Smith v Rail Access

[2002] NSWSC 776

CITATION:	Smith v Rail Access [2002] NSWSC 776
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4794/97
HEARING DATE(S):	20/08/02, 21/08/02
JUDGMENT DATE:	3 September 2002
PARTIES :	Ronald David Smith - Plaintiff Rail Access Corporation - First Defendant Railway Services Authority of New South Wales - Second Defendant Richard Morrissey - Third Defendant Eric O'Connor - Fourth Defendant Mr Hutchinson - Fifth Defendant
JUDGMENT OF:	Barrett J

COUNSEL :	Plaintiff in person Mr M Dempsey - Defendants
SOLICITORS:	Plaintiff in person Allens Arthur Robinson - Defendants
CATCHWORDS:	Res judicata - no question of principle
CASES CITED:	Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
DECISION:	Summons dismissed

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 3 SEPTEMBER 2002

4794/97 – RONALD DAVID SMITH v RAIL ACCESS CORPORATION & ORS

JUDGMENT

Background

1 By summons filed on 17 November 1997, the plaintiff claims relief against “Rail Access Authority”, “Rail Services Authority” and certain individual members of the staff of the State’s railway service. Notices of appearance were lodged by Rail Access Corporation and Rail Services Authority of NSW (as well as the individuals). Certain of the events relevant to the plaintiff’s claims occurred before 1 July 1996 when certain assets, rights and liabilities of State Rail Authority of New South Wales were vested by a statutory process in Rail Access Corporation. For present purposes, nothing really turns on the distinctions between the several statutory bodies and I shall use the term “the Authority” to refer to all of them in a collective way.

2 The plaintiff owns a property of some 100 acres at Hexham adjoining a stretch of the Authority’s railway line between Sandgate station to the south east and Hexham station to the north west. This stretch of line forms part of the main northern railway. Looking at things on a larger scale viewed from the plaintiff’s property, Sandgate is towards Newcastle and Sydney, while Hexham is towards Maitland and Queensland.

3 The plaintiff’s land lies to the south west of the railway. To the north east of the railway at a distance which appears from photographs in evidence to be roughly twenty metres, is the Pacific Highway. Further to the north east, beyond the Pacific Highway, is the Hunter River. The railway, the Pacific Highway and the Hunter River are roughly parallel at this location and quite close together.

4 Immediately to the north west of the plaintiff’s land and also abutting the south western boundary of the railway is a parcel of land in other ownership referred to, for convenience during the hearing, as “the Coal and Allied land”. I adopt the same nomenclature here. The Coal and Allied land abuts the railway for quite some distance from the north eastern corner of the plaintiff’s land to Hexham station and beyond.

5 In earlier times, the plaintiff had access to his property from the nearby Pacific Highway by means of a railway crossing at a point where the railway shares a boundary with his land. However, that access is no longer available to the plaintiff because the railway crossing has been closed by the Authority. There is nothing in the evidence before me to call in question this closing. As a result of the closing of the crossing, the plaintiff’s way to and from his land is now along a road running parallel with the railway along its south western side, that is, the opposite side to that on which the highway and the river are situated. By using that road, the plaintiff can leave the north eastern corner of his property at the Coal and Allied boundary and travel beside the railway past Hexham station to a point where the road joins another road somewhat short of Tarro station, which is the next station on the line beyond Hexham in the direction of Maitland. There is an overpass at Tarro leading to the highway.

6 A fence exists along part of the boundary between the railway and the plaintiff’s land. At its south eastern end, the fence begins some distance to the south east of the site of the former railway crossing. From that commencement, it extends in a north westerly direction along the remainder of the boundary between the plaintiff’s land and the railway and for a quite considerable distance along the boundary between the Coal and Allied land and the railway. The road providing access to the plaintiff’s property is adjacent to the part of the fence on the boundary between the Coal and Allied land and the railway, the road being, of course, on the side of the fence away from the railway itself. The fence thus divides the road and the Coal and Allied land from the railway. It is common ground that this fence was constructed by the Authority in 1999. That fence is relevant to these proceedings. I call it, for convenience, “the 1999 fence”.

