Land and Environment Court New South Wales Medium Neutral Citation: Treyvaud v Transport for NSW; Jervis Bay Stockfeeds Pty Ltd v Transport for NSW [2024] NSWLEC 34 Hearing dates: 21 March 2024 Date of orders: 21 March 2024 Decision date: 21 March 2024 Jurisdiction: Class 3 Before: Duggan J Decision: See paragraph [16] Catchwords: PROCEDURE – Applications for hearing of separate questions – Applications dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Brasson Investments Pty Ltd v Lane Cove Municipal Council [2022] NSWLEC 51 Moss Capital Pty Limited v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 127 Category: Procedural rulings Parties: In proceedings 2023/00091258 Darren James Treyvaud (First Applicant) Kim Maree Treyvaud (Second Applicant) Transport for NSW (Respondent) In proceedings 2023/00091290 Jervis Bay Stockfeeds Pty Ltd (Applicant) Transport for NSW (Respondent) Representation: Counsel: M Seymour SC and C Koikas (Applicants) M Astill (Respondent) Solicitors: FM Legal (Applicants) Maddocks (Respondent) File Number(s): 2023/91258; 2023/91290 Publication restriction: No EX TEMPORE JUDGMENT 1. HER HONOUR: I have two motions before me today, each seeking leave to have a separate question heard and determined prior to the determination of the ultimate proceedings. 2. First, is a Notice of Motion by the Applicants in the Treyvaud proceedings, seeking a separate question in the following terms: As at 29 July 2022, when lots 24 and 25 in Deposited Plan 1275933 (Acquired Land) were compulsorily acquired under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act), did: Lots 2 and 3 in Deposited Plan 244495; and/or Lot 1 in Deposited Plan 244495 and Lot 2 in Deposited Plan 557598, adjoin or be severed from the Acquired Land, by reason of the carrying out of, or the proposal to carry out, the public purpose for which the Acquired Land was acquired for the purposes of section 55(f) of the Just Terms Act? 1. Whilst it has only been brought in the Treyvaud proceedings, I assume that the separate question would be dealt with in both sets of proceedings. 2. In the Jervis Bay Stockfeeds Proprietary Limited proceedings, the Respondent seeks a separate question in the following terms: Whether Jervis Bay Stockfeeds Proprietary Limited has an "interest in land" as at the acquisition date for the purposes of s 5 of the Land Acquisition Just Terms Compensation Act 1991, as defined in s 4 of that Act, in, over, or in connection with, Lots 24 and 25 DP 1275933. 1. In connection with each of the Notices of Motion, both parties have read affidavits from solicitors that instruct them in relation to the reason why such preliminary questions are sought, and the consequences of such separate questions being agreed to be determined separately. 2. The principles applicable to the exercise of the Court's discretion to order a determination of a separate question, are well known. They have been recited in a number of cases: see Robson J in Moss Capital Pty Limited v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 127 (Moss Capital) and supplemented by his Honour's further consideration in Brasson Investments Pty Ltd v Lane Cove Municipal Council [2022] NSWLEC 51, where he adds another consideration to those outlined in [19] of Moss Capital. I will not repeat those principles here, however, having regard to the application of those principles in the context of this case, I decline to order a preliminary question on either Notice of Motion. 3. I give primary weight to the general proposition that all issues should be decided and tried at the same time. In that regard, in considering whether or not to grant a separate question, I am required to take into account the overriding purpose of case management as set out in s 56 of the Civil Procedure Act 2005 (NSW) (CP Act), together with the objects of case management in s 57, and the dictates of justice as identified in s 58. 4. Having regard to the questions posed and the evidence adduced before me I am not satisfied that each of the separate question will clearly facilitate the just, quick and cheap resolution of the proceedings generally or any of the central issues in the proceedings. Section 56 of the CP Act requires that there be evidence that the procedure that is needed is fair, and that it will involve real savings in time and costs. In this case, both parties agree that the separate questions, either individually or collectively, will require a hearing of two days. There is no analysis of the extent to which this would reduce the ultimate hearing time, if the separate questions were ordered, such that I could be satisfied that there would be a true saving. 5. To the extent that the parties acknowledge that it would assist them in determining the issues in dispute, and the preparation of evidence to deal with it, it is not suggested that there will be evidence to be adduced from experts who would not otherwise be giving evidence in the proceedings. The parties accept that, even if the question is a separate question, that there will remain, to some degree, an overlap of evidence. 6. Secondly, it is submitted by the Applicants that its question should be determined after the Respondent's question, as the Respondent's question will inform whether or not there is any utility in the Applicants' question. That submission and concession made by the Applicants in these proceedings suggests that it would be appropriate for the efficient conduct of the Court's time, for the separate questions to be heard and determined separately. This would require an additional four days, that is, two days per question, as to hear them together would, in effect, potentially require a question of no utility to be heard. 7. I also take into account that the controversy between the parties, at least in respect of the Applicants' separate question, is unlikely to be determinative of all of the issues in the case. The Applicant, Jervis Bay Stockfeeds, and the Applicants, Mr and Mrs Treyvaud, both operate on both sides of the Princes Highway, and there will be some residual question in respect of their claim, notwithstanding the outcome of the separate questions. Whilst there may be a question that may be determined finally, the residual case will still remain, and as I have said, I have no sufficient evidence that that would reduce the cost of the proceedings. 8. I also take into account the position of the parties, in relation to the applications for separate questions. Both parties oppose each other's separate questions, and I take that matter into account, as being of significant weight. If the parties each consented to their separate question, one could have a degree of confidence that the question would be able to produce some outcome that was favourable to the efficient conduct of the proceedings. I cannot be so satisfied. 9. Further, whilst there are separate questions formulated, the nature and scope of the evidence which would be required to determine the separate questions could retain some overlap with the substantive proceedings, but also, is of such a fluid identification at this stage that I cannot be satisfied that the evidence, and the facts, could be clearly ascertainable, such that I could be satisfied that there was a real savings. 10. Finally, in relation to the efficiency of the conduct of the Court proceedings, I am not satisfied that this is not a question that arises in the usual course of proceedings such that the risk of there being a bifurcation of the proceedings, (such that there is a requirement of a judge to hear and determine all issues in dispute, through two separate, or potentially three, separate proceedings), is appropriate or desirable in the circumstances of the case. 11. Accordingly, I dismiss both Notices of Motions. 12. I order: 1. The Applicants' Notice of Motion filed 6 December 2023 in proceedings 2023/00091258 is dismissed; 2. The Respondent's Notice of Motion filed 6 December 2023 in 2023/00091290 is dismissed; and 3. I make no order as to costs in each 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: 12 April 2024