Land and Environment Court New South Wales

• Medium Neutral Citation: Attard and Ors v Transport for New South Wales [2013] NSWLEC 176
• Hearing dates: 23 September 2013
• Decision date: 23 September 2013
• Jurisdiction: Class 3
• Before: Preston CJ

Decision

See orders as at [24]

• Catchwords: PRACTICE AND PROCEDURE - eight proceedings relating to compulsory acquisition of land for construction of the North West Rail Link - applicants seek for seven proceedings to be heard together and an eighth proceeding to be heard immediately after the seven proceedings - whether just, quick and cheap resolution of the seven proceedings assisted by hearing those seven together - consideration of relevant principles for hearing multiple proceedings together - substantial saving of time and cost if the seven proceedings are heard together - orders and directions made to this effect and regarding case management of the proceedings - costs to be costs in the cause
• Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 s 61; Uniform Civil Procedure Rules 2005 r 28.5
• Cases Cited: Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110; Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699; Wilson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 307; (2003) 126 FCR 500
• Category: Procedural and other rulings
• Parties: Joseph John Attard (First Applicant); John Chircop and Frances Chircop (Second Applicant); George Camilleri (Third Applicant); Chi An Hsia and Ju Jin Hsia (Fourth Applicant); Victor Sultana and Christina Sultana (Fifth Applicant); George Desmond Xiguis and Ilse Xiguis (Sixth Applicant); Josip Milicevic and Iva Milicevic (Seventh Applicant); Attard J & R Services Pty Limited as Trustee for the J & R Attard Family Trust (Eighth Applicant); Transport for New South Wales (Respondent)
• Representation: Mr M R Hall (Barrister) with Ms C Novak (Barrister) (Applicants); Mr I J Hemmings (Barrister) (Respondent in 31254, 31256 of 2012; and 30071, 30334 of 2013); Mr C D Norton (Barrister) (Respondent in 31263 of 2012; and 30064, 30068, 30074, 30095 of 2013); Colin Biggers & Paisley (Applicants); Hunt & Hunt (Respondent in 31254, 31256 of 2012; and 30071, 30334 of 2013); Clayton Utz (Respondent in 31263 of 2012; and 30064, 30068, 30074, 30095 of 2013)
• File Number(s): 31254, 31256, 31263 of 2012 & 30064, 30068, 30071, 30074, 30095, 30334 of 2013
• Publication restriction: No

Judgment

1 These eight notices of motion seek for seven proceedings claiming compensation for the compulsory acquisition of land to be heard together and an eighth proceeding to be heard immediately after those seven proceedings by the same judge.

2 All eight proceedings concern land at Riverstone compulsorily acquired by Transport for NSW for the construction of the North West Rail Link and related infrastructure. Seven of the properties either abut each other or are in close proximity. They are, or are proposed to be, in the Riverstone East Precinct under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ('Growth Centres SEPP') but the eighth property is, or is proposed to be, in the adjoining Area 20 Precinct under the Growth Centres SEPP.

3 The applicants in the eight proceedings are now represented by the same firm of solicitors, Colin Biggers & Paisley, and the same senior and junior counsel. The applicants also propose to rely on the evidence of the same town planner and the same valuer.

4 The applicants submit that there will be considerable overlap of factual and legal issues between seven of the proceedings and hence overlap of evidence and legal submissions. Efficiency and economy can be achieved by hearing seven of the proceedings together.

5 The hearing of all seven of the proceedings will involve three phases: first, the planning issues, secondly, the valuation issues and, thirdly, the disturbance claims. In the planning issues phase, the applicants submit that three main issues will be common: the timing of the release and re-zoning for residential purposes; the timing and availability of services for such residential release; and whether the zoning would be for Residential R2 or Residential R3. The resolution of these issues will resolve, to a large extent, the question of the highest and best use of the resumed lands and the timing of such use. The applicants submit that otherwise there is little difference in the physical attributes of the resumed lands affecting the planning issues.

