Cudgegong Australia Pty Ltd v Transport for New South Wales

1. [1]

   By an acquisition notice under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Act) issued on 31 May 2012 and published in the Government Gazette on 21 September 2012, the defendant advised of its intention to acquire the land at 35 Cudgegong Road, Rouse Hill, New South Wales by compulsory process. The land was to be acquired for the purpose of the northwest rail link.

2. [2]

   At that time the registered proprietor of the land was Golden Mile Property Investments Pty Ltd. That company had been placed in liquidation and the mortgagee, Stacks Managed Investments Ltd, exercising its power of sale under a registered mortgage, entered into a contract for sale of the land to the plaintiff on 22 September 2008 for a purchase price of $2.25 million with completion being due on 1 June 2012.

3. [3]

   When the proposed acquisition notice was issued, the vendor and purchaser on 21 June 2012 entered into a rescission agreement, and on the same day entered a further contract for sale to the plaintiff for $2,888,648 with the completion of the contract scheduled for 1 July 2013. The purchase price was not paid and the sale did not complete due to the acquisition of the land which occurred on 21 September 2012.

4. [4]

   The plaintiff maintained it had an interest in the land and on 12 July 2012 submitted a claim for compensation under s 39 of the Act. The completed form sought $19.3 million for the market value of its interest in the land, and loss attributable to disturbance. That claim was later revised to $16,382,108.

5. [5]

   On 5 December 2012, the Valuer-General determined that compensation was payable under the Act to Golden Mile as the registered proprietor and to the two mortgagees, Stacks (as first mortgagee) and RTS Super Pty Ltd (as second mortgagee) in the amount of $4,223,400.

6. [6]

   On 12 December 2012 the defendant issued a compensation notice under s 42 of the Act to Stacks and to RTS Super offering $3,026,478 in compensation. The mortgagees accepted and were paid that compensation amount. The balance of the compensation was to be held on trust pending a determination whether Golden Mile or the plaintiff was entitled to the balance of the compensation.

7. [7]

   On the application of the former liquidator of Golden Mile, that company was ordered to be re-registered.

8. [8]

   The plaintiff then commenced proceedings under s 66 and/or s 67 of the Act in Class 3 proceedings in the Land and Environment Court. In those proceedings the plaintiff sought compensation amounting to $16,273,522 plus disturbance costs. Golden Mile applied to be joined as a party to those proceedings.

9. [9]

   In June and July 2013 the plaintiff and the defendant exchanged town planning evidence. The experts conferred and produced a joint report. On 10 July 2013 the plaintiff filed a notice of motion seeking an order that the defendant make an advance payment of compensation to the plaintiff.

10. [10]

    Justice Pain in the Land and Environment Court held on 13 March 2014 that the plaintiff had an interest in the land for the purposes of the Act and ordered the defendant to make an advance payment of $757,300 to the plaintiff under s 68(2)(b) of the Act.

11. [11]

    Golden Mile sought leave from the Court of Appeal to appeal from that interlocutory order. The appeal was upheld on 16 April 2015 and the matter was remitted to the Land and Environment Court for the purpose of hearing and determining according to law the respective interests of Golden Mile and the plaintiff: Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100.

12. [12]

    At a second hearing in the Land and Environment Court Pain J held on 1 December 2015 that the plaintiff had the relevant interest in the land for the purpose of the Act. Golden Mile again sought leave to appeal. Leave to appeal was granted but the appeal was dismissed on 25 August 2016: Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2016] NSWCA 224. Thereafter, the compensation proceedings resumed.

13. [13]

    On or about 6 September 2016 the defendant paid the plaintiff $765,468.59 being the total of the advance payment plus interest. That payment represented a $3 shortfall in interest that was paid to the plaintiff the next day.

14. [14]

    Thereafter, valuation evidence was exchanged between the parties in the compensation proceedings. A conciliation conference was held on 16 December 2016 but no agreement was reached.

15. [15]

    On 23 February 2017 the present proceedings were commenced.

16. [16]

    The summons seeks five declarations to the effect that the acquisition of the land was unlawful and that the defendant was obliged to convey the land “or that part of the land upon which the defendant does not propose to carry out ‘construction of the Northwest Rail Link'”, alternatively, to pay equitable compensation to the plaintiff. The summons seeks orders that the acquisition notice be quashed, and that the defendant take all necessary steps to convey the land (or that part of the land) back to the plaintiff. The summons also seeks damages.

