JC & FW Kennett Pty Ltd v Transport Construction Authority [2011] NSWLEC 124

Land and Environment Court New South Wales

Medium Neutral Citation: JC & FW Kennett Pty Ltd v Transport Construction Authority [2011] NSWLEC 124 Hearing dates: 20 July 2011 Decision date: 20 July 2011 Jurisdiction: Class 3 Before: Pepper J Decision: The Court orders: (1) the Court gives a direction under r 31.19 of the UCPR that the applicants are to file and serve the individual non-valuation expert evidence previously referred to in the short minutes of order made by the Court on 20 June 2011; (2) by 5.00pm on 20 July 2011, the applicants are to provide in writing to the respondent a description of each of the individual non-valuation expert reports they intend to rely upon, including the expert evidence relating to the Licence Agreement referred to in the Points of Claim filed on 15 April 2011; and (3) the proceedings are stood over to 9.30am on 21 July 2011 before Pepper J for the making of further directions for the preparation of the proceedings. Catchwords: PROCEDURE: whether a direction was required for the filing and serving of expert evidence - whether an extension of time to file and serve expert evidence should be granted - extension of time allowed Legislation Cited: Uniform Civil Procedure Rules 2005 r 31.19 Cases Cited: Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Category: Procedural and other rulings Parties: JC & FW Kennett Pty Ltd (Applicant) Transport Construction Authority (formerly Transport Infrastructure Development Corporation)(Respondent) Representation: Mr M Gilbert (Applicant) Mr J Lazarus (Respondent) Penfold Dwyer (Applicant) Maddocks Lawyers (Respondent) File Number(s): 30196, 30197 and 30198 of 2011

