Land and Environment Court New South Wales Medium Neutral Citation: RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141 Hearing dates: 26 September 2019 Date of orders: 27 September 2019 Decision date: 27 September 2019 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [49] Catchwords: PRACTICE AND PROCEDURE – application to vacate hearing dates – hearing dates vacated Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66 Roads Act 1993 (NSW) ss 6, 68, 69, 226 Cases Cited: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Majak v Rose (No 6) [2017] NSWCA 262 RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129 Ren v Jiang (No 2) [2014] NSWCA 119 UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 Texts Cited: New South Wales Government Gazette, No 136, 15 December 2017 Category: Procedural and other rulings Parties: RD Miller Pty Ltd (ACN 058 073 582) (Applicant) Roads and Maritime Services NSW (Respondent) Representation: Counsel: N Hammond (Applicant) D Hume (Respondent) Solicitors: Harrington Lawyers (Applicant) MinterEllison (Respondent) File Number(s): 2018/00385065 Publication restriction: Nil Judgment 1. By notice of motion filed on 18 September 2019, RD Miller Pty Ltd ('RDM') seeks to vacate the hearing set down for five days from 21 to 25 October 2019 ('vacation motion'). 2. The hearing of the vacation motion proceeded on 26 September 2019 and D Hume of counsel appeared for Roads and Maritime Services NSW ('RMS') and N Hammond of counsel appeared for RDM. 3. For the reasons that follow, I consider that the hearing dates listed for 21 to 25 October 2019 should be vacated. Background 1. The background facts are relatively uncontentious and for concision I adopt the summary at [11]-[18] in my judgment given on 12 September 2019 (RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129) in relation to an application made by RMS to strike out certain paragraphs of RDM's Points of Claim filed 29 March 2019 ('POC') which had posited three approaches to the determination of compensation ('strike out motion'). 2. I note that on 14 December 2018, RDM commenced these Class 3 proceedings seeking compensation from RMS pursuant to ss 68(1) and 226(3) of the Roads Act 1993 (NSW) ('Roads Act') for loss or damage arising from its right of access across the boundary between its land, being Lot 4 DP 1077434 ('Land') and the road formerly known as the Princes Highway (now known as Newtown Road) being restricted and/or denied as a result of the construction of the Bega Bypass in 2013 and the ensuing order declaring part of the Road to be a controlled access road published in New South Wales Government Gazette, No 136, 15 December 2017, at 7705 ('Order'). 3. Following the construction of the Bega Bypass, the Princes Highway was realigned and that part of the Princes Highway that had adjoined the western boundary of the Land became a council public road and was renamed Newtown Road. A new intersection was constructed which connected the new alignment of the Princes Highway to Newtown Road. 4. Prior to the construction of the Bega Bypass, the Land had three gated access points along its western boundary adjoining the Princes Highway and RDM was entitled to access the Land from any location along the western boundary where it adjoined the Princes Highway under s 6 of the Roads Act subject to such restrictions as were imposed under the Roads Act or any other Act or law. Vacation motion 1. The facts relevant to the vacation motion are also relatively uncontentious and may be summarised as follows. 2. As noted above, RDM filed its POC on 29 March 2019. In pars (37)(a), (37)(b) and (37)(c) of its POC, it proposed three different approaches to determining compensation based on a proper construction of the provisions in ss 68 and 69 of the Roads Act. 3. On 7 March 2019, the Court made orders listing the substantive proceedings for hearing on 21 to 25 October 2019. 4. On 12 June 2019, RMS filed the strike out motion (seeking to strike out pars (37)(a), (37)(b) and (37)(c) of RDM's POC). 5. On 3 May 2019, earlier orders made on 7 March 2019 setting a timetable for expert evidence in the substantive proceedings were extended to allow time following the hearing and determination of the (then anticipated) strike out motion for evidence for the substantive hearing to be prepared and filed. The 21 to 25 October 2019 hearing dates were not disturbed and RDM's evidence was to be served by 16 August 2019. 6. At the hearing of the strike out motion, it was accepted that the "third scenario" in par (37)(c) was no longer the subject of the strike out application. Subject to a relatively minor amendment to that paragraph, RMS did not press for strike out thereof. 7. On 17 July 2019, RMS wrote to RDM seeking access to the Land for its experts and advising that it reserved the right to object to RDM's evidence if filed after 16 August 2019. 8. On 31 July 2019, RDM responded that if the challenged paragraphs (being (37)(a) and (37)(b)) were struck out, it would, in effect, affect the retention of experts. 9. In response, RMS stated in a letter dated 14 August 2019: …as you know there is a subsisting court timetable and RMS must comply with the directions in that timetable applicable to RMS. We note your client's obligations … in that respect. 