Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services

Evidence

1. The evidence upon which the NOM falls to be determined was, helpfully, mostly gathered by the competing solicitors, Penelope Murray for the applicant and Nicholas Brunton for the respondent, each filing an affidavit to which many relevant documents were annexed (respectively Exhibits "PM1" and "NB2"). Their counsel who argued the matter - Mr Seymour for the applicant, and Mr Lancaster SC for the respondent - also tendered some other documents (Exhibits A10, A11, R20, R21, and R22).

The DADI Litigation

1. The central issue in considering the NOM is the impact, if any, on the present "ALF" litigation, of what may be called the "DADI" litigation, so some of its history needs to be noted at this stage, to set in context the "pleading" issue presently before the Court.
2. Each of both the present applicants, ALF and Boiling, and their associated company DADI, each claimed interests in the acquired land, and sought compensation for its compulsory acquisition (Brunton tabs 1 and 2).
3. RMS asserted in response (Brunton tab 4) that DADI could not establish that it had "an interest in the land" of the type which would activate the compensation regime in the Land Acquisition (Just Terms Compensation) Act 1991 ("JTC Act").
4. RMS rejected DADI's claim for compensation, and DADI lodged a Class 3 application to this Court on 14 August 2015 (Brunton tab 3).
5. Murray suggested, on 2 September 2015 (Brunton tab 5), that the parties ask the Court to determine as a separate/preliminary question, whether DADI had an "interest in land" within the meaning of the JTC Act at the date of acquisition (19 December 2014).
6. When that course was not agreed, DADI filed a NOM seeking separation of the question (Brunton tab 6), and Pepper J heard and determined that NOM on 29 October 2015, ordering separation, and settling the terms of such a question: Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 (Brunton tab 7). Further dealing with these ALF proceedings was stood over till the DADI question was resolved ([50]).
7. Preston ChJ heard argument on the question on 25 February 2016 (competing submissions are in the Court of Appeal ("CA") Appeal Book, at pages 81-118 of Brunton tab 9, with transcript of the hearing at both Brunton tab 9 (pages 1-80), and also at Murray tab 1).
8. His Honour gave his judgment on 8 April 2016 (Murray tab 6):Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2016) 216 LGERA 283; [2016] NSWLEC 39, and determined (at [151]): DADI has not established that it was the owner of any interest in land which was divested, extinguished or diminished by the acquisition notice by which Lot 2 was acquired. The separate question should therefore be answered in the negative. This answer is dispositive of the proceedings. They should therefore be dismissed.
9. DADI appealed unsuccessfully to the CA, which heard the appeal on 14 September 2016 (Notice of Appeal at Brunton tab 8, DADI subs at Murray tab 3, RMS subs at Murray tab 4, reply subs at Murray tab 5, and transcript at Murray tab 2).
10. The CA gave judgment on 6 April 2017, Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73 (Murray tab 7). The principal judgment of the Court was given by Beazley P, with McColl and Leeming JJA publishing short separate reasons in support of Her Honour's view that the appeal ought be dismissed with costs.
11. DADI sought special leave to appeal to the High Court, but leave was refused on 14 September 2017: Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] HCASL 236.
12. I shall return to the CA DADI decision in more detail (at [34] and [41] below), but I now turn to the "evolution" of the Points of Claim ("POC") and Points of Defence ("POD") in the ALF proceedings.