6 In the valuation issues phase, the parties' valuers agree that the primary method of valuation of the resumed lands should be the comparable sales approach. The parties' respective valuers rely on different comparable sales, although there is some overlap. The applicants' valuer uses sales outside of the Riverstone East Precinct while the respondent's valuers rely on sales within the precinct. There is a further dispute in relation to some of the applicants' valuer's sales as to their comparability on other grounds. There is also a difference between the parties' valuers, which is dependent on the planning evidence, as to the timing and availability of services to the resumed lands. After resolution of these issues, there would need to be some finer adjustment of the appropriate derived land values that are to be applied to each of the resumed lands, but this ought not to be the subject of major disagreement.

7 In these first two phases, the applicants submit that there is a good deal of commonality in the issues and the expert evidence on the issues between the seven proceedings. Certainly there is more in common than there is not in common. The applicants submit that these two phases, both in terms of evidence and submissions, for all seven proceedings should take about six days.

8 In the disturbance issues phase, there are factual differences between each of the applicant's disturbance claims, as each is dependent on the particular applicant's circumstances. However, the applicants submit that there would be common legal issues between the proceedings, principally concerning the application of s 61 of the Land Acquisition (Just Terms Compensation) Act 1991 (because the applicants may receive compensation on the basis of a higher and better use than the current use), s 59(f) for a disturbance to business claim by some of the applicants, and s 59(f) for a claim for stamp duty on purchasing other land to replace the resumed land that had been held in some of the applicants' land banks. The applicants submit that these issues are essentially legal and can be dealt with primarily by way of submissions rather than in evidence. The factual dispute as to proof of the claimed items for disturbance would not be extensive, in the applicants' submission, being two to three hours for the simpler disturbance claims and less than a day for the more complicated ones. In total, the applicants submit, the disturbance issues phase for all seven proceedings, including evidence and submissions, should be around three to four days.

9 The applicants submit, therefore, that the total hearing time for all seven proceedings should be around ten days. This should be contrasted with around 42 days, if all seven matters were to be heard separately and took five to six days each. The applicants submit, therefore, that there will be a considerable saving in time and cost to the parties and to the Court by hearing the proceedings together. The applicants also submit that there would be the possibility of different, and indeed inconsistent, factual and legal findings if the proceedings were to be heard separately. This could also lead to multiple appeals.

10 Transport for NSW is the same respondent in all eight proceedings. It elected to instruct two different firms of solicitors, one firm, Hunt and Hunt, acting in three proceedings and another firm, Clayton Utz, acting in five proceedings. These firms, in turn, briefed different barristers to appear in the proceedings and propose to rely on the evidence of different town planners and different valuers. In part because of these differences in legal representation and expert witnesses, Transport for NSW opposed the applicants' motion for hearing seven of the proceedings together. Instead, Transport for NSW proposes that two of the proceedings, one from each of the legal and expert teams' sets of proceedings, should be heard first and the other proceedings adjourned until those proceedings have been heard and judgments have been delivered. Transport for NSW submits that, depending on the outcomes and the reasons for judgment in those indicative proceedings, the other proceedings might settle. If the other proceedings did settle, there would be cost and time savings to the parties by adopting this course. This would be better than the savings in time and cost suggested by the applicants in having the seven proceedings heard together. Transport for NSW also submitted that the differences between each applicant's land and each applicant would require a "mini hearing" to apply the common evidence and principles to each of the applicant's claims. Transport for NSW submitted, therefore, that the apparent saving in time might be false economy.

11 The relevant rule is r 28.5 of the Uniform Civil Procedure Rules 2005. The parties each referred to decisions setting out the relevant factors to be considered. These include:

1. Are the proceedings broadly of a similar nature?

2. Are there issues of fact and law common to each proceeding?

3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

8. Is one proceeding further advanced in terms of preparation for trial than the others?

9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

(See: Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] cited in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [29]. See also Wilson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 307; (2003) 126 FCR 500 at [46]).

12 In my opinion, the just, quick and cheap resolution of seven of the proceedings will be assisted by having those seven proceedings heard together. A great deal of the evidence will be common between the proceedings and will be able to be tendered in each of the proceedings. Some of the evidence will be particular to each proceeding, such as that concerning the disturbance claims, and where this is so that evidence can be tendered only in the proceedings in which it is relevant. These questions of admissibility of evidence can be determined by the trial judge. I would not therefore propose to make an order at this stage that evidence in one proceeding be evidence in the other proceedings.