17. [17]

    The essence of the claim is to be found in ground 10 of the summons which reads:

18. [18]

    Ground 11 then asserts that in those circumstances the defendant had no power under the Transport Administration Act 1988 (NSW) or at all to acquire that part of the land which was resumed for purposes other than the Cudgegong Station and rail line.

19. [19]

    The defendant filed a response to the summons denying that the acquisition of the land was not for a purpose authorised by the Transport Administration Act and denied that the acquisition of the land was unlawful. The response further answered the summons by alleging that the plaintiff was time-barred by virtue of not complying with r 59.10 UCPR, and asserted that the plaintiff was estopped from claiming that the acquisition was unlawful and void by reason of claiming and accepting compensation.

20. [20]

    Subsequently, the defendant filed a motion on 13 October 2017 seeking that the proceedings be summarily dismissed pursuant to r 13.4(1)(b) UCPR. It is with that motion that this judgment is concerned.

21. [21]

    The defendant asserts that no reasonable cause of action is disclosed for two reasons. First, it is said that the plaintiff is estopped from contending now that the acquisition was invalid or unlawful because the plaintiff acted on the basis that it was lawful by seeking and accepting compensation for it. Secondly, the defendant asserts that the proceedings are time-barred by reason of r 59.10 UCPR which requires proceedings for judicial review to be commenced within three months of the date of the decision being challenged.

Submissions

1. [22]

   The defendant submitted that the facts in the present matter gave rise to an estoppel in pais in that the plaintiff induced the defendant to adopt and act upon the basis that the acquisition was valid (the representation). The defendant submitted that the conduct of the plaintiff that gave rise to the representation were those matters earlier summarised at [4]-[14] above.

2. [23]

   The defendant submitted that it acted to its detriment in reliance on the representation in three ways: (a) by incurring costs of a substantial nature in the compensation proceedings and by paying compensation to the plaintiff; (b) by continuing with the construction work to the point where the land in question has now been built on; (c) by being denied the opportunity to issue a further valid acquisition in a timely manner. The detriment in relation to a further notice arises because compensation is to be assessed at the time of the acquisition. The defendant submitted that compensation for any freshly issued notice of acquisition at the present time would inevitably be higher because of rising land values since 2013.

3. [24]

   In relation to (a) above, the defendant pointed to advance payments made to the plaintiff of compensation pursuant to s 68(2)(b) of the Act and the legal costs involved in the compensation proceedings. In relation to (b) above, the defendant pointed to the evidence that on 18 March 2015 construction on the land commenced and has continued to the present time. The scope of those construction works is identified in aerial photographs taken at various times from October 2016 until 25 September 2017.

4. [25]

   In relation to r 59.10 UCPR, the defendant submitted that the rule establishes a time limitation in which proceedings must be commenced. The defendant submitted that the rule applies despite the rule commencing after the date of acquisition, on the basis that the three month period began on the date the rule commenced, and that although the Court has power to extend the time, on the basis of the evidence in the present case, the time would not have been extended.

5. [26]

   The plaintiff submitted that r 13.4 is not engaged and never could be engaged to enable a party to assert that by reason of an estoppel the claim for relief be dismissed as disclosing no reasonable cause of action. The plaintiff submitted that any issue of estoppel could only be dealt with at a final hearing of the proceedings.

6. [27]

   The plaintiff submitted that it has never accepted the validity of the acquisition and in that way no representation by conduct or otherwise has been made by it. The plaintiff submitted that the defendant had never acted to its detriment because any payment of compensation was a statutory requirement of the Act. The plaintiff submitted that under the Act the plaintiff was bound to commence proceedings by way of an objection in the Land and Environment Court pursuant to s 66(1) within 90 days. The plaintiff submitted that the only choice it had was to accept the compensation offered or lodge the objection under s 66. In that way no representation was made.

7. [28]

   The plaintiff submitted that any representation to found an estoppel in pais must be “completely unambiguous”, referring to Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723 at 738. (I note the judgment of Starke J says “clear and unambiguous”.) The plaintiff submitted that a representation must be as to an existing fact, whereas the plaintiff could only ever have held an opinion as to the lawfulness or validity of the acquisition. No representation of fact was made.