7 Also relevant to the proceedings are two concrete constructions which allow water to drain under the railway and towards the river. One of these is at a point on the railway adjacent to the boundary between the plaintiff’s land and the railway somewhat to the south east of the site of the former crossing. This was referred to in the course of the hearing as “the culvert” and again I shall use the same terminology here. The culvert is described as a box culvert. It is, in appearance, a rectangular concrete tunnel running under the railway embankment from one side to the other. At the end of the culvert further from the plaintiff’s land, there is an open watercourse running to a second culvert which allows water to pass under the Pacific Highway and thence to the Hunter River. A floodgate is attached to the river end of this second culvert to stop water from the river (which is tidal at that point) backing up into the drainage channels.

8 The second water or drainage installation is the “stormwater drain”. It is located at a point on the railway quite some way to the south east of the south eastern end of the boundary between the plaintiff’s land and the railway and beyond a street named Shamrock Street when travelling towards Sandgate station. Like the culvert, the stormwater drain carries water under the railway towards the river. It is a concrete pipe.

The plaintiff’s claims

9 The plaintiff is self-represented and the summons filed on 17 November 1997 to which I have already referred was drafted by him and filed in handwritten form. By that summons, the plaintiff sought fifteen orders plus “compensation an [sic] costs”. On 8 August 2001, Master McLaughlin ordered that all but four paragraphs of the summons be struck out. Those remaining, in addition to the claim for compensation and costs, were as follows:

“6. An order that the defendants clean all stormwater drains/pipes/tunnels etc and remove all of their disused equipment (steel/timber/stone) obstructing natural water flow from my property to the Hunter River (natural flow).
7. An order that the defendants replace stockproof fencing, three cattle grids and 2 x 14 foot gates (ea. side of access road) extending approx. 3 kms – destroyed &/or removed by rail authority over past 13 yrs.
8. An order that the defendants remove all tyres/sleepers & all rail equipment from my property – deposited and/or disturbed – during the period May 1984 to end of Aug 1997.”

10 I heard these proceedings over almost two full hearing days. The plaintiff appeared in person. The defendants were represented by Mr Dempsey of counsel instructed by Messrs Allens Arthur Robinson.

The 1996 proceedings

11 Consideration of the plaintiff’s claims is most constructively undertaken against the background of an appreciation of proceedings that the plaintiff instituted against the Authority in the Common Law Division and in which Studdert J gave judgment on 16 August 1996. I shall refer to these as “the 1996 proceedings”.

12 In the 1996 proceedings, the plaintiff made complaints against the Authority in respect of all three areas of concern which have been agitated in the present proceedings. So far as fencing and gates are concerned (paragraph 7 of the summons in the present proceedings), Studdert J made findings as follows:

1. As a result of discussions in May 1984, an agreement was made between the plaintiff and the Authority under which the Authority was permitted to enter the plaintiff’s land for purposes connected with maintenance or reconstruction of the railway and, for that purpose, to remove fencing and a gate. It was a term of the agreement that the Authority would be permitted to deposit a stockpile of material required in the execution of the work and that that work would be undertaken with reasonable expedition and competence so as not to disturb the plaintiff’s use of the land for any longer or to any greater extent than was reasonably required.

2. At the time of the May 1984 discussions, there was no internal fencing on the plaintiff’s property and none of the plaintiff’s boundaries was securely fenced. In particular, there was no fencing on the boundary of the plaintiff’s land with the Coal and Allied land.

3. As at May 1984, there was no stockproof fencing on the Coal and Allied land and no stockproof fencing along the boundary between the Coal and Allied land and the railway, that is, along the section of the railway running from the north eastern corner of the plaintiff’s property towards Hexham station, being the section where the 1999 fence now stands.

4. There was however a relatively short piece of fencing immediately beside the plaintiff’s gates (at the railway crossing, which still existed at the time of the 1996 proceedings) and to the north west towards Hexham station. This was removed by the Authority and not replaced.

