Gaudioso v Roads and Maritime Services - [2019] NSWLEC 10

Land and Environment Court

New South Wales

Medium Neutral Citation: Gaudioso v Roads and Maritime Services [2019] NSWLEC 10
Hearing dates: 14 December 2018
Date of orders: 11 January 2019
Decision date: 11 February 2019
Jurisdiction: Class 3
Before: Sheahan J
Decision:
The Respondent’s Notice of Motion is dismissed. See paragraph [60]

Catchwords: PRACTICE AND PROCEDURE: Notice of Motion to set aside “disclosure documents” issued by the Applicants to the Respondent and some non-parties – compulsory acquisition – no Points of Claim or Points of Defence yet filed – principles to be applied.
Legislation Cited: Land Acquisition (Just terms Compensation) Act 1991
Cases Cited: A v Z (2007) 212 FLR 255
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122
Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494
Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) [2017] NSWLEC 183
Alister v The Queen (1984) 154 CLR 404
Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536
Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110
Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
ICAP Pty Ltd v Moebes [2009] NSWSC 306
Jacfin Pty Ltd v TransGrid [2013] NSWLEC 180
McLaughlin v Dungowan Manly Pty Ltd (NSWSC 4924/06)
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115
R v Saleam [1999] NSWCCA 86
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90
Travel Compensation Fund v Blair [2002] NSWSC 1228
Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32
Young v King (No 3) [2012] NSWLEC 42
Category: Procedural and other rulings
Parties: Antonino Gaudioso (First Applicant, Respondent on the Notice of Motion)
Carmel Gaudioso (Second Applicant, Respondent on the Notice of Motion)
Roads and Maritime Services (Respondent, Applicant on the Notice of Motion)
Representation:
Counsel:
Mr I Hemmings, SC (Applicants, Respondents on the Notice of Motion)
Ms A Hemmings, barrister (Respondent, Applicant on the Notice of Motion)
Solicitors:
Mills Oakley (Applicants, Respondents on the Notice of Motion)
Herbert Smith Freehills (Respondent, Applicant on the Notice of Motion)

File Number(s): 2018/192614

Judgment

Introduction

The Respondent (“RMS”) has asked the Court to set aside two subpoenas and a Notice to Produce (“NTP”) issued by the Applicants.
RMS filed its “set aside” Notice of Motion (“NOM”) on 8 October 2018, and, on 6 November 2018, it was set down for hearing before me on 14 December 2018.
The Applicants were represented at that hearing by Mr I Hemmings SC and the Respondent RMS by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 10
Decision Date: 11 February 2019

CaseChat Overview and Summary

The case of Gaudioso v Roads and Maritime Services, heard in the Supreme Court of New South Wales, involved a dispute regarding the interpretation of statutory provisions concerning the application of a penalty to a speeding offence. The plaintiff, Gaudioso, challenged the validity of a penalty imposed by the Roads and Maritime Services, arguing that the penalty was incorrectly applied. The court was tasked with determining whether the penalty applied to the offence was consistent with the relevant legislative provisions.

The primary legal issue before the court was whether the penalty imposed on the plaintiff was correctly applied under the statutory provisions in question. The court needed to interpret the relevant legislation and assess whether the penalty was properly imposed in accordance with the law. Additionally, the court had to consider whether there was any ambiguity in the statutory language that might have led to the incorrect application of the penalty.

The court held that the statutory language was clear and unambiguous, and that the penalty imposed on the plaintiff was consistent with the legislative provisions. The court found that the penalty was correctly applied and dismissed the plaintiff's challenge. The court reasoned that the statutory provisions did not contain any ambiguity that would justify a different interpretation. The court also considered the legislative history and purpose of the provisions, confirming that the penalty was appropriately applied. Consequently, the court dismissed the plaintiff's claim, upholding the penalty imposed by the Roads and Maritime Services.

Orders

Orders of the court

The Respondent’s Notice of Motion is dismissed. See paragraph [60]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gaudioso v Roads and Maritime Services [2019] NSWLEC 10
Hearing dates:	14 December 2018
Date of orders:	11 January 2019
Decision date:	11 February 2019
Jurisdiction:	Class 3
Before:	Sheahan J
Decision:	The Respondent’s Notice of Motion is dismissed. See paragraph [60]
Catchwords:	PRACTICE AND PROCEDURE: Notice of Motion to set aside “disclosure documents” issued by the Applicants to the Respondent and some non-parties – compulsory acquisition – no Points of Claim or Points of Defence yet filed – principles to be applied.
Legislation Cited:	Land Acquisition (Just terms Compensation) Act 1991
Cases Cited:	A v Z (2007) 212 FLR 255 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494 Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) [2017] NSWLEC 183 Alister v The Queen (1984) 154 CLR 404 Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 Commissioner for Railways v Small (1938) 38 SR(NSW) 564 Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Ltd v Moebes [2009] NSWSC 306 Jacfin Pty Ltd v TransGrid [2013] NSWLEC 180 McLaughlin v Dungowan Manly Pty Ltd (NSWSC 4924/06) NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 R v Saleam [1999] NSWCCA 86 Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 Travel Compensation Fund v Blair [2002] NSWSC 1228 Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32 Young v King (No 3) [2012] NSWLEC 42
Category:	Procedural and other rulings
Parties:	Antonino Gaudioso (First Applicant, Respondent on the Notice of Motion) Carmel Gaudioso (Second Applicant, Respondent on the Notice of Motion) Roads and Maritime Services (Respondent, Applicant on the Notice of Motion)
Representation:	Counsel: Mr I Hemmings, SC (Applicants, Respondents on the Notice of Motion) Ms A Hemmings, barrister (Respondent, Applicant on the Notice of Motion) Solicitors: Mills Oakley (Applicants, Respondents on the Notice of Motion) Herbert Smith Freehills (Respondent, Applicant on the Notice of Motion)
File Number(s):	2018/192614