], the council, through its counsel, reiterate the point made in substance in its written submissions to the Valuer‑General, including the reference to the judgement of Bathurst CJ in Hoy and the proper construction of s 59(1)(a). 7. I am satisfied that through inadvertence a mistake was made in the original pleadings, but that this issue was raised in substance at all relevant levels. I equally accept that, given the scope for confusion by the erroneous reference to s 26 and s 61, that it is understandable, as I have said, again, in this technical area, that the first and second defendants were labouring under the impression that they had a complete answer to the claim as formulated and I make no criticism of them on that score. I have had the benefit of legal argument as well as the benefit of hindsight in expressing the conclusions I have in relation to the substance of the claim that was sought to be raised. I repeat that I accept that there was error inadvertently made in the formulation of the claim. I also accept as Mr Tomasetti has argued that the substance of it was put in all relevant documents. 8. So far as Mr Hemmings properly reminded me of the need in accordance with the dictates of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 for there to be a full and satisfactory explanation for a delay in bringing forward amendments to pleadings, Mr Tomasetti's candour provides that explanation and I refer to L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 [1982] HCA 59. 9. I turn then to questions of prejudice properly raised by Mr Hemmings. I accept, with respect, that there is force in these arguments. Substantially, what Mr Hemmings has pointed out to me is that s 43A of the Just Terms Act provides for the amendment of the Valuer‑General's determination. Section 43A refers by its heading, which I acknowledge is not a part of the Act, to amendment or rescission of compensation notices. Section 43A(1) allows the acquiring authority to amend a compensation notice issued under s 42 to correct clerical errors or obvious mistakes, and subs (2) requires the authority by further notice to amend a compensation notice to correct the amount of compensation offered if the Valuer‑General changes the determination of the amount of compensation to be offered. There is a limited period during which that change can be made, that is to say that it cannot be done after the offer of compensation if the notice has been accepted. 10. However, the time for that to occur, as it were, has not yet arisen, given that by the stay order I made in July the legal process has been stayed and the council, as plaintiff, has not been required by force of the Act to issue the compensation notice in accordance with s 42. However, given that the proportion of the amount in dispute in this matter represented by any irrecoverable costs is arithmetically extremely small, it seems to me that had the defendants properly been apprised of the substance of this part of the council's complaint, then I think it goes without saying they may well have availed themselves of this opportunity, even if it involved abandoning a relatively small amount of their claim. I think there is a potential forensic prejudice of that type involved. Obviously it may not have been necessary to abandon that claim, but further evidence might have been provided to enable a proper apportionment of the total of legal costs between those properly recoverable under s 59(1)(a) and those referable to the application for hardship acquisition. 11. In any event, as I discussed during the course of the argument with counsel, it does not necessarily follow that if I allow the amendment the plaintiff must be entitled to the relief claimed or, more generally, to an order in the nature of certiorari and mandamus. It seems to me that given the discretionary nature of declarations of right as sought in the summons in express terms, or orders in the nature of certiorari mandamus, as would be available if jurisdictional error is established, that such orders would not necessarily follow from establishment of jurisdictional error (which is not conceded by the defendants); as I have said, given the discretionary nature of those remedies, and the relatively small amount involved. 12. Mr Tomasetti argues that the important work of the Court in its supervisory jurisdiction is to ensure that administrative decisions are made according to law. However, not at any cost, and it would seem to me that, although I make no decision about it, obviously, one way or the other, if the only error established was this error, and if it is jurisdictional error, the question of discretion would be a live issue. I make that observation in part to say that the remedies that might otherwise be available to the defendants in this regard, including applications under s 43(A), are not entirely lost to them, so that the forensic prejudice identified is not irreducible. That being so, and bearing firmly in mind the requirements of the efficiency provisions of the Civil Procedure Act 2005 (NSW), ss 56 to 60 including the overriding purpose, and laying some emphasis upon "just" as opposed to "quick and cheap," in the circumstances of this case, I am of the view that the amendment proposed should be allowed. 13. Having said that, there may be consequences, and Mr Hemmings has already indicated that if I was persuaded that I should allow the amendment, he may have applications in relation to the consequences, which I will consider directly. In the meantime, I rule that the plaintiff has leave to proceed on the further amended summons handed up today, initialled by me and dated today, placed with the papers. ********** 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. Decision last updated: 15 February 2019