BBB Constructions Pty Limited v Burn

LEGISLATION CITED : State Emergency and Rescue Management Act 1989 Uniform Civil Procedure Rules (2005)

CASES CITED : BBB Constructions Pty Limited and Anor v Burn and Ors (No 2) [2008] NSWSC 358 Western Australia v Ward (2002) 213 CLR 1

BBB Constructions Pty Limited (1st Plaintiff) Baseline Constructions Pty Limited (2nd Plaintiff) PARTIES : Catherine J Burn (1st Defendant) John Lee (2nd Defendant) The State of New South Wales (3rd Defendant)

COUNSEL : Mr N A Nicholls (Plaintiffs) Mr J K Kirk / Mr P Rooney (Defendants)

SOLICITORS : Collin Biggers & Paisley (Plaintiffs) Crown Solicitor's Office (Defendants)

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30036/08 BBB Constructions Pty Ltd & Anor v The State of New South Wales

JUDGMENT 1 HER HONOUR: The first plaintiff is the owner of a construction site. The second plaintiff is the company retained to undertake part of the construction works. On 6 March 2008, a water main burst under Botany Road and flooded the site. In early April, State authorities entered the site to carry out remedial works in purported exercise of powers under emergency legislation. The plaintiffs have consistently disputed the entitlement of those authorities to enter the site. Each of the plaintiff companies now claims damages for trespass to land on the premise that the entry was unlawful. 2 The defendants sought to have the proceedings dismissed as disclosing no reasonable cause of action. Alternatively, they sought to have parts of the statement of claim struck out for failure to plead material facts. That application was met with the production at the outset of the hearing of a proposed amended statement of claim. The parties agreed that I should proceed to hear the matter as an application for leave to file the amended statement of claim. Leave is required because the original statement of claim had been filed more than 28 days earlier: UCPR 19.1. 3 The defendants oppose the grant of leave on the basis that the amended pleading does not cure the complaints that prompted the strike-out application. They acknowledge, however, that their remaining complaints are not summary judgment points and that, if leave is not granted in respect of the version of the pleading now proposed, the plaintiffs should nonetheless have leave to re-plead in accordance with the Court's reasons. 4 The project being undertaken at the site is for the construction of residential apartments with adjoining commercial facilities. The works already completed include the construction of secant walls to mark the perimeters of the excavated site. Those walls were designed and constructed by Frankipile (Australia) Pty Ltd. When water released from the ruptured main flooded the site, the secant wall along Botany Road moved. It was that rather alarming development that prompted the intervention of the State. 5 On 4 April 2008 Catherine Burn, an Assistant Commissioner of the New South Wales Police Force, made a direction under the State Emergency and Rescue Management Act 1989 to the Director General of the Department of Commerce (then John Lee) to carry out certain works to shore up the wall. The works directed to be carried out included the construction of an earth berm, a term used in the construction industry to describe a large mound of earth placed next to a wall to render it more secure. 6 On 8 April, police officers gained access to the site using bolt-cutters and permitted Mr Lee and certain contractors to enter the site to carry out the works referred to in the Assistant Commissioner's direction. The plaintiffs were asked to leave, which they did. The plaintiffs approached the Court that day seeking a declaration that the direction was invalid and an urgent interlocutory injunction to restrain the commencement of the works. For reasons published on 9 April 2008, Hoeben J declined to grant the interlocutory injunction and stood the proceedings over for final hearing the following day. However, when the proceedings came before Simpson J for final hearing, her Honour was told that Parliament intended to pass specific legislation to authorise the works referred to in the direction to be carried out, which obviated the utility of further hearing. 7 The Director General proceeded with the construction of the berm and, for that purpose, continued to exclude the plaintiffs from the site. His right to do so was the subject of the second urgent hearing in these proceedings. Hoeben J determined that issue on a final basis as a separate question pursuant to rule 28.2 UCPR and, on 21 April 2008, made the following declarations and orders (see BBB Constructions Pty Limited and Anor v Burn and Ors (No 2) [2008] NSWSC 358): "(1) A declaration that subject to declaration 2, the plaintiffs are entitled to exclusive possession of the Botany site. (2) A declaration that for the purpose of carrying out the works, the subject of the direction dated 7 April 2008 and the "emergency works" pursuant to clause 11 of the Amending Act (the works), the defendants are entitled to such access as is reasonably required to perform the works and are not entitled to exclusive possession of the Botany site. (3) An order that the defendants deliver up possession of the Botany site to the plaintiffs, save that pursuant to clauses 11 and 12 of the Amending Act, the second defendant, its servants, agents and contractors are entitled to enter upon the Botany site for the purpose of performing the works. (4) An order that the plaintiffs do not materially interfere with or impede the performance of the works or access by the second defendant's servants, agents and contractors to those locations in the Botany site where the works are being performed." 8 Pursuant to those declarations and orders the plaintiffs returned to the site and recommenced the construction works, including preparing for the pouring of the basement slab. During the same period the Director- General raised the issue whether, in addition to the earth berm along the Botany Road wall, it was necessary in the interests of safety to construct a berm along the secant wall adjacent to Wyndham Street and possibly also the wall supporting the Iron Duke Hotel. Those works would have impeded the works then being undertaken by Baseline. The plaintiffs contended that the pouring of the basement slab and other steps taken by it should address the Director General's concerns as to the safety of those walls. There were lengthy negotiations and meetings between the parties' respective experts but the plaintiffs failed to satisfy the Director General that no further action by it was required. They approached the Court for an injunction to restrain him from carrying out the further works. 9 A short injunction was granted by Hoeben J on 16 May, with the consent of the Director General, in the following terms: "3. The defendants, their servants, agents and contractors be restrained until 4pm on 21 May 2008 from taking any step or action towards or from carrying out or procuring the carrying out of any works relating to the construction of an earth berm along the wall adjacent to Wyndham Street and the wall supporting the Iron Duke Hotel within the Botany Site as defined under Part 6 of Schedule 4 of the State Emergency and Rescue Management Act 1989." 10 On 26 May 2008, after a contested hearing, I extended that order until further order and the Wyndham Street works proposed by the Director- General did not proceed. On 4 July 2008, the plaintiffs filed their statement of claim seeking damages for trespass to land on the basis that the defendants' entry upon the site on and from 8 April 2008 was unlawful. 11 Mr Kirk, who appeared with Mr Rooney for the defendants, identified seven problems with the proposed amended pleading, acknowledging that some were less grave than others. It is convenient to consider each in turn.

