Hall and 1 Ors v Transport Infrastructure Development Corporation
[2006] NSWSC 1076
•18 October 2006
CITATION: HALL & 1 ORS v TRANSPORT INFRASTRUCTURE DEVELOPMENTCORPORATION [2006] NSWSC 1076 HEARING DATE(S): 11 October 2006
JUDGMENT DATE :
18 October 2006JUDGMENT OF: Associate Justice Malpass DECISION: The notice of motion is dismissed. The second and fourth plaintiffs are to pay the costs of the notice of motion. CATCHWORDS: Review of decision of Registrar concerning entitlement to discovery - attempted reliance at review upon evidence not before the Registrar - failure to satisfy the Court that an order should be made - decisions on practice and procedure LEGISLATION CITED: Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)CASES CITED: Thomas v State of New South Wales [2005] NSWSC 1061 PARTIES: John HALL
Heather Maude LITHERLAND
TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATIONFILE NUMBER(S): SC 30078/04 COUNSEL: Mr B W Rayment QC (Pl)
Mr J Stoljar (Def)SOLICITORS: Morgan Lewis Attorneys (Pl)
Clayton Utz (Def)LOWER COURT JURISDICTION: LOWER COURT FILE NUMBER(S): 30078/04 LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe LOWER COURT DATE OF DECISION: 04/07/2006 LOWER COURT MEDIUM NEUTRAL CITATION: HALL & 3 ORS v TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE MALPASS
18 October 2006
JUDGMENT30078/04 John HALL & 1 Ors v TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION
1 His Honour: The second and fourth plaintiffs (the plaintiffs) are the owners of a property at Roseville (the property). It stands above a sub- terranean corridor (the corridor) which was compulsorily acquired for the purpose of the construction of the Epping to Chatswood railway line.
2 The plaintiffs allege that significant cracking has occurred in the building on the property since tunnelling and construction work occurred under it during 2005. It is further alleged that, by reason of that cracking, the surface of the overlying soil of the property has been disturbed and/or has been injuriously affected within the meaning of clause 2 of Schedule 6B of the Transport Administration Act 1988 (NSW).
3 The plaintiffs are two of the four plaintiffs that have brought proceedings in this Court against the Transport Infrastructure Development Corporation. The proceedings concern a claim for entitlement to compensation by reason of the disturbance and injurious affectation to the soil.
4 One of the defences raised in the proceedings is in the following terms:-
- “15…
- (a) if and to the extent that there is significant cracking (which is not admitted) to the Roseville Property, says that that cracking was not caused by the tunnelling and/or construction activities but was caused by shrink-swell movements of the surface soils unrelated to the tunnelling and/or construction activities; and
- […]”
5 The plaintiffs are two of the four plaintiffs that have brought proceedings in this Court against the Transport Infrastructure Development Corporation. The proceedings concern a claim for entitlement to compensation by reason of the disturbance and injurious affectation to the soil.
6 Discovery was sought of certain documents. A dispute arose between the parties and the dispute came before Assistant Registrar Howe. On 4 July 2006, the Registrar delivered written reasons for his decision to refuse to make any order for discovery at that stage in the proceedings.
7 The plaintiffs (by notice of motion filed 31 July 2006) now seek relief pursuant to Part 49 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). Rule 49.19 provides for a “review”. Other provisions contained in Part 49 throw up confusion as to the nature of the remedy intended to be provided by Rule 49.19 (Part 49 contains the words “review”, “appeal” and “application”). The notice of motion for appeal must specify the grounds relied on in support of the application. Some reference was made to this confusion and the nature of the remedy in Thomas v State of New South Wales [2005] NSWSC 1061. The better view may be that the “review” is now of the nature of an appeal.
8 The review came on for hearing on 11 October 2006. The plaintiffs sought to tender two affidavits that had not been placed in evidence before the Registrar. It was conceded that the affidavits contained material that was available to the plaintiffs at the time of the hearing before the Registrar. The Court has a discretion to receive further evidence. In this case, the tender was rejected. One of the reasons expressed for that rejection was that a hearing using that material would become a fresh hearing of the discovery application, as opposed to being a review of the decision of the Registrar (a decision which was made on the material that the parties had placed before him). Subsequent to the refusal of that tender, the plaintiffs elected to proceed on the evidence that had been before the Registrar.
9 The relevant categories of documents are set forth in Annexure A to an affidavit sworn by Mr Mazzone on 23 June 2006. They are also reproduced in Paragraph 9 of the Registrar’s reasons for decision (being the documents described in paragraphs 1,2 and 3 of Part A).
10 All categories are potentially of great width and relate to a substantial area of land. What is required is all documents relating to cracking on or at properties situated above the corridor. It seems to be common ground that the corridor is about 12 kilometres in length and about 60 metres in width. It does not seem to be in dispute that there are many properties located along at least a part of the corridor. The property itself is said to be located near the Chatswood end of the corridor.
11 The discovery provisions may be found in Part 21 of the Rules. The power to make an order is conferred by rule 21.2. It is a discretionary power. It is to be exercised having regard to the particular circumstances of the case before the Court and so that the dictates of justice are best served. The onus of satisfying the Court of an entitlement to an order rests with the applicant.
12 The evidence placed before the Registrar was short on probative material (largely it comprised communication passing between the parties). One document placed before him was a drawing entitled “Property Corridor – Stratum Levels”. It shows, inter alia, that there is considerable variation in depth between the surface soil and the corridor along its length. There is no evidence of other cracking.
13 An initial observation to be made is that the claim relates to cracking in the building which stands on the property. The discovery that is sought relates to a more general class of documents (documents which concern cracking on or at properties situated above the corridor).
14 The relevant question in this case is whether the tunnelling and construction work was the cause of the cracking to the building on the property of the plaintiffs. This is what the plaintiffs must establish and what has been put in issue by the defendant. The additional allegation concerning “shrink-swell movements” is, in reality, surplusage.
15 Any cracking elsewhere above the corridor may be the product of a variety of causes (including geological and environmental differences). Each incidence thereof could be expected to have its own individual circumstances.
16 One argument that was put was that the discovery was required to negative other causes. This was an argument that I did not find to be persuasive.
17 The defendant has taken the stance that the categories are too broad and has invited a narrowing of the scope of the categories. Such an approach has not been taken up by the plaintiffs.
18 Discovery disputes fall within the classification of questions of practice and procedure and largely are heard by Registrars. It is important that there be consistency in the decision making process. There is authority to support the view that the Court should exercise proper restraint in the substitution of its own view.
19 In the particular circumstances of this case, it is my view that the plaintiffs have failed to discharge the onus of satisfying the Court that an order for discovery should be made. This was the effect of the decision made by the Registrar. I do not consider that any basis has been demonstrated for the disturbing of his decision.
20 The notice of motion is dismissed. The second and fourth plaintiffs are to pay the costs of the notice of motion.
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