Rex J Andrews Pty Ltd v RTA

[2009] NSWSC 1063

CITATION:	Rex J Andrews Pty Ltd v RTA & Anor [2009] NSWSC 1063
HEARING DATE(S):	30 September 2009
JUDGMENT DATE :	8 October 2009
JUDGMENT OF:	Hoeben J
DECISION:	The plaintiff is to pay the costs of the first defendant (RTA) including the costs of the hearing before me on 30 September 2009. As between the plaintiff and the second defendant (the Council) each party is to pay its own costs.
CATCHWORDS:	Procedure - costs - summons for prerogative relief - issue of permit by RTA for movement of oversize load - matter resolved without hearing - what costs orders appropriate in circumstances - adjustment of costs orders having regard to conduct of parties.
LEGISLATION CITED:	Road Transport (General) Act 2005 Road Transport (Mass, Loading and Access) Regulation 2005
CATEGORY:	Separate question
PARTIES:	Rex J Andrews Pty Limited - Plaintiff Roads and Traffic Authority (NSW) - First Defendant Muswellbrook Shire Council - Second Defendant
FILE NUMBER(S):	SC 30089/2009
COUNSEL:	Mr I Archibald/Mr D Klineberg - Plaintiff Mr T Lynch - First Defendant Mr PW Larkin - Second Defendant
SOLICITORS:	Cragg Braye and Thornton - Plaintiff I V Knight, Crown Solicitor's Office - First Defendant Sparke Helmore Laywers - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday 8 October 2009

30089/2009 – REX J ANDREWS PTY LIMITED v ROADS AND TRAFFIC AUTHORITY (NSW) & Anor

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
By summons filed on 22 September 2004 the plaintiff sought the following relief:

1. That upon the undertaking by the plaintiff’s solicitor to pay the filing fee, leave be given for the plaintiff to file this Summons in Court.

2. Direction that the Summons be returnable today.

3. Order that the plaintiff’s claim be heard instanter and if there be no appearance by or on behalf of the defendants that the matter be heard on an ex parte basis.

4. Order in the nature of mandamus that prior to 10.00am on Wednesday 23 the first defendant perform its duty under s 27 of the Road Transport (General) Act 2005 to consider and determine Application No 105301 filed by I & E O’Keefe (Customer No 15019901) for a permit in relation to vehicle type – Prime Mover Registered No WOS – 025 and Trailing Units 230 QFH, 231 QFH and 655 QPH.

5. Declaration that, in determining an application under s 27 of the Road Transport (General) Act 2005 for an “excess permit” in relation to any specified mass, dimension, load restraint or access requirement imposed by an applicable road law the first defendant is not obliged as a matter of law prior to issuing the excess permit to require the applicant for the permit to obtain the consent of the Council of the local government area (“the Council”) for the issue of the excess permit in relation to those roads in respects of which the Council is the “roads authority” under s 7 of the Roads Act 1993.

…

8. Order that the defendant pay the plaintiff’s costs of these proceedings.

…”

2 The dispute between the parties has now been resolved. The only outstanding question is that of costs. It is that matter which has been argued before the Court and it is that matter to which this judgment relates.

Factual background

3 The plaintiff is a heavy haulage contractor. It provided transportation services for loads ranging from standard semi-trailers to large and heavy loads requiring complex multi articulated equipment. These latter loads were often oversize and a permit needed to be obtained from the first defendant (RTA) before transportation of these loads on public roads was permitted. The permit is given for particular travel on a particular route and accordingly, the route needs to be considered before the permit is granted.

4 The plaintiff had a contract with Toshiba Corporation to deliver transformers to various electricity substations in NSW which are operated by Transgrid. One component of the contract was to provide the transportation for two separate loads of three transformers from Newcastle to Mount Piper (near Lithgow) and to Wollar (near Rylstone). The Mount Piper load arrived in Newcastle in March 2009. The three Wollar transformers arrived in Newcastle on 20 September 2009 and unloading was completed on 22 September 2009.

