public works. · public works. [1955. (3) the principal act as amended by this act may be cited as...

1955.] Public Works. [No. 59.

PUBLIC WORKS.

4° Elizabeth II., No. LIX.

No. 59 of 1955.

AN ACT to amend the Public Works Act, 1902-1954.

[Assented to 13th December, 1955.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent

of the Legislative Council and the LegislativeAssembly of Western Australia, in this presentParliament assembled, and by the authority of thesame, as follows:—

1. (1) This Act may be cited as the Public aiciflattilmWorks Act Amendment Act, 1955.

(2) In this Act the Public Works Act, 1902-1954,Act No. 47 of 1902 as reprinted as amended byActs Nos. 8 of 1906 and 60 of 1926 in the Appendixto the Sessional Volume of Acts, 1927, and asfurther amended by Acts Nos. 35 of 1933, 41 of1945, 23 of 1950, 48 of 1953 and 3 of 1954,

is referred to as the principal Act.

No. 59.] Public Works. [1955.

(3) The principal Act as amended by this Act maybe cited as the Public Works Act, 1902-1955.

S. 17amended. 2. Section seventeen of the principal Act is

amended

(a) by adding after the section designation,"17" the subsection designation, " ( 1)";

(b) by adding after the word, "may" in linetwo, the passage, ", subject to the provisionsof subsection (2) of this section";

(c) by adding subsections as follow

(2) (a) In this subsection, "occupier"of any land means a person who, in exer-cise of a right of possession, is in actualoccupation of the land, but does notinclude anyone who is in occupation ofthe land merely as a member of the familyor household of that person.

(b) Before the publication of the noticereferred to in subsection (1) of this sec-tion, the Minister shall cause to be pub-lished in the Government Gazette a noticeof intention to take or resume the landwhich notice is to include the followingparticulars:—

(i) The place where persons inter-ested may at any reasonable timeinspect a plan of the land;

(ii) a statement of the nature of thework proposed to be carried out;and

(iii) a description of the land required.

(c) As soon as possible after thepublication in the Gazette of the noticeof intention to take or resume the landin accordance with the provisions of


paragraph (b) of this subsection or ofa notice cancelling or amending the noticeof intention in accordance with the pro-visions of subparagraph (iii) of para-graph (d) of this subsection the Ministershall-

(i) cause a copy of the notice to bepublished in one issue of a news-paper circulating in the districtin which the land is situated;

(ii) cause a copy of the notice to beserved on the owner or each ofthe owners, and on the occupieror each of the occupiers of theland, residing within the State,or such of them as can withreasonable diligence be ascer-tained, either personally or byregistered letter posted to theirlast known place of residence;

(iii) cause a copy of the notice to bedelivered to the Registrar ofTitles if any land referred totherein is under the operation ofthe Transfer of Land Act, 1893,to the Registrar of Deeds if anyland referred to therein is notunder the operation of that Act,and to the Minister for Lands ifa register is kept by the Depart-ment of Lands of any landreferred to therein.

(d) (i) Within thirty days after thepublication in the Gazette of the noticeof intention to take or resume the landor such further time as the Minister mayallow, any person having an estate orinterest in the land as owner or occupiermay, by himself or jointly with any otherperson so qualified, serve on the Minister


at the office of the Department of PublicWorks written objections to the takingor resuming of the land, not having refer-ence to the matter of compensation, whichobjections are to include a description ofthe land, the nature of the estate orinterest of the objector or objectorstherein, the address of the objector orobjectors and the grounds of objection.

(ii) The Minister may, by notice servedon an objector either personally or byregistered letter posted to his address asshown in his objections, notify the objec-tor that he may make representations insupport of his objections in such mannerand at such time and place as the noticespecifies.

(iii) The Minister shall consider theobjections and representations as aremade pursuant to the notice, and havingdone so, if he is of the opinion that theobjections are sufficient to warrant thecancellation or amendment of the noticeof intention to take or resume any land,he may, by subsequent notice publishedin the Gazette, cancel or amend, as thecase requires, the notice of intention.

(iv) Where a subsequent noticeamending a notice of intention to takeor resume land includes land not beforeincluded in the amended notice, theprovisions of this section apply to thesubsequent notice as though it were anotice of intention to take or resume thatland.

(e) Where at the expiry of thirty daysor such further time as is allowed by theMinister after the publication of thenotice of intention to take or resume anyland no objections are received by theMinister from any owner or occupier, or


where the objections, if any, received byhim are in his opinion not sufficient towarrant the cancellation or amendmentof the notice and in the foregoing cases,the approval or authorisation, if required,for the undertaking, constructing orproviding of the public work, is dulyobtained, the provisions of subsection (1)of this section shall apply as though thissubsection had not been enacted.

(3) (a) (i) A person shall not enterinto any transaction affecting land whichis included in a current notice of inten-tion to take or resume land except withthe consent in writing of the Minister,unless the transaction is one mentionedin subsection (4) of this section.