8. [29]

   The plaintiff submitted that commencing the compensation proceedings, which must be commenced within 90 days, is consistent with the plaintiff’s reservation of the right to challenge the lawfulness of the acquisition. Further, the compensation proceedings have not yet been set down for hearing. In that way the compensation proceedings are not capable of being characterised as an unambiguous and unqualified representation that the plaintiff accepts the lawfulness of the defendant's acquisition of the land.

9. [30]

   The plaintiff submitted that the advance payment is subject to s 48 of the Act which requires repayment if it is found not to be owing. The plaintiff submitted that the advance payment was not made in reliance on any representation because the defendant was under an obligation by virtue of the Act to make the payment.

10. [31]

    The plaintiff submitted that, in developing and constructing on the land, the defendant did not act in reliance on any representation, but must have itself believed that it was entitled to proceed on the assumption that the acquisition was lawful by virtue of s 20 of the Act. The plaintiff submitted that there was no evidence that any representation induced the defendant to develop the land.

11. [32]

    In relation to r 59.10 the plaintiff submitted that it does not have retrospective effect, with the result that it did not apply to the decision against which the appeal was brought. The defendant relied on Regional Express Holdings Ltd v Dubbo City Council (No. 2) [2013] NSWLEC 113 and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122. The defendant submitted that, in any event, it was always open to the Court to extend time under r 59.10.

Consideration

1. [33]

   Rule 13.4 UCPR gives power to the Court to dismiss summarily the proceedings if (inter alia) no reasonable cause of action is disclosed. It is that rule upon which the defendant relies in the present matter.

2. [34]

   The relevant principles to be applied when considering the application of the rule are well established. They were recently summarised by Gleeson JA (Beazley P and Barrett JA agreeing) in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]:

3. [35]

   I do not accept the plaintiff’s submission that the relevant rule has no application in circumstances where an estoppel, which would provide a complete answer to the claim, is made out. In circumstances where a limitation defence has been shown to provide a complete answer to a claim being brought, it has been held that no reasonable cause of action is disclosed: Hillebrand v Penrith Council [2000] NSWSC 1058 at [27]. It is the complete defence constituted by the expiry of a limitation period which means the otherwise reasonable cause of action ceases to be a reasonable cause of action. Similarly, if it is found that a plaintiff is estopped from bringing what would otherwise be a reasonable cause of action, that estoppel will mean that the cause of action is no longer a reasonable one.

4. [36]

   The plaintiff submitted that the Court had to accept the plaintiff’s case at its highest when considering whether to grant summary dismissal. However, that is the appropriate approach for considering matters of pleading but, as the High Court made clear in Webster v Lampard (1993) 177 CLR 598 at 602, a case concerned with summary judgment, the issue is not whether the plaintiff would probably succeed, but whether the material demonstrates that the action should not be permitted to go to trial because it is apparent it must fail.

5. [37]

   In Grundt v Great Boulder Pty Ltd Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Dixon J said this (at 674):

6. [38]

   In Edwards v Culcairn Shire Council (1963) 9 LGRA 316, the plaintiff was a Shire clerk of the defendant. The plaintiff, whose employment had been terminated by the defendant, was subsequently offered and accepted compensation assessed by the Minister and paid under s 99 of the Local Government Act 1919 (NSW). He thereafter brought proceedings against the Council alleging wrongful dismissal. The defendant pleaded that the plaintiff was estopped from being able to contend that he had been wrongly dismissed by reason of the fact that he had accepted compensation for his dismissal pursuant to the provisions of that Act.

7. [39]

   Although the Full Court of the Supreme Court of New South Wales found that s 99 laid down a code of procedure that exclusively prescribed the remedies available to a servant whose employment was terminated, the Court went on to deal with the plea of estoppel. They said this (at 323-324):

8. [40]

   Pye v Hawkins (1967) 87 WN (Pt 1) (NSW) 143 concerned similar subject matter to the present. The plaintiff’s land was resumed by a notice under the Closer Settlement (Amendment) Act 1907 (NSW) being published in the Government Gazette. The plaintiff appealed to the Land and Valuation Court against the value of the land as assessed by the advisory board established under that Act. Those proceedings went to the Privy Council. The plaintiff then brought proceedings seeking a declaration that there was no (valid) resumption of the land, and that he was still its owner. The time limitation for appealing to the Land and Valuation Court was 28 days and any such appeal lay only where land was resumed under the Closer Settlement Act.