5. The plaintiff’s property was not stockproof at any material time and the work carried out by the Authority did not prevent the plaintiff from doing what he might otherwise have done either in stocking his property or in providing it for agistment.

6. The Authority did not leave the plaintiff’s property effectively less secure for stock purposes than it had been before the Authority’s entry.

7. The Authority did not promise to the plaintiff that it would erect stockproof fencing along the boundary of the Coal and Allied land with the railway – as his Honour observed, “Indeed, it would have been most surprising had it done so”.

8. The Authority did agree to restore fencing for a limited distance to the north west of the railway crossing at the plaintiff’s property and failed to do so as promised.

13 With respect to drainage (the subject matter of paragraph 6 of the plaintiff’s summons in the present proceedings), Studdert J found that, by a letter dated 3 November 1992, the Authority had accepted a responsibility toward the plaintiff to remove from the culvert material obviously originating on the railway which was partially obstructing it and otherwise to clear out the culvert. It was conceded by the Authority before Studdert J that that promise had not been performed.

14 With respect to tyres and other debris on the plaintiff’s property (the subject matter of paragraph 8 of the summons in the present proceedings), his Honour found that a massive stockpile of material had been placed on the plaintiff’s property by the Authority for the purposes of the repair or reconstruction work. The plaintiff conceded in the 1996 proceedings that that material had been cleared up by the Authority in a reasonable fashion in about 1991 and no claim was made by the plaintiff for any cost of removal. Studdert J also found that there was a quantity of old tyres on the plaintiff’s property which had not been put there by the Authority but had been moved by it in such a way that tyres became embedded in the ground. As a result of the embedding, the plaintiff faced additional cost in complying with an order of the Land and Environment Court that he remove the tyres from his property, since it would first be necessary to dig them up and stack them. Studdert J found that the Authority had a liability to the plaintiff in respect of the cost of that work.

15 The 1996 proceedings entailed a number of claims relating to matters not relevant to the current proceedings. In relation to the matters of present relevance, Studdert J awarded damages of $800 for breach of the Authority’s promise to replace the small amount of fencing, $14,000 damages “to enable the plaintiff to attend to the drain problem” (ie, clearing of the culvert which, on his Honour’s findings, the Authority had agreed to clear) and $2,500 “for the cost of repositioning the tyres on the plaintiff’s property”. These elements formed part of a total award of damages and interest of $42,660.

The effect of the prior adjudication

16 It is axiomatic that, to the extent that the 1996 proceedings determined rights and liabilities of the parties with respect to the issues there litigated, those issues cannot now be litigated again. The relevant principles are summarised in the opening paragraph of a paper entitled “A Closer Look at Henderson v Henderson” by Handley JA available on the Court’s website at

“ Res judicata is the general description in English law which covers the defences of merger in judgment, cause of action estoppel and issue estoppel which protect the public and private interests in the finality of litigation. The so-called extended doctrine of res judicata applies where these defences are strictly not available, but the further proceedings would undermine the finality of an earlier judgment and are therefore an abuse of process.”

17 The res judicata principles preclude the litigation in subsequent proceedings of both claims determined in earlier litigation and claims so relevant to the subject matter of the earlier action that it was unreasonable for the plaintiff not to rely on them in that earlier action. This is established by the decision of the High Court in Port ofMelbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; see also Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198.

18 The plaintiff’s summons in the present proceedings was filed on 17 November 1997, some fifteen months after delivery of the judgment of Studdert J by which the plaintiff was awarded damages referable to, among other things, what his Honour found to be an agreement by the Authority to replace fencing, an agreement by the Authority to clean out the culvert and a legal obligation of the Authority to dig up and stack tyres which had been embedded in the soil of the plaintiff’s property by activities of the Authority carried on there with his permission. If the plaintiff is to succeed in his present claims, he must show that the Authority was subject to some legally enforceable obligation to do each of the things he now asks the court to compel it to do, being an obligation separate from and additional to the obligations which were the source of the award of damages made to him in 1996.