(ii) A transaction affecting land whichis included in a current notice of inten-tion to take or resume land, not beinga transaction mentioned in subsection(4) of this section, if entered into withoutthe consent in writing of the Minister, isvoid.

(b) An application for the Minister'sconsent under this subsection shall be inwriting and the Minister may require anyperson who is a party to a proposed trans-action in respect of which an applicationfor the Minister's consent is made, tofurnish in writing, supported or not ashe may require, by statutory declaration,such particulars of the proposed trans-action as the Minister requires to enablehim to determine whether any party tothe transaction is fully aware of theimplications of the notice of intention totake or resume the land.


(c) Where the Minister is of theopinion that any party to a transactionmentioned in paragraph (a) of this sub-section, but not being a transaction men-tioned in subsection (4) of this section,is not fully aware of the implications ofthe notice of intention to take or resumethe land affected by the transaction, andthat the party would, if his consent weregiven, be likely to incur loss, the Ministermay withhold his consent to the trans-action.

(d) Except as provided in this para-graph, a notice of intention to take orresume any land has no force or effectafter the expiry of one year after thepublication of that notice in the Gazette.

(4) The provisions of subsection (3) donot affect any transaction

(a) to which the State or Common-wealth, or any authority of theState or Commonwealth, or aperson acting on behalf of theState, the Commonwealth orthat authority, other than thePublic Trustee, is a party;

by which land is acquired on saleunder a writ or warrant of execu-tion issued out of any court;

by way of discharge of a mort-gage or sub-mortgage;

by way of partition between co-owners;

by way of deed of arrangementbetween beneficiaries under awill or settlement;

vesting in the personal represen-tative of a deceased person, in hiscapacity as such, any land orinterest in any land;

1955. Public Works. [No. 59.

(g) which vests any land, or anyinterest in land, in any trusteeof the estate of a deceased per-son, in a trustee in bankruptcy,or in any new trustee under anyinstrument, in his capacity astrustee;

(h) which is without considerationin money or money's worth andthe purpose of which is to vestany land, or any interest inland, in any person beneficiallyentitled thereto, under or byvirtue of any will or intestacy orby way of gift; or

(i) by way of a deed of assignmentor deed of arrangement underthe Bankruptcy Act, 1924 of theParliament of the Common-wealth, or any Act passed inamendment of, or substitutionfor, that Act.

(5) Upon the publication in theGazette of a notice of intention to takeor resume any land or of a notice cancel-ling or amending or extending the opera-tion of one,—

so far as it affects land under theoperation of the Transfer of LandAct, 1893—

the Registrar shall make in the documentof title relating to the land a record ofthe notice of intention and of the cancel-lation or amendment or extension, if any,thereof;

so far as it affects land which is notunder the operation of that Act-


the Registrar of Deeds shall by memorialin the Register of Deeds make a recordof the notice and of the cancellation oramendment or extension, if any, thereof;and

so far as it affects land subject to theprovisions of the Land Act, 1933,excepting such land as is under theoperation of the Transfer of LandAct, 1893—

the Minister for Lands shall cause to bemade in the appropriate register relatingto the land a record of the notice and ofthe cancellation or amendment or exten-sion, if any, thereof.

(6) The Registrar of Titles, the Ministerfor Lands or any other appropriate officershall, upon submission for registration ofany instrument relating to a transactionin connection with land included in acurrent notice of intention to take orresume land, require the production ofthe consent in writing of the Minister, ifhis consent is required to that trans-action, or such evidence as he thinksnecessary that the transaction to whichthe instrument relates is not in contra-vention of any of the provisions of sub-section (3) of this section, and may refuseto register the instrument until thatconsent or evidence is produced to him;but the Registrar of Deeds is not boundto require the production of that consentor evidence unless he has reason to believethat the transaction is one affecting landwhich is included in a current notice ofintention and that the consent in writingof the Minister is required under subsec-tion (3) of this section.


(7) The provisions of subsections (2)to (6) inclusive of this section apply onlyto land taken or resumed on or after theday of the coming into operation of thePublic Works Act Amendment Act, 1955.

3. The principal Act is amended by adding after S. added.

section seventeen a new section as follows:—

17A.(1) At any time after the publication in it irtsi,rntsi sme ythe Gazette of a notice of intention to take or Vreaggb„resume any land, a person authorised in writing times etc.by the Minister may at all reasonable timeslawfully enter upon the land for the purposeof inspecting the land or making an assessmentof compensation payable for the taking orresumption thereof.

(2) The provisions of subsection (1) of thissection do not prejudice or otherwise affect theprovisions of section thirteen, section ninety-seven or section one hundred and twelve of thisAct.

3A. Section eighteen of the principal Act is amended.amended by substituting for the words, "such 119.Tiof,e) of

notice" in line one the passage, "the notice referredto in subsection (1) of section seventeen of this Act".

