Watches of Switzerland Pty Ltd v Transport for NSW [2018] NSWSC 1256

Supreme Court New South Wales

Medium Neutral Citation: Watches of Switzerland Pty Ltd v Transport for NSW [2018] NSWSC 1256 Hearing dates: 9 August 2018 Date of orders: 14 August 2018 Decision date: 14 August 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) To the extent that the defendant seeks to rely on s 42 of the Civil Liability Act 2002 (NSW), the defendant is to file an amended defence by 28 August 2018 in accordance with this judgment; otherwise paragraph 31 of the Defence to the Amended Statement of Claim filed 22 June 2018 is struck out.

(2) The Plaintiff's Amended Notice of Motion filed 29 June 2018 is otherwise dismissed.

(3) Direct the plaintiff to file a Reply to any Defence to the Amended Statement of Claim by 18 September 2018.

(4) Grant leave to the defendant to file a Rejoinder to the Reply if it wishes to do so by 2 October 2018.

(5) The plaintiff is to pay the defendant's costs of the Amended Notice of Motion filed 29 June 2018. Catchwords: CIVIL PROCEDURE – pleadings – reply – striking out – tendency to cause prejudice, embarrassment or delay – UCPR r 14.14 – action in damages for public and private nuisance – onus of proof – where defendant relies on statutory authority and nuisance as inevitable consequence - whether pleading of defence adequate to avoid plaintiff being taken by surprise – presumption of regularity relieved defendant from having to set out compliance with statutory authority – UCPR r 14.11 – need for plaintiff to file Reply - whether s 42 Civil Liability Act 2002 (NSW) relevant to claim in nuisance Legislation Cited: Civil Liability Act 2002 (NSW) ss 42, 43A Roads Act 1993 (NSW) s 5 Transport Administration Act 1988 (NSW) ss 3C, 104N, 104O Transport Administration (General) Regulation 2013 (NSW) cl 82A Uniform Civil Procedure Rules 2005 (NSW) rr 14.5, 14.7, 14.11, 14.14, 14.28 Cases Cited: Allen v Gulf Oil Refining Limited [1981] AC 1001 City of Manchester v Farnworth [1930] AC 171 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 McNeil v Narrabri Shire Council [2013] NSWCA 112 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 Roads and Maritime Services v Grant [2015] NSWCA 138 Symons Nominees Pty Ltd v Roads and Traffic Authority of New South Wales (1997) Aust Torts Reports 81-413 York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391 Texts Cited: Nil Category: Procedural and other rulings Parties: Watches of Switzerland Pty Ltd (Plaintiff) Transport for NSW (Defendant) Representation: Counsel: D Grieve QC & A Douglas-Baker (Plaintiff) M Astill (Defendant)