9. [41]

   When considering the defendant’s plea of an estoppel Roper CJ in Eq said (at 151):

10. [42]

    In The Australian Workers Union New South Wales Branch v The Minister for Natural Resources (1991) 26 ALD 461; (1991) 43 IR 158, a proclamation was made by the Governor exempting a particular mine from s 29 of the Mines Inspection Act 1901 (NSW). That section provided that, except in the case of emergency, no person other than an owner or person acting in the management of the mine should be employed below ground in any mine for more than eight consecutive hours at any time. The Governor could by proclamation published in the Gazette exempt any mine or class of mines from the operation of the Act and any of its provisions.

11. [43]

    On 21 November 1989, shortly prior to the proclamation, a dispute had been notified concerning a variation of the industrial agreement for the workers at the mine. The employer wished to introduce a 12 hour shift but that had been rejected by a majority of the mineworkers at a mass meeting. The proclamation by the Governor was published in the government Gazette on 8 December 1989. Thereafter, the AWU, the plaintiff, engaged in further negotiations and took part in proceedings before the Industrial Commission to deal with the dispute.

12. [44]

    On 2 April 1990 a summons was filed in the Administrative Law Division of this Court seeking a declaration that the proclaimed exemption was invalid. The AWU sought an adjournment of the proceedings in the Industrial Commission until the Supreme Court proceedings were decided but Hill J in the Industrial Commission refused the application and set down the matters to be determined by the Industrial Commission for hearing, at the conclusion of which his Honour ordered an interim award. The AWU applied for leave to appeal against that interim award and sought a stay of the operation of the interim award. The stay was refused by the Industrial Commission in Court Session. After that judgment, the 12 hour shifts which had been going on since April 1990 continued and were maintained uninterruptedly from that time.

13. [45]

    Subsequently, the AWU applied to vary the industrial agreement affecting the mine workers and engaged in further negotiations in relation to a further application for an exemption under s 29. Thereafter the Supreme Court proceedings came on for hearing. They were ultimately dismissed by Carruthers J on the basis that the AWU had no locus standi. From that decision an appeal was brought to the Court of Appeal.

14. [46]

    Justice Priestley (with whom both Samuels and Handley JJA agreed with additional individual reasons) held that the AWU had standing to bring the proceedings. Justice Priestley then went on to consider the matter of waiver and estoppel. He said (at 186-189):

15. [47]

    Justice Handley said (at 191):

16. [48]

    Justice Samuels said (at 158):

17. [49]

    Although in a different jurisdiction, the decision in Vaughan Construction Co. Ltd v Attorney-General of Nova Scotia (1967) 60 DLR (2d) 692 is relevant because, like Pye v Hawkins, it concerned a challenge to the validity of a land acquisition order. An expropriation (or acquisition) of the land had been made and compensation had been claimed.

18. [50]

    In that case, Pottier J said (at 702)

19. [51]

    As can be seen, Justice Pottier’s decision, like Priestley JA’s reasoning in AWU, seems to be based on a number of similar doctrines including election, approbation and reprobation, as well as estoppel. His Honour’s reliance on Boeckh v Gowganda-Queen Mines Ltd suggests the application of a principle similar to Anshun estoppel that was later established by the High Court of Australia.

20. [52]

    The plaintiff sought to distinguish Edwards v Culcairn on the basis that in that case the compensation process was complete. In the present matter, the plaintiff submitted that the compensation proceedings were still to be heard.

21. [53]

    I do not consider that this distinction alters the position as far as estoppel is concerned. The steps taken by the plaintiff, from the commencement of the s 66 proceedings to the present position after two trips by the plaintiff to the Court of Appeal and the preparation of town-planning and valuation evidence, all assumed the validity of the acquisition. Considerable legal costs were incurred by the defendant, and the defendant pursued the development and construction on the land. The defendant was obliged by the process to make payments on an interim basis.

22. [54]

    The plaintiff submitted that the AWU case was distinguishable because in that case the AWU instituted separate proceedings asserting that the exemption was not valid when that point could have been raised in the proceedings before the Industrial Commission. The plaintiff submitted that this course of action fell within the Anshun principle, whereas in the present case the validity of the acquisition could not have been raised in the Land and Environment Court. In that way, the plaintiff submitted, there was no Anshun estoppel in the present case.

23. [55]

    There are two related reasons why the plaintiff’s submissions in that regard should be rejected. First, the Court of Appeal did not dismiss AWU’s appeal on the basis of Anshun estoppel and did not make any mention of it.

