Hunt Leather Pty Ltd v Transport for NSW

INTRODUCTION

1. Attached to this judgment is a summary which was delivered orally on 19 July 2023 for the benefit of the parties and those members of the community who are interested in these proceedings. The summary contains extracts from this judgment. All of the passages in the summary are to be found in the judgment.
2. These proceedings are representative proceedings pursuant to Part 10 of the Civil Procedure Act 2005 (NSW) ("CPA"). The proceedings are pursued on behalf of the persons said to be affected by the construction and development of the Sydney Light Rail ("SLR") between Circular Quay and Randwick/Kingsford in Sydney.
3. As set out in paragraph 1 of the third further amended statement of claim filed on 26 October 2022, the proceedings are pursued on behalf of all persons: 1. who or which: 1. hold, or have held, an interest in land in the vicinity of the SLR; and 2. have suffered loss or damage by reason of the defendant's interference with their enjoyment of their interest in land ("the Private Nuisance Group Members"); and/or 1. who or which have suffered a loss or damage as pleaded by reason of the defendant's interference with public land through the carrying out of the SLR project ("the Public Nuisance Group Members"); and
4. All of the persons who may come within the descriptions set out in paragraphs (a) and (b) are said to be "Group Members".
5. The defendant is a New South Wales Government agency constituted as a statutory corporation pursuant to s 3C of the Transport Administration Act 1988 (NSW) ("TA Act") and, by operation of s 13A(1)(a) of the Interpretation Act 1987 (NSW) ("Interpretation Act"), is a statutory body representing the Crown pursuable by way of s 50(1)(c) of the Interpretation Act and/or s 5(2) of the Crown Proceedings Act 1988 (NSW).
6. The defendant is the NSW Government agency which planned, designed and managed the processes leading towards the construction of the SLR, although it did not actually undertake the construction work.
7. The powers and functions of the defendant are governed by the TA Act. As set out in s 3D of the TA Act, an objective of the defendant is "to plan for a transport system that meets the needs and expectations of the public".
8. The general functions of the defendant are set out in s 3E and Schedule 1 of the TA Act. These include: 1. transport planning and policy, including for integrated rail networks, road networks, maritime operations and maritime transport and land use strategies for metropolitan and regional areas; 2. the administration of the allocation of public funding for the transport sector; and 3. the planning, oversight and delivery of transport infrastructure.
9. Division 2A of Part 9 of the TA Act contains "special provisions relating to light rail". These provisions include s 104O, pursuant to which the defendant may develop and operate light rail systems or facilitate their development and operation by other persons.
10. The defendant says that it was exercising the powers conferred on it by s 104O when it was involved in the planning, development and design of the SLR prior to the commencement of the construction work.
11. There are four lead plaintiffs, being: 1. Hunt Leather Pty Ltd ("Hunt Leather"), which operates a retail leather goods business; 2. Ms Sophie Hunt, who has been the Chief Executive Officer of Hunt Leather since approximately 2003; 3. Ancio Investments Pty Ltd ("Ancio"), being the trustee of the unit trust known as the Ancio Unit Trust, which between May 2009 and April 2019 operated a restaurant business on Anzac Parade in Kensington; and 4. Nicholas Zisti, who was the sole director of Ancio and operated and who had responsibility for the restaurant.
12. After a short delay and some preliminary arguments, the hearing commenced on 7 November 2022 (an earlier hearing date had been vacated).
13. The hearing concluded on 13 December 2022.
14. The hearing which took place during that period was to determine: 1. the liability of the defendant to the lead plaintiffs; 2. the amount of damages (if any) which would be payable by the defendant to the lead plaintiffs; and 3. agreed common questions.
15. Although the legal representatives for the plaintiffs estimate that there may be thousands of people who fall within the class defined as Group Members, the initial hearing was only in respect of the lead plaintiffs. However, like all class actions, the purpose of the hearing was also to determine common questions which may impact on the entitlement of other Group Members to any damages.
16. In this matter, there are particular difficulties with the potential common questions as, unlike some class actions where there may be a single cause of loss sustained by all members of the class, the causes of any loss suffered by Group Members are in dispute and may vary.
17. Fundamentally, that is because there may be substantial differences between the impact that the construction of the SLR had on landholders and business owners at certain points along the route compared to others. This was demonstrated in the initial hearing because Hunt Leather occupied stores in what is described as Fee Zones 5 and 6 on George Street in the Sydney Central Business District ("CBD"), whereas Mr Zisti's restaurant operated in Fee Zone 29 on Anzac Parade in Kensington.
18. There may be some commonality in terms of what occurred outside Mr Zisti's restaurant and the Hunt Leather stores but there are also some significant differences.