4. Subsection (1) of section twenty-three of the amended.principal Act is amended by adding after the words, MAO:""referred to in" in line eight of paragraph (d) the s• (a))•passage, "subsection (1) of".

5. Section twenty-nine of the principal Act is ;22sapcaled andrerepealed and re-enacted as follows:— -enacted.

29. (1) Where any land held, taken, resumed ,',nArao,t,myor otherwise acquired under this or any other be sold, etc.

Act, or in any other manner, for any publicwork, is in the opinion of the Governor notrequired for that work, subject to the provisionsof this section, it may be sold by public auction


or private contract or used by the Minister orthe local authority in which it is vested for anyother public work.

(2) Where the land referred to in subsection(1) of this section is to be sold, the Ministershall cause a notice to be published in theGazette to the effect that the land is availablefor sale and shall cause a copy of the noticeto be served on such person or persons as appearto him to have had an estate in fee simple inthe land immediately prior to the taking,resumption or acquisition, either personally orby registered letter posted to their last knownplace of abode; but the service of a notice underthis subsection does not imply an acknowledg-ment by the Minister of any right in the personor persons to be granted an option under theprovisions of paragraph (c) of subsection (3)of this section.

(3) (a) A person who, immediately prior tothe taking, resumption, or acquisition, as thecase may be, had an estate in fee simple in theland may, subject to paragraph (f) of this sub-section, within three months after the publica-tion in the Gazette of the notice referred to insubsection (2) of this section, apply to theMinister for an option to purchase the land.

(b) Where within that period the Ministerdoes not receive any application for an optionto purchase the land or where he has for goodcause refused the application or the applica-tions received by him, he shall inform theGovernor or, if the land is vested in the localauthority, the local authority, that no personis entitled to be granted an option to purchasethe land.

(c) Where the Minister is satisfied that aperson qualified to apply under paragraph (a)of this subsection has applied for an optionwithin the prescribed period, he shall, subjectto paragraph (d) of this subsection, grant anoption to that person.


(d) The Minister shall grant the option onsuch terms and conditions including, withoutlimiting the generality of the conditions whichmight be imposed, a condition prohibiting theoption holder from assigning the option, and,subject to subsection (6) of this section, onpayment of such purchase price, as in his.opinion are reasonable having regard to all thecircumstances prevailing at the time of thetaking, resumption or acquisition, as the casemay be, and to the merits of each application;or he may refuse to grant an option to anyperson who, if required so to do, does not pro-duce the consent in writing of all other personswho prior to the taking, resumption or acquisi-tion, had a qualified, partial or joint interestin the land, whether by way of security or not,to the grant of an option to him.

(e) (i) Where the Minister receives applica-tions for two or more options in respect of thesame land, he may grant such of the applica-tions and determine such order or priority forthe exercise of the options granted as he thinksfit.

(ii) The Minister's decision on any matterreferred to in this paragraph or in paragraph(c) or (d) of this subsection is final.

(f) For the purposes of this subsection alegal representative of a deceased person whohad an estate in fee simple in the land immedi-ately prior to the date of the taking, resumptionor acquisition is to be regarded as entitled toapply for and, subject to paragraphs (c), (d)and (e) of this subsection be granted, an optionto purchase the land only if he has power topurchase the land in his representativecapacity, but a beneficiary of a deceased personwho immediately prior to that date had anestate in fee simple in the land, and a personwho prior to that date sold or contracted tosell, or otherwise alienated or disposed of his


estate in fee simple in the land whetherabsolutely or on terms are not entitled to applyfor or be granted an option to purchase theland.

(4) (a) Where the land to be sold under thissection is vested in a local authority the Minis-ter shall, as soon as possible after granting theoption or options, as the case may be, undersubsection (3) of this section, furnish the localauthority with particulars of all options grantedin respect of that land and shall not thereaftergrant any option in respect thereof.

(b) The local authority shall on complianceby the option holder or holders with the termsand conditions, if any, imposed by the Minister,be bound by the option or options granted bythe Minister in respect of any land vested in itas though the option were validly granted bythat local authority.

(c) A local authority shall not sell any landvested in it for any public work without theconsent of the Governor to the sale and shallnot apply for the Governor's consent exceptthrough the Minister nor until it receives fromthe Minister particulars of all options grantedin respect of the land or the information thatno person is entitled to be granted an option inrespect thereof.

(5) Where the Minister has informed theGovernor or the local authority, as the caserequires, that no person is entitled to be grantedan option in respect of any land to be sold underthis section or where the option or optionsgranted have not been duly exercised and haveexpired, the Governor, or where the land isvested in a local authority, the local authoritywith the consent of the Governor, may, afternotice published in the Gazette, cause the landto be sold by public auction or private contract,or the land may be used by the Minister or thelocal authority for any other public work.