The POC and POD

1. In accordance with this Court's usual practices, POC and POD were not required to be filed before the commencement of the hearing, and evidence has been filed consistently since then.
2. Several versions or drafts of both POC and POD were filed between 23 November 2017 (1st version of POC - Exhibit R20, followed by a 2nd version filed 28 November 2017 - Exhibit R21) and the filing of further amended POD (FAPOD) on 20 February 2018 (following earlier versions dated 27 November 2017 and 22 December 2017). The three POD documents are to be found, chronologically, at Brunton tabs 10, 11 and 12).
3. As is clear from the terms of the NOM ([3] above), the Court's focus must be upon pars 3(b), 3(c), 9(b), and 31 of the FAPOD, which respond to pars 3(b), 10 to 16, and 34A to 37 of the 28 November 2017 POC, which state: The Applicant and Related Entities ... 3. Dial A Dump Industries Pty Ltd ACN 131 565 583 (DADI): ... (b) was, prior to the Acquisition Date, using Lot 2, as the agent of ALF and Boiling, for the purpose of carrying out commercial activities including: (i) waste collection; (ii) waste transfer; (iii) waste recycling; (iv) landfilling; and (v) storage of vehicles and equipment; and ... Features of the Subject Land of special value to the Applicant 10. Between 2002 and the Acquisition Date Lot 2 was an important base for the administrative, finance and maintenance functions of ALF and the Corporate Group. 11. In 2012 DADI commenced operations of a second and larger recycling and landfill facility at Eastern Creek. 12. Between 2012 and the Acquisition Date Lot 2 was operated so as to be a key supplement to the operations of, and efficient supplier of raw materials to the facility at Eastern Creek. 13. The location of Lot 2 being so close to the Sydney central business district provided a competitive advantage for the targeting of materials received at the site. 14. In 2013, the Corporate Group lodged a development application under the [Environmental Planning and Assessment Act 1979] to obtain development consent to construct a facility to generate energy from waste (Project) with Lot 2 intended as a significant source of materials for this Project. 15. The location of Lot 2 being so close to the Sydney central business district - particularly during several large public infrastructure projects involving demolition - gave ALF a strategically important site for waste disposal and to obtain recycling product to sell or to source for the efficient supply of materials to the Project or the Eastern Creek Site that were advantageous to it and incidental to the use of Lot 2. 16. As at the Acquisition Date, had all necessary plant and equipment in order to use the land pursuant to each of the development consents referred to above. ... Special Value 34A. ALF is entitled to compensation. 34B. ALF was using Lot 2 through the actions of its agent DADI for the purposes set out in 3(b). 34C. ALF had advantages incidental to that use of Lot 2 due to the matters set out in 10 - 16 34D. The financial value of such advantages is in addition to the market value of Lot 2. Methodology 34. The DCF methodology can be used to quantify the financial value of any advantage, in addition to market value, to which ALF is entitled which is incidental to ALF's use of Lot 2 (including through its agent, DADI). Special Value of Lot 2 35. The special value is determined by accounting for adjustments to the DCF methods for market value employed under Scenario 1 and Scenario 2 by: (a) eliminating what was otherwise imposed as an internal charge for the transferring of waste to other sites given that ALF could transfer to the Eastern Creek Site without such a charge; (b) eliminating what was otherwise imposed as overheads for workshop costs and administrative costs that are not incurred by ALF; and (c) accounting for the fact that ALF had all necessary plant and equipment. 36. The special value for ALF for Lot 2 under Scenario 1 or Scenario 2 Alternative 1 is $60,751,000. Particulars 36.1 Removal of the notional waste transfer charge is $24,194,000. 36.2 Not deducting for administrative costs is $35,153,000. 36.3 Not needing to purchase plant and equipment is $1,404,000. 37. The special value for ALF for Lot 2 under Scenario 2 Alternative 2 is $23,451,000.
4. The relevant pars of the FAPOD are: The Applicant and related entities ... 3. In response to paragraph 3, the respondent: ... (b) does not admit paragraph 3(b) in the terms in which the POC makes the allegation of agency; (c) says in further response to paragraph 3(b): (i) The respondent admits that DADI was, prior to the Acquisition Date, using Lot 2 for the purpose of carrying out commercial activities, namely waste collection, waste transfer, waste recycling, landfilling and storage of vehicles and equipment; (ii) The respondent admits that to the extent that ALF and/or Boiling conducted businesses on the acquired land, DADI was their agent in their conduct of those businesses and occupied the site of the acquired land in order to do so. The extent to which, if at all, ALF and/or Boiling conducted businesses on the acquired land prior to the Acquisition Date is a matter for evidence; (iii) The respondent does not admit that DADI's storage of vehicles and equipment on the acquired land were performed or undertaken by DADI as an agent of ALF and/or Boiling; (iv) The respondent denies that DADI's waste collection, waste transfer, waste recycling, and landfilling on the acquired land were activities that were performed or undertaken by DADI as an agent of ALF and/or Boiling; (v) The respondent says further that that DADI's waste collections, waste transfer, waste recycling and landfilling on the acquired land were performed or undertaken by DADI otherwise than as an agent of ALF and/or Boiling. Those activities were carried out by DADI as a principal, or for itself and on its own behalf, or otherwise than as an agent of ALF and/or Boiling; (vi) No documents, agreements or other material facts have been pleaded or referred to by the applicants to identify and describe the alleged relationship of agency; (vii) The applicants' pleading of agency in the POC is not consistent with the manner in which DADI asserted its claim for compensation to the Valuer-General and in subsequent proceedings in this Court and the NSW Court of Appeal involving the question whether DADI had a compensable interest in land; ... Features of the Subject Land and special value to the Applicant. 9. In response to paragraphs 10 to 16, the respondent: ... (b) otherwise denies the applicant's claim for special value as the paragraphs alleged to support a claim for special value do not sufficiently plead material facts relevant to the statutory criteria for a claim for compensation for special value and the applicant's claim for special value does not satisfy the elements required by s 57 of the [JTC Act] because the applicant, ALF: (i) was not the occupier of Lot 2 at the date of acquisition; (ii) did not use Lot 2 at the date of acquisition; (iii) cannot claim any advantage that was incidental to the use of Lot 2 by others; (iv) is not entitled to any revenue or profits such that there is any advantage with a financial value to ALF in addition to market value; (v) any such advantage, if it existed, had no financial value to either of the applicants; and (vi) repeats the matters pleaded above in paragraphs 3(b) and (c) in relation to the contention of agency. ... Special value 31. The respondent denies paragraphs 34A to 37 and repeats the matters pleaded above at paragraph 9 in relation to the applicant's claim for special value.
5. The Court needs to note, at this point: 1. various communications between the parties regarding these documents, and 2. the difference between the FAPOD and earlier draft POD documents.