1. The matter was relisted before Moore J on 30 August 2019 and the earlier timetable was vacated for preparation of evidence pending the Court's decision on the strike out motion. 2. On 12 September 2019, the Court handed down its decision on the strike out motion, striking out pars (37)(a) and (37)(b) of RDM's POC. 3. The matter was relisted before Moore J on 13 September 2019, the day after the strike out decision, and orders were made requiring RDM to serve its evidence by 20 September 2019. Because RDM indicated it was seeking urgent legal advice in relation to an appeal from the strike out decision, his Honour ordered RDM to file any notice of motion seeking to vacate the 21 to 25 October 2019 hearing dates by Wednesday 18 September 2019. 4. The vacation motion was filed on 18 September 2019. 5. On 28 August 2019, RDM engaged experts in town planning (Mr Cowman), traffic (Mr Pindar) and quantity surveying (Mr Kritzler), it having already engaged an engineer and valuer some time ago. On 13 September 2019, the day after receiving the decision on the strike out motion, RDM sent letters of instruction to each of its experts instructing them to commence preparation of their reports. Evidence 1. In support of the vacation motion, RDM reads three affidavits of Shamiso Melissa Tsingano, RDM's instructing solicitor, one sworn 18 September 2019 and two sworn 26 September 2019. 2. In her affidavit of 18 September 2019, Ms Tsingano deposes to the history of the conduct of the proceedings, including the provision of various timetables directed by the Court on 7 March 2019 and 30 May 2019 as well as correspondence passing between the parties up until late August; details of the retention of experts including a civil engineer, traffic planner, town planner, quantity surveyor and valuer; details of submissions made at directions hearings; and her opinion that if RDM had instructed its experts earlier (before the strike out judgment), evidence would have been required in relation to pars (37)(a), (37)(b) and (37)(c) which would have resulted in "four different scenarios to be propounded by the experts' evidence…". She further deposes to more recent instructions (post 13 September 2019) to various experts and the difficulties of those experts in preparing their evidence in a timely manner. 3. In her first affidavit of 26 September 2019, Ms Tsingano provides updated evidence in relation to RDM's experts' unavailability. In her second affidavit of 26 September 2019, Ms Tsingano deposes to receiving advice of senior counsel on 24 September 2019 pursuant to which RDM now seeks leave to amend its POC to add two new paragraphs; and annexes a copy of the proposed amended points of claim dated 25 September 2019. Applicable legal principles 1. The manner in which the Court approaches an application to vacate hearing dates is now well understood. 2. In Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13], Ward JA summarised the appropriate approach to be adopted by Courts to adjourn or vacate hearings as follows: The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. 1. I respectfully adopt her Honour's approach. 2. More recently, in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [35]-[39], Pepper J helpfully summarised the approach as follows: [35] The statutory scheme constituted by the Civil Procedure Act 2005 ("CPA") relevant to the vacation of hearing dates is contained in ss 56-60 and 66 of that Act. They include the following provisions relating expressly to delay: 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. [36] The content of s 56 are well known and not recited here. [37] The provisions of s 57 are matters that predominately relate to the efficient management of the Court's business, namely: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). [38] The CPA expressly deals with adjournments in s 66, which grants the Court the power to vacate hearings: 66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. [39] But the discretion is not unfettered. An express mandatory consideration of the dictates of justice is referred to in s 58, which provides that: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: … (ii) any order granting an adjournment or stay of proceedings,… (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. the court must seek to act in accordance with the dictates of justice. 1. Briefly stated, the power to vacate the hearing pursuant to s 66(1) of the Civil Procedure Act 2005 (NSW) ('CPA') must be exercised by reference to (inter alia) the considerations in ss 56, 57 and 58 of the CPA: Ren v Jiang (No 2) [2014] NSWCA 119 at [5]. 2. The Court should not readily accede to applications to vacate because "the public interest in the efficient dispatch of the business" of a court affects a number of litigants that have already been forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262 at [18]. Parties' submissions RDM's position 1. RDM's primary position is that prior to the Court giving judgment in the strike out motion on 12 September 2019, it had not briefed experts to prepare evidence as the scope of the evidence was uncertain and was dependent upon the outcome of the decision on the strike out motion. In these circumstances, to have instructed its experts to prepare evidence prior to that decision would have resulted in unnecessary costs as those experts would have been required to prepare their evidence based upon (then) pars (37)(a), (37)(b) and (37)(c) and this would have "defeated the purpose of the motion" or any "saving referred to by a court in its decision", contrary to the just, quick and cheap resolution of the proceedings. 