Parties 12 The original statement of claim named Katherine Burn and John Lee as individual defendants against whom damages for trespass were sought. In response to the defendants' complaint that the pleading failed to identify whether those parties were alleged to be liable directly or only vicariously, the amended pleading removes them as parties altogether, leaving the State as the only defendant on the basis that it is vicariously liable for all of the conduct complained of. 13 Mr Kirk submitted that the plaintiffs were right to exclude Ms Burn and Mr Lee as personal defendants to the claim for damages, but submitted that Ms Burn (personally) and "the Director General of the Department of Commerce" (no longer Mr Lee) should nonetheless be named as parties because they are the relevant decision-makers. Mr Kirk referred to the Practice Note for the Administrative Law List at [17] and submitted that the requirement to name the decision-makers in the present case followed from the fact that the relief sought includes declarations as to the validity of certain decisions. Mr Kirk described the relief sought as "certiorari dressed up as declaratory relief", but said that in any event, what is sought is administrative law relief. 14 Mr Nicholls, who appeared for the plaintiffs, was content to reintroduce the decision-makers as parties on that basis. In my view, that is the appropriate course, having regard to the terms of the declaratory relief sought. I express no view as to whether it is necessary or appropriate, in the context of the claim for trespass, for the plaintiffs to seek such relief in respect of the decisions in question. 15 The plaintiffs should also consider whether "the Authority" referred to in prayer 4 of the relief claimed and the Wyndham Street Decision referred to in prayer 7 involve any additional decision-makers (if those claims are to be pursued, as to which further discussion appears below).