5 The transformers were very large objects. When placed on a vehicle the approximate dimensions and mass of the vehicle transporting each transformer would be 75 m long; 5 m wide; 5.4 m high and 190 tonnes. Accordingly, before the loads could be transported, a permit was required from the RTA.

6 In mid March discussion took place between the plaintiff and the RTA concerning the transportation of the three transformers to Mount Piper. A route was agreed upon which involved a detour around Denman. The reason for this detour was that it was thought that the loads were too heavy to pass over the bridge over the Hunter River at Denman.

7 In those discussions Mr Andrews represented the plaintiff and Mr Munro, the RTA. Mr Munro advised Mr Andrews that the plaintiff needed to get the approval of the second defendant (the Council) because the roads comprising the detour around Denman were Council owned roads. Mr Munro was prepared to give verbal approval for movement over RTA controlled roads.

8 On 25 March 2009 conversations took place and emails were sent between Mr Andrews and Mr Higgins, on behalf of the Council, concerning the use of Council owned roads. These discussions culminated in an email from Mr Higgins to the effect that Council was not able to assess the strength of bridges on the route and would require an assessment by a suitably qualified engineer retained by the plaintiff. The plaintiff was also advised that works were being carried out on Wybong Road and the plaintiff was required to confirm that the vehicles could safely pass the location where these works were being carried out.

9 Because of the likely delays involved in obtaining an engineer to assess the bridges, Mr Andrews concluded that the plaintiff would be unable to respond satisfactorily to the Council’s concerns before the movement of the transformers to Mount Piper which was scheduled for 27 March 2009. The route eventually followed involved an additional 467 kms of travel, an additional 25 driving hours per transformer and an additional cost of $90,000.

10 In anticipation of the arrival of the three Wollar transformers, on 25 June 2009 Mr Andrews retained the services of Mr Thomsen-Wright from GHD, consultant engineers, to assess the bridges on Wybong Road between Muswellbrook and Sandy Hollow.

11 On 29 June 2009 Mr Andrews sent an email to Mr Higgins setting out the proposal for the movement of the three transformers, which included movement over two roads controlled by the Council, Kayuga Road and Wybong Road. On 30 June 2009 Mr Higgins sent an email enclosing a copy of a plan showing Wybong Road, the bridge crossings and a spreadsheet describing the loads.

12 On 22 July 2009 the plaintiff filed with the RTA an application for a permit to transport the Wollar transformers. I am told that the reference to “I and R O’Keefe” in the application is a reference to the name of the contractor driver who would be driving and who was the owner of the lead prime mover for each transformer. During this period the plaintiff was receiving updated assessments from Mr Thomsen-Wright concerning the bridges along Wybong Road. The plaintiff was also seeking from the Council and the RTA the plans and specifications of the bridges.

13 On 1 September 2009 Mr Andrews telephoned Mr Higgins to give him an update on the progress of the assessment. This led to the following exchange later that day.

Mr Higgins to Mr Andrews:

“Council had not heard from you for some time and had assumed that alternative routes had been found. In the meantime as a result of further applications staff has had discussions with Councillors who indicated an unwillingness to allow use of Council roads for over dimensioned and/or over mass vehicles. In my email of 25 March I advised that “subject to satisfactory advice in regard to” points raised in the email, “Council will consider approval of the use of these roads”, and we were advised on 26 March that there would be a detour.
I regret to advise that Council’s stance is that through traffic must use RTA roads or recognised heavy vehicle bypasses through town. I apologise for any misunderstanding and advise that no assurances had been given and that Council is the roads authority for these roads.”

Mr Andrews to Mr Higgins:

“We understood from your email forwarded to us on the 30.6.09 and the assistance that you provided in the emails that we would proceed with the bridge assessment. We then passed all the details onto GHD, who we were employing at a cost of $19,800 plus GST as per quote. We fully understand that we would need to indemnify Council for any damage and trust given the investment we have made on your email on the 30.6.09 that our intended movements subject to the bridges being suitable will proceed.”