(a) Correspondence

1. Relevant correspondence between the solicitors for the parties, in the period from 13 October 2017 to 25 January 2018, concerning the POC, POD and the then possible NOM, are before the Court, in separate exhibits.
2. For completeness, I set out those letters in some detail.
3. Exhibit A10 includes the following four letters exchanged before the hearing commenced: (i) On 13 October 2017, Murray wrote to Brunton, referring to the Preston and CA decisions in the "DADI" litigation (emphasis mine): ... Specifically, we note that on the evidence prepared in those proceedings it has been found: • That by resolution passed on 30 June 2008 ALF had impliedly granted DADI permission to carry out landfilling activity on Lot 2 pursuant to EPL 4627: Trial Decision at [107] • That the permission did not allow DADI to carry out business on lot 2 for itself as principle (sic) but rather as agent: Trial Decision at [110]. No other conclusion is tenable on the facts: Appeal Decision at [57]; • That the agency relationship was on behalf of the two companies being ALF and Boiling: Appeal Decision at [59]; Trial Decision at [117]. We have assumed in the preparation for these proceedings, that the findings made in the Trial Decision and Appeal Decision would not be challenged by your client in these proceedings (indeed, we consider our respective clients to be bound by an issue estoppel regarding the relationship between the companies). However, for abundant caution we ask for confirmation that your client would not be contending for any different findings in these proceedings. Further, we seek confirmation that it would not be necessary for our client to again file voluminous statements of evidence regarding the relationships between the companies given the findings made in the earlier proceedings. That is, we ask for a specific admission that there was an agency relationship between DADI and the two companies regarding its use of the site for the carrying out of business activities on behalf of ALF and Boiling. We seek this clarification because if such admissions are not to be made, we will need to supplement our evidence with the materials filed in the DADI proceedings, adding to the cost and duplication of materials in proceedings that we already see will involve vast amounts of documentary material and we are mindful of the wishes of the Court to run this trial "paperless". We also note that as a model litigant your client is directed as a matter of policy not to put into issue matters that ought not be reasonably disputed. Finally, we have to put you on notice that in the event that your client were to contest findings made in the earlier proceedings, and our client was required to take these additional steps and incur these additional costs, we will ask the Court for special costs orders regarding that preparation and we reserve the right to tender this letter on any question of costs arising. We would be grateful for an early response to this letter. Indeed, it may be that there are several background facts that could be agreed between the parties early in the preparation of an agreed statement of facts that means the amount of documentary evidence can be reduced. We are open to receiving any suggestions you may also have regarding admissions or agreed facts. (ii) On 27 October 2017, Brunton responded to Murray (again emphasis added): ... 1. We refer to your letter dated 13 0ctober 2017. 2. Although it is not expressly stated, we assume that the concessions sought by your client are for the purposes of enabling Alexandria Landfill Pty Ltd (ALF) to claim disturbance costs. That is, it would appear your client will contend that a loss incurred by DADI can be claimed by ALF. 3. If that is so, we advise that RMS will oppose any such contention. 4. RMS will be contending that ALF cannot claim disturbance costs based on the proposition that costs or losses incurred by another legal entity can be claimed under section 55(d). We are not aware of any case law under section 55(d) that supports such a proposition. 5. The findings of the Court of Appeal in DADI v RMS are to be read in the context of the legal and factual issues in dispute in that case. Those findings are only relevant to these proceedings in terms of legal principle and not matters of fact. 6. The extent to which the Court of Appeal found there was a relationship of agency is based on the issues of fact in that case. Those findings do not, in our view, bind the Land and Environment Court in relation to issues of fact in the ALF proceedings. 7. Accordingly, RMS will not provide the concessions you seek. It is a matter for your client to determine what evidence it will rely on to support its case. We dispute the view that there are "vast amounts of documentary material" that are relevant to the matter you raise. Indeed, the evidence of the relationships between your client's corporate entities was quite limited. Furthermore, your client did not contend in the DADI proceedings that this evidence supported the proposition of an agency relationship between DADI and ALF. For your client to now contend there is a large amount of evidence on that matter is somewhat incongruous to say the least. 8. If your client seeks admissions as to matters of fact in order to narrow the issues in dispute, we invite you to put those specific matters to us. (iii) On 7 November 2017, Murray wrote back to Brunton (again emphasis added): ... At paragraph 8 of Your Letter, you provide If your client seeks admissions as to matters of fact in order to narrow the issues in dispute, we invite you to put those specific matters to us. The Applicant seeks an admission of the particular fact by consent of the Respondent RMS being: At the date of acquisition, DADI carried out waste recycling, collections, processing and transfer and landfilling including the scheduled activities the subject of the environment protection licences on Lot 2 for and on behalf of ALF and Boiling. The relevant findings in the Land and Environment Court and Court of Appeal, which support the admission of the particular fact are as follows: • That by resolution passed on 30 June 2008 ALF had impliedly granted DADI permission to carry out landfilling activity on Lot 2 pursuant to EPL 4627: Trial Decision at [107] • That the permission did not allow DADI to carry out business on lot 2 for itself as principal but rather as agent: Trial Decision at [110]. No other conclusion is tenable on the facts: Appeal Decision at [57]; • That the agency relationship was on behalf of the two companies being ALF and Boiling: Appeal Decision at [59]; Trial Decision at [117]. ... (iv) On 9 November 2017, Brunton replied (again emphasis added): ... 1. We refer to your letter of 7 November 2017. 2. As previously advised, to the extent there were findings of agency in the DADI proceedings at trial and on appeal, those findings are limited to the facts and circumstances of that case. 3. We are instructed that our client does not admit the statement referred to in your letter in these proceedings.
