POSTSCRIPT: Rafailidis appeal dismissed

The Court of Appeal recently handed down judgment in Rafailidis v Roads and Maritime Services [2015] NSWCA 143, dismissing Mrs Koula Rafailidis’ appeal against the judgments of Craig J and Sheahan J. Our earlier blog on Castle-style arguments in compulsory acquisition litigation examined one of these cases at first instance.

The Court of Appeal (Beazley P, Basten JA and Ward JA) confirmed the Class 3 jurisdiction of the Land and Environment Court and the constitutional validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). A summary of the President’s comments in response to the grounds of appeal are set out below:

  • The challenges to the Land and Environment Court’s jurisdiction “were factually incorrect and without substance”.
  • The Land and Environment Court was dealing with an application brought before it by Mr and Mrs Rafailidis. In this scenario, it was not open to them to challenge its jurisdiction.
  • There was no evidence showing a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions before Sheahan J in the Land and Environment Court.
  • Mr and Mrs Rafailidis had no legal basis on which to claim a right to a hearing by a jury.
  • There was no Commonwealth constitutional argument available – “the Constitution applies to acquisitions of property made by a Commonwealth agency or pursuant to a law of the Commonwealth, and requires that the acquisition be on “just terms”. The acquisition in this case, however, was made by the first respondent, a public authority of the State of New South Wales, pursuant to the New South Wales legislation. As such, s 51(xxxi) of the Constitution does not apply.”
  • There was no NSW Constitutional argument available – “Section 5 of that Act provides the New South Wales Parliament with plenary power to make laws for the peace, welfare and good government of the State, subject to the Commonwealth Constitution. Just Terms Compensation Act and the Roads Act were made pursuant to s 5. It is a matter for the Parliament, and not for the courts, to determine whether a particular law is a law for the peace, welfare or good government of the State.”
  • There was no inconsistency between the State laws in question with any provision of the Commonwealth Constitution.
  • The contention that the acquisition was contrary to the international covenants and treaties was not relevant, as these treaties are not relevant to the enactment of laws by the New South Wales Parliament.
  • The acquisition was undertaken pursuant to the compulsory processes permitted by statute, and a contract was therefore not required.
  • Compulsory acquisition of land does not constitute theft – “the compulsory acquisition of land pursuant to statute with a payment of compensation does not constitute stealing, even in any colloquial sense of the word.”

Basten J also highlighted an irony in the way the Applicant brought the case:

“It may seem curious that the applicant, who invoked the jurisdiction of the Land and Environment Court, sought to deny it had jurisdiction to deal with her claim. It is possible that what she intended to assert was that, even if the Court had jurisdiction, it did not exercise its powers lawfully. But the Land and Environment Court is a statutory court, and it was not shown to have acted otherwise than according to the terms of its statute.

It may also seem curious that a person, who claims to own land in accordance with the laws and usages of this State, claims that she cannot be deprived of that land without her consent, even where the laws of the State expressly so provide.”

The judgment deals with a broad brushed attack to the Land and Environment Court’s jurisdiction, and the validity of compulsory acquisition legislation. The Court of Appeal confirmed both the Court’s jurisdiction and the validity of State base legislation for the resumption of land, which no doubt provides confidence to acquiring authorities who rely on these powers for Government infrastructure projects. It also provides certainty to the community about the powers of acquiring authorities to acquire land in this state.  Basten JA’s comment helpfully notes that:

“although State law is not subject to a constitutional requirement that an acquisition of property be on just terms, in fact, such terms are generally required by the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).”

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