The 1998 works

19 It is relevant to record at this point the evidence about work done by the Authority in 1998. That work was undertaken on the recommendation of Mr Berry, a contractor to the Authority. It resulted from an inspection carried out by him in January 1998.

20 Mr Berry deposes to having inspected the culvert, existing fences and tyres and debris. He found the culvert to be partially blocked by a railway sleeper and silt. He estimated the blockage to be sufficient to have a 10% to 15% effect on the flow of water in the culvert. It was not preventing water from flowing through the culvert. Mr Berry also saw that the flood gate at the river end of the culvert under the highway (that is, the second culvert along the watercourse from the plaintiff’s property to the river) was damaged in such a way as to prevent the gate serving its purpose of preventing water backing up from the river towards the railway and the plaintiff’s property.

21 As to fences, Mr Berry saw that some star pickets had been removed from existing fencing south of the crossing site and that some strands of the fencing wire had been cut. (This, of course, was before the construction of the 1999 fence).

22 Mr Berry also saw that there was a quantity of tyres and debris on the plaintiff’s property, some of it obviously identifiable as railway debris.

23 The work Mr Berry recommended be carried out included clearing the culvert of all obstructions and silt, clearing the culvert’s entry and exit to a distance of two metres and carrying out some structural work in relation to the culvert. He also recommended that silt and ballast be removed from the openings to the stormwater drain and that the pipe be cleared. In relation to fencing there was a recommendation that the defects in the existing fencing Mr Berry had seen be rectified. There was a recommendation that specifically identified and marked railway debris on the plaintiff’s property be removed and that tyres be separated and stacked.

24 Mr Berry deposes to having inspected the site in the second half of 1998 with another representative of the Authority and having seen that the recommended works just described had been carried out, in relation to the culvert, the stormwater drain and fencing.

25 In evidence are several internal memoranda and other documents of the Authority about the commissioning and performance of the work recommended by Mr Berry. Mr Morrissey, an Authority engineer, gave evidence about the completion of the work. He was informed by another officer that the fencing repairs had been done. Exhibited to Mr Morrissey’s affidavit is a report by Mr Silva, structures engineer, dated 5 March 1999 recording that the culvert clearing work recommended by Mr Berry had been completed and that an inspection by Mr Silva on 25 February 1999 had shown a 200mm deposit of fine black soil on the culvert’s inlet, there being evidence of black soil excavation on the adjacent property.

Fences

26 The plaintiff’s evidence in relation to fencing is to be found mainly in his affidavits of 10 October 2001 and 24 December 2001. In the former he says:

“Further, over a period of about 15 years the defendant and its predecessors in title have from time to time requested my permission to remove fencing, cattle grids and gates from my property whilst they performed work on the railway tracks. This gave better vehicular access to the tracks. However, at the completion of such work what was removed has not been replaced.”

27 The affidavit of 24 December 2001 stated that fencing the Authority agreed to replace had not been replaced.

28 Evidence was given by Mr O’Connor, an officer of the Authority, about arrangements under which the Authority entered the plaintiff’s property in 1997 with his authority in connection with further track work. Mr O’Connor deposes to a conversation with the plaintiff on 4 September 1997 to discuss fencing between the railway and the heli-pad area of the plaintiff’s property. Mr O’Connor stated to the plaintiff that the Authority had an obligation to provide a rural boundary fence. The plaintiff said that he would like a man proof fence between the heli-pad and the railway line. Mr O’Connor replied that if the plaintiff wanted a man proof fence, he would have to pay half the cost, otherwise the Authority would erect a rural boundary fence. Mr O’Connor also named a date by which the plaintiff should let him know whether the plaintiff was willing to pay for the man proof fence, otherwise arrangements would be made to erect a rural boundary fence. No response was received from the plaintiff. The rural boundary fence was later erected by the Authority in the location discussed.

29 As to gates, Mr O’Connor deposes to a conversation with the defendant in August or September 1997 in which the plaintiff asked whether the Authority was going to “replace the 14 foot gates for me that I was promised”, to which Mr O’Connor replied that there was no promise of any gate replacement and that the existing gates were fine and would stay as they were.