Judgment

Introduction 1These three proceedings are compulsory acquisition proceedings in Class 3 of the Court's jurisdiction. They travel with related proceedings (30192, 30199, 30200 and 30201 of 2011). 2When the matters came became before Assistant Registrar Anastasi on 21 June 2011, by consent various procedural orders were made. One of these orders was that by 1 July 2011 the applicants were to serve their individual non-valuation expert evidence, including evidence relating to the Licence Agreement referred to in the Points of Claimed filed 15 April 2011. 3The proceedings come before me today in my capacity as List Judge upon the application of the applicants. The applicants have sought to re-list the matter because there have been material slippage in the timetable and the order referred to above has not been complied with. 4The proceedings involve the acquisition by the respondent of an easement over various parcels of land that together comprise a solid non-putrescible waste facility in Glenfield ("the land") and the freehold acquisition of another allotment. The acquisition is for the purpose of enabling the acquiring authority to obtain access across the land to the freehold allotment, which was otherwise land-locked by the East Hills rail line. Part of the public purpose for which the land was acquired included the construction of an access road over the land. 5It is alleged in the Amended Points of Claim (filed 16 May 2011) that the respondent has caused disturbance to the acquired land in a number of ways described therein. The disturbance is pleaded as: (a) royalty fees - arising from a Licence Agreement between the applicant and another company granting certain rights to that company to carry on excavation and land filling activities on the land. Since the date of acquisition these activities have been interrupted by compulsory acquisition of the easement rights thereby reducing the royalty fees payable to the applicant; (b) damage to landfill cells - the applicant's land is subject to an environmental licence that provides that once the applicant's land has been excavated and filled by the company the subject of the Licence Agreement, the landfill cells on the land must be capped in accordance with a Leachate Management Plan. By reason of the compulsory acquisition of the easement rights it is alleged that the respondent has damaged or disturbed the capped landfill cells; (c) maintenance of easement - by reason of the compulsory acquisition of the easement rights the applicant will incur additional addition costs to maintain and repair its land; and (d) exclusive possession - as a consequence of the compulsory acquisition of the easement rights the respondent has erected a fence or barrier on the applicant's land preventing the applicant from accessing part of its land and thereby giving the respondent exclusive possession of that part of the applicant's land. 6The applicant relied on an affidavit of Mr Alexander Dwyer, sworn 18 July 2011. Mr Dwyer is the solicitor with carriage of the matter for the applicants in all of the matters. The affidavit was read without any objection from the respondent. Mr Dwyer was not cross-examined. 7In his affidavit Mr Dwyer deposed that in relation to the disturbance costs caused by the damage to the landfill cells, the basis of the claim was monitoring data that demonstrated that since the date of the acquisition and, relevantly, the construction of the access road, there have been elevated levels of methane gas recorded at the site, suggesting that a clay liner and clay cap preventing the escape of leachate and associated gases from the landfill has been damaged. 8The applicants had instructed an environmental scientist, Mr Duncan Lowe, of Consulting Earth Science, to prepare a report in relation to the environmental issues arising as a consequence of the disturbance. The central issue that Mr Lowe was investigating related to the possible piercing by the respondent of the clay liner and clay cap. It is alleged that this damage occurred as a consequence of the carrying out of the purposes for which the land was acquired. 9Mr Lowe attended the site on 10 May and 20 June 2011. On 1 July 2011 Mr Lowe provided advice to Mr Dwyer to the effect that his report could not be completed until he had further documentary material provided to him. Mr Lowe provided a list of the documents which he required. 10In order to obtain this information, Mr Dwyer issued a notice to produce to the respondent on 15 July 2011. On 18 July 2011, the respondent advised Mr Dwyer that they could produce the documents requested by 29 July 2011. 11Mr Lowe has advised Mr Dwyer that he requires approximately two weeks from the date upon which he receives the material to complete his report. 12The applicants also briefed Mr Graham Granger, a civil engineer, to prepare a report in relation to the engineering disturbance occasioned by the carrying out of the public purposes. 13However, on 30 June 2011, Mr Granger advised Mr Dwyer that he was unable to complete his report due to family health issues. 14He has subsequently returned his brief in the matter. 15As a consequence, on 12 July 2011 Mr Robinson was instructed to prepare a report in respect of the engineering issues arising from the disturbance. At that time Mr Robinson indicated to Mr Dwyer that he requires approximately two weeks in order to complete the report. Mr Robinson has similarly requested that documents be provided to him, specifically in relation to the number of truck movements coming onto the land as a consequence of the respondent's activities. This information has again been sought by way of a notice to produce. 16Mr Dwyer also stated that in the other related proceedings referred to above, similar claims for disturbance are made that amount to several millions of dollars for operational impacts allegedly caused by the acquisition of the land. It is envisaged that the same experts will be used in all proceedings. 17Finally, Mr Dwyer deposes that it has taken almost 12 months to prepare the non-valuation evidence in the other proceedings because of the extremely complex nature of the evidence required to demonstrate the physical impacts of the acquisition and to assess the quantum of damage. 18As a consequence of the preparation of the other proceedings and the difficulties described by Mr Dwyer in his affidavit in retaining non-valuation, an extension of the timetable by approximately four weeks is sought. 19The proceedings have not been set down for hearing.

