Dexus CPA Pty Ltd v Sydney Metro

Dexus CPA Pty Ltd v Sydney Metro - [2019] NSWLEC 186 - NSWLEC 2019 case summary — Zoe

[4]

The evidence

The evidence for Sydney Metro on the application for a separate question was contained in Mr Hill's affidavit. There are a number of elements of his affidavit which warrant being quoted. First, at [25] and [26], Mr Hill proposed: 25 In my view, the determination of the preliminary issue will require: (a) limited documentary evidence and possibly an agreed statement of facts; (b) no expert evidence; and (c) an estimated half day for hearing of the preliminary issues. 26 If the proceedings progresses to a hearing in the absence of determination of the preliminary issue then, in my opinion, the hearing of the proceedings would require substantive expert evidence to be obtained in relation to the impact of the carrying out of the entirety of the public purpose on the land. The estimated time for hearing would be in the order of five days.
At [17], Mr Hill refers to the decision of the Court of Appeal in Bligh Consulting v Ausgrid [2017] NSWCA 95 (Bligh Consulting). At [20], Mr Hill extracts elements of the decision of Sackville AJA in Bligh Consulting, a quotation which includes the obiter comment of his Honour, at [57], that "there may be an issue as to whether the servient tenement 'adjoins' the easement appurtenant to the dominant tenement". The Court of Appeal did not determine that question, as that question was not argued at the first instance and therefore did not arise for determination by the Court of Appeal.
At [28] of his affidavit, Mr Hill said at 28: 28 If the preliminary issue is determined in favour of the Applicant, then the proceedings would be able to progress with the detailed expert evidence relating to the impact of the carrying out of the entirety of the public purpose on the land in accordance with s 55(f) of the Just Terms Act and valuation evidence for the purposes of s 55A and F of the Just Terms Act. I estimate that the hearing would be likely to require five days of hearing time noting that the hearing time would be around half a day shorter because the preliminary issue will have already been decided and would not need to be canvassed at the hearing."
The evidence on behalf of Dexus was contained in an affidavit of Mr Michael Causer deposed on 1 November 2019. It is necessary to quote briefly from Mr Causer's affidavit. At [5], he says: 5 I am instructed the question raised by the Respondent cannot be properly answered in the absence of evidence regarding the potential and actual use of the easements by the Respondent. For this purpose, if the Respondent's question is listed for separate determination, the Applicant intends to put on evidence in relation to the nature of the easements, their use, and impacts arising on both the building erected on the subject property and tenants of the building. This evidence will be adduced to demonstrate the real impacts that the imposition of the easements have had on the tenants of the building.
He continued, at [6] and [7], to say: 6 In my opinion, Mr Hill's estimate of half a day for the separate question hearing is an underestimate, and in light of the Applicant's intention to file evidence, it will likely require a full day at the minimum. 7 In relation to Mr Hill's assertion that the extent of evidence - that any substantive merit hearing will be lessened by the Court determining that the answer to the first preliminary question posed is that there is no other land, I am instructed that the Applicant will still call evidence in the disciplines of acoustic and vibration in addition to real estate valuation. Further, it is also likely that town planning and quantity surveying evidence will also be called as well as evidence relating to the impacts on the current tenants.
During the course of the hearing today, I have had the advantage of written submissions by counsel from both the Sydney Metro and Dexus, and I also heard short oral submissions from Mr Lancaster SC, counsel for Sydney Metro, and Mr Galasso SC, counsel for Dexus.

