RD Miller Pty Ltd v Roads and Maritime Services NSW (No. 2) [2019] NSWLEC 173

RD Miller Pty Ltd v Roads and Maritime Services NSW (No. 2) [2019] NSWLEC 173

Leave to amend proposed paragraphs 34, 35A, 37(a) and 37(b) was refused because the amendments sought to re-agitate the issue decided in RD Miller (No. 1). Applying that construction of the Roads Act 1993, compensation under ss 68 and 69 depends on the legal restriction or denial of access effected by the Order restricting access to the controlled access road, not earlier physical works, registration of a deposited plan, or a broader course of conduct. The proposed contested amendments therefore disclosed no reasonable cause of action and were manifestly untenable.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Class 3 Claim for Compensation Pursuant to S 68(1) of the Roads Act 1993 for Loss of Access / Notice of Motion Dated 18 September 2019 Seeking Leave to Amend Points of Claim
Outcome
Leave to amend granted in part; leave refused for proposed amendments to paragraphs 34, 35A, 37(a) and 37(b).
Legal Topics
['amendment of Points of Claim' 'civil Procedure Act 2005 S 64' 'roads Act 1993 Ss 67, 68 and 69' 'controlled Access Road' 'no Reasonable Cause of Action']
['environment and Planning' 'civil Procedure' 'roads and Access Compensation'] ['amendment of Points of Claim' 'civil Procedure Act 2005 S 64' 'roads Act 1993 Ss 67, 68 and 69' 'controlled Access Road' 'no Reasonable Cause of Action']

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Procedural Posture

Class 3 Claim for Compensation Pursuant to S 68(1) of the Roads Act 1993 for Loss of Access / Notice of Motion Dated 18 September 2019 Seeking Leave to Amend Points of Claim

Legal Issues

  1. 1 ['Whether the Applicant should be granted leave to amend its Points of Claim to include proposed paragraphs 34, 35A, 37(a) and 37(b).' 'Whether the proposed amendments were distinguishable from the pleading struck out in RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129.' 'Whether the Roads Act 1993 permits a compensation claim based on restriction or denial of access arising from earlier physical works or registration of a deposited plan, rather than the Order restricting access to the controlled access road.']

Ratio Decidendi

Leave to amend proposed paragraphs 34, 35A, 37(a) and 37(b) was refused because the amendments sought to re-agitate the issue decided in RD Miller (No. 1). Applying that construction of the Roads Act 1993, compensation under ss 68 and 69 depends on the legal restriction or denial of access effected by the Order restricting access to the controlled access road, not earlier physical works, registration of a deposited plan, or a broader course of conduct. The proposed contested amendments therefore disclosed no reasonable cause of action and were manifestly untenable.

Court Disposition

Leave to amend granted in part; leave refused for proposed amendments to paragraphs 34, 35A, 37(a) and 37(b).

Orders

  • ['The Applicant is granted leave to amend its Points of Claim in the form of Annexure "A" to the Affidavit of Shamiso Tsingano sworn on 26 September 2019 except the leave does not extend to the amendment of paragraphs 34, 35A, 37(a) and 37(b), for which leave to amend is refused.' 'The costs of the Notice of Motion...