24. [56]

    Secondly, what Priestley JA said was this:

25. [57]

    The decision was not based on the failure of the AWU to raise the matter in the proceedings in the Industrial Commission but on its failure to raise the matter at all in appropriate legal proceedings before it engaged in behaviour which, from an objective point of view, accepted the validity of the exemption proclamation.

26. [58]

    The plaintiff sought to distinguish the decision in Vaughan Construction Ltd on the basis that the regime in relation to land acquisition was a different one from that which obtained under the Act.

27. [59]

    In my opinion, that is an irrelevant matter. As in the present case, after the Notice of Expropriation was served on the plaintiff in Vaughan Construction, the plaintiff made a claim for compensation and ultimately received that compensation. Sometime thereafter the plaintiff took proceedings for an order declaring that the expropriation was invalid and that the plaintiff was entitled to its land. The only relevant distinction between Vaughan Construction and the present case is the plaintiff’s submission that it had no choice as a result of the Act requiring an objection to be lodged within 90 days and, therefore, that it was not acting voluntarily in pursuing compensation.

28. [60]

    Although the Act prescribed a period of time in which proceedings had to be taken in relation to compensation, it was open to the plaintiff at any time to challenge the validity of the acquisition as it has latterly done. The Act provides under s 13 that a proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. Once the land has been acquired, s 37 provides that the owner is entitled to be paid compensation. Section 39 provides that a person who wishes to claim compensation must lodge a claim in accordance with that section. The authority which compulsorily acquires the land must give notice within 30 days after the publication of the acquisition notice to the persons entitled to the compensation and the amount of the compensation offered: s 42. Section 45 provides that if a person entitled to compensation does not within 90 days after receiving a compensation notice accept the amount of compensation offered or lodge an objection to the amount of the compensation, the offer of compensation is taken to have been accepted.

29. [61]

    Section 66 gives the person 90 days to lodge with the Land and Environment Court an objection to the amount of compensation offered. The Land and Environment Court may extend that period if it is satisfied that there is good cause for the person’s failure to lodge the objection within that period. It was always open to the plaintiff to commence these proceedings challenging the acquisition within the 90 day period. It is difficult to conceive that the commencement of those proceedings would not provide a good cause within the meaning of s 66 of the Act. Alternatively, it was always open to the plaintiff to commence the present proceedings and also to commence the s 66 proceedings. It could then have sought, as has now occurred, a stay of those proceedings either in this Court or the Land and Environment Court until the validity of the acquisition was determined.

30. [62]

    Senior counsel for the plaintiff submitted that the plaintiff did not have the necessary documents to assert and allege invalidity, and it was that fact which was responsible for the delay in the institution of these proceedings. The plaintiff has led no evidence of any correspondence in which the plaintiff asserted any doubt about the validity of the acquisition prior to a letter from its then solicitors Bransgroves to Hunt and Hunt, the defendant’s then solicitors, dated 11 November 2016.

31. [63]

    However, the very issue now raised in the proceedings by the plaintiff in relation to the use of the land, and whether for railway purposes, is to be found in the joint report of the town planning experts dated 23 July 2013. Moreover, in the affidavit of Sukhdev Singh of 15 November 2017, Mr Singh refers to a meeting he had as a director of the plaintiff with Bryan Jones, who he understood was in charge of land acquisitions and compensation, in November 2011. Mr Jones provided him with a book entitled “Northwest Rail Link Project Overview July 2011”. Mr Jones explained that the plaintiff’s land was being acquired compulsorily for Cudgegong Railway Station. Having noted from a diagram in part of the booklet that only a small part of the land was marked for use as Cudgegong Railway Station, Mr Singh raised with Mr Jones that it was apparent the defendant did not need all of the land for the train platform and asked if it was to be used for commercial purposes. Mr Singh said he thought that the defendant intended to build a town centre or local centre on the land and that it was to be used for commercial use and not public purposes.

32. [64]

    Even before that time, Mr Singh sent an email to the Department of Planning on 11 February 2011 in which he noted a Growth Centre Commission Area 20 Precinct plan which provided for a railway station, a car park and a local centre on Lot 71. The final paragraph of the letter attached to the email said this:

33. [65]

    These are the matters now put forward by the plaintiff in support of the claim asserting the invalidity of the acquisition.