The Sydney Light Rail

1. The SLR is well-known to Sydneysiders. It constituted a major infrastructure development by the NSW Government. It commences at Circular Quay and runs through the heart of Sydney via one of Sydney's main streets, George Street. It then proceeds up through dense and busy areas such as Surry Hills and along one of Sydney's south-eastern thoroughfares, Anzac Parade, before branching off into two lanes, one from Centennial Park to Randwick along Alison Road and the other from Moore Park to Kingsford (via the University of New South Wales) along Anzac Parade.
2. A map showing the SLR route is below:
3. The main planning of the SLR commenced in 2012. The defendant determined that the SLR would be built and operated through a public and private partnership ("PPP") with the entity appointed by the defendant being responsible for both the construction and the operation of the SLR for a period of 15 years. Under a PPP, the State enters into a project deed pursuant to which the other party in the partnership agrees to finance, design, construct commission, operate and maintain the asset which is built for a specified term (in this case, 15 years).
4. The timetable proposed by the defendant allowed for a period of approximately two years of planning and development, with entry into a project deed in December 2014. In fact, this is what occurred. After significant investigation and planning, the defendant called for proposals. It selected a proponent (being Connecting Sydney, known as "CSY"), negotiated and then entered into a project deed on 17 December 2014 ("Project Deed"). CSY nominated a number of ALTRAC companies as the entities through which it wished to contract.
5. The term OpCo is used in the Project Deed to identify the other party to the Project Deed i.e. ALTRAC. I will use OpCo and ALTRAC interchangeably in this judgment. At the same time as it entered into the Project Deed, ALTRAC entered into a design and construct contract ("the D&C contract") with its nominated contractor, a joint venture between Acciona and Alstom ("the D&C contractor"). The O&M contractor was Transdev. In reality, the parties standing behind CSY were the same parties behind OpCo and the D&C contractor.
6. The terms of the D&C contract were similar to the terms of the Project Deed. Obligations and entitlements imposed on OpCo through the Project Deed were thus passed down the line to the D&C contractor. The project was due to be completed by March 2019. It was supposed to be completed in stages or according to "fee zones", thereby ensuring minimal disruption to businesses along the route. As it turned out, it was not completed until March 2020. On any view, the project was beset with problems and delays. The defendant and the D&C contractor fell into dispute, with the D&C contractor claiming a significant additional sum from the defendant.

The Hunt Leather Strand Arcade store

1. Hunt Leather was established in 1975 by John and Elizabeth Hunt. In 2015, it operated ten stores throughout Australia, some of which were branded stores selling only international brands, such as Longchamp and Rimowa.
2. Much of the evidence was directed towards the interference with the Hunt Leather Strand Arcade store and the losses sustained by Hunt Leather arising from that interference. Whilst there was also evidence relating to the Hunt Leather store in the Queen Victoria Building ("QVB") and, of course, the impact on Mr Zisti's restaurant, the focus of the evidence was very much on how the SLR construction activities impacted the operation of the Hunt Leather Strand Arcade store. This may be because, on one view, the impact on the Hunt Leather Strand Arcade store was both obvious and direct.
3. When compared to some of the other fee zones (in particular, Fee Zone 29), the Sydney CBD is densely populated by buildings, both new and old, retail shops, apartments, department stores, restaurants and food stores. Further, perhaps another reason why the focus of some of the evidence was on Fee Zone 5 and the Strand Arcade store was because only at the Hunt Leather Strand Arcade store (and not the QVB store) was the opening of the premises on the footpath adjacent to hoardings that were erected when the construction activity started.
4. Hunt Leather had been operating its Strand Arcade store since 12 April 2013. Its flagship store was previously in the MLC Centre in Martin Place, which it had operated since 1975. The Strand Arcade is a prestigious arcade in Sydney running between George Street and Pitt Street Mall. The Strand Arcade is replete with boutique stores, luxury stores, original specialty stores and food stores.
5. The Hunt Leather Strand Arcade store occupied the north-western corner of the arcade at ground level, with large doors opening onto George Street and also an internal entrance on the arcade side.
6. The Strand Arcade store produced Hunt Leather's highest turnover of anywhere in Australia. It sold Hunt Leather goods as well as branded goods, such as Longchamp products. It sold a variety of products such as briefcases, compendiums and folios.
7. According to Ms Hunt, business had been increasing in the Strand Arcade. At least to a certain extent, this is reflected in the increase in turnover in the Strand Arcade store. The turnover in the 2014-15 financial year was 65% higher than it was for the 2013-14 financial year.