13 In my view, the hearing of the seven proceedings can proceed in three phases: planning, valuation and disturbance claims. Appropriate directions can be made by the trial judge to enable the efficient conduct of the hearing. Looking at the factors set out above, the proceedings can be seen to be broadly of a similar nature. There are issues of fact and law common to each of the proceedings. This is evident in the way that the applicants have explained. Expert witnesses in one proceeding will be expert witnesses in the other proceedings. I consider there would be greater efficiency and economy if the respondent were to use only one town planner and one valuer, rather than the current two that they have engaged. This would also reduce inconsistencies in the respondent's approach to the seven proceedings. The respondent should consider whether it can economise by using only one and not two town planners and valuers. This can be a matter which can be addressed further by the trial judge at the next directions hearing. The evidence of the lay witnesses, which will essentially be the applicants in each case, will be only relevant to their particular proceedings. However, this evidence can be compartmentalised during the conduct of the trial so that there is not inefficiency by having other witnesses await their turn to give evidence whilst the applicants give their evidence.

14 None of the parties suggested that there should be a test case to which the parties would agree to abide the outcome. These are matters of compensation for compulsory acquisition of land and, as all parties accept, it would be inappropriate for there to be a test case. The respondent's suggestion that there be indicative proceedings is an attempt to take the advantage of a test case approach but without the disadvantages. However, I do not see that this will necessarily result in the savings the respondent suggests. The savings are dependent upon the parties to the proceedings that are not selected to be the indicative cases agreeing that the outcome and reasons for the outcome in those indicative cases should apply to their case. I am not convinced that that will be what will happen. It also results in five of the applicants having to wait perhaps for some considerable time before there is an outcome in the indicative cases. Applicants in matters for compulsory acquisition of their land should have their claims dealt with as promptly as can be achieved by the Court.

15 If there were to be indicative cases there is the possibility of appeals being brought in those cases by dissatisfied persons. This would further delay those other proceedings that are awaiting the outcome of those indicative cases. On the other hand, if all matters were to be dealt with together, then the prospect of multiple appeals would not cause delays to the other matters.

16 I consider there would be a substantial saving of time and cost if the proceedings were tried at the same time, compared with each proceeding being tried separately. Even if the estimates of the applicants as to the time taken for each proceeding to be heard separately were not quite correct, there still will be a considerable saving. On the applicants' estimates it will be about 25% of the time by having the matters heard together.

17 In relation to any difficulties in terms of trial management and complexity of procedural issues or difficulties in determining admissibility of evidence, I consider that these matters can be dealt with by early allocation of the trial judge and the holding of a directions hearing before that trial judge who can case manage the proceedings and make appropriate directions, including as to the efficient and economical conduct of the trial. There are some slight differences in the state of preparedness for trial of the matters, however this is not so marked that it could not be dealt with in a short space of time so as to bring the matters to a common state of readiness for trial.

18 Finally, I do not consider that there are any parties who will be inconvenienced if all of the proceedings are tried at the same time. The parties' lawyers and experts are available for a hearing in mid to late February 2014. This timing will allow for all of the matters to be prepared for trial. I will fix the seven proceedings for hearing at that time. An allocation of 12 days should be sufficient.

19 I will fix the seven proceedings for trial commencing on 13 February through to 28 February 2014. I will shortly make some directions in relation to preparing these matters for trial.

20 In relation to the eighth matter, the matter of Chircop v Transport for NSW, No 31263 of 2012, the parties accept that it raises different issues, not least because the land is in a different urban release precinct. The applicant in those proceedings sought to have this proceeding fixed for hearing immediately after the hearing of the seven other proceedings.

21 I do not consider that there is a need to specially fix this proceeding to be heard immediately after the other seven proceedings. I will leave the matter listed for its second directions hearing on 8 November 2013. At that time the parties can seek a hearing date that is appropriate for the matter.