4. Exhibits A11 and R22 contain the following exchanges of letters during January 2018, while the hearing stood adjourned for the Law Vacation: (v) On 19 January 2018 (Exhibit A11), Murray wrote to Brunton's Senior Associate (Nicola Targett) in respect of the 22 December 2017 amended POD document (emphasis mine): ... We refer to the Respondent's Amended Points of Defence dated 22 December 2017 (Amended Defence). At paragraph 3 (i) of the Amended Defence the Respondent admits that to the extent that ALF and/or Boiling conducted business on the acquired land, DADI was their agent in their conduct of those businesses and occupied the site of the acquired land to do so. At paragraph 3 (ii) of the Amended Defence, the Respondent does not admit that all of the activities and operations of DADI on the acquired land were performed or undertaken by DADI as an agent for ALF and/or Boiling. Further at paragraph 3 (iii) of the Amended Defence, the Respondent provides that various activities and operations of DADI on the acquired land were performed or undertaken by DADI otherwise than as an agent of ALF and/or Boiling (whether as principal, or for itself and on its own behalf, or otherwise). It is unclear from the Respondent's Amended Defence what activities and operations undertaken by DADI the Respondent does not admit were performed or undertaken by DADI as agent of ALF and/or Boiling. The Applicant requests that the Respondent provide particulars as to what activities and operations as referred to in paragraphs 3 (ii) and 3 (iii) of the Amended Defence the Respondent does not admit were undertaken by DADI as agent of ALF and/or Boiling. It is the Applicant's position that if the Respondent cannot provide particulars as requested, it is improper for the Respondent to rely on paragraphs 3 (ii) and 3 (iii) of the Amended Defence and the Applicant will seek to move to strike out these paragraphs. We note that the Respondent provides at paragraph 3 (v) of the Amended Defence that the Respondent reserved its right to amend paragraph 3 of the Amended Defence after the production of documents by the Applicant in respect to the Notice to Produce and Subpoenas that were filed on 24 November 2017. We therefore request that the Respondent provide the particulars by 24 January 2017 (sic). (vi) On 25 January 2018 (Exhibit R22), Targett replied (emphasis again mine): ... 1. We refer to your letter dated 19 January 2018 and the Respondent's Amended Points of Defence served on 22 December 2017. 2. As you are aware, your letter dated 19 January 2018 requests our client to provide particulars as to what activities and operations the Respondent does not admit were undertaken by DADI as agent of ALF and/or Boiling. 3. We note that it is your client's pleadings that should provide sufficient particulars of its claim relating to agency in order for our client to form a view, and not the other way around. However, we confirm that we are still considering your client's request for particulars and reviewing the documents produced under the notice to produce to ALF and subpoenas to Dial a Dump Industries Pty Ltd and Dial a Dump (EC) Pty Ltd. 4. As production under the notice to produce and subpoenas was only completed yesterday, our client requires further time to provide a response. 5. On this basis, we will provide a response in due course.
5. The correspondence which I have quoted above referred (at 30 and (iii)) to some particular paragraphs of both the first instance and CA judgments in the DADI litigation, namely [107], [110] and [117] of this Court's decision, and [57] and [59] of the CA's decision, which I should here record.
6. Preston J said (at [107], [110], and [117]): 107 The only cryptic references to ALF's operations on Lot 2 were in note 4 of the minutes that DADI "will commence commercial operations of landfilling, recycling, waste transfer and collections which it will carry on under the name of" DADI, which "will be done for and on behalf of the Alexandria Landfill Consolidated tax group" and in note 6 that DADI "will operate the waste facility … on behalf of the Alexandria landfill group". Whilst the operations of "recycling, waste transfer and collections" were carried on by Boiling as trustee of the Dial A Dump Industries Trust pursuant to EPL 12594 held by Boiling, the operation of "landfilling" was carried on by ALF pursuant to EPL 4627 held by ALF. It might be thought that ALF by this resolution impliedly permitted DADI to carry on the operation of landfilling on Lot 2 that had until then been carried on by ALF. Even if this were to be implied, however, the giving of this implied permission for DADI to carry on the operation of landfilling of Lot 2 would not necessarily carry with it a grant of any proprietary interest in Lot 2, including giving exclusive possession of Lot 2, to DADI. ... 110 The second indication is that ALF recorded that DADI would carry on commercial operations and the waste facility on Lot 2, not on its own behalf but rather "for and on behalf of the Alexandria Landfill Consolidated tax group" or "on behalf of the Alexandria landfill group" respectively. The arrangements were even more confused by ALF recording that "each different activity will be identified as an accounting division within Dial A Dump Pty Ltd", a different corporate entity to DADI, and "it will account for all waste revenues and expenses on behalf of the Group". The precise identity of this tax group or other corporate group was not clearly established, but at least it included ALF and DADI as the wholly owned subsidiary of ALF. In these circumstances, for ALF to give permission to its wholly owned subsidiary to carry on operations on Lot 2 "for and on behalf of the ALF Consolidated tax group" or "on behalf of the Alexandria landfill group" did not give any permission to DADI itself. DADI would not be carrying on the commercial operations or waste facility on Lot 2 as principal but rather only as agent. Hence, the giving of permission to carry on operations on Lot 2 could not carry with it the grant of the right to exclusive possession of Lot 2 to DADI. ... 117 ALF and Boiling continued to hold environment protection licences in their names rather than DADI's name. ALF continued to hold EPL 4627 authorising the carrying on of the scheduled activities associated with landfilling and Boiling continued to hold EPL 12594 authorising the scheduled activities associated with waste transfer, processing and recycling. Under s 48 of the [Protection of the Environment Operations Act 1997 ('POEO Act")], each person who is an occupier of premises at which scheduled activities are carried out is required to be a holder of a licence authorising that activity to be carried on at those premises. Hence, it can be inferred from the fact that ALF and Boiling continued to hold environment protection licences that they were the occupiers of Lot 2 on which the scheduled activities were carried out: see also s 258 of the POEO Act. This occupation of Lot 2 by ALF and Boiling is not consistent with DADI occupying Lot 2 in its own right. If DADI had been the occupier of Lot 2, it was required to have held an environment protection licence authorising the scheduled activities carried on at Lot 2. However, the fact that ALF and Boiling continued to hold the environment protection licences, but DADI did not, would be consistent with DADI carrying on the scheduled activities at Lot 2 for and on behalf of ALF and Boiling.
7. Beazley P said, in delivering the principal CA judgment (at [57] and [59]): 57 Accepting, or at least assuming for Dial A Dump's benefit that his Honour did not make a positive finding of agency, I am nonetheless of the opinion that no other conclusion is tenable on the facts found by his Honour. As G E Dal Pont explains in Law of Agency, (3rd ed, 2014, LexisNexis) at 6 [1.4], the relationship of agency necessarily involves: "… acting in a representative capacity for the principal, whether for the purpose of creating contractual relations for a principal or to represent the principal in a more restricted ambit." (emphasis in original) ... 59 The terms of the resolution of 30 June 2008 were that Dial A Dump was "to act on behalf of ALF and Boiling" in the respects referred to in the document. Dial A Dump had no independent right to carry on the businesses itself. Dial A Dump's letter of 1 August 2008 to customers was only consistent with Dial A Dump carrying on the businesses on behalf of the two companies and was a representation of the capacity in which it was acting.