14 On 3 September 2009 Mr Higgins sent the following email to Mr Andrews:

“I refer to your fax this afternoon which has been discussed with the Director Community Infrastructure and the General Manager.
As advised on 1 September Council had not heard from you for some time and had assumed that alternative routes had been found.
Council has received other applications which were refused as Council decided that local roads are for locals and are not appropriate for these loads and that the RTA had a network which should cater for such loads.
Council regrets that this advice was not made known to you earlier, but as explained above it was assumed that alternatives were available and had been used. Council therefore will consider a contribution to the studies of the bridges within the shire provided that Council is satisfied with the detail and has full rights to use the data for its asset management purposes. Please advise which of Council bridges have been investigated and what proportion of the study may be attributable to Council.”

15 On 11 September 2009 the plaintiff instructed Mr Thornton from Messrs Cragg Braye and Thornton, solicitors, to act on its behalf. By letter of the same date, Mr Thornton wrote to the Council as follows:

“I advise that I act for Rex J Andrews Pty Limited.
I have to advise that my client finds somewhat incredulous your assertion in the email sent by you on 3 September 2009 to Warwick Andrews that “local roads are for locals”.
Council is fully aware that my client’s proposed journey for the purpose of carrying transformers on behalf of Transgrid is from Newcastle to Wollar near Rylstone was still being investigated in August 2009 as inquiries were being made on their behalf by GHD as to the structural capability of bridges on the proposed route in August 2009.
I confirm the period of the journey using local roads will be approximately one hour and my client is, as you are aware, proposing to vary the route for the loads to travel along Bengalla Road, then Wybong Road, thereby minimising the time that the loan is on Wybong Road in the Muswellbrook Shire.
My client does not accept that you validly acted on an assumption that alternative routes had been found and does not accept that it is a proper use of Council power to prohibit the use of the roads for my client’s lawful purpose.
The alternative route is for my client via Gunnedah, Coonamble, Gilgandra, Dubbo, Gulgong then Mudgee which will take an additional two days per load thereby incurring an additional $12,000 - $15,000 per day resulting in between $78,000 and $90,000 additional transport costs for the load.
In addition, after Council having advised of bridges of concern my client has undertaken a review by GHD at the cost of $19,000 to assess the bridges that the loads will travel over. I am informed by my client that the proposed route poses no danger to either the road, the users thereof or the bridges. My client will make available a copy of the written report, however, the report will not be available in written form until 17 September 2009. My client is agreeable to GHD making available to Council a verbal report and to that end, the Council should contact Keith Thomsen-Wright, Senior Structural Engineer, Acting Service Group Manager, Singleton GHD, telephone [phone].
I note my client has previously advised that it will indemnify the Council in relation to any damage to roads under Council’s control.
I have to advise that my client’s first journey is scheduled for 18 September 2009 and accordingly I advise that absent a suitable response by close of business on Monday, 14 September 2009 I have instructions to commence proceedings without further notice for a mandatory injunction to enable my client to undertake the journeys planned and to seek indemnity costs against the Council.
The original of this letter will be called for on the question of costs should my client be successful in its application to the Court.”

16 On 15 September 2009 Ms Simmons of Sparke Helmore, Solicitors, contacted Mr Thornton to advise that they were acting for the Council and were taking instructions.

17 By email dated 17 September 2009 Mr Thomsen-Wright advised the plaintiff that the final report on the bridges was not yet ready. In that email he summarised the conclusions in the report. A copy of that email was sent on 17 September 2009 to Messrs Sparke Helmore.

18 The final report from GHD was received by the plaintiff on 21 September 2009. Mr Andrews sent copies of that report to Mr Higgins and Mr Munro on that day. A copy of the report was also forwarded to Messrs Sparke Helmore on 21 September 2009. Mr Munro responded as follows:

“The Roads and Traffic Authority Special Permits Unit is in a position to process the application and issue a specific permit for the transport of the transformers from Carrington to Wollar pending the approval from Muswellbrook Council for travel on route 3 as listed in the report from GHD.”

19 On 22 September 2009 Mr Thornton sent a copy of Mr Munro’s email to Sparke Helmore. At 10.57am on that day, Ms Simmons from Sparke Helmore advised Mr Thornton that “Council is not prepared to grant consent. I am sending you a letter setting out the reasons.”