Cause of action in trespass 16 Mr Kirk's second complaint was divided into three parts. The first concerned the entitlement of each plaintiff to bring a claim in trespass. Mr Kirk said that the heart of such a claim is a legal right to possession of the land, which is to be distinguished from a licence or personal right to use land. He referred to the decision of the High Court in Western Australia v Ward (2002) 213 CLR 1 where McHugh J discussed the distinction between those rights, identifying the legal right to possession as the basis on which a lessee may bring an action for trespass to land, whereas a licensee is confined to an action in contract or some tort other than trespass to the land: at [503] to [504]. 17 Mr Kirk submitted that the amended pleading fails to identify the basis on which it is asserted that both plaintiffs have a legal right to possession in the present case. 18 The original pleading alleged that BBB is the owner of the land and that it had entered into an agreement with Baseline pursuant to which Baseline had agreed to perform certain works. The pleading did not otherwise identify any right to possession of Baseline. The defendants' solicitor complained that any cause of action in trespass lay at the suit of either BBB as owner or Baseline as builder in possession, but not both. 19 The plaintiffs sought to address that issue by pleading the following terms of the building contract between BBB and Baseline: "5 There were express terms and conditions of the Building Contract that: a. BBB was required to do all things necessary to ensure that any access required by Baseline to carry out the Building Contract Works had been obtained and would be maintained; b. Baseline was appointed the agent of BBB for the purpose of permitting persons to enter upon the Botany site, refusing any persons the right to enter and to exclude any persons from entering upon the Botany site and removing any unauthorised persons from the Botany site; c. Baseline would have exclusive and uninterrupted possession of and access to the Botany Site for the purposes of performing the Building Contract Works." 20 The amended pleading also added the following allegations: "6. On and from November 2007 Baseline was in and entitled to possession of the Botany site for the purposes of performing the Building Contract Works." and "9A. As at March 2008, BBB was in possession of that part of the Botany site required for the purpose of carrying out excavation required for the foundation pad footings and the installation of pilling to support the foundation pad footings, which form part of the Foundation Works." 21 The "Building Contract Works" were defined as the works Baseline had agreed to perform. The "Foundation Works" were defined in paragraph 8 which said: "BBB engaged Frankipile (Australia) Pty Ltd. ("Frankipile") to design and construct the perimeter secant walls and related pilling works for the foundation ("the Foundation Works")." 22 The amended pleading alleges, in the alternative, that Baseline had "exclusive possession" of the whole of the site (paragraph 34A). I did not understand Mr Kirk to raise any separate complaint in respect of that allegation. It is tolerably clear that the alternative case is that Baseline had a legal right to possession of the whole, on the basis of an alternative construction of the terms pleaded in paragraph 5 of the amended pleading. 23 A difficulty arises, however, with the primary case. The term pleaded in paragraph 5(c) suggests that Baseline has a right of possession to the exclusion of BBB but one that is constrained by reference to the purpose of carrying out the "Building Contract Works". It is not clear whether those works are confined to certain physical areas of the land or certain phases of construction. Further, there is a level of tension between that term and the term appointing Baseline the agent of BBB pleaded in paragraph 5(b), which (read alone) suggests that BBB retains a legal right of possession of the site, possibly even to the exclusion of Baseline as its agent. 24 Taken in combination, the case appears to be that each plaintiff has a legal right to some possession of the site that is subject to temporal, spatial or purposive constraints. Whether, in those circumstances, a right to bring an action in trespass for wrongful entry on the land exists or is similarly constrained is not an issue that I have to determine in the present application. I think, however, that the content of the constraints will ultimately have to be better defined if the defendants are to know the case they have to meet at the suit of each plaintiff. 25 The position is complicated by the fact that Hoeben J has already heard and determined part of the original claim (based on the amended summons dated 14 April 2008) on a final basis. Counsel for the plaintiffs submitted that his Honour made findings and orders that each of BBB and Baseline were entitled to possession of the site. With great respect to him, I do not think that is quite what his Honour held. His Honour made a declaration that "the plaintiffs" are entitled to exclusive possession of the Botany site. On a fair reading of his reasons, however, it does not appear that his Honour turned his mind to the position as between the two plaintiffs. The hearing appears to have proceeded on the untested premise that, absent the direction of the Assistant Commissioner and the amending legislation, they were entitled to possession. The central issue his Honour had to decide was one of statutory construction. In my view, however, the right of possession of each plaintiff individually at the relevant times after 8 April 2008 is an element of the claim that will have to be determined. At the moment, the basis of those rights is not clear. 26 The need for clarification is apparent when Mr Kirk's next points are considered. The second part of his complaint in respect of the pleading of the claim in trespass was that it fails to identify the relevant interference with the right of possession. Thirdly, Mr Kirk complained that the pleading fails to identify how the interference has resulted in particular damage. He said that the plaintiffs have failed to grapple with the need to identify with precision "who did what wrong causing what damage". 27 In my view, there is force in that submission. The defendants need to know, for example, what works being carried out by which plaintiff on which parts of the site were stopped when police excluded them from the site on 8 April, and what loss or damage was suffered as a consequence. 28 The plaintiffs submitted that a detailed factual investigation would have to be undertaken before they could provide that information. That may be so, but it is no answer to the defendants' complaint. It is one thing for the plaintiffs to have succeeded in bringing to an end their exclusion from the site. The claim for damages raises different issues. If each plaintiff asserts that it suffered loss as a consequence of the defendants' conduct, it should be able to point with specificity to the acts of the defendants complained of, the right of possession interfered with by those acts and the particular losses caused as a result. Contaminated fill claim 29 The third complaint related to the allegation in paragraph 38 of the amended pleading that, in undertaking the works referred to in the s 61 direction, the Director General deposited contaminated fill material that contained waste including bricks, concrete, wood, asbestos, chemicals or plastics and that he damaged the secant walls in various locations. Mr Kirk submitted that no cause of action has been identified in respect of that allegation and that it is not clear what cause of action is relied upon. He submitted that, if the allegation is intended to support a claim in negligence, the material facts alleged to give rise to a duty of care have not been pleaded. 30 It emerged from Mr Nicholls' submissions that the claim in respect of the contaminated landfill may properly be maintained as a component of the damages claimed in trespass. I do not think there is any embarrassment to the defendants from the inclusion of that claim in the pleading.