[5]

Consideration

I now turn to the legal principles that are engaged.
It is convenient to note that Robson J set out the applicable legal principles in Syncept Chatham Pty Ltd v Council of the City of Ryde [2019] NSWLEC 115 at [17] to [22]. He noted the availability, pursuant to r 28.2 of the UCPR, of an application to be made for the setting down of a separate question for determination.
At [18], he set out the principles applicable for consideration of whether the exercise and order for the determination of a separate question as summarised by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 (Cawdor Road) at [10]. He noted that those principles have been endorsed by the Court of Appeal and applied by this Court on numerous occasions.
The relevant elements from Biscoe J's decision in Cawdor Road were: 10 … The principles to be derived to guide the exercise of the Court's discretion whether to order the separate decision of a question may be expanded and restated in summary form as follows: (a) Generally speaking, all issues should be tried and decided at the same time. (b) It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. (c) Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d) Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e) In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f) Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g) Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely.
I now turn to matters requiring my consideration in determining whether a separate question is appropriate in light of the principles set down by Biscoe J in Cawdor Road. I note that the matter is set down for a five-day hearing commencing on 10 August 2020. No pre-trial directions' timetable has yet been made, and there is certainly no timetable that would prescribe when lay and expert evidence was to be required. Those matters would ordinarily be dealt with at a further pre-trial mention and, in the context of a trial where matters of expert evidence would be in contest, it would be unusual for there to be any argument about the nature of desirability of or permissibility of such expert evidence.
There is, however, a formal procedure set down in r 31.19 of the UCPR for seeking leave to adduce expert evidence, and the relevant practices of the Court require the identification of the areas of expertise proposed to be engaged and the name of the expert witnesses proposed to give that evidence. That is then dealt with by the unexceptional requirements that there be provision of expert statements, joint conferencing, joint expert reports and the like.
In the present circumstances, given the position as outlined in the written submissions made by Sydney Metro and the exchange I had with Mr Lancaster this morning, I cannot be satisfied that an application by Dexus, if a separate question was to be set down, would not involve a contest at a hearing for leave to rely on expert evidence as to whether that expert evidence was appropriate and should be permitted. Even if there was not such a contest, an additional attendance would be required to deal with those matters.
Preparation of evidence for a separate question hearing, on my reading of the submissions made on behalf of Dexus, would indicate that there is likely to be at least differences of flavour in the expert evidence than that which would be likely to be adduced at a final hearing. I am also satisfied that there is a not insignificant likelihood of appeal from any decision on a separate question, and that that would mean delay in the resolution of the relevant merit issues that are otherwise in dispute between the parties concerning the four easements.
In the written submissions provided on behalf of Sydney Metro, a proper concession was made at [14] that the resolution of the separate question, if set down, one way or the other would not be dispositive of the proceedings. It was, however, submitted to me that a determination that s 55(f) of the Just Terms Act was not engaged would substantially narrow the field of controversy between the parties. I accept that that might well be the result but it is certainly clear, as conceded, that there would not be a disposition of the proceedings by the answering of the separate question.
I am satisfied that the saving of time by setting the matter down for a separate question hearing is potentially illusory and that there is a real risk that more time would be required for a total hearing of a separate question, and then merit hearing, than would otherwise arise if there was to be no separate question hearing undertaken in the first instance. Given the possibility of evidence at both hearings, this makes it appropriate that I should decline to order a separate question.
One of the reasons for that is also, given that there would be evidence upon which a determination would need to be made on the separate question involving weighing and assessing expert evidence, that there could be, at this stage, no guarantee that the same decision-maker would be available to hear and determine the separate question as would be the decision-maker for the final merit hearing. The risk of separate decision-makers having to weigh evidence of an expert nature on significantly, if not entirely, coincidental issues is something that should be avoided.
The possibility of an appeal from a decision on the separate question also runs the risk that further delay would be occasioned in reaching and determining the merits of the claim made by Dexus against Sydney Metro. I am satisfied that that would be contrary to the objectives set out in s 56 of the Civil Procedure Act 2005 that mandates the just, quick and cheap disposal of, and determination concerning, the issues that are genuinely in dispute between the parties. Overall, I am satisfied that the more efficient way of addressing the matters that are in dispute between the parties would not be to permit a separate question hearing to be held.

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