Land and Environment Court New South Wales Medium Neutral Citation: Moloney v Roads and Maritime Services [2016] NSWLEC 148 Hearing dates: 9 and 15 November 2016 Date of orders: 16 November 2016 Decision date: 16 November 2016 Jurisdiction: Class 3 Before: Moore J Decision: At [16] Catchwords: EVIDENCE – leave to adduce additional evidence – lateness – potential wider effect of decision in proceedings – balance of interests – leave granted Cases Cited: Aon Risk Services Australia Ltd v Australian National University, 239 CLR 175; [2009] HCA 27 Johnston v Roads and Traffic Authority [2000] NSWLEC 111 Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 Category: Procedural and other rulings Parties: John Brendan Moloney (First Applicant) Colleen Patricia Moloney (Second Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: Mr I Hemmings SC/Ms A Pearman, barrister (First and Second Applicants) Mr P Tomasetti SC (Respondent) Solicitors: Stacks Law Firm (First and Second Applicants) Clayton Utz (Respondent) File Number(s): 154024 and 154057 of 2016 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: In this case these matters are set down for an eight-day hearing commencing on 7 December 2016. I observe, because it is potentially important in light of the determination I have reached in these matters, that these matters have not been assigned to me for the purposes of hearing. 2. The Respondent seeks consent to have available at the hearing, by having consent now to file and serve, additional evidence from Mr Evans, its acoustic expert, and Mr Green, the Respondent's Infrastructure Property Manager for the Northern Region. The proposed evidence relates to the Respondent's attitude to the claim for a replacement dwelling advanced by the Applicants as a consequence of the road noise impacts of the Pacific Highway upgrade to a dual carriageway in the vicinity of the Applicants' present residence. 3. I want to make it clear that, in my giving this decision this morning, there are a number of matters that I am expressly not doing: * I am not making any determination as to the factual relevance of any material that will be filed and served; * I am not making any assessment of the weight to be given to such evidence if relevance is established before the Trial Bench and it is admitted; and * I am not making any determination about the appropriate statutory basis or otherwise for the claim made by the Applicants. All of those matters are matters to be dealt with by the Trial Bench when dealing with the application that requires determination. 1. I am considering these applications for additional evidence in the context of a timeline where the Class 3 applications were filed in September 2015, relevantly a Joint Acoustic Report was provided dated 4 March 2016, and a Supplementary Joint Acoustic Report was provided dated 10 May 2016. The timeline that was handed up by Mr Hemmings SC, for the Applicants, also dealt with the timing of the Quantity Surveyor's Joint Report and a Valuation Joint Report, matters which no longer require my consideration in these proceedings. 2. The second Joint Acoustic Report, which is Exhibit 3 on the application before me this morning, deals with the traffic noise impact on the external curtilage of the Moloney residence (it being agreed earlier in the joint report that acoustic treatments can be undertaken to the residence to satisfactorily ameliorate the internal acoustic impacts). However, at page 6 of the second joint conference report, where the experts discuss the impact on the outdoor area, there is what I might describe as a degree of imprecision in the discussion. It is unnecessary for me to go beyond making that statement for the purposes of this morning's application. 3. That which is proposed to be available for trial comprises a further supplementary statement by Mr Evans dated 31 October 2016 and an affidavit by Mr Green and a folder of material exhibited to it. In response to that, on the last occasion when this matter was before me substantively prior to the hearing yesterday afternoon, that is on 9 November 2016, I granted leave to the Applicants to file, or have prepared, a further affidavit by its noise expert as to what might be required to respond to the further acoustic material and, to the extent of its acoustic relevance, the material contained in Mr Green's affidavit. 4. An affidavit from Mr Nick Koikas dated 14 November 2016 was read on 15 November 2016. In that affidavit, Mr Koikas sets out a number of estimates of the time he says that would be necessary for him to address the matters maintained in Mr Evans' 31 October 2016 statement. He also indicated that he had not had the opportunity to read and consider the contents of Mr Green's affidavit, nor the documents contained in Exhibit TG1 to it. He gives an estimate that, in effect, says if all of the time he proposes would be necessary to respond to that material, he would certainly not be able to do so prior to the commencement of the trial and that the matter would need to go over until 2017. 5. In response to that, Mr Tomasetti SC has submitted to me that, first, the Applicants misunderstand the nature of the case proposed to be advanced by the Roads and Maritime Services (the RMS) on this point, and that Mr Koikas' time estimates for responding to the material are substantially wrong and overblown; second, that there is plenty of time within the hearing space of the eight days allocated to the matter because some or many or most contested issues have gone away or are likely to go away prior to the hearing; and, finally, and perhaps more importantly, for the making available of this evidence there is no presently relevant decision on the point, so that it is appropriate that, to the extent that the Trial Bench needs to deal with it, it should be able to be dealt with properly and fully on such evidence as might be appropriate in the eyes of the Trial Bench. 