30 Mr Vincer, another officer of the Authority, gave evidence of a conversation with the plaintiff on 11 January 2002 in the course of a telephone call made by Mr Vincer to the plaintiff to discuss the plaintiff’s claims in these proceedings. In relation to fences and gates, Mr Vincer deposed to an exchange between himself (“MV”) and the plaintiff (“RS”) as follows:

“MV: ‘Could you please tell me about the gates and fences which you refer to in the proceedings against RIC?’
RS: ‘In 1984, the railway carried out major reconditioning work adjacent to my property. They promised to provide me with double 14 foot gates and stock proof fencing at my crossing. The 14 foot gates or the stock proof fencing have never been installed.’
MV: ‘Are the gates and fences which you just told me about the same as the gates and fences which you complaining about since 1995/1996?’
RS: ‘Yes. They are the same as previous. There is nothing extra.’ ”

31 The plaintiff denied that he spoke the final words, “There is nothing extra”. Otherwise, he does not dispute Mr Vincer’s account. Indeed, apart from this one instance, the plaintiff did not challenge any of the evidence of the Authority’s witnesses on any subject.

32 With the exception of Mr O’Connor whose evidence has already been described, each officer of the Authority by whom evidence was given stated that he did not make, and was not aware of anyone else having made on behalf of the Authority, any promise to replace fences, gates or cattle grids on the plaintiff’s property.

33 With respect to fences, gates and cattle grids, I find that the Authority never undertook to the plaintiff any obligations to erect, replace or repair, over and above those found by Studdert J, except for the obligation accepted on its behalf by Mr O’Connor in the conversation of 4 September 1997 to erect a rural boundary fence, which obligation the Authority performed. The 1999 fence, which has the indirect effect of shielding the plaintiff’s property from incursions across the railway (given that the plaintiff’s boundary with Coal and Allied is unfenced) was constructed by the Authority without reference to any obligation owed by it to the plaintiff and benefits the plaintiff. The plaintiff has shown no outstanding and unsatisfied entitlement, as against the Authority, to have fences, gates or cattle grids attended to by the Authority.

The culvert and the stormwater drain

34 Mr O’Connor deposes to having inspected the culvert in 1997. He found it to contain some ballast, silt and mud which he estimated to be sufficient to create a blockage of 20%. This is generally consistent with the result of Mr Berry’s inspection in January 1998. When Mr O’Connor inspected the culvert in January 2002, he observed that it had been extended.

35 In the course of his telephone conversation with the plaintiff on 11 January 2002, Mr Vincer raised the matter of the plaintiff’s claims in relation to the culvert in these proceedings. He deposes to the following exchange:

“MV: ‘Is the culvert which you refer to in the Summons in these proceedings the same drains and culverts which the railway cleaned out in September 1998?’
RS: ‘Yes, that is the culvert that I am talking about.’ “

36 Other evidence about the culvert was given by Mr Morrissey and has already been described. Recent photographs of the culvert show that it is clear.

37 The plaintiff recovered damages in the 1996 proceedings by reference to the need to clear the culvert which, it was shown, was a responsibility that the Authority had undertaken towards the plaintiff but had not honoured. On the evidence before me, a significant blockage (10% to 15% on one account and 20% on another) continued after the conclusion of the 1996 proceedings. There is evidence that the plaintiff made some attempt to clear the culvert but that the blockage to which I have referred existed thereafter. The blockage was removed by the Authority in 1998. The Authority did this work without reference to any obligation to the plaintiff to do so. By this I mean that the Authority was under no obligation to the plaintiff to perform the work but nevertheless did so.

38 The evidence also shows that some structural alterations were made to the culvert as part of the 1998 works. There is no evidence warranting any conclusion that, as the plaintiff contends, the Authority was under an obligation to him to fit a flood gate at the end of the culvert further from the plaintiff’s property. In any event, that issue arose before the 1996 proceedings and Anshun principles mean that it cannot be litigated in these proceedings.