(b) Earlier drafts of the POD

1. In the 27 November 2017 draft of the POD (Brunton tab 10), pars 3(b), 3(c), and 9, and what was then par 30 said: The Applicant and related entities ... 3. In response to paragraph 3, the respondent: ... (b) on the assumption that DADI refers to Dial A Dump Industries Pty Ltd (ACN 131 565 583), the respondent admits paragraph 3(a) and does not admit paragraphs 3(b) and 3(c); (c) says further that DADI does not hold an Environment Protection Licence at the Eastern Creek site referred to in paragraph 3(c); and that the holder of relevant Environment Protection Licences at that site is Dial A Dump (EC) Pty Ltd (ACN 115 345 769). ... Features of the Subject Land and special value to the Applicant. 9. In response to paragraphs 10 to 16, the respondent: (a) says that the paragraphs alleged to support a claim for special value do not sufficiently plead material facts relevant to the statutory criteria for a claim for compensation for special value; (b) says that the claim is expressed in terms that are very uncertain and unspecific and the pleading does not fairly put the respondent on notice of the basis for the applicants' claim for compensation for special value; and (c) reserves all its rights in respect of objecting to, or responding to the legal and factual basis for the allegations said to support, the claim for special value. ... Special value 30. The respondent denies paragraphs 34 to 37 and says further that the applicants' claim for compensation for special value of the land in Lot 2 does not satisfy the elements required by s 57 of the [JTC Act] because the applicant, ALF: (a) was not the occupier of Lot 2 at the date of acquisition; (b) did not use Lot 2 at the date of acquisition; (c) cannot claim any advantage that was incidental to the use of Lot 2 by others; (d) is not entitled to any revenue or profits such that there is any advantage with a financial value to ALF in addition to market value; and (e) any such advantage, if it existed, had no financial value to either of the applicants.
2. In the POD, as amended on 22 December 2017 (Brunton tab 11), par 9 reappeared unchanged, but pars 3(b), 3(c), and 30 had become: The Applicant and related entities ... 3. In response to paragraph 3, the respondent: ... (b) does not admit paragraph 3(b) in the terms in which the POC makes the allegation of agency; (c) says in further response to paragraph 3(b): (i) The respondent admits that to the extent that ALF and/or Boiling conducted businesses on the acquired land, DADI was their agent in their conduct of those businesses and occupied the site of the acquired land in order to do so; (ii) The respondent does not admit that all of the activities and operations of DADI on the acquired land were performed or undertaken by DADI as an agent of ALF and/or Boiling; (iii) The respondent says further that various activities and operations of DADI on the acquired land were performed or undertaken by DADI otherwise than as an agent of ALF and/or Boiling (whether as a principal, or for itself and on its own behalf, or otherwise); (iv) No documents, agreements or other material facts have been pleaded or referred to by the applicants to identify and describe the alleged relationship of agency; (v) At the time of the preparation of this Points of Defence, the applicants and DADI have not completed production to the respondent of documents that are likely to be relevant to the nature and extent of the activities and operations of DADI that were performed or undertaken on the acquired land otherwise than as agent for ALF and/or Boiling, the production of which may require this paragraph 3 to be supplemented, revised or particularised; (vi) The applicants' pleading of agency is not consistent with the manner in which DADI asserted its claim for compensation to the Valuer-General and in subsequent proceedings in this Court and the NSW Court of Appeal involving the question whether DADI had a compensable interest in land ... Special value 30. The respondent denies paragraphs 34 to 37 and says further that the applicants' claim for compensation for special value of the land in Lot 2 does not satisfy the elements required by s 57 of the [JTC Act] because the applicant, ALF: (a) was not the occupier of Lot 2 at the date of acquisition; (b) did not use Lot 2 at the date of acquisition; (c) cannot claim any advantage that was incidental to the use of Lot 2 by others; (d) is not entitled to any revenue or profits such that there is any advantage with a financial value to ALF in addition to market value; (e) any such advantage, if it existed, had no financial value to either of the applicants; and (f) repeats the matters pleaded above in paragraphs 3(c) and 3(d) in relation to the contention of agency.
3. As Mr Lancaster submitted (Tpp1601-3), the wording of the respondent's POD on the key dispute about some possible agency arrangement between DADI and the applicant(s) "morphed" from "do not admit" to "deny" as more evidence became available.
4. It is, therefore, necessary to examine what the DADI litigation "decided" on that question.

