Transport for New South Wales v Pursuant to Uniform Civil Procedure Rules r 6.1a

[2023] NSWSC 1137

Supreme Court

New South Wales

Medium Neutral Citation:

Transport for New South Wales v Pursuant to Uniform Civil Procedure Rules r 6.1A [2023] NSWSC 1137

Hearing dates:

13 September 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Dispense with any provision in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that would prevent judgment being given in favour of the plaintiff where no defendant is named in the proceeding.

(2) Pursuant to r 10.14(1) of the UCPR, personal service of the statement of claim filed in the proceeding (Statement of Claim) be dispensed with.

(3) Pursuant to rr 10.14(1) and 10.15(2) of the UCPR, the Statement of Claim be served as follows:

(a) by leaving a copy at the front of the dwelling of Lot 12 in DP 1013485 as depicted at Annexure B to the Statement of Claim;

(b) by leaving a copy on any motor vehicles standing on Lot 12 in DP 1013485 which are not owned by the plaintiff, or owned by an invitee of the plaintiff;

(c) by affixing a copy to a tree or post or fence or gate on a conspicuous part of Lot 12 in DP 1013485; and

(d) by leaving with the Statement of Claim a notice to the occupiers to the effect that:

(i) the occupier may apply to the court for an order that the occupier be added as a defendant; and

(ii) if the occupier does not apply to be added as a defendant within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.

(4) Pursuant to rules 10.14(2) and 10.15(3), of the UCPR, personal service of the Statement of Claim taken to have been effected 24 hours after the steps in order 3 have been complied with.

(5) Alternatively to order 4 above, pursuant to rules 10.14(3) and 10.15(4) of the UCPR, personal service of the Statement of Claim taken to have been effected 24 hours after the steps in order 3 have been complied with.

Catchwords:

PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) – that personal service of the statement of claim in the proceeding be dispensed with pursuant to UCPR r 10.14(1) – service dispensed according to the orders made – orders made

Legislation Cited:

Transport Legislation Amendment Act 2011 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

C88 Project Pty Limited (in liquidation) v The Occupier [2023] NSWSC 135

Category:

Principal judgment

Parties:

Transport for New South Wales (Plaintiff)

Representation:

Counsel:
K Nguyen (Plaintiff)

Solicitors:
Holding Redlich (Plaintiff)

File Number(s):

2023/231603

EX TEMPORE JUDGMENT

1. By a Notice of Motion filed on 20 July 2023, Transport for New South Wales brought an action to dispense with any provision of the Uniform Civil Procedure Rules 2005 (NSW) that would prevent judgment being given in favour of the plaintiff when no defendant is named in the proceedings. The plaintiff sought ancillary relief in the event that that order is granted.

2. The plaintiff brought proceedings by way of Statement of Claim filed on 20 July 2023 for possession of land and other alternative relief. The land in question is land at West Ballina, NSW being lot 12 in DP 1013485. The evidence in the proceedings, to which I will now turn, confirms that the plaintiff is the registered proprietor of that land. An affidavit in support of the Motion was filed by the plaintiff. The affidavit is of Xiying Zhao of 20 July 2023. In that affidavit, it was deposed that the deponent is the Land Environment Manager employed by the plaintiff. The affidavit annexed a title search identifying the plaintiff's ownership of the land in question.

3. It is unnecessary in detail to embark upon any further consideration of why I have found the plaintiff to be the registered proprietor other than to note that the title search produced in evidence shows title in the Roads & Traffic Authority of NSW which is the legal predecessor to the Roads and Maritime Services. The RTA's assets, rights and liabilities were transferred to the Roads and Maritime Services. Those liabilities and assets were subsequently transferred by the Transport Legislation Amendment Act 2011 (NSW) to Transport for NSW.

4. Mr Zhao identified a number of further matters that are relevant to the ultimate disposition of this matter as follows:

1. That the plaintiff did not give permission for any person to occupy or enter the West Ballina land;

2. The plaintiff became aware in February of 2023 of a number of people occupying the West Ballina land. This occurred when the land was inspected by a colleague of the deponent, Mr Matt Stephens, who is an employee of the plaintiff. I will return to an email from Mr Stephens in one moment.

5. Persons were observed occupying the West Ballina land by Ms Critchley on 14 July 2023. It is unclear they were the persons earlier observed in photographs taken by Mr Stephens on 16 February 2023. (Those photographs being annexed to the affidavit).

6. I turn then to Mr Stephens’ email which was annexed to the affidavit of Mr Zhao. In that email Mr Stephens stated that upon attending the land, he observed both men, their dogs and one woman approaching him. They were later joined by another woman. He described those persons in detail. He asked who they were and explained that they were on Transport for NSW's land, were trespassing, and asked them to leave. They responded that he was trespassing and had no right to be there. He persisted, but ultimately in his communication states that he could see that he was not "going to get any further and did not want to inflame the situation." When they walked a short distance away, Mr Stephens took photographs (which are annexed to the email and affidavit). He noted he was not threatened by those persons.

7. The photographs he took, as I have mentioned, are attached to the affidavit. He also annexed a notice to vacate which he attempted to produce at the property.

8. In the course of proceedings today, an application was made by the plaintiff for leave nunc pro tunc for the plaintiff to commence proceedings in circumstances where no identified defendant had been made.

9. At least for the purposes of the notice of motion, I note that, in my view, such an application should be granted. In doing so, I have had regard to the decision of Davies J in C88 Project Pty Limited (in liquidation) v The Occupier [2023] NSWSC 135 where his Honour examined the authorities relating to that question. His Honour found it appropriate to grant leave in that case without naming the defendant in possession proceedings in circumstances where it was not possible to ascertain the name or identify the occupier. That position applies in the present case and establishes ample basis for the grant of leave.

10. It is plain from the material before the Court that reasonable attempts have been made to identify the persons situated on the property to whom the present motion is directed. It follows that the matter by way of Notice of Motion, and indeed the Statement of Claim, proceeds upon the basis that there is no identified defendant.

11. The same circumstances apply with respect to order 1 sought in the Notice of Motion. The plaintiff has established that it is the registered proprietor of land; that there are persons occupying the land who were not given permission to do so; attempts have been made to articulate to those persons that they should not occupy the land, and to provide a notice to vacate; and all apparent steps that could be taken by the plaintiff to effect a change in those circumstances has, in my view, been taken.

12. It follows that in the circumstances that I should grant the orders sought in paragraph 1 of the Notice of Motion and I do so.

13. The balance of the Motion, (prayers for relief 2 to 5), appear to me to be reasonable steps to be taken in all the circumstances for the plaintiff to proceed with its Statement of Claim.

14. Accordingly, I grant the relief sought in the balance of the Motion in paragraphs 2 to 5 respectively. In the final analysis, the Notice of Motion filed on 20 July 2023 is granted. There being no known defendants, I make no order as to costs.

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Decision last updated: 19 September 2023