The Hunt Leather QVB store

1. Hunt Leather also operated a retail store in the QVB in Fee Zone 6. Fee Zone 6 covered George Street between Market Street and Park Street. The QVB is a large, grand building of important historical significance which runs between Market Street and Sydney Town Hall. Like the Strand Arcade, the QVB houses a range of shops selling luxury goods, food, clothes and accessories (amongst other things).
2. The lower ground level of the QVB forms part of the pedestrian walkway which runs from underneath the Myer building on the corner of Market and George Streets to Town Hall train station. Town Hall station is situated underneath Sydney Town Hall, which is across the street from the southern end of the QVB.
3. Hunt Leather operated a Longchamp branded store in the QVB. That store closed in around November 2018. According to Ms Hunt, its closure was forced due to the inability of Hunt Leather to continue to support it, both because of the impact of the SLR construction activities in Fee Zone 6 and because Hunt Leather could no longer fund the QVB store using the profits of the Strand Arcade store.
4. Longchamp is an international luxury goods brand. It is a French-owned company. Longchamp entered into an agreement with Hunt Leather to enable Hunt Leather to operate three stores in Australia selling only Longchamp goods. The agreement with Longchamp was not an exclusive agreement, in the sense that Longchamp bags and accessories were also sold in other stores in Sydney.
5. The QVB store was on the ground level of the QVB. The entrance to the store was inside the QVB but it had a window or shopfront which faced George Street.

Mr Zisti's restaurant

1. Mr Zisti's restaurant was situated on the eastern side of Anzac Parade at 1/240-268 Anzac Parade, Kensington (in Fee Zone 29). Mr Zisti operated his business through a corporate structure, as follows: 1. from about May 2009 until April 2019, Mr Zisti was the sole director of Ancio and operated a restaurant business; 2. from about May 2009 to July 2011, Ancio operated the restaurant premises as a Thai restaurant known as "In the Mood for Thai". At that time, Mr Zisti worked in the business; 3. from about 4 July 2011 until July 2018, another Thai restaurant ("Khing Thai") operated from the restaurant premises; 4. from about June 2013 to June 2014, Ancio operated a coffee cart outside the restaurant premises known as Giddy Up Expresso Bar ("Giddy Up"); and 5. from about August 2018 to April 2019, an Italian restaurant ("Sugo Pasta Bar") operated from the restaurant premises. During this time, Mr Zisti had a hands-on role in managing the business and operating the front-of-house.
2. As his financial records show, Mr Zisti had been developing his business over the five years prior to the commencement of construction of the SLR. In the year before the construction commenced, his profits had reached better than ever levels at $149,000.
3. In 2018, Mr Zisti closed his Thai restaurant due to low sales and opened a pasta bar instead. He says that he did so because of the impact of the SLR construction works. The pasta bar was not a success. He did not renew the lease in 2019; he says this was because he was not making any money from the venture.
4. There is no dispute that the SLR construction commenced in Fee Zone 29 on 7 May 2016. Occupation of Anzac Parade in Fee Zone 29 ended on 26 June 2019. Mr Zisti claims that the restaurant was impacted throughout this whole period, such that his entitlement to losses amounts to the diminution of sales or the net profit that he would have generated but for the SLR construction activities.

THE POSITION OF THE PARTIES

1. There is no claim that the noise and disruption caused by the SLR, once operational, constitutes a nuisance. Rather, the acts constituting the nuisance are said to have occurred during the construction of the SLR.
2. Further, the plaintiffs do not complain about the conduct of the defendant during the period when construction was being undertaken (as the defendant did not undertake the construction work). The conduct of the defendant of which the plaintiffs complain is the conduct prior to construction, during the design, planning and contract negotiation phases of the project.
3. This judgment will necessarily involve a consideration of complex legal issues and the interpretation of many construction-related documents, including an extensive project deed.
4. As noted, the plaintiffs include the four lead plaintiffs. As lead plaintiffs, their names appear on the pleadings.
5. The plaintiffs pursue only one cause of action. It is a cause of action in nuisance, both private and public. Private nuisance is a different legal concept from public nuisance but, in some respects, it gives rise to a consideration of the same principles. Nuisance is a tortious remedy. It is different from negligence, albeit there is a dispute between the parties about the extent to which the plaintiffs can establish nuisance without establishing some failure to take care on the part of the defendant.
6. The essential proposition advanced by the plaintiffs is that during the construction of the SLR, the members of the class were subject to a nuisance in the sense that their rights, enjoyment and occupation of their properties were subject to an interference arising from the construction activities which was substantial and, if it is necessary to so find, unreasonable. As may be expected, the law does not merely permit any home or business owner to claim damages from a party who in some way created an interference by way of construction activities. To do so would impede the ability and entitlement of both private citizens and the government to undertake ordinary construction work, such as building and roadworks.
7. In order to succeed in an action such as this, it will be necessary for the plaintiffs to establish that there was interference with their land (or the land that they occupied) at such a level as to constitute a legally actionable nuisance and, further, that the defendant should be liable for that nuisance.