Wyndham Street Decision 31 The fourth complaint related to the inclusion in the amended pleading of a claim for damages in respect of what is referred to as the Wyndham Street decision. That is a reference to a further decision made by Bryan Baker on 21 May 2008 directing that further works be undertaken to shore up the Wyndham Street perimeter wall on the site. Mr Kirk submitted that there could be no damage arising from the Wyndham Street decision, since the defendants were effectively prevented from carrying out the works referred to in that direction when I extended the injunction on 26 May 2008. 32 Mr Nichols acknowledged that the Wyndham Street claim was in substance disposed of by my order. He suggested that the plaintiffs may have suffered damages such as the costs of engaging experts to prepare the reports relied on in the proceedings. He appeared to acknowledge, however, that such damages could only be the result of the administrative decision, not of any trespass. On the material before me, I am unable to see how the plaintiffs' claim in damages for trespass can include any component in respect of the Wyndham Street decision.

Paragraph 30 33 Mr Kirk's fifth complaint related to paragraph 30 of the amended statement of claim, which states: "On and from 8 April 2008, BBB and Baseline were: (a) refused entry to any part of the Botany Site; (b) refused access to equipment, plant and materials on the Botany Site; and (c) refused possession of the whole of the Botany Site." 34 Mr Kirk correctly acknowledged that this was one of his minor points. His complaint was that the pleading was inadequate in that, although entry had been refused for a while, that position had been rectified by the orders made by Hoeben J. Since the proposed amended pleading will have to be further revised in any event, it is sufficient to indicate that the plaintiffs should take those remarks on board.