20 This letter arrived at 12.06pm on 22 September 2009. It is too lengthy to replicate, but its effect was to refuse consent and to assert that insufficient time had been given to the Council to assess the GHD report. The letter goes on to express the Council’s concerns about the possible damage to bridges, culverts and roads as a result of the movement of the transformers and Council’s concern that providing consent would create a precedent.

21 It is common ground and was not disputed before me, that if the plaintiff were unable to use Council roads for the transportation of the Wollar transformers, the additional cost to it was in the order of $90,000. Because of the route eventually taken, the Mount Piper component of the contract was completed at a loss to the plaintiff.

22 The solicitors for the plaintiff advised the RTA and the solicitors for the Council that they intended to seek orders, as foreshadowed in their letter of 11 September, from the Duty Judge. The Council asked to be joined as a defendant in any such proceedings. On the afternoon of 22 September the matter came before the Common Law Duty Judge, Schmidt J.

23 All the parties were represented before her Honour. Her Honour made the procedural orders sought in the summons. The Council gave an undertaking to the Court that it would use its best endeavours to review and consider the GHD report by 4.30pm on Thursday, 24 September 2009. The matter was stood over to 25 September 2009.

24 On 22 September the Council engaged its own qualified structural engineer to assess the GHD report. Due to time constraints, this engineer was briefed to focus on the assessment of the Spring Creek Bridge which because of its age and the comments made in the GHD report, was of most concern to the Council amongst the four bridges assessed.

25 The issue between the plaintiff and Council as to the adequacy of the bridges along the route, in particular the Spring Creek Bridge, remained unresolved. The plaintiff and its engineer maintained that there would be little, if any, damage to the bridges whereas the Council’s engineer maintained that there was a moderate risk of damage occurring and that repeated loading at the levels proposed could cause long term problems.

26 On that issue and in relation to Council roads generally, the plaintiff’s position was that the proposed movement would only involve travel on those roads for an hour or so and that any resulting damage would be covered by the indemnity which it had offered to the Council. The Council continued to have concerns about long-term damage to its roads and the capacity of the plaintiff to safely negotiate the road works on Wybong Road.

27 When the matter came before the Court on 25 September 2009 it was adjourned to allow the RTA to carry out an independent inspection of the Spring Creek Bridge and the proposed route. This inspection was to take place on the afternoon of Monday, 28 September. Subsequently arrangements were made for engineers from all of the parties to meet at the bridge on that day.

28 The position of the RTA at this time is set out in the letter from the Crown Solicitor’s Office of 29 September 2009 to Mr Thornton which said:

“The Roads and Traffic Authority informed the parties that if it formed the view by the afternoon of 29 September 2009 that it would be appropriate to issue a permit it would advise the plaintiff so that the plaintiff could begin preparations for the transport of the load. If the RTA has not yet formed a view, or has formed a view that it would not be appropriate to issue a permit, it would inform the parties later in the week.”

29 When the matter came before the Court on 30 September 2009, I was advised that on the evening of 29 September an alternative route acceptable to all of the parties had been agreed to and the RTA had issued a permit. The plaintiff was at that time still intending to seek a declaration in terms of paragraph 5 of the Summons on the basis that this involved an important point of interpretation which would affect subsequent activities of the plaintiff. The first and second defendants opposed that matter proceeding as a “moot” point. Subsequently, the Court was advised that the plaintiff no longer wished to seek such an order and by consent, the summons was dismissed with the only outstanding matter being the question of costs.

Submissions

30 The plaintiff submitted that each party should pay its own costs of the proceedings. It submitted that the plaintiff was faced with an impasse where the RTA had in writing said that it would not make a decision on the permit unless the consent of the Council had been obtained. Council was on the record as saying that they would not consent. The plaintiff had a commercial imperative to ensure that something happened quickly and that is why proceedings were commenced. The plaintiff submitted that it was not without significance that the commencement of the proceedings had had the desired effect in that it had caused all of the parties to direct their attention more expeditiously to the question and within seven days of the proceedings being commenced, a resolution of the most urgent issue had been achieved.