(6) Where the total amount of compensationor consideration has been paid by the Ministeror the local authority for the land which is tobe sold under this section, the purchase pricepayable by an option holder is not to exceed theaggregate amount of the compensation orconsideration and the value of improvements,if any, made on the land by the Minister orauthority subsequent to the taking, resumptionor acquisition as the case may be.

6. The principal Act is amended by adding after S 29A Addeo

section twenty-nine a new section as follows:—

29A. (1) Where land taken, resumed or r,,cerzyri ,„acquired for any public work under this Act is srlemcopelestmay

not being used for that work, a person who, if !‘„,1],neigiTirntoa notice had been published in the Gazette to the ]vahnedtitia'eneffect that the land was available for sale, would 1:4,:e73]tc,,have been entitled under the provisions of sec- public work.

tion twenty-nine of this Act to apply for anoption to purchase the land, may by applicationin writing to the Minister request him to ascer-tain whether, in the opinion of the Governor,the land is or is not required for the work.

(2) On receipt of the application, the Minis-ter shall, if it appears to him that the applicantis a person who would have been so entitled toapply for an option, refer the application to theGovernor for decision, and when a decision ismade shall communicate it to the applicant.

(3) Where, after a decision is made by theGovernor that any land is required for the workfor which the land was taken, resumed oracquired, an application under subsection (1)of this section is received by the Minister withina period of twelve months after the decision wasmade, the Minister may, without referring theapplication to the Governor, communicate thatdecision to the applicant.


(4) Where, upon an application under sub-section (1) of this section, the Governor'sdecision is that the land is not required for thatwork, the Minister shall, as soon as practicableafter communicating the decision to the appli-cant, cause a notice to be published in theGazette as provided in subsection (2) of sectiontwenty-nine of this Act.

7. Section thirty-six of the principal Act isrepealed and re-enacted as follows:-

36. (1) Except where a direction for thehearing of a claim is made by a Judge undersection thirty-nine of this Act

(a) where land is taken or resumed priorto the coming into operation of thePublic Works Act Amendment Act,1955, a person is not entitled to makea claim for compensation under thisAct in respect of that land, after theexpiry of two years after the publica-tion in the Gazette of the notice takingor resuming the land; but where theclaim is for compensation under sectionthirteen or section one hundred andthirteen in respect of acts committedprior to the coming into operation ofthe Public Works Act Amendment Act,1955, a person is not entitled to makethe claim after the expiry of one yearafter the commission of the acts com-plained of;

(b) where land is taken or resumed afterthe coming into operation of the PublicWorks Act Amendment Act, 1955, aperson is not entitled to make a claimfor compensation under this Act inrespect of that land, after the expiryof six months after the publicationin the Gazette of the notice taking orresuming the land; but where the claim

S. 36repealed andre-enacted.

PeriodLimited formakingclaim forcompen-sation.


is for compensation' under sectionthirteen or section one hundred andthirteen in respect of acts committedafter the coming into operation of thePublic Works Act Amendment Act,1955, a person is not 'entitled to makethe claim after the expiry of six monthsafter the commission of the acts com-plained of.

(2) (a) Any period (whether it has expiredor not) limited by subsection (1) of this sectionfor making a claim for compensation under thisAct may, on the application of a person desirousof making a claim, be extended by the Ministerif he is satisfied that the application is reason-able and made in good faith.

(b) At the expiry of the appropriate periodso limited or extended, as the case may be, noaction or proceeding shall lie against the Minis-ter or local authority in respect of any claimfor compensation.

8. Section forty-six of the principal Act is T.;;Taled andrepealed and re-enacted as follows:— re-enacted•

If title notdisputedclaim to neexamined

the service of the claim tyhs 90and

under section forty-one of offer'

this Act, or

(ii) compliance with thedemand, if any, made forfurther particulars undersection forty-two of thisAct

if the claimant's title is not dis-puted, or is disputed only as topart of the land, or

46. (1) (a) Within ninety days after

(i)

SixthSchedule.


(b) where a judgment of the Courtunder section forty-five of thisAct is in favour of the claimant'stitle, within ninety days afterthe judgment of the Court,

the respondent shall cause the claim to beexamined, and a report made as to the value ofthe land and as to the damage sustained by theclaimant by reason of the taking.

(2) As soon as possible after the report isreceived by the respondent the respondent shallserve on the claimant in one of the forms inthe Sixth Schedule an offer of compensationwith respect to the land or part of the land thetitle to which is not disputed or is decided inthe claimant's favour, as the case may be, andthe offer when served is to be regarded as anadmission of the claimant's title to the land inrespect of which it is made.

(3) As soon as practicable after making suchoffer (but subject to all the other provisionsof this Act) the respondent shall on applicationby the claimant pay to the claimant, as and byway of an advance or interim payment onaccount of the compensation, an amountequivalent to two-thirds of the amount of theoffer and such payment may be so received andretained by the claimant without prejudice tohis rights under section forty-seven or any otherprovision of this Act.