39 As to the stormwater drain, there is no evidence that it is blocked or in disrepair. Nor is there evidence of any obligation of the Authority to the plaintiff to do anything in relation to it or that it adversely affects the plaintiff in any way. The plaintiff said he had not looked at it “for ages”.

The tyres and debris

40 I come now to the plaintiff’s claim in paragraph 8 of his summons concerning removal of items from his property. Late in the morning of the second day of the hearing it became clear that the plaintiff did not, in reality, assert any entitlement to this relief. This emerged in the course of the plaintiff’s submissions and my questioning of him as he made them. I made several attempts, at different times, to obtain from the plaintiff an explanation of the rights upon which he relied in advancing his claims. It became clear, over time, that he saw them as wholly contractual (apart from general expectations which he conceded could not be the subject of legal claims). I then concentrated on eliciting, by reference to the evidence, an explanation or description of each contract relied upon. The following extract from the transcript shows the outcome in relation to the tyres and debris:

“HIS HONOUR: Let me see if I can get it again. Is there some quantity of tyres, sleepers and rail equipment that you say the court should order the railway authority to remove from your property?
A. There was.
HIS HONOUR: Is there now?
A. No.”

And later:

“HIS HONOUR: I am still missing the central point which I think we have moved away from [which] is whether there is anything on your land of the kind referred to in this paragraph 8 of your handwritten summons which you still say the railway authority should be removing from your property. ‘Yes’ or ‘No’.
PLAINTIFF: It has to be ‘no’, because --
HIS HONOUR: If it is ‘No’ you are not entitled to order 8, are you?
PLAINTIFF: It appears so, by the words.”

And finally:

“HIS HONOUR: I think we have laid to rest your application for order 8. Because you are now saying, quite clearly, that there is nothing left for order 8 to operate in relation to. There is nothing still to be removed from your property.
PLAINTIFF: It is only because of those words. When I say ‘remove from my property’, that is where I have made a mistake, by the sound of it.
HIS HONOUR: That is what you asked for and that is what you say.
PLAINTIFF: What I was after was, where they pushed this mall area over to make room they brought in fill in their old ballast and filled most of it and I was prepared to use it up. As I said yesterday, it is really a petty issue, it is the mere fact that they put them there. The loader driver, his name is there, Sonny, Sonny someone, Sonny Scanlon I think. If they were man enough to repair or tidy up what damage they done or disturbed, that would have satisfied me. That is all we have down over all these years. If I’m going to lose out over that, I’m going to have to make some other arrangements.”

41 It is thus clear that the plaintiff eventually did not assert any right to have the Authority remove anything from his land. His comments about having made a mistake refer, I think, to his intention to seek some form of relief in relation to the unearthing and stacking of tyres. But that, of course, was something by reference to which he was awarded damages in the 1996 proceedings. It has not been suggested that any new obligation in that respect arose afterwards.

Conclusion

42 The plaintiff has failed to establish any entitlement to the relief sought in paragraphs 6, 7 and 8 of the summons filed on 17 November 1997, or to “compensation”. Except to the very limited extent emerging from the conversation of 4 September 1997 with Mr O’Connor with respect to fencing, the plaintiff did not, after the 1996 proceedings, acquire any new rights in relation to any relevant subject matter. The promise of the Authority made in the 4 September 1997 conversation was performed. All relevant obligations of the Authority found by Studdert J to exist and to be outstanding were dealt with and laid to rest by the award of damages in the 1996 proceedings in the plaintiff’s favour. The plaintiff benefited from the 1998 works and the erection of the 1999 fence, neither of which the Authority was under any obligation to the plaintiff to undertake. There was absolutely no basis on which the plaintiff could conscientiously pursue the claims with which he persisted in the present proceedings.

43 All remaining claims in the summons filed on 17 November 1997 are dismissed with costs. The Authority has indicated that, in this event, it wishes to make submissions as to the basis on which costs should be assessed. I shall now appoint a time for hearing argument on that question.

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Last Modified: 09/04/2002