What Did The DADI Judgments Say?

1. At first instance, Preston J used the word "agent" or "agency" only once, namely in [110], where His Honour said, in searching the evidence for any indication that ALF did not part with possession of Lot 2: DADI would not be carrying on the commercial operations or waste facility on Lot 2 as principal but rather only as agent. Hence, the giving of permission to carry on operations on Lot 2 could not carry with it the grant of the right to exclusive possession of Lot 2 to DADI. (Emphasis added.)
2. His Honour also said (at [139]): A merely personal permission to occupy land is not of the character of the rights listed in par (b) [of the definition of "interest in land" in s 4(1) of the JTC Act]. Any permission that ALF or Boiling might have given DADI to occupy Lot 2 is purely personal and not proprietary, and not of the type of rights described in par (b).
3. The CA found no error of law in Preston J's decision. In the principal judgment delivered by Beazley P, Her Honour mentioned "agent" or agency" on several occasions, but often only when quoting submissions made, or other documentary sources, and not directly identifying, as part of her reasoning, any possible agency link between DADI and ALF in respect of Lot 2.
4. In [43] Her Honour noted an RMS contention: "that [Preston J] had made a finding of agency, and in the absence of any other evidence, the fact of agency prevented Dial A Dump from establishing that it had an exclusive right to possession of Lot 2".
5. When Her Honour turned to "Consideration", her first par ([48]) noted: Although the arguments of Dial A Dump were somewhat wide ranging, it seems to me that the following issues are raised by the submissions of both parties: (i) whether a legal interest in land must be a registered legal interest; (ii) whether his Honour erred in deciding the question whether Dial A Dump had a legal interest by reference to a documented interest only; (iii) whether, on the basis of the principles in Perry v Clissold [(1906) 4 CLR 374], Dial A Dump had established that it had a legal interest in land; (iv) whether its use, occupation of and receipt of revenue from the activities carried on the land were sufficient indicia of exclusive possession; (v) whether it was open to Dial A Dump to argue on the appeal that it had a legal interest in Lot 2 in land when it had not established that any such legal interest derived from its relationship with ALF and did not challenge his Honour's finding at [102] that Boiling had not parted with possession of Lot 2; (vi) whether the nature of the relationship between Dial A Dump and ALF and Boiling respectively was one of agency and whether his Honour made a finding of agency; and (vii) whether, if Dial A Dump was acting on its own behalf in terms of its occupation of the land and carrying on business on the land would thereby be acting contrary to the terms of the POEO Act, was indicative that it did not have a legal interest in land.
6. Relevantly, Her Honour then said (at [55]-[61]), in the context of dealing with issues (iii) to (vi), which she said (at [54]) were "conveniently dealt with together". 55 RMS contended in its submission, and Dial A Dump resisted the argument, that his Honour had made a finding of agency. None of his Honour's reasoning at [103]ff, which related to the question whether Dial A Dump acquired a legal interest in Lot 2 from ALF, was subject to any significant challenge and, in my opinion, cannot be assailed. However, his Honour's reference to an agency relationship requires further consideration, that being a significant focus of Dial A Dump's oral submissions 56 When regard is had to the manner in which the primary judge constructed his reasons, Dial A Dump may be correct in asserting that his Honour did not make a finding of agency. His Honour's approach was to consider the various factual circumstances relevant to the question whether Dial A Dump had established that it had an interest in land and, relevantly for the present argument, a legal interest in land. His Honour considered that the factual circumstances either indicated or pointed against there being a legal interest in land, or at best were equivocal. 57 Accepting, or at least assuming for Dial A Dump's benefit that his Honour did not make a positive finding of agency, I am nonetheless of the opinion that no other conclusion is tenable on the facts found by his Honour. As G E Dal Pont explains in Law of Agency, (3rd ed, 2014, LexisNexis) at 6 [1.4], the relationship of agency necessarily involves: "… acting in a representative capacity for the principal, whether for the purpose of creating contractual relations for a principal or to represent the principal in a more restricted ambit." (emphasis in original) 58 Dal Pont continues, in a passage which well illustrates the point in this case: "Put another way, if the right by virtue of which the alleged agent acts is an independent right he or she already possessed, then he or she is not an agent; if it is, conversely, by virtue of some authority from another, then he or she is an agent. Thus, even though the words or phrases 'for', 'on behalf of', 'for the benefit of' or even 'authorise' may be used in relation to services done to advantage the person who requests them, lacking a representation of that person to third parties, there is no agency." 59 The terms of the resolution of 30 June 2008 were that Dial A Dump was "to act on behalf of ALF and Boiling" in the respects referred to in the document. Dial A Dump had no independent right to carry on the businesses itself. Dial A Dump's letter of 1 August 2008 to customers was only consistent with Dial A Dump carrying on the businesses on behalf of the two companies and was a representation of the capacity in which it was acting. 60 Once that is accepted, it is apparent that Dial A Dump's reliance upon the fact that it occupied the premises and received revenue for doing so and paid certain expenses does not establish that it had any legal interest in the land. Occupation of land is a different concept from possession. ... 61 Given the circumstances, and in particular ALF's legal title and Boiling's leasehold interest and their continued holding of the POEO licences, Dial A Dump's occupation did not constitute legal possession such as to constitute an interest in land.