The pleadings

1. During the hearing, there was considerable focus on the pleaded case, particularly by the defendant. The plaintiffs perhaps took a broader approach to the pleadings.
2. I granted leave to the plaintiffs to file a third further amended statement of claim on 24 October 2022. The final version of the statement of claim was filed on 26 October 2022. On 24 October 2022, I also granted leave to the plaintiffs to file a further amended reply. The final version of the defence was filed on 7 November 2022. The final version of the reply relied upon by the plaintiffs was filed on 17 November 2022.
3. It is not necessary to consider earlier versions of the pleadings. I will thus refer to the third further amended statement of claim as "the Statement of Claim", the amended defence as "the Defence" and the further amended reply as "the Reply".
4. The pleaded background is not in dispute. The plaintiffs do not plead the existence of a duty of care, the risk of harm or any breach of duty. Indeed, in the Reply, the plaintiffs plead that "these proceedings do not concern whether the Defendant had a duty of care or breached its duty of care."
5. Having set out the background to the commencement of the construction activities, the plaintiffs plead that there were delays in the Civil Works caused by the defendant. It is paragraphs 12(a)-(f) and 13-14(d) of the Statement of Claim which give rise to the central factual dispute in these proceedings.
6. I summarise those paragraphs as follows: 1. in March and May 2015, the D&C contractor advised the defendant that it had received guidelines from Ausgrid as to its requirements for the treatment of utilities along the SLR route; 2. the Ausgrid guidelines differed significantly from the approach to utilities, which had been developed and agreed between the defendant and the D&C contractor (as recorded in Schedule F8 to the relevant project documentation); 3. the new Ausgrid guidelines resulted in a substantial change to the scope of the project, leading to an estimated delay of over two years and four months and an estimated additional cost of around $426 million in civil construction works; 4. a substantial cause of the Ausgrid scope changes was the defendant's failure to finalise agreements with stakeholders, such as utility providers (including Ausgrid) and local councils, regarding the treatment of utility assets prior to entry into the Project Deed; 5. during the course of the civil construction works, the defendant issued the D&C contractor with approximately 60 directions to change the scope of work ("project scope changes"); 6. a substantial cause of the project scope changes was the failure by the defendant to effectively plan and procure the project between 2011 and 2014; 7. during the course of the civil construction works, the D&C contractor encountered many unknown utilities which had the effect of prolonging the occupation of Fee Zones 5, 6 and 29 ("utilities prolongation"); 8. the substantial cause of the utilities prolongation was that the defendant had entered into the Project Deed on terms that allowed the D&C contractor relief under the Project Deed and allocated no risk in respect of unknown utilities to the D&C contractor, in circumstances where unknown utilities were likely to be encountered ("the contracting conduct"); 9. after the commencement of the construction, the defendant made repeated public statements to the effect that the project would be completed by 2019; 10. the delays in the completion of the project and, alternatively, the prolonged occupation of individual fee zones was caused by delays during the civil construction works phase of the project; and 11. each of the Ausgrid scope changes, the project scope changes and the contracting conduct were a substantial cause of the Civil Works delay, which was caused by the defendant's conduct in: 1. failing to finalise agreements with stakeholders, such as utility providers including Ausgrid and local councils, prior to entry into the Project Deed; 2. failing to effectively plan and procure the project between 2011 and 2014; and 3. engaging in the contracting conduct.

