Reysson Pty Ltd v Roads and Traffic Authority of New South Wales (No 2)
[2011] NSWLEC 168
•23 September 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Reysson Pty Ltd v Roads and Traffic Authority of New South Wales (No 2) [2011] NSWLEC 168 Hearing dates: 23 September 2011 Decision date: 23 September 2011 Jurisdiction: Class 3 Before: Pepper J Decision: Hearing date for preliminary question vacated and orders made in accordance with the short minutes of order.
Catchwords: PROCEDURE: application to vacate hearing of preliminary question on the basis that expert evidence was required to meet what was initially believed to be uncontroversial expert surveying evidence - expert evidence required to verify surveying evidence - if evidence verified the preliminary question would be wholly resolved - hearing date vacated Legislation Cited: Civil Procedure Act 2005 ss 56, 58, 59, 60 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Reysson v Roads and Traffic Authority [2011] NSWLEC153Category: Procedural and other rulings Parties: Reysson Pty Ltd (Applicant)
Roads and Traffic Authority of New South Wales (Respondent)Representation: Mr Gough (Solicitor) (Applicant)
Ms Davis (Solicitor) (Respondent)
Storey & Gough Lawyers (Applicant)
Corrs Chambers Westgarth Lawyers (Respondent)
File Number(s): 30921 of 2010
EX TEMPORE Judgment
The Roads and Traffic Authority of New South Wales Seeks to Vacate the Hearing of a Preliminary Question
This is an application brought by the Roads and Traffic Authority of New South Wales ("the RTA") to vacate the hearing of a preliminary question listed on 29 September 2011.
The reason for doing so is contained in an affidavit of Ms Kirsty Davis affirmed 22 September 2011. Ms Davis is the solicitor employed by Corrs Chambers Westgarth Lawyers, the solicitors acting on behalf of the RTA.
Essentially, the reason for seeking the vacation of the hearing date is to respond to the expert evidence of Mr Philip Wyper, a registered surveyor, filed by the applicant in the proceedings. The reply evidence is envisaged to be in the form of technical advice from an engineer and/or a surveyor.
The RTA has briefed Mr Paul Parker, a civil engineer, and a registered surveyor to advise on the content of Mr Wyper's affidavit. Mr Parker has indicated that it will take approximately a week and a half for himself and the surveyor to review the material and provide advice to the RTA.
A Separate Preliminary Question is Ordered
The applicant, Reysson Pty Ltd ("Reysson"), filed the affidavit of Mr Wyper on 8 September 2011. However, an unfiled version of this affidavit, albeit excluding the affidavit's exhibits, had previously been provided to the RTA.
The unfiled version of the affidavit had been provided to the RTA when the matter came before Craig J on 2 September 2011, for the purpose of determining whether or not a separate question ought to be determined prior to the principal proceedings being heard.
The Court determined that the separate question should proceed (Reysson v Roads and Traffic Authority [2011] NSWLEC 153). That question is as follows (at [3]):
Whether development consent DA 92/118 granted by Tweed Council on 21 January 1993 has lapsed.
The background facts giving rise to the application for the determination of the separate question and to this application are contained in the judgment of Craig J, namely, that on (at [4]-[9]):
4 On 21 January 1993, Tweed Shire Council (the Council) granted development consent for a 34 lot residential subdivision on a substantial part of the acquired land. The consent contemplated that the development would be undertaken in stages. The expert planning and valuation prepared on behalf of Reysson for the purpose of the hearing assumed that this development consent was an operative consent at the date upon which that land was acquired by the respondent. Amended points of claim filed by Reysson on 10 May 2011 pleaded that the consent was operative and that its claim for compensation was founded upon that premise. Correspondence passing between the Council and Reysson's consultants in 1997 and 1998 would appear to provide some foundation for that premise.
5 By its points of defence filed on 6 July 2011, the respondent does not appear to challenge the fact that the 1993 development consent for subdivision was granted in respect of the land. However, it alleges that the consent lapsed on 21 January 1998 and thus denies that Reysson is entitled to rely upon the consent for the purpose of determining the compensation payable.
6 Its contention that the consent had lapsed is founded upon an allegation that such work as had been carried out on the land prior to 21 January 1998 did not amount to a commencement of the consent within the meaning of the relevant provision of the Environmental Planning and Assessment Act 1979. The respondent contends that such work did not accord with the requirements of conditions 8 and 9 of the development consent.
7 Receipt of the points of defence is said to be the first intimation received by Reysson of the respondent's intention to argue that the 1993 consent was not operative at the date of acquisition. As I have said, Reysson's evidence had been prepared on the premise that the consent was so operative.
8 Whether the 1993 development consent was an operative consent at the date of acquisition is important to be determined. So much is agreed between the parties. It is an important question to be determined when considering the highest and best use of the land for the purpose of determining its "market value" in accordance with s 56 of the Just Terms Act.
9 A further matter to be noticed by way of background is that the difference between the parties as to the amount of compensation payable is significant. The amount claimed by the applicant in accordance with its amended points of claim is the sum of $15,845,305.17 of which the sum of $14,737,000.00 is attributed to the market value of the land. For its part, the respondent has not yet identified the final figure for which it will contend, although by its points of defence says that the amount to which Reysson is entitled is no more than "that specified in the determination of compensation" by the Valuer-General in accordance with s 47 of the Just Terms Act. The "market value" of the land so determined was the sum of $4,117,303.00.
