Background
Darren James Treyvaud and Kim Maree Treyvaud were the registered proprietors of land at Falls Creek, NSW, which was compulsorily acquired by Transport for NSW on 29 July 2022 for the purposes of upgrading the intersection between Jervis Bay Road and Princes Highway. Jervis Bay Stockfeed Pty Ltd (JBSF) held a registered lease of the same land from 9 July 2019 to 8 July 2024, and had subleased it to the Treyvauds trading as “As Good As It Gets Highland Cattle.” Both the Treyvauds and JBSF made separate claims for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and commenced separate proceedings in the Land and Environment Court on 20 March 2023.
Transport for NSW moved to join JBSF as a party to the Treyvaud proceedings, contending that s 25(2) of the Land and Environment Court Act 1979 (NSW) imposed a mandatory duty to do so whenever a person claimed an interest in the acquired land. Transport for NSW’s concern was that JBSF might discontinue its own proceedings, thereby preventing Transport for NSW from contesting JBSF’s claim to have had an interest in the land and potentially recovering an advance payment of $83,909.86 already paid to JBSF.
The Treyvauds opposed joinder, arguing that s 25(2) confers only a discretionary power. Both proceedings were scheduled for concurrent hearing on 12–16 October 2026, with directions already made for concurrent running of the matters.
The Court’s Holding
Justice Duggan held that s 25(2) of the Land and Environment Court Act 1979 (NSW) confers a discretionary power on the Court, not a mandatory duty. The provision states that the Court “may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party.” The use of “may” (rather than “shall” or “must”) indicates discretion. This interpretation is reinforced by s 9(1) of the Interpretation Act 1987 (NSW), which provides that the word “may,” when used to confer a power, indicates that the power may be exercised or not at discretion.
The Court rejected the reasoning in Gill v Liverpool City Council; Beningna Pty Ltd v Liverpool City Council [2024] NSWLEC 133, which had held that s 25(2) imposed a mandatory duty. The Court found that Beningna was not binding precedent because the construction of s 25(2) was not fully argued, and the Court in that case had indicated that joinder would have been ordered even if s 25(2) were discretionary, suggesting the construction issue was not necessary to the decision.
Applying its discretion to the facts, Justice Duggan declined to order joinder. The Court found that the issues Transport for NSW sought to raise about JBSF’s interest in the land could continue to be raised in the separate JBSF proceedings. Concurrent listing of the proceedings provided adequate case management. Transport for NSW’s fear that JBSF would discontinue was merely hypothetical; JBSF had not indicated any intention to do so and was actively participating in the Court process. If JBSF later sought leave to discontinue, that would be the appropriate time to address potential consequences. The Motion was dismissed with costs reserved.
Key Takeaways
- Section 25(2) of the Land and Environment Court Act 1979 (NSW) confers a discretionary power on the Court to join parties claiming interests in acquired land, not a mandatory duty.
- The statutory language “may” (vs. “shall” in s 25(1)) indicates discretion, consistent with s 9(1) of the Interpretation Act 1987 (NSW).
- Concurrent listing of related proceedings provides adequate case management without mandatory joinder of all parties with competing interests in the same acquired land.
- Hypothetical concerns about a party’s future conduct (such as discontinuing proceedings) do not justify pre-emptive joinder orders.
Why It Matters
This decision clarifies that courts have flexibility in managing compulsory acquisition disputes involving multiple claimants with competing interests. Under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), each person with a separate interest in acquired land has an independent claim to compensation and may pursue separate proceedings. This decision confirms that the Land and Environment Court is not obliged to consolidate all such claims in a single proceeding; instead, the Court may manage related proceedings concurrently to ensure efficient resolution while respecting each claimant’s independent claim rights.
The decision also reflects the Court’s preference for addressing procedural issues when they crystallise into actual disputes rather than granting pre-emptive relief based on speculative concerns. Transport for NSW cannot obtain joinder merely to prevent JBSF from later discontinuing; if JBSF seeks leave to discontinue, that application will provide the proper occasion for the Court to consider whether doing so would prejudice other parties’ interests in the compensation determination.