6. Mr Tomasetti took me to the decision of the Court of Appeal in Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66. There are two matters to be observed from that judgment. The first, but later chronologically in the judgment, is the rejection by the Court of Appeal of a decision of Cowdroy J of this Court in Johnston v Roads and Traffic Authority [2000] NSWLEC 111, where his Honour, in those proceedings, had made allowance for the relocation of a house as a consequence of road noise. I indicate, for my own part, that disregarding the rejection of that decision by the Court of Appeal, in any event it would be irrelevant in the present context, given that his Honour was dealing with a heritage-listed residence where the necessary acoustic works to render the internalities of the house habitable would not be possible without impacting unacceptably on the heritage values of the house. That is clear from his Honour's discussion at [17], [50] and [59] on that decision. 7. However, Peak makes it clear that there are genuine issues of statutory construction, as well as evidence, potentially arising in these proceedings in the claim that is advanced by the Moloneys. It is unnecessary for me to deal with that at this time. That is purely a matter for the Trial Bench. 8. The Applicant says, in general reliance on the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University 239 CLR 175; [2009] HCA 27, that Mr Koikas' estimates of the time required to deal with the matter are reasonable; the timeline shows that the second acoustic report which touched on topics involved was dated 10 May 2016; that the documents proposed to be relied upon by Mr Evans in Annexure B have already been dealt with by being permitted to be included in the tender bundle subject to objections to relevance. 9. Relying on Aon, the Applicant says that there is no reasonable explanation for the delay in light of the fact that Mr Tomasetti and Mr Green undertook an inspection of the matters proposed to be covered by the Evans and Green material on 26 September 2016; that the desirability of that material going into, or being available for, evidence was not raised by the Respondent until 4 November 2016 (and then only with respect to Mr Evans' material); that the proposal for Mr Green's affidavit was not raised until a letter of 14 November 2016; and that the affidavit of Ms Packham which had been read on 9 November 2016 discloses that there were three elements of the proposed further evidence, the first being lay witness evidence from employees of the RMS as to traffic management, that being an uncontroversial matter, and then, secondly, by points (b) and (c) in [3] of her affidavit, foreshadowing both the evidence and the material. 10. Mr Hemmings says that there is no valid explanation for the delay, that the prejudice to the Applicants is incurable, and that, as a consequence, the material should not be permitted to be available to the Trial Bench, subject to any rulings as to relevance that might be made. 11. I have concluded that the matter that requires to be determined in these proceedings is of some significance, potentially going beyond merely the scope of this application. As a consequence, it is appropriate to permit availability of the widest range of material for consideration by the Trial Bench without, as I have earlier indicated, me being taken to be making any determination on relevance and admissibility, weight, adequacy of information or any statutory foundation to support the proposed claim by Mr Moloney. As a consequence, it is appropriate to make orders that will permit that material to be available for consideration by the Trial Bench. 12. However, I do not propose to make any directions for further acoustic joint conferencing, because that may be a matter which on forensic, strategic consideration the Applicants do not wish to have their acoustic expert involved in such conferencing. Secondly, I do not propose to deal with any question for vacation of the hearing dates absent a proper application to that effect from the Applicants, to be determined by me. 13. Therefore, I make the following orders. 1. I grant leave to the Respondent to file and serve the further supplementary statement of Tom Evans (other than Annexure B documents, as they are to be included in the tender bundle). 2. I grant leave to the Respondent to file and serve the affidavit of Terrence Michael Green of 14 November 2016 and Exhibit TG1 to that affidavit. 3. I relist the matter for the LVC List on 18 November 2016 to deal with any further directions that may be required to be considered by the parties, unless my Associate is notified by 3.00 pm on 17 November 2016 that that listing is not required. 4. Any Notice of Motion by the Applicants to vacate the hearing dates is to be made returnable before me at 11.00 am on Friday, 18 November 2016. 5. The exhibits on the application are to be returned. 6. The Respondent is to pay the Applicants' costs of 9, 15 and 16 November 2016. ********** 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: 25 November 2016