2. RDM submits that it was reasonable not to incur the costs of instructing experts in preparing evidence prior to the strike out decision. Now that the strike out motion has been determined, it is unreasonable to expect RDM to prepare all its evidence in the few weeks following that decision in circumstances where experts will need to be "staged". That is, the engineering, town planning, traffic and quantity surveying evidence will need to be prepared and then valuation evidence will need to be prepared based upon the earlier expert evidence. In the circumstances, RDM submits that it will suffer significant injustice and prejudice if forced to file its expert evidence by 27 September 2019 as presently required under directions of the Court. 3. RDM further submits that its evidence (of Ms Tsingano) is that the experts have been retained and have commenced preparation of their reports, however there is "insufficient time" for the experts to complete their reports. As noted above, the evidence further records that the valuer's evidence will depend upon the completion of the earlier evidence. 4. In relation to the matters in s 58(2)(b) of the CPA, RDM says that the matter is complex as the relevant provisions of the Roads Act have not been considered by the Court and in those circumstances, the preparation of expert evidence should not be rushed; and RDM has conducted its case diligently and in compliance with Court orders prior to August 2019 and that the slippage for the filing of expert evidence is a result of RMS' strike out motion which was a matter beyond RDM's control. Despite acting expeditiously to brief its experts, RDM now has insufficient time to finalise five expert reports (which as noted above, are to be staged). 5. In further oral submissions, Ms Hammond submitted that RDM, subsequent to obtaining legal advice of senior counsel received a day or so ago, now intends to seek (by further notice of motion dated 26 September 2019) to amend its POC in light of the Court's determination in the strike out motion. The amendment motion has been prepared in circumstances referred to in the affidavit of Ms Tsingano sworn 26 September 2019. In light of this further recent development, Ms Hammond submitted that RDM should have the opportunity of arguing the amendment motion and noted that the likely amendment (which responds to the strike out judgment) is an important matter now to be considered in the vacation motion. RMS' position 1. RMS submits that the application for vacation should be refused because: first, the rationale for the application is that RDM is unable to obtain evidence in time for the hearing which is not a sufficient reason to vacate the hearing dates in circumstances where the primary cause of RDM's "difficulties" is its own election not to prepare evidence directed to the remaining paragraph (par (37)(c)) of the POC which has, at all material times, and since at least 30 August 2019, been undisputed and was to go ahead at the hearing in October. 2. Further, RMS submits that RDM's difficulties stem from its deliberate choice to brief experts who are unavailable at the critical time, and points to the fact that in RDM's correspondence with the experts in August 2019, RDM's solicitors indicated that RDM was likely to obtain a vacation of the hearing dates. In those circumstances, the hearing dates should not be vacated "because of RDM's own impudent behaviour and its decision to conduct itself on the basis that it would obtain the vacation it now seeks". 3. RMS also submits that RDM has not established that it cannot adequately prepare evidence pursuant to the existing timetable and RDM has not adduced evidence, for example, as to enquiries it has made in relation to the likely availability of other experts. 4. RMS therefore submits that there is no evidence that other experts cannot be obtained, that the evidence of Ms Tsingano as to RDM's more recent efforts to obtain experts is not compelling, and there is no evidentiary basis before the Court to determine that it is not possible for RDM to prepare evidence quickly. 