HALL & 1 ORS v TRANSPORT INFRASTRUCTURE DEVELOPMENTCORPORATION [2006] NSWSC 1076

New South Wales Supreme Court

CITATION : HALL & 1 ORS v TRANSPORT INFRASTRUCTURE DEVELOPMENTCORPORATION [2006] NSWSC 1076

HEARING DATE(S) : 11 October 2006

JUDGMENT DATE : 18 October 2006

JUDGMENT OF : Associate Justice Malpass

DECISION : The notice of motion is dismissed. The second and fourth plaintiffs are to pay the costs of the notice of motion.

CATCHWORDS : Review of decision of Registrar concerning entitlement to discovery - attempted reliance at review upon evidence not before the Registrar - failure to satisfy the Court that an order should be made - decisions on practice and procedure

LEGISLATION CITED : Transport Administration Act 1988 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED : Thomas v State of New South Wales [2005] NSWSC 1061

John HALL PARTIES : Heather Maude LITHERLAND TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION

FILE NUMBER(S) : SC 30078/04

COUNSEL : Mr B W Rayment QC (Pl) Mr J Stoljar (Def)

SOLICITORS : Morgan Lewis Attorneys (Pl) Clayton Utz (Def)

LOWER COURT JURISDICTION :

LOWER COURT FILE NUMBER(S) : 30078/04

LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe

LOWER COURT DATE OF DECISION : 04/07/2006

LOWER COURT MEDIUM NEUTRAL CITATION : HALL & 3 ORS v TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

18 October 2006

30078/04 John HALL & 1 Ors v TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION

JUDGMENT 1 His Honour: The second and fourth plaintiffs (the plaintiffs) are the owners of a property at Roseville (the property). It stands above a sub- terranean corridor (the corridor) which was compulsorily acquired for the purpose of the construction of the Epping to Chatswood railway line. 2 The plaintiffs allege that significant cracking has occurred in the building on the property since tunnelling and construction work occurred under it during 2005. It is further alleged that, by reason of that cracking, the surface of the overlying soil of the property has been disturbed and/or has been injuriously affected within the meaning of clause 2 of Schedule 6B of the Transport Administration Act 1988 (NSW). 3 The plaintiffs are two of the four plaintiffs that have brought proceedings in this Court against the Transport Infrastructure Development Corporation. The proceedings concern a claim for entitlement to compensation by reason of the disturbance and injurious affectation to the soil. 4 One of the defences raised in the proceedings is in the following terms:- "15… (a) if and to the extent that there is significant cracking (which is not admitted) to the Roseville Property, says that that cracking was not caused by the tunnelling and/or construction activities but was caused by shrink-swell movements of the surface soils unrelated to the tunnelling and/or construction activities; and […]"