7. Her Honour later noted (in [132]): In oral submissions, Dial A Dump resisted the proposition that it was carrying on its activities on behalf of a group rather than operating on its own behalf. Dial A Dump submitted there was not a 'group' in the "legal entity sense" and it could not have been said to have been acting as an agent of an unidentified entity without a legal personality. Dial A Dump submitted that no agency relationship between ALF and/or Boiling and itself should be imposed or imputed. This submission was consistent with its earlier submission that no finding of "agency" had been made by the primary judge. Dial A Dump also contended that there was, in fact, no agency relationship between it and ALF or Boiling. ...
8. Notably, at the very end of her judgment, Beazley P said (at [156]-[160]): 156 Accepting that, on the basis of the New South Wales authorities, an "interest in land" within the meaning of para (b) is not as confined as was found in Hornsby Council v Roads and Traffic Authority [New South Wales (1997) 41 NSWLR 151], including on the view of Mason P, there remain two requirements in the legislation which are fundamental to the determination whether Dial A Dump had an "interest in land" within the meaning of para (b). The first requirement is that the power or privilege" must be "over or in connection with the land". The second requirement is that there must be an "owner" of the power or privilege such as to be entitled to compensation: see s 37. 157 Dial A Dump did not have any power "over or in connection with the land". "Power" involves an ability to control or direct. There was no evidence that Dial A Dump had any such power and indeed the evidence was to the contrary. Dial A Dump had no power to control or direct the grant of leases or licences over the land. That power remained in ALF and in Boiling subject to the terms of its lease. Dial A Dump's function was to conduct two particular businesses on behalf of the owners of those businesses. It could thus determine how the businesses were carried on, but it could not otherwise control or direct what went on on the land, except "on behalf of the Alexandria landfill group" as recorded in the minutes of 30 June 2008. 158 It is arguable that a permission to use land could constitute a "privilege in, over or in connection with land" within the meaning of para (b) of the definition of "interest in land". Whether that could be so would depend on the terms of the permission. Dial A Dump's permission to be on the land was for the purposes of the businesses that it was carrying on for ALF and Boiling. It was, on his Honour's finding, a permission personal to it. ALF and Boiling at all times had control of Lot 2, as owner, lessee and pursuant to their obligations as the holders of the POEO licences. Dial A Dump, at the most, had no more than the rights of an agent or a licensee to be on the property for the purposes of carrying on the business. I do not consider that that right gave it an interest in land as defined. 159 I am also of the opinion that for there to be a power or privilege within the meaning of para (b), that power or privilege must be capable of alienation. Otherwise, the concept of ownership as part of the statutory scheme, especially in s 37, would be superfluous insofar as a power or privilege over or in connection with the land was concerned. Dial A Dump had nothing that it could sell or transfer. Its rights were, as I have stated, no greater than its obligation to conduct the two businesses on behalf of ALF and Boiling for so long as those entities permitted it to do so. 160 My view on this is reinforced by the terms of s 20 and the balance of the terms of s 37. Section 20 provides that on the date of publication of the acquisition notice the land described in the notice is vested in the acquiring authority. There was no interest by way of a power or privilege over or in connection for which Dial A Dump contended that could vest in the Authority: such permission as Dial A Dump had to be on the land to carry on the businesses terminated when those businesses ceased operation on the land. That occurred when the land was compulsorily acquired. For the same reason, insofar as Dial A Dump was concerned, there was nothing that was "divested, extinguished or diminished".
9. Her Honour concluded ([161]): Conclusion 161 It follows that the appeal should be dismissed with costs.
10. McColl JA agreed with Beazley P's decision, and generally with her reasons, commenting only ([162]-[168]) on matters not involving the issue now of concern to this Court on the NOM.
11. Leeming JA likewise agreed with Beazley P's proposed orders, and with Her Honour's "comprehensive reasons" ([169]).
12. His Honour was quite critical of the "exiguous" case DADI had presented (see especially [172]-[174]), and endorsed (at [175]) Preston J's finding that DADI "had not established primary facts sufficient to sustain a legal interest in the land". His Honour went on to endorse Beazley P's rejection also of any equitable interest.
13. So far as I can see, neither McColl JA nor Leeming JA referred, in terms, to any concept of "agency", albeit that Leeming JA said (at [172]) that DADI seemed to be "not acting as principal in its own right".
14. In refusing leave to appeal to the High Court, Gageler and Keane JJ said only: 1 An extension of time is necessary to allow this application to proceed. The application does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application should be dismissed. It would, therefore, be futile to grant the extension of time sought by the applicant. 2 Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