31 In the course of argument the plaintiff accepted that the RTA could impose as a condition to the granting of a permit, that the consent of the Council be first obtained. It submitted that what the RTA could not do was to abrogate its responsibility to grant a permit and delegate that responsibility to another body such as the Council. It was always the obligation of the RTA to make its own decision as to the granting of a permit.

32 The plaintiff submitted that the impasse had been created by failure on the part of the RTA to make a decision one way or the other in relation to the granting of a permit. Once a decision was made then the plaintiff could consider the decision and whether it was liable to challenge on administrative law grounds. Until a decision had been made, however, the plaintiff could do nothing and that is why it had sought an order in the nature of mandamus against the RTA.

33 The plaintiff accepted that it had not sought any orders against the Council. It was common ground that the only reason the Council had been joined to the proceedings was at its own request as a party which had a real interest in the outcome of the application.

34 The plaintiff accepted that the GHD report had been served later than anticipated but submitted that this was due to delays in the RTA and Council providing the technical information requested by GHD in order the assess the bridges. The plaintiff submitted that the impasse remained, regardless of when the report was served and it was this impasse which needed to be resolved and which caused the proceedings to be commenced.

35 The RTA submitted that as between it and the plaintiff there was no impasse. It had made it clear to the plaintiff that it would grant a permit in respect of the roads which it controlled. It had then allowed negotiations to take place between the plaintiff and the Council to enable the consent of the Council to be obtained. It had not been made aware of the problems which had arisen between the plaintiff and the Council following 1 September. It was not approached and no communications took place between the plaintiff and it until the service of the GHD report shortly before the commencement of proceedings.

36 The RTA submitted that even if the Council’s position was irrational or influenced by extraneous or irrelevant considerations, the RTA was given less than 24 hours to consider the GHD report. This, it submitted, was unreasonable in the circumstances and more time should have been allowed to the RTA before the commencement of proceedings.

37 The RTA submitted that the proceedings had all the signs of having been hastily considered and hastily prepared. For example, the wrong legislation was referred to in the proceedings. Permits were not granted under s 27 of the Transport (General) Act 2005 but pursuant to clause 15 of the Road Transport (Mass, Loading and Access) Regulation 2005. The RTA submitted that whereas the commercial basis for the application was clear, its legal basis was unsound.

38 The Council submitted that as a public authority concerned about a risk to public safety if its bridges were damaged or if a collapse occurred as a result of overloading, it had a right to be represented in the proceedings. Its understanding of the proceedings was that orders would be sought compelling the issue of a permit allowing the use of its bridges. In those circumstances, it requested the plaintiff to join it in the proceedings so that it could be heard on that issue and resist any such orders.

39 The Council then made a number of submissions concerning the merits of the dispute between it and the plaintiff and canvassed the dangers associated with a load of this kind using its bridges which were not constructed for it. By reference to apparent anomalies in the various interim GHD reports, the Council submitted that it had been justified in adopting the stance which it did. While conceding that part of its motivation may have been due to a change of policy by the councillors, it submitted that there remained a proper engineering basis for its concerns.

40 Otherwise the Council adopted the submissions of the RTA. It submitted that the provision of the GHD report less than 24 hours before the commencement of proceedings, gave the Council insufficient time to consider the report and to obtain its own engineering assessment.

Consideration

41 As with all matters of this kind, the initial difficulty which confronts a court is that no hearing on the merits has taken place. Where there are factual issues, the evidence on those issues is of necessity not complete and that evidence has not been tested under cross-examination. In making its decision the Court can only look at the outcome and at those matters and evidence which were not in dispute.

42 There was no evidence as to the precise nature of the outcome. The Court was, however, told from the bar table without any demur on the part of the plaintiff that the route which was ultimately agreed to was a different one to that which was proposed by the plaintiff. Apparently the agreed route does not involve any Council roads. On the afternoon of 29 September, a further application was made for a different permit in respect of that alternative route and the RTA granted that permit (T.6).

43 In relation to the substantive orders sought in the summons (orders 4 and 5), there is considerable force in the submissions of the RTA.