34. [66]

    In my opinion, the actions of the plaintiff in relation to the claim for compensation amounted to an acceptance by the plaintiff of the validity of the acquisition. The representation in that regard was clear and unambiguous. The defendant acted to its detriment in incurring the costs involved in the compensation proceedings, in continuing with the development of the land and the construction of the railway station, and in not promptly issuing a further valid acquisition notice in the event that the notice gazetted on 21 September 2012 was held to be invalid.

35. [67]

    The defendant also acted to its detriment in paying the advance payments of compensation. The plaintiff submitted that such payments were not made in reliance on any representation but were required to be paid under s 68 of the Act. However, the advance payments should not be viewed in isolation. At the time they were required to be paid the defendant continued to act on the assumption that the acquisition was valid and unchallenged. If proceedings had been instituted challenging the acquisition, one or other of the parties would have sought a stay of the compensation proceedings, as I have already noted has now occurred. In such circumstances the defendant would not have been obliged to pay the advance payments. In paying them, the defendant has been deprived of the use of those funds since they were paid. That is so even if, as a result of any finding that the acquisition was invalid, the money will have to be repaid. The law accepts such deprivation as a detriment because that is part of the basis of the payment of interest on judgments: Hungerfords v Walker (1989) 171 CLR 125; Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 at [89]-[90] and [115].

36. [68]

    The plaintiff relied on a number of cases including Brock v Roads And Maritime Services (formerly Roads and traffic Authority of NSW) [2012] NSWCA 404, Mandurah Enterprises Pty Ltd v Western Australia Planning Commission [2008] WASCA 211 and Parramatta City Council and Another v R & R Fazzolari Pty Ltd (2009) 237 CLR 603; [2009] HCA 12 to argue that cases involving land acquisition were in a special category and that in such cases there is an additional barrier in the way of summary judgment.

37. [69]

    None of the cases support such a proposition. Brock dealt at [79]-[83] with a particular approach to costs in compensation claims in respect of land acquisition. Mandurah Enterprises was a similar case to the present in that land had been “taken” (acquired) under the Land Administration Act 1997 (WA). The plaintiffs made a claim for compensation. They received partial payments of compensation. They then sought a declaration that the taking of the land was invalid. They were unsuccessful and appealed. On the appeal the defendant to the claim filed a notice of contention which, inter alia, asserted that the plaintiffs made a binding election to pursue their claim for compensation rather than challenge the validity of the order. The appeal was upheld in part but the notice of contention was dismissed.

38. [70]

    In her judgment McClure JA said:

39. [71]

    Her Honour then considered a number of English, Victorian and New South Wales including Edwards and AWU and said:

40. [72]

    The defendant in the present case relies on an estoppel which was not under consideration in Mandurah Enterprises. The Western Australian Court of Appeal considered that different principles applied where the defence relied on election or approbation and reprobation. To the extent that those principles differ from the approach in Edwards, AWU and Pye v Hawkins, I am bound by the legal principles in the first two of those cases, and I respectfully follow the approach of Roper CJ in Eq in Pye v Hawkins.

41. [73]

    The plaintiff relied on Fazzolari for the appropriate way to construe statutes which affect property rights at [44] and [45]. That appears to me to be a matter only relevant to any final hearing where the rights of the defendant to acquire the land are being construed. The case says nothing about whether an estoppel provides an answer to the plaintiff’s claim.

42. [74]

    The estoppel demonstrated in the present case is a complete answer and defence by the defendant in the proceedings. For that reason, no reasonable cause of action is disclosed by the plaintiff in the proceedings. The present case does not, in principle, differ from the determinations in Edwards v Culcairn, Pye v Hawkins, AWU and Vaughan Constructions. The plaintiff’s claim is, in the circumstances, a hopeless one and is doomed to fail.

43. [75]

    In the light of my conclusion on the estoppel point, it is not strictly necessary to determine this second basis upon which the defendant relies. However, in deference to the detailed arguments put forward, and in case the matter should go elsewhere, I will now consider this aspect of the defendant’s motion.

44. [76]

    Rule 59.10 provides:

45. [77]

    The rule commenced on 15 March 2013. The acquisition notice was gazetted on 21 September 2012.

46. [78]

    There are two issues in relation to this rule. The first is whether it applies to the present proceedings in circumstances where the decision challenged predated the commencement of the rule. The second issue is whether, if the rule applies, the filing of the proceedings outside of the time allowed is such that the proceedings should be summarily dismissed.