Consideration

1. In order to establish the context for the argument on this procedural NOM, the parties have, somewhat out of necessity, foreshadowed much of the argument they will have about the agency issue in final submissions.
2. As I noted in my introduction ([9] above), I have been careful to avoid adjudicating upon any of those arguments at this stage of the matter.
3. The applicants claim that the FAPOD are subject to an issue estoppel, and also amount to an abuse of the Court's processes.
4. Both parties agree on the binding principles laid down by the High Court in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507, especially at pars [22] to [43], and I shall not repeat them here. (See also Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213.)
5. The estoppel would operate to preclude the re-litigation, in these ALF proceedings, of an "ultimate issue of fact or law which was necessarily resolved as a step" in reaching the decision made in the decisive separate question asked in the DADI litigation.
6. As Dixon J made clear in Blair v Curran (1939) 62 CLR 464, at 531-3, that earlier decision, in order to ground an estoppel, must have been "legally indispensible" to the outcome in DADI. See also Ramsay v Pigram (1968) 181 CLR 271.
7. The applicants argue that that issue was the question of an agency relationship (between ALF/Boiling and DADI) in respect of DADI's business operations on the subject land, and that DADI and the applicants are "privies", with common legal (not just economic) interests in each other's proceedings. (See Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods (1992) 36 FCR 406 and (1993) 43 FCR 510).
8. In their submissions (pars 13, and 19 to 21), the applicants rely on the transcript of RMS's arguments before this Court and the CA in the DADI proceedings, in support of their contention that DADI had only a "bare permission to be on the site". Before both Courts the RMS position - that DADI had no interest in land which attracted the JTC Act - prevailed.
9. I am definitely not satisfied that the agency issue was the "ultimate issue" which needed to be, and was, resolved, in order for Preston J in this Court in DADI to determine the narrowly defined specific question separated for decision.
10. Nor am I satisfied that that issue was determined by the CA in deciding that Preston J made no error of law in answering the separate question. It was but one of the seven issues Beazley P listed in her par [48] (quoted at [43] above).
11. I accept what Mr Lancaster put to me (at Tp1581, L34 to p1582, L1, and LL29-33): The ultimate issue was whether or not DADI had an interest in land within the meaning of the [JTC Act]. That case simply was not a vehicle for the resolution of the current dispute about what, if any, income and expenditure of DADI can be regarded as income and expenditure of ALF for the purposes of ALF's claim for loss attributable to disturbance, and whether ALF used the land for the purposes of its special value allegations. This is, as your Honour knows, a massive claim, in the hundreds of millions of dollars, yet the applicant says this issue about what ALF is entitled to claim by way of loss attributable to disturbance was effectively decided by a side wind in a previous answer to a specific question involving a different applicant, being DADI. ... The scope and character of the agency and the extent to which income of one was income of the other, or is to be regarded in law in that way, was simply not addressed. It was not the subject of evidence; it was not the subject of submissions or of findings.
12. As he had earlier noted (at Tp1566, L45-p1567, L9), this NOM seeks: to prevent the RMS from contesting ALF's case that all of the income lost and all of the other losses suffered by DADI, if I can continue to refer to Dial a Dump Industries in that way, are amounts that ALF can claim as loss attributable to disturbance in these proceedings. That is a proposition that, on any view, has not been the subject of any prior determination either by Preston J or by the Court of Appeal in the DADI proceedings. It is an issue that comes up specifically in this compensation case and has not previously been determined.
13. The ALF claims, based on DADI's role, endure, and will have to be litigated as the substantive ALF hearing continues.
14. For the Court to step in and "foreclose" on that case (Tp1598, L3), I would need to be satisfied that the applicants have made out "a very clear case" for such heavy-handed intervention such as estoppel; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129-130, as applied by Pepper J in F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44, at [24], and myself in Meriton Apartments Pty Ltd v Council of the City of Sydney [2009] NSWLEC 166, at [22]-[24].
15. I am not so satisfied.
16. I accept, that the respondent has, on the agency question, "a good arguable case [which it] is entitled to put forward" (Tp1671, LL1-2) in answer to ALF.
17. Having interpreted the DADI decisions as I have, and found no estoppel, I need say no more about the privity question.
18. I turn now to "abuse of process". Although the concept of "abuse of process" has a wider ambit than issue estoppel, it generally requires some element of oppression of the other party, and/or some unfavourable implications for the public's perception of the integrity of the system of justice: see Rippon v Chilcotin (2001) 53 NSWLR 198.
19. I find neither of those elements made out in the present matter. In so far as the NOM depends upon some alleged change in position by the respondent in its POD, I'm not satisfied that what Mr Lancaster described as "morphing" of the "put you to proof" pleading (see [37] above) amounts to any real change in position, let alone to an abuse of process.
20. The applicants demand that the respondent make admissions; the respondent has consistently declined to do so; and now, as the evidence is almost all before the Court, it "denies", rather than "not admits". (I do not accept Mr Seymour's argument that the Court should always see a "does not admit" as no more than a "we don't know" - see Tp1604, L37.)
21. The onus lies upon the applicants, and they may well succeed on their various claims, but the respondent is under no obligation to refrain from insisting on proper proof of the applicant's case.
22. Finally, I must deal briefly with the competing allegations of delay. The applicants claim relief in this motion, on the basis of the delay by the respondent in finalizing its POD, and the respondent claims that the Court should deny the NOM because the applicants failed to move to strike out the earlier versions of the POD which failed to admit agency and special value.
23. Contrary to the applicants' submission (reply subs par 2), I find no abuse of process in either the respondent's waiting until Mr Biggs had been cross-examined before finalising its POD, or in the applicants' waiting until now to challenge the respondent's right to "deny".

Orders 1. The Notice of Motion filed by the Applicants on 2 March 2018 is dismissed. 2. Costs on the Notice of Motion are reserved. 3. Exhibits A10, A11, R20, R21 and R22, and Exhibits PLM1 and NB2, all tendered on the motion, are returned.

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