S. 96A added

Claim andoffer mayhe amended.

9. The principal Act is amended by adding aftersection forty-six a new section as follows:-

46A. At any time before a claim for compen-sation is settled in full, if proceedings fordetermination of the amount of compensationhave not been commenced in any Court, theclaimant may with notice to the respondentamend the claim only as to the amount claimedand the respondent may with notice to theclaimant amend the offer of compensation.


S. 47amended.10. Section forty-seven of the principal Act is

amended

(a) by adding after the word, "offer" in lineone of subsection (1) the passage, "oramended offer, as the case may be,";

(b) by deleting the words, "and nominating anassessor to act for the claimant" in linesfour and five of subsection (1);

(c) by adding after the word, "offer" in line twoof subsection (2) the passage, "or the offeras amended, as the case may be,".

11. The principal Act is amended by adding aftersection forty-seven new sections as follow:—

47A. Where notice rejecting an offer oramended offer of compensation is served on therespondent, the compensation payable to theclaimant may be determined by any one of thefollowing methods

(a) by agreement between the respondentand the claimant; or

(b) by an action for compensation by theclaimant against the respondent; or

(c) by reference of the claim to the Com-pensation Court.

47B. If the respondent fails to serve on theclaimant an offer of compensation within onehundred and twenty days after

(a) the service of the claim under sectionforty-one of this Act, the claim nothaving been amended; or

(b) receiving notice of amendment, wherethe claim is amended under sectionforty-six A of this Act; or

Ss. 47A-47Dadded.

Method ordeterminingcompensa-tion whenoffer rejected.

If offernot madewithin120 days ofservice ofclaimclaimantmay com-menceproceedings.


(c) compliance with the demand, if any,for further particulars under sectionforty-two,

notice disputing the claimant's title in wholeor in part not having been served on theclaimant as prescribed by this Act; or

(d) the judgment, if any, of the Courtunder section forty-five of this Act, if

in favour of the claimant's title,the claimant may either

institute an action for compensationagainst the respondent

Claimantfailing toproceed afterservingnotice ofrejection ofoffer onrespondent.(Cf. s. 39ante.)

orrefer his claim for compensation to theCompensation Court.

47C. (1) Where a claimant does not, withinsix months after serving on the respondent anotice rejecting the offer or amended offer asprovided by section forty-seven of this Act,institute an action for compensation againstthe respondent or refer his claim for compensa-tion to the Compensation Court, the Ministeror local authority, as the case may be, mayafter giving thirty days' notice to the claimantmake an application to a Judge, accompaniedby the rejected offer and the claim for compen-sation, for determination of the compensationand thereupon the Judge may direct the offeror the amended offer, as the case may be, tobe accepted or the claim to be heard and deter-mined by a Compensation Court under this Act.There is no right of appeal against a Judge'sdirection under this subsection.

(2) Where the Judge directs a claim to beheard by the Compensation Court under thissection, and the claimant fails to make a validappointment of an assessor to act for theclaimant, the Judge may appoint an assessor toact in that Court for the claimant.


(3) The Compensation Court shall, subjectto this Act, hear and determine the claim andits determination is final.

(4) If the claimant, after due notice, fails toattend the hearing, the Master, or some personnominated by him, may represent the claimantand act on his behalf in all matters incidentalto the claim or the hearing; and the moneyspayable as compensation shall be paid into theSupreme Court and held there subject to theprovisions of section seventy-two.

47D. (1) (a) A claimant shall not commence V..orhecnornactionor maintain an action for compensation except Reens section

as provided in Section 47A or 47B of this Act, (V. Cith.nor unless he gives to the respondent thirty 5. 37,(43rj.".days' notice before instituting proceedings.

(b) Where under this Act a person may bringan action for compensation, the action may beinstituted and maintained in a court of com-petent jurisdiction and shall be heard anddetermined in the same manner as ordinaryactions, with ordinary rights of appeal in regardto the amount of compensation awarded or toany question of law or fact or of mixed law andfact; but where provision is made for any matterbefore the Court to be determined by a jury, theJudge or magistrate, as the case requires, shalldetermine the matter without a jury.

(2) Where an action for compensation hasbeen instituted in respect of the taking orresumption of any parcel of land, the Courtmay, on the application of the defendant, byorder direct any other person claiming compen-sation in respect of the taking or resumptionof that parcel of land, or who appears to havehad, at the date of the taking or resumption, anestate or interest in that parcel of land, to joinas a plaintiff in the action within a timespecified in the order.

(V. Cith.1906, No. 13,s. 37 (3), (4)(5)).


(3) If the person so ordered fails to join asa plaintiff in the action within the time specifiedin the order, he is absolutely debarred thereafterfrom instituting an action for compensationagainst the defendant or from referring to theCompensation Court any claim for compensa-tion in respect of that parcel of land.