The Application for an Extension of Time is Granted 20The respondent opposed the extension of time to file and serve the individual non-valuation expert evidence. It did so on two principal bases: (a) first, pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 ("UCPR"), the applicants have not sought directions from the Court to adduce any expert evidence at the trial; and (b) second, insufficient details have been given of the disturbance costs, particularly those relating to the damage to the landfill cells, and therefore, the expert evidence proposed to be relied upon referred to in Mr Dwyer's affidavit is not presently relevant. 21The first ground of objection to the extension of time is untenable and can be summarily disposed of on the basis that, at the very least, as at 21 June 2011 such a direction was given by the Court contained in the timetable ordered by the Assistant Registrar. The wording for the direction is precisely in the terms as that sought, albeit with a different date, by the applicant before me today. In my view, it lies ill in the mouth of the respondent, having consented to such a direction being given on the last occasion, to make this objection today. 22In support the respondent referred the Court to the decision in Shellharbour City Council v Minister for Planning [2011] NSWCA 195. That case concerned an appeal from the refusal of the primary judge to make a direction permitting expert evidence to be lead in Class 4 judicial review proceedings. The matter before the Court concerned a challenge by the council to a decision made by the Minister to give approval, pursuant to s 75O of the Environmental Planning and Assessment Act 1979 for a concept plan known as the Calderwood Project. There was effectively a single grounded challenge to the decision, namely, that approval was precluded by cl 8N(1) of the Environmental Planning and Assessment Regulation 2000 because the project, or part of it, was located within "an environmentally sensitive area of State significance". That expression was defined in cl 8N(3). The council contended that the relevant Local Environment Plan identified the area in question as being land of high biodiversity significance and sought to lead expert evidence in support of that contention. That is to say, the council sought to lead expert evidence of the meaning of the expressions "high conservation" and "high biological diversity". It was argued that the expressions had a technical meaning and that accordingly a party seeking to adduce expert evidence as to that technical meaning should not be precluded from doing so. 23The Court of Appeal disagreed and held that it was open to the primary judge to take the view that it was highly unlikely in the extreme that such evidence could be material to the Court's decision, the question being one of statutory construction. 24The Court rejected the contention that a party was entitled to a direction under r 31.19 of the UCPR that it could file the expert evidence if that evidence might possibly be relevant and admissible (at [33]). As the Court stated (at [35]): 35 It should be made clear that this is not the correct approach to directions under r 31.19 of the UCPR. The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible. 25Further, in the course of refusing leave the Court warned that where (at [26]): ... it may very reasonably seem highly unlikely that expert evidence will be relevant to an issue, it may be necessary for an applicant for directions for expert evidence to provide some specificity as to the proposition or propositions that the expert evidence is expected to support, rather than merely give a vague indication of the area in which the expert evidence will be given. 26Accordingly, and contrary to the suggestion of the respondent, it is only where it is "highly unlikely" that the expert evidence sought to be adduced will be relevant to an issue for determination in the proceedings that it may be necessary for an applicant for directions for expert evidence to provide a detailed explanation as to the evidence that the proposed expert is anticipated to give. In Class 3 valuation and compulsory acquisition proceedings, it would be unusual if this high threshold was routinely met. 27The present circumstances giving rise to this application for an extension of timetable are distinguishable from those before the Court of Appeal in Shellharbour in at least three ways . First, as stated above, a direction has already been given by the Court that non-valuation expert evidence could be led by the applicants. Second, and again contrary to the submissions of the respondent, unlike the proceedings in Shellharbour, and as the evidence of Mr Dwyer demonstrates, in the present case it is 'highly likely' that the non-valuation expert evidence proposed is relevant, and moreover, necessary in order for the applicants to prove the claim for disturbance as pleaded in the Amended Points of Claim. Third, the proceedings in Shellharbour concerned Class 4 judicial review proceedings where the only issue in dispute was one of statutory interpretation. By contrast, the present case is a Class 3 merits appeal. 28While it may be that a consequence of the decision in Shellharbour is that parties should strive to state with greater specificity the likely nature of the expert evidence anticipated to be led, and therefore required, rather than by utterance of generic descriptors such as "valuation" and "non-valuation" evidence, this is an individual matter for the Court and the parties depending on the nature and circumstances of each case. 29For the avoidance of any doubt, however, in the present proceedings the Court gives a direction under r 31.19 of the UCPR that applicants are to file and serve non-valuation evidence 30As to the second ground of objection to the proposed extension of the timetable, as I have found above, I am satisfied on the material contained in Mr Dwyer's affidavit that the non-valuation expert evidence sought to be led by the applicants is relevant to the disturbance claim as pleaded. 31If there is some deficiency in the way in which that particular claim, or indeed any aspect of the claim, is pleaded then the appropriate course is for the respondent to file a notice of motion, with supporting affidavit evidence, seeking to strike out the impugned portion of the Amended Points of Claim. It is not, as the argument was presented before me, a legitimate basis for objecting to an extension of a timetable. 32Finally, but significantly, the Court notes that at no point did the respondent indicate that it would be prejudiced by the extension sought by the applicants. Obviously, this would have been a matter of some weight in the Court's determination.

Orders 33The orders of the Court are therefore: (1) the Court gives a direction under r 31.19 of the UCPR that the applicants are to file and serve the individual non-valuation expert evidence previously referred to in the short minutes of order made by the Court on 21 June 2011; (2) by 5.00pm on 20 July 2011, the applicants are to provide in writing to the respondent a description of each of the individual non-valuation expert reports they intend to rely upon, including the expert evidence relating to the Licence Agreement referred to in the Points of Claim filed on 15 April 2011; and (3) the proceedings are stood over to 9.30am on 21 July 2011 before Pepper J for the making of further directions for the preparation of the proceedings.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2011