22 In relation to costs, I consider that the costs should be costs in the cause. The applicants have sought their costs or, alternatively, that the costs be the applicants' costs in the cause. The applicants in these matters have moved the Court for the matters to be heard together. There was nothing unreasonable in the way in which the proceedings had, up until this point, been conducted. They were all separate proceedings. Indeed, until more recently, the applicants had different legal representation and different experts. There has been a consolidation of representation and expert evidence in more recent times for these applicants. This has provided the impetus for the application that the matters be heard together.

23 Whilst I have agreed that this is an appropriate course, I do not consider that the respondent's opposition to that course was unreasonable. The matter had to come before the Court in order to allow the matter to be ventilated and for the appropriate course to be determined. It has taken the better part of a day to do that. However that is not a criticism of any of the parties, including the respondent. The matters are complex and there are a number of them, which made the determination of what is the appropriate course for the conduct of the proceedings take some time. In these circumstances, I consider it is fair and reasonable for the order to simply be that costs be costs in the cause.

24 Accordingly, the Court makes the following orders and directions:

(1) Orders, pursuant to r 28.5 of the UCPR, that the following proceedings ('the Schofields Road proceedings') be tried at the same time and before the same Judge of the Court:

(a) Attard v Transport for New South Wales, matter nos 31254 of 2012 and 31256 of 2012 (53 and 55 Schofields Road, Schofields);

(b) Xiguis and Others v Transport for New South Wales, matter no 30074 of 2013 (57 Schofields Road);

(c) Hsia and Others v Transport for New South Wales, matter no 30068 of 2013 (59 Schofields Road);

(d) Sultana and Others v Transport for New South Wales, matter no 30071 of 2013 (61 Schofields Road);

(e) Camilleri v Transport for New South Wales, matter nos 30064 and 30262 of 2013 (67 Schofields Road); and

(f) Milicevic and Others v Transport for New South Wales, matter no 30095 of 2013 (31 Tallawong Road).

(2) Fixes the Schofields Road proceedings for hearing from 13 to 28 February 2014.

(3) Permits each party to any of the Schofields Road proceedings and the Chircop v Transport for New South Wales (matter no 31263 of 2012) proceedings, any expert witness retained by them, and their solicitors and counsel to use all documents produced on subpoena or in answer to any notice to produce in any of those proceedings for the purposes of any other of those proceedings, subject in each case to such orders as to access and confidentiality as may be in force from time to time in the proceeding in which the document was produced.

(4) Grants the respondent in the Schofields Road proceedings leave to file evidence of Mr Engelbrecht concerning timing and availability of services by 4 November 2013.

(5) Directs the applicants in the Schofields Road proceedings to file and serve any evidence from the applicants by 21 October 2013.

(6) Directs the applicants in the Schofields Road proceedings to file and serve any evidence in reply to Mr Engelbrecht by Monday 2 December 2013.

(7) Vacates the second directions hearings in Camilleri v Transport for New South Wales (matter nos 30064 and 30262 of 2013), Hsia v Transport for New South Wales (matter no 30068 of 2013), Milicevic v Transport for New South Wales (matter no 30095 of 2013), Xiguis v Transport for New South Wales (matter no 30074 of 2013) on 1 November 2013.

(8) Fixes a second directions hearing for all Schofields Road proceedings at 9am on Wednesday 4 December 2013.

(9) Directs in the proceedings of Sultana v Transport for New South Wales (matter no 30071 of 2013) that the applicant file and serve its Points of Claim by 4 October 2013 and that the respondent file and serve its Points of Defence by 18 October 2013.

(10) Changes the date of the s 34 conciliation conferences in proceedings Xiguis v Transport for New South Wales (matter no 30074 of 2013) from 14 October 2013 to 21 October 2013, and in proceedings Milicevic v Transport for New South Wales (matter no 30095 of 2013) from 11 October 2013 to 25 October 2013.

(11) Orders that costs of the applicants' motions be costs in the cause.

(12) Grants the parties liberty to apply on 2 days notice.

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Decision last updated: 17 October 2013