(4) Where, by reason of the joinder of a newplaintiff or otherwise, the total compensationclaimed in an action for compensation in a LocalCourt exceeds the amount up to which thatCourt has jurisdiction, the Local Court shallrefrain from proceeding further with the actionwhich shall, on application to the Supreme Courtby any party to the action, be removed to theSupreme Court, and shall proceed in that Courtas if it had been instituted in that Court.

(5) If the title of the claimant to any part ofthe land taken or resumed is being disputed, theproceedings under this section shall, unless theclaimant admits the objections to his title, beadjourned pending the judgment of the Courton that issue under section forty-five.

(6) (a) On the trial of the action the Courtshall,

(i) determine the amount of compensationpayable by the defendant to the plain-tiff in respect of the taking or resump-tion of the land, having regard solelyto the provisions of this Act and inparticular to the matters prescribed insections sixty-three, sixty-three A,sixty-four, sixty-five, sixty-six andseventy-nine;

where two or more persons are entitledto share the compensation, determinethe amount payable to each person andthe manner in which it is to be paid.

(b) The costs of the action are in the dis-cretion of the Court.


12. Section forty-eight of the principal Act is WI:nded

amended

(a) by substituting for subsections (1) and (2)the following subsections:

(1) (a) Where a claimant rejects anoffer and desires to refer his claim to theCompensation Court, he shall, after theservice of, or simultaneously with, thenotice rejecting the offer referred to insection forty-seven, serve on the respon-dent the appointment of an assessor inthe form in the Eighth Schedule together rethetahuiewith the consent and declaration relat-ing thereto in the form set out in theNinth Schedule. Ninth

Schedule.

(b) A claimant who desires to referhis claim to the Compensation Courtunder section forty-seven B shall serveon the respondent the appointment of anassessor and the consent and declarationrelating thereto in the forms respectivelyset out in the Eighth and Ninth Eighth and

NinthSchedules. Schedules.

(c) Within thirty days after the receiptby the respondent of the appointment bythe claimant of an assessor, the respon-dent shall-

(i) where the offer is rejected undersection forty-seven,

either

amend his offer by increasingthe amount of compensationstated therein

or

appoint an assessor and serve onthe claimant a copy of theappointment in the form set outin the Eighth Schedule; or eighth

Schedule.


(ii) where an offer has not been pre-viously served on the claimant

either

serve on the claimant an offerof compensation

or

EighthSchedule

appoint an assessor and serveon the claimant a copy of theappointment in the form set outin the Eighth Schedule.

(2) (a) If within thirty days after theservice on the respondent of the appoint-ment of an assessor by the claimant, therespondent does not, as the case requires-

(i) amend the offer by increasingthe amount of the compensationreferred to therein, or

(ii) appoint an assessor and serve acopy of the appointment on theclaimant, or

(iii) serve on the claimant an offer ofcompensation,

the claimant may make application to theMaster for the appointment of an assessorto act for the respondent and the Mastershall appoint an assessor accordingly.

(b) Upon the service on the claimant ofthe copy of the appointment of assessor bythe respondent, or upon the appointmentof an assessor by the Master under thissection or a Judge under section thirty-nine or forty-seven C or upon the execu-tion of an agreement under section fifty-two the amount of compensation to bepaid shall be determined by the Compen-sation Court. ;

(b) by adding after the word, "upon" in lineone of subsection (3) the words, "notice of".


S. 52amended.13. Section fifty-two of the principal Act is

amended

(a) by adding after subsection (1) the follow-ing subsection:—

(la) Where the claimant and respond-ent fail to agree as provided in subsection(1) of this section a Judge may, on theapplication of the claimant appoint aperson to hear and determine the claimand specify the fee to be paid to him forhis services. ;

(b) by adding after subsection (3) the follow-ing subsection:

(3a) (a) If the determination of theperson appointed to hear and determinethe claim under this section is not accept-able to a party, that party may, aftergiving, within thirty days after the deter-mination is made known to him, noticeto the other party, apply to a court ofcompetent jurisdiction, in which anaction for compensation might be insti-tuted, to determine the claim.

(b) Where the party giving noticeunder paragraph (a) • of this subsectionfails so to apply to a court of competentjurisdiction within sixty days after thenotice was given to the other party, theother party may apply to a court of com-petent jurisdiction to determine theclaim.

(c) Where an application is made byeither party to a court of competentjurisdiction under this section the courtshall hear and determine the claim andthe provisions of section forty-seven Dof this Act shall apply mutatis mutandis.

P.A.amended.


14. The principal Act is amended

(a) by substituting for the word, "Court" inthe heading immediately preceding sectionfifty, the words, "Compensation Court";

(b) by adding after the word, "Hearing" in theheading immediately preceding sectionfifty-six, the words, "by the CompensationCourt";

(c) by substituting for the heading, "TheAward" immediately preceding sectionsixty-three the heading, "CompensationHow Ascertained".