44 On the only evidence before the Court, it is clear that the RTA had not been kept up to date with the state of negotiations between the plaintiff and the Council. In particular, the RTA had not been advised of the break down in negotiations from 1 September 2009. The state of knowledge of the RTA immediately before the commencement of proceedings was that negotiations were continuing between the plaintiff and the Council as to use of Council roads.

45 The service of the GHD report on the RTA and the commencement of proceedings against it within 24 hours thereafter, did not allow sufficient time for the RTA to assess the GHD report, take account of the position of the Council and make its own decision in relation to the permit. At the very least the RTA would have required time to assess the GHD report by reference to either engineering reports obtained by the Council or by reference to its own engineering expertise.

46 The plaintiff’s submissions did not answer that proposition. Its position was that an impasse had arisen and that the commencement of legal proceedings was necessary to break that impasse. What the submission did not address was the fact that the impasse was between the plaintiff and the Council, not between the plaintiff and the RTA.

47 I have concluded that in the circumstances it was unreasonable of the plaintiff to commence proceedings against the RTA when it did. At that time the RTA had not had an adequate opportunity to assess the GHD report, to assess the position of the Council and on the basis of those assessments, make its own determination as to whether or not it should issue a permit. Moreover, at the time when the proceedings were issued the RTA had not in terms or otherwise refused to issue a permit. It follows that at the time the proceedings were commenced no proper basis had been established for the making of order 4 in the summons.

48 In relation to order 5, I have concluded that this order is misconceived. The RTA was not asserting that it was obliged as a matter of law to obtain the consent of the Council for the issue of a permit. What it had said to the plaintiff was that before it was prepared to issue a permit in respect of a route which included Council controlled roads, the plaintiff should obtain the consent of the particular Council concerned. As the plaintiff conceded in argument that was an appropriate condition to impose. If such consent were not forthcoming then the RTA would have to consider its position and the question of whether a permit should be issued in that circumstance. At the time when proceedings were commenced that circumstance had not yet arisen. It cannot be said that at that time the RTA had abrogated its responsibility for the issuing of permits or had improperly sought to delegate that responsibility to the Council.

49 Given the flawed nature of the summons and the fact that it was issued prematurely, the RTA should have its costs of these proceedings.

50 The position of the Council is different. No orders were sought against it. Although it had an interest in opposing the issuing of a permit which would have allowed the plaintiff to use roads controlled by it such as would justify it being a party to the proceedings, it was not necessary that it be joined. Its joinder took place as a result of representations made by it to the plaintiff.

51 When one looks at the wording of the summons, it is clear that the interests of the Council could have been adequately protected without it being joined as a party. One would anticipate that the Council would have communicated its concerns to the RTA and there is nothing to suggest that the RTA would not have had full regard to those concerns. The RTA would have done so in reaching a decision as to whether or not to grant a permit, in any negotiations into which it entered with the plaintiff or in relation to any submissions made on its behalf to the Court.

52 The need for the Council to be party to the proceedings becomes more problematic when one looks at the nature of the application. It is not an application inviting the Court to make a decision as to whether the RTA should issue a permit in favour of the plaintiff. It is an application based on administrative law principles seeking an order that the RTA make a decision. On that comparatively narrow issue, the Council’s position would have been adequately protected by the RTA and it was not necessary for the Council to be represented, although as I have indicated, it probably had standing to apply for representation.

53 I am of the opinion that the more reasonable approach for the Council would have been to wait for the proceedings to be issued and to decide then whether it wished to be separately represented when it saw the form of those proceedings and any affidavits in support.

54 Accordingly, because it was the Council which asked to be joined in the proceedings, and because of the nature of the proceedings, I am not persuaded that the Council should have an award of costs in its favour. The appropriate order should be that the Council pay its own costs.

Conclusion

55 The orders which I make are as follows:

(1) The plaintiff is to pay the costs of the first defendant (RTA) including the costs of the hearing before me on 30 September 2009.

(2) As between the plaintiff and the second defendant (the Council) each party is to pay its own costs.

**********