Collins v Clarence Valley Council (No 2) [2013] NSWSC 816

Supreme Court New South Wales

Medium Neutral Citation: Collins v Clarence Valley Council (No 2) [2013] NSWSC 816 Hearing dates: 19 June 2013 Decision date: 19 June 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender of some documents allowed - others rejected. Catchwords: EVIDENCE - no question of principle. Legislation Cited: Civil Liability Act 2002 Category: Procedural and other rulings Parties: Dr Ann Page Collins - Plaintiff Clarence Valley Council - Defendant Representation: Counsel: C.T. Barry QC, M.P. Tanevski (Plaintiff) R.S. Sheldon SC, B.R. Wilson (Defendant) Solicitors: Johnston Vaughan (Solicitors) DLA Piper (Defendant) File Number(s): 2010/326308

EX TEMPORE Judgment 1Senior counsel for the plaintiff, Mr Barry QC, seeks to tender an additional bundle of documents currently contained in MFI-2. In broad terms the documents relate to budgetary matters concerning the Council and its approach to repairs of bridges. The background to this tender needs to be briefly noted. 2The statement of claim, inter alia, alleges that the Council was negligent in its failure to perform repairs and maintenance on the "Bluff Bridge" and failed to warn cyclists in the position of the plaintiff of various risks associated with the state of the bridge. An aspect of those allegations is that the Council either knew or should have been aware of the poor state of repair of the bridge and, in particular, its unsuitability for cyclists. A further contention implicit in that is that, having that actual or imputed knowledge, the Council was obliged to perform repairs and maintenance on the bridge even having regard to the competing responsibilities that were imposed on it. 3The defence raises various matters, including a recitation of that part of s 42 of the Civil Liability Act 2002 which refers to the principle that, inter alia, the general allocation of resources by a public authority is not open to challenge. There is also a specific allegation that the plaintiff's case is in substance a challenge to the failure to exercise either a statutory duty or a special statutory power and that the stringent tests in ss 43 and 43A apply. 4Earlier this year, a statement was filed on behalf of the Council which annexed its financial reports and clearly put in issue the level of resources available to the Council to take whatever steps it was alleged it was obliged to take. 5Against that brief description of some of the issues raised by the pleading, I will turn to the documents sought to be tendered in respect of which objection is taken. 6The first is tab 2 of MFI-2, which appears to be a series of internal documents of the Council as well as certain items of correspondence. What that material reveals is that sometime around March 2006 the Federal Government announced a proposal offering to local government the ability to apply for $126.8 million in funding for local road projects. In addition, there was in existence from some date prior to the accident a funding program from the State Government known as the Timber Bridge Partnership Program and which called for applications for funding to replace timber bridges. 7The Council has well over 100 such bridges within its area. It prepared a priority list of those bridges for which funding would be sought. Behind tab 2 is one document that lists the Bluff Bridge at priority number 11 for replacement. 8Mr Barry QC has submitted that the documents the subject of this tender, which I understand to include those behind tab 3, were relevant to two broad issues. The first was effectively an admission or concession by the Council as to the deteriorated state of Bluff Bridge. In particular, it is submitted that by preparing various proposals, including for its replacement, the Council was effectively acknowledging the poor state of that bridge. The second was the availability of resources to the Council and he said was a rejoinder to so much of the defence and the defendant's case which was effectively pointing to its limited resources. 9Mr Sheldon SC for the Council submitted that any case that sought to attack the allocation of resources by the Council was one that needed to be specifically pleaded, either in the statement of claim or at least by way of reply, so as to place his client on notice and comply with the pleading rules that avoid parties being taken by surprise. 10I am not convinced that the pleadings raise a case that enables the plaintiff to embark upon a wide ranging analysis of the competing priorities of the Council in determining what number on any particular priority list Bluff Bridge should have been or why a certain amount of dollars should have been spent on one bridge compared with another. 11However, for present purposes tab 3 contains a document relevant to a fact in issue in that at least arguably it states that the Council accepted the unsuitability of Bluff Bridge and that it either needed complete replacement or repair. On that basis I will allow the tender of the documents behind tab 2. That will include correspondence explaining these various programs, but the basis upon which I allow them is that they provide context for the list that was prepared by the Council. I will allow the tender of documents behind tab 2. 12The documents behind tab 4 are a series of e-mails which involve the Council being advised that the drive involving Orara Way was a designated tourist drive. I can see some, albeit very marginal, relevance of that fact to the facts addressed in my earlier judgment concerning the use of the road by cyclists (Collins v Clarence Valley Council [2013] NSWSC 815). 13Behind tab 5 are a series of documents that contain various forms relevant to the Timber Bridge Partnership program, to which I referred earlier. In particular, they appear to be forms that reveal the cost for each of the bridges listed on the Council's lists, and some e-mails and other documents explaining the allocation of priorities. 