The defence

1. The defendant: 1. acknowledges that it received ALTRAC's letter annexed to its claim on 20 May 2015, suggesting that, if the Ausgrid guidelines amounted to a direction under the D&C contract, then it claimed compensation (being an extension of time by 865 days and the sum of $423,963,512); but 2. says that on 1 June 2015, it wrote to ALTRAC and informed it that the Ausgrid guidelines should not be treated as a formal direction issued under the Project Deed and that no such direction had been given. On 24 July 2015, ALTRAC and the D&C contractor both unconditionally withdrew their claims in respect of the Ausgrid guidelines; 3. says that the plaintiffs' allegations as to the cause of the Ausgrid scope changes proceed on incorrect premises. It says that the Ausgrid guidelines do not specify Ausgrid's practice or accepted industry-wide practice for standard utility treatments, nor do they specify the utility treatments required in respect of the project. It further relies on sections of the Project Deed as to the allocation of risk between the defendant and ALTRAC; 4. says that it only issued 52 modifications in respect of the SLR construction and, further, that the plaintiff had elected to establish liability with reference to contractual modifications, limited to only four modifications (being numbers 25, 33B, 40A and 59 in Fee Zones 5, 6 and 29), such that the plaintiffs are estopped from contending further that any other modifications constitute a failure by the defendant to factually plan and procure the project; 5. in respect of paragraph 12(e) of the Statement of Claim, says that the plaintiffs have not identified how utilities were accounted for, nor have they identified how and for what period the civil construction works in each such fee zones were prolonged; and 6. in respect of the contracting conduct, says that it disputes the plaintiffs' allegations as to the terms, effects and operation of the Project Deed and, in particular, it denies that the Project Deed operated such that ALTRAC and the D&C contractor were allocated no risk in respect of unknown utilities.
2. Essentially, the defendant denies the plaintiffs' allegation that the Civil Works were delayed or that the delay was caused by and for the reasons identified by the plaintiffs.
3. The defendant then denies the allegations of nuisance, specifically: 1. it relies on ex gratia deeds signed by the plaintiffs, pursuant to which the defendant made payments of ex gratia financial assistance to the plaintiffs (the defendant does not say that the receipt of the ex gratia payments by the plaintiffs preclude the plaintiffs from pursuing these proceedings, but they seek credit for such payments); and 2. in respect of the public nuisance claim, the defendant says that it has not interfered with the public's right of passage on public roads and the claim for public nuisance should fail but, in any event, the work was done pursuant to an approval issued by the RMS. The defendant says that in carrying out, authorising or permitting the works subject to the RMS approval, such work is taken not to constitute a public nuisance, having regard to s 141 of the Roads Act.

Case A

1. In their closing submissions, the plaintiffs put their case in three alternative ways. As they say, the primary case is Case A. They advance alternative cases in the event that they are unsuccessful in their primary case. Case A is as follows: 1. that the erection of hoardings on and along the public roads and footpaths constituting the light rail corridor for the purposes of the construction work, and the construction work itself, substantially interfered with the plaintiffs and their businesses and the enjoyment by the first and third plaintiffs of their rights as occupiers of the land on which they conducted their businesses as soon as those steps commenced; 2. that substantial interference caused the plaintiffs' loss; 3. that the use of the light rail corridor land for the purpose of that work was not a common or ordinary use of the land; 4. that because it was not a common or ordinary use of the land, the substantial interference is actionable as a private nuisance in respect of the whole period of the substantial interference; 5. that because the substantial interference was on a public road, and moreover, not an ordinary interference, it is actionable as a public nuisance in respect of the whole period of the substantial interference; 6. the defendant was responsible for the substantial interference; 7. section 43A of the CLA has no application to the proceedings; 8. there is no statutory authority defence; 9. there is no Roads Act defence to the public nuisance claim; and 10. the defendant is liable in damages for the loss caused by the substantial interference.
2. The plaintiffs' primary case does not involve any consideration of whether the defendant's conduct was reasonable or whether any unreasonable conduct caused the delay in the works or even whether any alternative approach to planning would have resulted in a substantially lesser interference.
3. As I understand the plaintiffs' primary case, even though they suggest that questions of reasonableness are irrelevant, they accept that they must establish that the defendant was responsible for the substantial interference. They use the term "responsible" as meaning something different from failing to take care or an assessment of the reasonableness of the defendant's conduct.