S63amended 15. Section sixty-three of the principal Act is

amended

(a) by adding before the word, "awarded" inline two the words, "offered, paid, or";

(b) by adding after the word, "taken" in linetwo the words, "or resumed";

(c) by substituting for the passage commenc-ing with the words "first day" and endingwith the words "such notice" in lines three,four, live, six, seven and eight of paragraph(a) the words "sixtieth consecutive daypreceding the date of the gazetting of thenotice of the taking or resumption";

(d) by substituting for the proviso to paragraph(a) the following proviso:

Provided that where any building orother improvements have been made onsuch land after the sixtieth consecutiveday preceding the date of the gazettingof the notice of the taking or resumptionbut before the date of the gazetting ofthat notice, or, in the case of a railway orother work authorised by a special Act.


after the first day of January or the firstday of July, as the case may be, last pre-ceding the first day of the session asaforesaid, but before the date of thegazetting of the notice of the taking orresumption, the value of those buildingsor improvements shall be allowed, notexceeding their actual cost. ;

(e) by adding a proviso to follow the proviso toparagraph (a) as follows:—

Provided also that

(1) where a notice of intention to takeor resume any land is published inthe Gazette, whether or not thatnotice is amended by a subsequentnotice, the date of the gazetting ofthe notice first referred to in thisproviso shall, in order to ascertainthe value of the land for the pur-poses of paragraph (a) of thissection, be regarded as the date ofthe gazetting of the notice of thetaking or resumption of the land;

(ii) where land which is entered undersection one hundred and twelve issubsequently taken or resumed,the date of first entry under thatsection shall, in order to ascertainthe value of the land for the pur-poses of paragraph (a) of thissection, be regarded as the date ofthe gazetting of the notice of thetaking or resumption of the land;

(f) by inserting after paragraph (a) the fol-lowing paragraph:—

(aa) The loss or damage, if any, sustainedby the claimant by reason of-

(i) removal expenses; or

(ii) disruption and reinstatementof a business; or


(iii) the discontinuance of buildingworks in progress at the datewhen such land is taken orresumed and the terminationof building contracts in con-sequence thereof; or

(iv) architect's fees or quantitysurveyor's fees actually in-curred by the claimant inrespect to proposed buildingsor improvements which cannotbe commenced or continued inconsequence of the taking orresumption of such land; or

(v) any other facts which therespondent or the Court con-siders it just to take intoaccount having regard to thecircumstances of each case. ;

( g ) by substituting for paragraph (c) thefollowing paragraph:

(c) Where the land is taken or resumedcompulsorily-

(i) the respondent may include inthe offer of compensation suchamount, not exceeding ten percentum of the amount of com-pensation determined underthis section, as the respondentconsiders sufficient, for com-pulsory taking; or

(ii) if a Court is determining theamount of compensation, theCourt may include in theaward such amount, notexceeding ten per centum ofthe amount of 'compensationdetermined under this section,as the Court deems proper, forcompulsory taking.;


(h) (i) by adding after the word, "taken"occurring firstly in line one andsecondly in line four of paragraph (d),the words, "or resumed";

(ii) by adding after the word, "date"in line four of paragraph (d) the words,"of the payment of compensation orthe date";

(iii) by adding before the word, "shall" inline four of paragraph (d) the passage,"whichever occurs first";

(iv) by adding after the word, "annum" inthe last line of paragraph (d) thepassage, "or such higher rate as therespondent or the Court considersadequate, having regard to the circum-stances of each case";

(i) by adding after paragraph (d) the follow-ing paragraph:

(e) (i) Where the land taken or resumeddoes not produce any rent orprofits, interest shall, subject tosubparagraph (ii) of this para-graph, be paid on the amountof compensation ascertainedunder this section. The rate ofinterest shall be the rate rulingas at the date of the taking orresumption, in respect of over-draft accommodation grantedby the Commonwealth TradingBank of Australia.

(ii) The interest is payable from thedate of the service of the claimon the respondent to the date ofsettlement of the claim, or wherethe land was entered for theconstruction or carrying out ofthe work prior to the taking orresumption, from the date of


entry to the date of settlementof the claim; but if the compen-sation awarded by the Compen-sation Court or other court ofcompetent jurisdiction is notmore than the amount offeredby the respondent, the com-pensation shall only bearinterest to the date when theoffer was served on the claimant.

(iii) Subject to subparagraph (ii) ofthis paragraph, when anyamount representing an advancepayment of the compensation ispaid to a claimant, interest ispayable on the total amount ofcompensation only to the dateof the first of such payments,and is payable thereafter only onthe balance outstanding fromtime to time.

S. 63A added.

Apportion-ment of ratesand taxes.

16. The principal Act is amended by adding aftersection sixty-three a new section as follows:-

63A. (1) (a) Where the land was notoccupied by or on behalf of or through theclaimant at the time of the taking or resump-tion all rates and taxes which, under theprovisions of any Act are a charge on the landand are payable or paid by the claimant, shallbe apportioned between the claimant andrespondent as at the date of publication in theGazette of the notice taking or resuming theland.