After reciting the principles applicable to determining whether a separate question should be ordered pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, Craig J noted that the "voluminous expert evidence" prepared on behalf of the RTA had been prepared under the assumption that the 1993 consent was not operative as at the date of acquisition (at [11]) and that issue having now been enlivened, there was utility in the determination of the separate question because:
(a) the issue was severable and collateral to the principal issues in the proceedings and determination of the preliminary question had the prospect of substantially narrowing the field of controversy between the parties with a likely significant saving of time and costs;
(b) the evidence and facts necessary to determine the question of whether the consent had lapsed were "uncontroversial" (at [13] and [14]); and
(c) the determination of the question would have a significant bearing on the admissibility or the utility of a significant portion of the expert evidence sought to be relied on by the RTA, including, if the question is determined in the negative, a cost savings to Reysson in engaging experts to prepare reports addressing issues that could ultimately found to be irrelevant. This, in turn, would enable the Court to more realistically, and therefore more efficiently, determine the hearing time required to be allocated to the final hearing of the proceedings (the two to four week hearing estimate would likely be reduced to one).
Before Craig J Mr Wyper was described as "a surveyor involved in activities upon the subject land at the relevant time" (at [13]). Presumably on the basis of a concession made by Mr N Eastman appearing on behalf of the RTA (or at least that is what I infer), Mr Wyper's evidence "was acknowledged to be uncontentious" (at [13]).
Having read Mr Wyper's affidavit for the purpose of this application this concession is unremarkable. The affidavit is not extensive, comprising of approximately four pages of text and 21 pages of what are described as "exhibits", but which should be more accurately characterised as annexures to the affidavit. The annexures comprise a one page curriculum vitae of Mr Wyper, notes of two telephone conferences and handwritten field notes. The affidavit itself describes the surveying work undertaken by either Mr Wyper or employees under his supervision of the subject land. This work includes the establishment of the external boundaries of the land, the placement of survey control marks, the location of critical sewers and man holes, the carrying out of lot calculations, the placement of timber stakes, dumpy pegs, galvanised iron piping, drill hole and wing's in concrete, the placement of markers and the observation of levels.
The position that the RTA now finds itself in is that contrary to the submission or concession it made to the Court before Craig J on 2 September 2011, it appears that the material contained in Mr Wyper's affidavit may in fact be contentious, although in what respect could not be clearly identified and articulated by the RTA.
The reason for this change in position by the RTA appears to be that after a conference with, in particular, senior counsel for the RTA on 22 September 2011 to consider in detail the content of Mr Wyper's affidavit, it became apparent that the RTA required expert evidence to meet the material contained in Mr Wyper's affidavit, particularly the field notes annexed to his affidavit.
Specifically, Ms Davis states in her affidavit that the RTA requires the identification of:
(a) whether or not the works said to be carried out by Mr Wyper go to the preparation of the plans referred to in condition 9 of the development consent DA 921118 granted by Tweed Shire Council on 21 January 1993 which provides " Under no circumstance shall engineering works commence prior to approval of the complete set of engineering drawings "; and
(b) whether or not those works could be said to otherwise be " engineering work " for the purpose of s.95(4) of the Environmental Planning and Assessment Act 1979.
Reysson Consents to the Vacation
Mr Gough, appearing for Reysson, informed the Court that all of the material annexed to Mr Wyper's affidavit had in fact been served on the RTA as at the date of the motion before Craig J. Critically, he stated that the field notes now complained of were contained in a bundle of documents that were in the RTA's possession at the time of that application.
Notwithstanding that the RTA had in its possession all, or at least all of the contentious, material annexed to Mr Wyper's affidavit and an unfiled copy of that affidavit when it agreed to have the preliminary question set down for hearing, Mr Gough indicated to the Court that Reysson nevertheless consented to the vacation of the hearing date. This was because it had been communicated to him by the RTA that if the contents of Mr Wyper's affidavit were verified by the experts retained by the RTA, then the RTA would almost certainly concede that physical work had commenced on the subject land and that the development consent had therefore not lapsed.
That is to say, the preliminary question would be decisively answered thereby obviating the necessity for a hearing.
Ms Davis did not seek to resile from this statement.
The Hearing Date is Vacated
In light of this information, the Court is of the opinion that to vacate the hearing would be to facilitate the "just, quick and cheap" resolution of the real issues in the preliminary dispute (see s 56 of Civil Procedure Act 2005 ("the CPA")). The Court was motivated to arrive at this conclusion by the belief of Mr Gough that if the material contained in Mr Wyper's affidavit is confirmed by the RTA then there will be no need to hear the separate question, with the attendant savings in costs and time to the parties and to the Court.
Although the Court has been inconvenienced insofar as hearing time was allocated to the determination of the preliminary question, which is time that could have been allocated to another matter (see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [23] and [30]), it would neither be " just " nor " cheap " to compel the parties to proceed with the hearing of the preliminary question that may be readily resolved in its entirety upon further investigation by the RTA. In arriving at this conclusion the Court has had regard to the dictates of justice as contained in s 58 of the CPA, together with the strictures on the exercise of its power to vacate contained ss 59 and 60 of that Act.
It should be noted, however, that but for the consent of Reysson, and the reason underpinning that consent, the Court would have been reluctant to grant the vacation of the hearing date given that it appears that all of the material that the RTA now maintains is, or may be, in dispute in Mr Wyper's affidavit, was in the possession of the RTA at the time it consented to the hearing of the preliminary matter being set down before Craig J on 2 September 2011.
As a consequence of the vacation of the hearing date of the separate question, it is appropriate that consequential orders are made for the preparation, and setting down, of the hearing of the separate question.
Accordingly, the Court makes the orders, as amended by it, contained in the short minutes of order handed up to the Court.
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Decision last updated: 26 September 2011
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