14For the reasons I have already given, I will reject the tender of so much of those documents as concern other bridges, but will allow the tender of those documents that concern the bridge the subject of these proceedings. As best as I can as ascertain it follows that pages 46 to 47 and 131 to 134 are admitted, but pages 48 to 130 behind tab 5 are rejected. 15There is no objection to tabs 6, 7 or 8. 16Behind tab 9 are a series of Council releases concerning a variety of topics all concerned generally with bridges and cycling. I will deal with each in turn. 17Page 138 is an announcement of a Council delegation approaching a Government Minister about the Grafton Bridge. I reject the tender of that document. 18Page 139 is a media release about a charity ride that is not said to involve Orara Way but is in the Council's area of responsibility. For the reasons I gave in my earlier judgment, the tender of that document will be allowed. 19Page 140 is a media release announcing that Council staff will take part in various activities designed to promote bike riding. For the reasons given in the earlier judgment, the tender of that document is allowed. 20Page 142 is a media release dated 22 September 2006 by the Council which concerns the Timber Bridge Replacement program that I referred to earlier. It commences: "Clarence Valley Council has identified a priority list of 29 timber bridges in most need of replacement or upgrading across the valley". 21Although it is not clear, I think it is open on the evidence to conclude that that list of 29 covers the 21 bridges that I referred to earlier, including the bridge the subject of this accident. It is open to conclude that this involves an acceptance by Council that that bridge was in need of replacement or at least upgrading, which I think is relevant to the issues raised on the pleading. I will allow the tender of page 142. 22Page 143 is another announcement concerning Council staff involvement in bike activities. For the reasons I have already given, its tender will be allowed. 23Page 144 is another announcement about approaching a State Government Minister about bridges. There is nothing to indicate the topic concerned the Bluff Bridge. For the reasons already given, I reject the tender of that page. 24Page 145 is an announcement dated 24 October 2006 about local roads and bridges on the priority list. This announcement concerns obtaining funds from the Federal Government's program that I referred to earlier. It is unclear whether the bridge in these proceedings is on that priority list. I cannot discern any potential admission in that document. I reject its tender. 25Pages 146 to 147 is a media release announcing Council votes to protect roads and bridges. The announcement simply records the determination by the Council to join an organisation known as the National Timber Council Task Force which appears to be a task force of Local Councils designed to deal with deterioration in wooden bridges generally. I am not convinced it has any relevance to the issues in the proceedings. Its tender is rejected. 26Page 148 is an announcement concerning a request to the State Government to fund the construction of a new concrete bridge on "Sportsman's Creek at Lawrence". I reject the tender of that document. 27Page 149 is a document concerning the announcement that the Council had finalised its pedestrian and bike plan. I have earlier rejected a similar document. I reject the tender of this document. 28Page 150 is an announcement dated July 2008 concerning the Federation Bridge in Grafton. For the reasons I have already given, I will reject the tender of that document. 29Behind tab 10 is a memorandum which concerns a wooden bridge between Glenreagh and Nana Glen. The description at the heading of the memo indicates that the bridge in question is not the one the subject of the accident, in that the Bluff Bridge is not located between Glenreagh and Nana Glen. However, there was some evidence given by a police officer who indicated that there is only one wooden bridge on the relevant stretch of road, so that this memo could in that respect be mistaken and might be referring to the one the subject of this accident. On that basis I will allow the tender. 30Behind tab 11 is an internal Council document recording the Council's budget for regional sealed bridges for the financial year 2006/2007. On one construction of that document it might be seen as revealing that Council did not spend anything close to the budgeted expenditure on those bridges which include those bridges on Orara Way. On that basis I will allow the tender of the document. In my view, it is relevant to any contention as to the Council's available resources to take the steps identified by the plaintiff in relation to the bridge the subject of these proceedings. 31Behind tab 12 is a similar document concerning the year 2005/2006. Mr Sheldon pointed out that the only possible relevance of this document is that it reveals an amount spent on another bridge and that presumably the plaintiff was submitting that that money spent on that bridge should have been spent on the Bluff Bridge. If that was the sole basis of the tender of the document, I would reject it. However, the final part of the document includes a table which is capable of suggesting that at least some of the items of expenditure that were budgeted for the 2006/2007 year were not spent. On that basis I will allow the tender of the document. 32Behind tab 13 is a Council document for the years 2005/2006 which shows, amongst other things, the actual expenditure compared with the budgeted expenditure for that year on the Orara Way. For reasons I have just given, I will allow the tender of that document.