(b) Where the land was occupied by or onbehalf of or through the claimant at the timeof the taking or resumption, the rates and taxesreferred to in paragraph (a) of this subsectionshall be apportioned between the claimant andrespondent as at the date when possession wasgiven up by the claimant to the respondent or


when by agreement with the respondent theclaimant ceased to be responsible for the pay-ment of rates and taxes.

(2) On the apportionment of rates and taxesin accordance with the provisions of subsection(1) of this section

(a) the aggregate amount, if any, due bythe claimant as rates and taxes at thedate as at which the rates and taxesare required to be apportioned shall, ifnot paid by the claimant, be deductedfrom the amount of the compensation;

(b) the aggregate amount, if any, paid by adeathe claimant as rates and taxes inrespect of any period subsequent to thedate as at which the rates and taxesare required to be apportioned, shallbe added to the amount of compensa-tion.

(3) The provisions of this section apply toany land taken or resumed, except land for thetaking or resumption of which the compensa-tion has, at the date of the coming into operationof the Public Works Act Amendment Act, 1955,been paid or settled in full.

17. Section sixty-four of the principal Act is s 64

amended by adding before the word, "awarded" amended.

occurring firstly in line two and secondly in linethree, the passage, "offered, paid or".

18. Section sixty-five of the principal Act is itigndedamended by substituting for the word, "Court" inline one the words, "Compensation Court or thecourt hearing the action for compensation".

3. 66amended.

P.A.amended.


19. Section sixty-six of the principal Act isamended

(a) by substituting for the word, "Court" inline one the words, "Compensation Courtor the court hearing the action for com-pensation";

(b) by substituting for the word, "they" in linetwo the word, "it";

(c) by substituting for the word, "they" occur-ring twice in line five the words, "theCourt".

20. The principal Act is amended by adding asa heading immediately preceding section sixty-seventhe words,

"Assessors' Fees, Costs and Award ofCompensation Court."

S. 67amended.

S. 68amended.

21. Section sixty-seven of the principal Act isamended by substituting for the passage "shall beentitled to a fee for every day upon which he attendsa sitting of the Court" in lines one and two, thepassage, "who is a member of the CompensationCourt shall be entitled to a fee".

22. Section sixty-eight of the principal Act isamended

(a) by adding after the word, "party" in linetwo of subsection (1) the words, "are inthe discretion of the Compensation Courtand";

(b) by adding after the word "the" in line fourof subsection (1) the word, "Compensa-tion";

(c) by repealing subsection (2).


23. Section seventy-one of the principal Act is amended.amended by substituting for the words, "niake itsaward" in line one the passage, "give reasons for,and make its award,".

24. Section seventy-two of the principal Act is amended.amended

(a) by substituting for the word, "either" inline five of subsection (3) the word,"whether";

(b) by adding after the words, "CompensationCourt" in lines five and six of subsection(3) the passage, ", the Court hearing anaction for compensation,";

(c) by adding after the words, "CompensationCourt" in the last line of subsection (3) thewords, "or a Court hearing an action forcompensation".

25. Section seventy-five of the principal Act is amendedamended

(a) by adding after the word, "is" in line onethe words, "payable or";

(b) by adding after the word, "taken" in thelast line the words, "or resumed".

26. Section seventy-five A of the principal Act is.2aSsee5nAded.amended— (V. No. 48

of 1953, 8. 5.)

(a) by adding after the word, "is" in line twothe words, "payable or";

(b) by adding after the word, "taken" in thethird and the last lines the words, "orresumed".

S. 79amended.

S. 81amended.

SeventhScheduleamended.


27. Section seventy-nine of the principal Act isamended

(a) by adding after the words, "CompensationCourt" in line two the words, "or a courthearing an action , for compensation";

(b) by deleting the word, "Compensation" inline eight.

28. Section eighty of the principal Act isamended

(a) by adding after the word, "shall" in linenine the passage, ", as the case requires,";

(b) by adding after the word, "certify" in linenine the passage, "that pursuant to theprovisions of section twenty-nine of thisAct a notice to the effect that the land wasavailable for sale was duly published in theGazette and that no person is entitled to begranted an option to purchase the land orthat the option or options granted in respectthereof have not been duly exercised andhave expired, and".

29. Section eighty-one of the principal Act isamended by adding after the word, "Act" in linetwo the passage, ", or on the apportionment of ratesand taxes as provided in section sixty-three A ofthis Act,".

30. The Seventh Schedule of the principal Actis amended by deleting the words, "I herewithenclose a notice appointing an assessor on my behalf,together with a copy of his consent and declaration"in the last three lines of the notice.

public works. · public works. [1955. (3) the principal act as amended by this act may be cited as...

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