Bray v Transport NSW

Cases Cited: Not Applicable

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: Adam James Bray (P)
Transport for NSW (D1)
Brett Andrew Button (XD1)
Linq Buslines Pty Ltd (XD2)
ACCIONA Infrastructure Projects Australia Pty Ltd (XD3)
AECOM Cost Consulting Pty Ltd (XD4)

Representation: Counsel:
M Gillis (P)
B Moroney (D1)
A Stone SC (XD1)
S Thompson (XD2)
B Goodyear (XD3)
A Gandar (XD4)
Solicitors:
G D Law (P)
Moray & Agnew (D1)
Sparke Helmore (XD1)
Piper Alderman (XD2)
Norton Rose Fulbright (XD3)
Landers (XD4)

File Number(s): 2024/338021

Publication restriction: Not applicable

EX TEMPORE JUDGMENT

1. This is an application by the plaintiff to join the parties who are presently the third and fourth cross-defendants, to be the second and third defendants, respectively, on the Statement of Claim. Some short background is necessary.

2. The plaintiff commenced a representative proceeding by filing a Statement of Claim in September 2024. The plaintiff claimed, on his own behalf and on behalf of a group of individuals described in the pleading, damages for personal injury, damages for those who suffered mental harm, and damages to which a person may be entitled under the Compensation to Relatives Act 1897 (NSW), all arising out of the circumstances of a roll-over of a bus whilst it was driving along Wine Country Drive, in the area of a road feature described as the “Greta Interchange”.

3. The plaintiff alleged in the Statement of Claim that the defendant, Transport for NSW, was negligent and in breach of a duty of care in the design and other features of the Greta Interchange, and as well in the sign-posting of that interchange.

4. The claim, by the plaintiff, was the subject of a certificate of exemption issued by the Personal Injury Commission.

5. Transport for NSW filed a series of cross-claims in early 2025.

6. The first cross-defendant is the individual bus driver, Mr Button. In respect of the owner of the bus and the bus driver, there was, in place, a policy of Compulsory Third Party Insurance with the insurer at risk, QBE Limited. The second cross-defendant is the company which owned the bus, and which employed the bus driver, Mr Button. It is called Linq Buslines Pty Ltd.

7. To the extent that Linq Buslines was the registered owner of the bus in question, and Mr Button was its agent, at least by statute, if not because he was a driver, Linq Buslines can, as it seems to me, also access such coverage as QBE would provide under its Compulsory Third Party Policy. There may be other policies of insurance to which it may have regard.

8. The third cross-defendant is ACCIONA Infrastructure Projects Australia Pty Ltd, and the fourth cross-defendant is AECOM Cost Consulting Pty Ltd. These two cross-defendants are said, by Transport for NSW, to have been involved in, or else responsible for, the design and construction of the Greta Interchange and the certification of it as being suitable for use, it having been designed and constructed in accordance with the relevant requirements. I do not seek, in that description, to be comprehensive.

9. Counsel for ACCIONA informs the Court that his client is opposed to being joined as a second defendant, rather than remaining a cross-defendant. His client indicates that their lack of consent, or otherwise put, their opposition to the filing of the proposed Amended Statement of Claim which joins them as a defendant, arises out of the fact that it sees a realistic prospect that the Compulsory Third Party insurer, QBE, will comply with its obligations under the Motor Accident Injuries Act 2017 (NSW) (“Motor Accident Injuries Act”), noting that it has admitted its liability to pay the claimants, and has done, and will continue to, pay out statutory benefits and damages to the claimants involved in the accident, with the result that the proceedings will not continue.

10. Consistently with the aims of the Motor Accidents scheme, counsel submits that the Court should anticipate that the vast majority, if not all of the claims arising from the motor accident, will be resolved without the need for prolonged court proceedings, and that once QBE has fulfilled its obligations under the statutory scheme, there may be no claimants, at all, left uncompensated.

11. ACCIONA submits that, in those circumstances, the provisions of s 56 of the Civil Procedure Act 2005 (NSW) take effect, so that the Court should hold that an order that a party be permitted to file an Amended Statement of Claim joining as defendants, rather than cross-defendants, ACCIONA and AECOM, would not comply with the overriding purpose set out in s 56 of the Civil Procedure Act, which is to engage in the just, quick and cheap resolution of the real issues in dispute in these proceedings..

12. AECOM shares the same concerns that are raised by ACCIONA, but neither consents nor opposes the orders for the filing of the proposed Amended Statement of Claim.