5. Finally, RMS submits that contrary to RDM's submission, there is real prejudice to RMS as there is real public interest in having these types of claims determined quickly and efficiently. RMS says that there is further prejudice in that when the Court considers the notice of motion to amend, the fact that the 21 to 25 October 2019 hearing dates may be vacated gives a distinct forensic advantage to RDM. Consideration 1. In considering the evidence and the parties' written submissions, I was minded to accept RMS' submissions that the primary cause of RDM's position was its decision not to prepare evidence on the earlier occasion and its choice to brief experts who were not available and able to complete their tasks in a timely manner for the hearing. I was also concerned that the letters of retainer sent to various experts on 28 August 2019 by RDM conveyed the suggestion that the timetable for the hearing may "extend into 2020". However, while there is some force in RMS' submissions, the further evidence now provided (in particular the two affidavits of 26 September 2019 of Ms Tsingano) in relation to the more recent efforts made by RDM to retain experts (including instructions to a new town planner), combined with the recent advice of senior counsel suggesting amendments to the present pleadings and RDM's consequent intention to seek leave to amend the claim, have led me somewhat reluctantly to the view that it is appropriate that the hearing dates be vacated. My reasons may be shortly stated. 2. Although RDM made a choice to delay the preparation of its evidence pending the outcome of the strike out motion, its conduct was understandable as it appeared that if the strike out motion was successful (as it was), the nature and extent of the evidence was likely to be narrower than it would otherwise have been. Although this was a conscious decision, it may be justified on the basis that costs may well have been saved. While there were submissions made as to RDM's financial position, the evidence is insufficient for me to afford this proper weight. 3. Further and more to the point, I find that if the hearing dates were not vacated and RDM further hastened the marshalling of its evidence, it is most likely that that evidence, if it was obtained, would not be available to RMS until at or shortly before the October hearing. This would likely in turn result in an application for the rejection of that evidence and/or vacation of the dates to allow RMS to consider and respond to the late service of that material. I consider this to be a real possibility should the hearing dates not be vacated. 4. In addition, the fact that the Court is now aware that a notice of motion is being filed (supported by sworn evidence of Ms Tsingano as to the reason for the delay in making the application for amendment (being, as noted above, the advice recently received from senior counsel and as a direct result of the judgment given in the strike out motion)) would itself mean that that amendment motion would be required to be heard either shortly before the hearing or on the first day of the hearing. I consider that the success or otherwise of that motion would likely affect the nature and extent of the evidence that would then be sought to be relied upon by RDM if the motion was successful (which from my brief consideration of the amendments proposed, would require additional evidence to that which would have otherwise been marshalled) to support the POC as now configured. Again, it is inevitable that the hearing of the motion is likely to result in a further application for vacation. 5. In considering the above, I am conscious of and sympathetic to the prejudice that flows to RMS from RDM's recent conduct. In particular, I accept the submission of RMS that if the hearing dates are vacated, this may improve RDM's prospects of success in the amendment motion if for no other reason than if the proceedings are vacated, it is likely that the matter would only proceed to hearing early next year. While I consider this a relevant and important consideration, I do not consider it to be determinative. 6. For the above reasons and with some reluctance, I consider it both unfortunate and appropriate that the hearing dates be vacated. 7. In light of my decision and reasoning above, the question of the determination of the amendment motion remains. In the circumstances, I intend to grant leave to file the amendment motion with the Registry today and I consider it appropriate that the motion proceed to hearing in an expeditious manner. I will make orders that the amendment motion be set down for hearing on 21 October 2019, the date that would have otherwise been the first day of the hearing. I will provide directions for the provision of any evidence and submissions. 8. As the Court has not heard argument in relation to costs, I shall reserve costs. Orders 1. The orders of the Court are: 1. The hearing dates listed for 21 to 25 October 2019 are vacated. 2. Leave is granted to file a Notice of Motion seeking leave to file a Further Amended Points of Claim in the form of Annexure "A" to the affidavit of Shamiso Melissa Tsingano sworn 26 September 2019. 3. The hearing of the Notice of Motion referred to in Order (2) is set down for 21 October 2019. 4. Any evidence which RDM seeks to rely upon in support of the Notice of Motion is to be filed and served on or before 2 October 2019. 5. Any evidence which RMS seeks to rely upon in relation to the Notice of Motion is to be filed and served on or before 8 October 2019. 6. RDM is to file and serve a written outline of argument on or before 11 October 2019. 7. RMS is to file and serve a written outline of argument on or before 16 October 2019. 8. Costs reserved. ********** Amendments 29 October 2019 - Typographical error amended in par [44]. 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: 29 October 2019