47. [79]

    The defendant relied on what was said by Campbell J in Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 to argue that the rule was a procedural requirement and in those circumstances could operate retrospectively.

48. [80]

    The plaintiff relied on the decision of Biscoe J in the Land and Environment Court in Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, followed by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122, to argue that the rule effected a substantive change and would not therefore operate retrospectively.

49. [81]

    In the first decision to make reference to r 59.10, Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 Basten JA said at [6]:

50. [82]

    In Kolundzic the plaintiff challenged the legality of three decisions of public officials of the Workers Compensation Commission of New South Wales involved in the medical assessment process. Justice Campbell noted at [2] that the last of those decisions was made on 25 October 2012 and the summons was not filed until 5 December 2013. His Honour considered the substantive relief sought and found that no errors had been demonstrated in the assessments made.

51. [83]

    His Honour then went on to consider the matter of r 59.10. His Honour said this:

52. [84]

    In Regional Express Holdings the plaintiff sought to challenge two decisions of Dubbo City Council pertaining to the local airport. The decisions were made on 22 October 2012 and 25 February 2013. The summons was filed on 23 May 2013. Accordingly, if r 59.10 applied an extension of time was required for the first but not the second decision.

53. [85]

    Justice Biscoe first set out the passage from Patsalis that I have quoted above. His Honour then said:

54. [86]

    In Agricultural Equity Pepper J at [24] simply followed what Biscoe J said in Regional Express.

55. [87]

    More recently, in O’Connor v State of New South Wales [2017] NSWCA 335 the Court of Appeal (Leeming and Simpson JJA) said:

56. [88]

    It may be observed that, to this point, there is no authority or guidance from the Court of Appeal on the issue, seemingly, because the point has not been squarely raised. Campbell J (as his Honour then was) appears to have assumed the rule was a procedural requirement partly, at least, on the basis that it did not offend the doctrine from Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. With great respect to Campbell J, the fact that the rule does not transgress Kirk is not determinative. The power to extend time would go some way to ensure that.

57. [89]

    Ordinarily, a requirement in the rules of court for commencing proceedings or some interlocutory action would not be regarded as a substantive requirement, unlike a provision in the Limitation Act 1969 (NSW) or some similar statutory provision. As such, the defendant’s argument concerning r 59.10 needed to elevate the status of that rule to something akin to a limitation period in order to justify the dismissal of the proceedings on a summary basis for a failure to comply with that rule. To the extent that r 59.10 is to be regarded as similar to a limitation period, the change effected by the introduction of that rule would have to be regarded as affecting substantive rights. In those circumstances it would not operate retrospectively. If the rule was merely a procedural change it would be a rare case where a failure to comply with the rule, particularly given the power of extension in sub-r (2), would justify a summary dismissal of proceedings.

58. [90]

    In my opinion, the rule does not operate retrospectively for reasons similar to those given by Biscoe J in Regional Express at [14]. If the rule operated retrospectively it would deny to any applicant the right to challenge any decision made more than three months before Pt 59 commenced, subject only to a right to have a discretion exercised to extend the time period. A discretionary decision can only be challenged if an error of the type discussed in House v The King (1936) 55 CLR 499 is made out. In that way, substantive rights would be affected.

59. [91]

    Although r 59.1(2) provides that Pt 59 does not apply to proceedings commenced before the commencement of Pt 59, there is nothing in that Part or in r 59.10 particularly which requires a challenge to decisions made before the Part commenced to be made within three months of the commencement of the Part. That appears to me to be another matter tending to suggest that the rule does not apply to decisions made prior to the commencement of the Part.

60. [92]

    Accordingly, the present proceedings were not commenced contrary to r 59.10 and no basis is demonstrated for summary dismissal of the proceedings based upon that rule.

61. [93]

    If the rule applied to the present proceedings, because it was a rule affecting procedure only, it would be difficult, as noted earlier, to justify summary dismissal for non-compliance. The discretionary power to extend time suggests that there would need to be a factual enquiry involving some or all of the matters in subrule (3). Ordinarily, those enquiries are not appropriately considered other than at a final hearing.

Conclusion

1. [94]

   In my opinion the defendant demonstrates that the plaintiff is estopped from maintaining the present for the reasons I have earlier given. In those circumstances I make the following orders: