Should the appellant have been allowed to rely on s 43A?
28The appellant contended there was no prejudice to the respondent in raising the s 43A defence, as the question whether its power to install guide posts was pursuant to a " special statutory power " was a question of law and did not raise factual issues. The submission was that the evidentiary point raised by the respondent was without merit, but if for some reason a party was prejudiced by a late amendment " the cure for that is in costs ".
29Such a proposition was answered by this Court in GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716, where Samuels JA said:
"... the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe."
30In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175, the plurality, at [99], 213, observed in terms that are apt to this case:
"In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all ... The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh." (citations omitted)
31Aon was concerned with the provisions of the Court Procedures Rules 2006 (ACT), r 21. In this Court, the relevant provisions to which regard must be had is the Civil Procedure Act , ss 56-60. Section 56 provides that the overriding purpose of the Civil Procedure Act and the UCPR is " to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings ". Sections 59 and 60 complement s 56. They provide:
" 59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute."
The importance of these provisions is constantly stressed by this Court: see Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[161]; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; 78 NSWLR 265; Bi v Mourad [2010] NSWCA 17; and Richards v Cornford (No 3) [2010] NSWCA 134.
32In the present case, if the appellant was to be successful in establishing that its authority to undertake traffic control work was pursuant to a " special statutory power ", the respondent would be entitled to a new trial in order to adduce evidence relating to the defeasance aspect of s 43A(3). That would involve a third trial in this matter and by then the fifth set of proceedings. In my opinion, to allow the amendment would involve this Court breaching its fundamental obligation under s 56(2). The Court cannot be put in that position. The accident occurred in 2003, the proceedings were commenced in 2005 and the parties still do not have a final resolution of the matter. A third trial and the potential for a third appeal would extend this period for another two years at least. Although the Court was not informed of the costs incurred to date, the combined costs of the parties must be close to the amount of the claim, if they have not already exceeded it. Regard also needs to be had to the significant actual costs to the court system to date.
33For my own part, I am also unimpressed by the submission that because the issues raised by s 43A involve the determination of legal questions, the respondent could not be prejudiced. A party to litigation is entitled to know the case it has to meet: see White v Overland [2001] FCA 1333. Just as costs are no longer the panacea for any prejudice arising from a late amendment, ambush is not an acceptable or accepted feature of modern litigation. The reasons for this are various. At the most basic level, a party is entitled to have legal advice as to the issues that are to be litigated. In particular, a party is entitled to have legal advice as to whether and how it is able to resist any claim that is to be made. If a party is not able to overcome a defence, its legal advisers have an obligation not to pursue the litigation: see the Legal Profession Act 2004, s 347. A party who pursues a claim without merit may have adverse costs orders made against it: see the Civil Procedure Act , s 56(5). It may have been that s 43A did apply. In this case, there may have been an available claim against the RTA: see the discussion as to the Roads Act 1993, s 87 below. A party is also entitled to advice as to what steps are to be taken, including the gathering of evidence, to meet any claim that is to be made. In my opinion, raising the s 43A defence after the evidence had concluded in the second trial involved a classic ambush and the respondent was denied any adequate opportunity to receive advice so as to consider its position.
34In any event, the appellant's submission is not correct. Whether the appellant's power or right to install guide posts is pursuant to a " special statutory power " is not, in this case at least, purely a question of law. There are factual circumstances that have to be determined at a number of different levels in order to determine the question.
35The appellant contended that its power to install guide posts was conferred by the Roads Act read in conjunction with the Road Transport (Safety and Traffic Management) Act 1999 . It was not in contest that the appellant was the roads authority in respect of Billings Road: see the Roads Act , s 7(4) and thus had the right to exercise functions in relation to the road conferred by that Act and any other Act or law: see s 7(5). " Function " includes " power, duty and authority ": see Dictionary to the Roads Act .
36During the course of its oral submissions before the trial judge, the appellant argued that it functions in respect of the road were conferred by the Roads Act , s 87(2) and that was the conferral of a " special statutory power ". This was the first reference to s 87. That section provided:
" 87 Traffic control facilities
...
(2) The appropriate roads authority may carry out traffic control work on any classified road, but only with the consent of the RTA."
37On the appeal, the appellant contended that its power derived from s 87(3), not s 87(2). Again, this was the first time s 87(3) was raised. That section provided:
"(3) The appropriate roads authority may carry out traffic control work on any unclassified road ... other than one in respect of which the RTA has notified the authority that the RTA proposes to carry out traffic control work."
38The first question that arises is whether s 87, upon which the appellant relied for its authority to install guide posts, is a " special statutory power ". That requires a determination as to whether either s 87(2) or s 87(3) conferred a power of a kind that persons are not generally authorised to exercise without special statutory authority. There does not appear to be any rule that could or should be applied generally or uniformly to determine whether an entity acts pursuant to a " special statutory power ". In the present case the appellant owned the road and presumably had the rights of a property owner: see Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263; 77 NSWLR 360 at [368] 435. If that is the case, it is difficult to see that the appellant's entitlement to install guide posts is pursuant to a " special statutory power ". However, at this point I am only concerned with whether the appellant should have been permitted to raise the s 43A defence.
39Accepting that s 87 is the power under which the appellant has authority to install guide posts, the next question is whether the appropriate power arises under s 87(2) or s 87(3). The determination of that question depended upon whether Billings Road is a classified or unclassified road. That is question of definition under the Roads Act and thus is a legal question.
40Contrary to the case run at trial, the appellant contended on the appeal that Billings Road is an unclassified road. That was not disputed by the respondent and appears to be correct. On the case actually run at trial, the question whether the appellant had authority to carry out traffic control work on Billings Road depended upon whether the RTA had given or would give its consent to do so. That is a factual question.
41However, the correct authorising provision is s 87(3). Accordingly, the appellant would have authority to carry out traffic control work provided that the RTA had not given a notification that it proposed to carry out the work. Whether the RTA had done so is also a factual question.
42The appellant acknowledged on the appeal that s 43A could involve evidentiary considerations. It also acknowledged that s 87(3) involved factual questions. It submitted, however, that it is a forensic decision on the part of both parties, in a particular case, whether to adduce evidence. That may be so. But, it is not possible to know whether evidence should be adduced unless the parties are aware of the issues. It is a trite proposition that only relevant evidence may be adduced and that depends upon the issues between the parties in the litigation: see the Evidence Act 1995, ss 55 and 56.
43There is then a further factual question involved in the defeasance aspect of s 43A, namely, that the omission to undertake the traffic control works was so unreasonable that no authority having the " special statutory power " could properly consider the omission to be a reasonable failure to exercise the power.
44The appellant's submissions to the trial judge recognised that the defeasance aspect of s 43A involved factual questions. Amongst other matters, the appellant's written submissions pointed out that: there was no evidence of any other accidents on the road; the road essentially serviced one or perhaps two properties; the respondent's vehicles had travelled the road " without difficulty " on about 700 occasions; and that there was no evidence that another council or road authority would have done anything different. All these matters involve factual questions.
45The appellant submitted that the trial judge did not find the appellant guilty of unreasonableness within the meaning of s 43A, nor could his Honour have done so, in circumstances where there was no evidence directed towards the question. This submission, with respect to the appellant, sinks its ship. Of course there was no evidence directed to that question. The defence under s 43A was not raised until after the conclusion of the evidence in the second trial. There was no reason for the respondent to call evidence in respect of a matter that was not and had never been, at least until that point, in issue. The unfairness to a party in this circumstance is palpable.
46The appellant sought to counter any question of unfairness by contending that the respondent had not at trial raised any question of prejudice caused to it by the amendment. That is not accurate. The respondent in its further written submissions to the trial judge, dated 25 August 2010, argued that the appellant ought not to be granted leave to rely upon s 43A. It stated:
"Procedural fairness dictates that the [appellant] should have:-
(a) Pleaded and particularised s.43A to put the [respondent] on notice of it's reliance on the section; and
(b) Brought evidence to prove the exercise of a special statutory power so that the [respondent] could test that evidence."
47In my opinion, this is a complaint of prejudice. The failure to plead s 43A deprived the respondent of the opportunity, at any stage of the proceedings, to consider its position in relation to any such defence. Nor was it in a position to test evidence relevant to the existence of the alleged " special statutory power ".
48It must be said that the respondent's submission did not directly complain of unfairness in not being in a position to adduce evidence to establish the unreasonableness of the appellant's conduct. The appellant seized upon that as demonstrating there was no prejudice or unfairness. With respect, I do not find that submission persuasive as it fails to meet the unfairness of which the respondent was complaining, namely, that the appellant had not adduced any evidence of its defence. It was not necessary at that point for the respondent to address any other prejudice.
49In any event, it goes without saying that a party, confronted with a previously unpleaded defence, would almost certainly be prejudiced if such an amendment was allowed. In this case, the respondent had not had an opportunity to even consider whether to adduce evidence. A consideration of the most basic investigatory and evidentiary steps necessary to meet the defence indicated that the respondent would not have had a sufficient opportunity to adduce any necessary evidence. It must be said that the appellant had an uncanny knack for directing attention to the respondent's supposed omissions as a foil to its last minute reliance upon an unpleaded defence. It cannot be overlooked that the amended notice of grounds of defence was filed in April 2006. There was a trial in 2007 and an appeal in 2008. There were three separate days of hearing between 9 November 2009 and 18 June 2010. During the whole of this period, there was not a squeak from the appellant that a s 43A defence was in issue.
50In my opinion, the unfairness to the respondent in allowing the defence pursuant to s 43A to be raised by the appellant is such that the defence should not and ought not to have been allowed.
51It follows from that conclusion that the first issue raised by the appellant's appeal does not arise for determination. Nor is it appropriate, in my opinion, for the Court to enter upon a consideration of it. In the first place, as I have indicated, there are factual issues that were not the subject of evidence. More importantly, however, the meaning of " special statutory power " is unclear. The High Court has commented that the section has an " uncertain reach ": see Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [26], 65 and it is not appropriate for this Court to engage in a consideration of its meaning when it is not a matter in issue in the proceedings with which the Court is concerned.