13. ACCIONA submits that, having regard to the expected conduct of QBE, there is likely to be little or no claim of any value which is capable of being prosecuted in these proceedings. It also submits that there is a real prospect that four other parties, who were subcontractors concerned in the design, construction and verification of the Greta Interchange, would be need to be joined to the litigation, which would have an adverse effect on the speed with which the litigation could be resolved, and the amount of legal costs which are likely to be incurred.

14. The plaintiff presses the application for leave to amend the Statement of Claim. He submits that there are significant differences between damages likely to be recovered by the plaintiff against defendants, which are not limited by the regime of damages in the Motor Accident Injuries Act. He submits that, under the Civil Liability Act 2002 (NSW), there are areas of damages which the plaintiff and group members would be entitled to receive which are barred under the motor accidents scheme. As well, the plaintiff submits that he and those people who he represents are entitled to have their claims all dealt with at a single time by receipt of a single lump sum, rather than to be tied into a scheme which requires iterative claims to be made involving time, effort and potential for further dispute.

15. It is clear that this application to amend the Statement of Claim has been brought on only after the defendant has filed cross-claims against the third and fourth cross-defendants, and only after the defendant has pleaded against the third and fourth cross-defendants’ obligations which arose at common law and under contract.

16. The plaintiff, in my view, cannot be criticised for not joining the third and fourth cross-defendants when he first filed his Statement of Claim. No doubt he knew little about the involvement of those cross-defendants and knew little of the arrangements between Transport for New South Wales and the cross‑defendants. Indeed, it is my recollection in the course of case management of these proceedings, that it took the defendant itself quite some months to identify and collate all of the appropriate documentation from within its own records to enable it to consider, and then plead, claims against the cross-defendants.

17. I commence from the point that the plaintiff is not to be criticised for seeking to amend the Statement of Claim at this stage of the proceedings. Neither the third, nor the fourth cross-defendants make any submission on this application which raises for argument that the causes of action pleaded in the proposed Amended Statement of Claim are legally untenable, or otherwise an abuse of process, although AECOM makes the point that particulars may be necessary to assist it to meet the claim. Neither of the cross-defendants submit that, if the Amended Statement of Claim was filed, it would be liable to be struck out as an inappropriate pleading.

18. Prima facie, if the plaintiff considers that the third and fourth cross-defendants are necessary and proper parties to the proceedings then, if the pleadings are in good order, and there is a proper explanation for the delay in joining the parties, the Court should make an order that the Amended Statement of Claim be filed with leave, so as to ensure that all of the necessary and proper parties are joined.

19. Here, the objection to joinder by ACCIONA is not an objection to not being joined to the proceedings in the first place, but rather being confronted by the same, or at least substantially similar, allegations by the plaintiff in the guise of being a defendant, not just a cross-defendant. I cannot see any persuasive evidence or material that would suggest that the additional characterisation for ACCIONA of being both a defendant as well as being a cross-defendant will involve any extra evidence, any extra interlocutory proceedings or any extra length in the preparation of this case for trial and in the conduct of the trial. If AECOM, as it suggests, may wish to join other parties to the proceedings, then it is entitled to do so by filing a cross-claim. Its status as being either, or both of, a defendant and a cross-defendant, does not make any difference to this entitlement. It would be entitled to file cross-claims against other existing cross-‑defendants, should it choose to do so.

20. But how it chooses to conduct this litigation will not vary depending on whether it is merely a cross-defendant, or whether it is a defendant and a cross-defendant. As I said in the course of exchanges between the bench and the bar table, it may be accepted that ACCIONA doesn't wish to be a party to this litigation. It may be accepted that it fears that it will be involved in litigation lasting some time and it may be accepted that it will incur legal costs, but they are nothing more than the ordinary consequences of being joined to, or as a participant in, these proceedings.

21. I do not see any additional cost, expense, prejudice or time delay which is going to occur if the proposed Amended Statement of Claim is filed. That being so, it seems to me that it is appropriate to grant the plaintiff's application for leave to file an Amended Statement of Claim joining the third and fourth cross‑defendants in accordance with the draft which has been circulated.

22. I add that whatever the proposed Amended Statement of Claim says, the position I am told about today is that there is no longer any application to join either the first or second cross-defendants as defendants to the proceedings. To the extent that that involves a revision of the current proposed Amended Statement of Claim, that will need to happen before the document is filed.

23. It is for these reasons that I grant leave to the plaintiff to file an Amended Statement of Claim.

**********