Paragraph 33 35 Mr Kirk's sixth complaint (his other minor point) related to paragraph 33 of the amended pleading, which states: "Insofar as Lee, his servants, agents and contractors continued to remain on the Botany site on and from 8 April 2008 pursuant to s 12 of the Amending Act, BBB and Baseline refer to and repeat paragraph 23 hereof." 36 Mr Kirk's complaint was that the reference back to paragraph 23 does not make sense, since paragraph 33 deals with acts undertaken pursuant to the amending Act, whilst paragraph 23 deals with the direction under the original legislation. No doubt the plaintiffs will also take that complaint on board in any further amended pleading.

The relief claimed 37 Mr Kirk's final point complained that some of the prayers for relief were not supported by any part of the pleading. Prayers 2 and 3 seek the following orders: "2. A declaration that [the Direction under s 61 made by Ms Burn] was outside the scope of the power contained in s 61(1)(c) of the Act in that it purported to direct Lee to carry out or procure the carrying out of the works designated in the Direction. 3. A declaration that the direction did not authorise the entry upon the Botany Site by Lee, his employees, servants, agents and or contractors without the consent of the plaintiffs." 38 Mr Kirk said that his understanding from earlier Court hearings in these proceedings is that those prayers are intended to raise the point that s 61(1)(c) authorises police to do certain things, but not civilians or others. He submitted that, if that is the point sought to be raised, it is not supported by any part of the pleadings. 39 I think there is force in that complaint. The question whether s 61(1)(c) authorises civilians to do certain things is a question of the proper construction of that section. However, in the context of the present case, Mr Lee's alleged absence of authority is part of the factual basis for the claim in trespass. The material facts in support of that part of the claim, namely, the construction of the Act contended for and the fact that Mr Lee is not a police officer, should be pleaded. 40 Prayer 4 seeks an order in the following terms: "4. A declaration that the authority issued to Lee and Inspector Joel Murchie, a member of the New South Wales police force, ("Murchie") dated 7 April 2008 purportedly pursuant to s 61D of the Act ("the Authority") was invalid in that Lee was not a police officer." 41 Mr Kirk noted that nowhere in the pleading is the defined term "the Authority" ever used. He submitted that the basis for that claim is not set out in the pleading. That appears to be correct. The basis for that claim for relief, if it is to be pursued, should be addressed in the pleading.

Particulars 42 The plaintiffs will have to give consideration to the form of the pleading in accordance with these reasons. Accordingly, there is no utility in my considering the issues raised in respect of the defendants' requests for particulars. The parties should be able to resolve such disputes without the need to resort to a further contested hearing. I note, however, that to the extent that I was required to consider those issues, it appeared to me that there is force in the plaintiffs' concerns that the defendants' approach does not pay due heed to the modern approach. The "dictates of justice" are the just disposal of the proceedings by means of proportionate resources and within a reasonable time. Those ends are not achieved by taking a pedantic approach to every issue, particularly where, as here, the defendants are well-informed as to the substance of some aspects of the plaintiffs' case as a result of earlier Court hearings. Costs

43 I have considered the parties' written submissions as to costs. I deal here with the costs of two further applications not discussed in this judgment which I also commenced hearing but which were ultimately disposed of by consent. In my view the appropriate orders are as follows. 44 In respect of the defendants' application for access to the Court file, as conceded by Mr Kirk, there should be no order as to costs. 45 In respect of the plaintiffs' application to set aside the defendants' notice to produce, I have come to the view that the application was precipitated by a level of intransigence on both sides. The notice sought a broader range of documents than ought to have been required. On the other hand, I think the plaintiffs' overreached in their resistance to the production of the originating process in the Frankipile proceedings. In the interests of encouraging a more reasonable and cooperative approach between these parties in the future, I make no order as to the costs of that application. 46 In respect of the third application which became an application for leave to file an amended statement of claim, the defendants have had a large measure of success and should have most of their costs. I accept that some of the points taken appear to have emerged for the first time in written submissions but do not consider that a sufficient basis for depriving the defendants of their costs. However, those costs should not include the costs occasioned by the requests for particulars and the disputes over the response to those requests, which should be costs in the cause. 47 Orders: (1) The application for leave to file the amended statement of claim is dismissed with leave to replead. (2) I order the plaintiffs to pay the defendants' costs of the application, not including the costs occasioned by the requests for particulars and the disputes over the response to those requests. **********

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.