Case B

1. Case B is put in the same way as the plaintiffs' primary case, except that it is assumed that s 43A of the CLA applies, contrary to their primary case. The plaintiffs submit that they would still be entitled to succeed because s 43A(3) is satisfied.
2. The plaintiffs submit that the Court would accept that the conduct of the defendant was, in the circumstances, so unreasonable that no authority having the special statutory power in question would properly consider the act or omission to be a reasonable exercise of, or a failure to exercise, its statutory power.
3. The plaintiffs describe s 43A as a condition that must be satisfied before their claim in nuisance can succeed.
4. They then identify the reasons why no authority having a special statutory power (if they be wrong on their assertion about the special statutory power) could properly consider the conduct to be a reasonable exercise of that power.
5. Case B necessarily involves an extensive consideration of the expert evidence and the steps taken by the defendant in the planning and procurement phase of the project, which form the basis of the allegations against it.

Case C

1. The second alternative case, being Case C, proceeds on the basis that, contrary to the plaintiffs' primary position, the use of the land during the SLR construction was a common and ordinary one. The plaintiffs submit that if there was a finding that the use of the land for the purposes of the SLR construction was common and ordinary, then the onus lies on the defendant to establish that it took reasonable and proper precautions to prevent disruption to the plaintiffs and other Group Members.
2. The plaintiffs submit that the defendant has not discharged its onus in this regard. Further, the plaintiffs submit that if it was up to the plaintiffs to prove that the defendant failed to take reasonable and proper precautions to save disruption (contrary to their submissions regarding onus of proof), then the plaintiffs have adduced such evidence through their programming expert, Mr Griffith.

The defendant's case in closing submissions

1. During closing submissions, the defendant maintained its approach that it was necessary for the plaintiffs to establish that the defendant was negligent in order to succeed in the cause of action in nuisance. Indeed, the defendant's approach to its submissions was to emphasise this and, further, that even if the plaintiffs establish that the defendant failed to take care, the plaintiffs have not established that such failures caused any substantial interference with their businesses.
2. The defendant makes more than one reference to the need for the plaintiffs to establish the counterfactual. The defendant submits that the plaintiffs must establish what would have happened if, for example, a different delivery model had been adopted, further utility investigations had been carried out prior to entry into the Project Deed, or agreements had been entered into with utility providers prior to the entry into the Project Deed.
3. The defendant rejects Case A on the basis that the use of the land was common and ordinary and rejects the proposition that the period of the nuisance (if any) should commence on the day that construction works started outside the plaintiffs' businesses. The defendant says also that s 43A of the CLA applies such that it has no liability and that, in any event, on the evidence, the interference with the businesses was inevitable.

CONSIDERATION OF EVIDENCE AND THE PLAINTIFFS' COMPLAINTS

The utilities risk

1. In the pleadings, throughout the conduct of the hearing and during submissions, the parties referred to the "utilities risk". The utilities risk is also referred to in many documents relied upon by the parties. It is appropriate to record what I understand to be the utilities risk, as that term will be used throughout the judgment.
2. Generally, the utilities risk was the potential for problems to arise during the SLR construction from the presence of utilities along the SLR route. As I will identify, at the time of entry into the Project Deed, it was known that there were many utilities along the route which would need to be treated in order for construction to proceed. It was also expected that there would be more utilities which were not known to exist at the time of entry into the Project Deed but which would be discovered during the course of the construction.
3. It was also known that the required treatment of each utility would vary, but that this could include covering up, replacing, moving and upgrading utilities. It was known that at the time of entry into the Project Deed, there were no agreements in place with utility providers as to the methods of such treatment.
4. The utilities risk was the risk of delay and additional costs arising from the need to treat utilities and the discovery of previously unknown utilities.
5. The risk arose at two levels, being: 1. the uncertainty arising out of the absence of agreements with utility providers in respect of the already discovered and known utilities (as the defendant had not yet entered into agreements with utility providers, such as Ausgrid, prior to entering into the Project Deed); and 2. the problems which might arise from the discovery of unknown utilities or changes in known utilities along the SLR route.
6. The NSW Government had announced and promoted the idea that the SLR would be constructed in stages. Occupation periods were specified in the Project Deed. An Initial Delivery Program ("IDP") was attached to the Project Deed. This was intended to provide a schedule for the construction works in individual stages (fee zones). Part of the schedule included allowances for the treatment of utilities in each fee zone. The risk was that, if more utilities were discovered in a particular fee zone and/or there were difficulties in reaching agreement with utility providers, then the IDP would be impacted and the occupation period in each fee zone would be extended. This is because: 1. in respect of existing and known utilities, it would be necessary to reach agreement with utility providers as to how the utilities could be treated; and 2. the discovery of any previously unknown utility would require the D&C contractor to: 1. identify it; 2. investigate it; 3. figure out how the construction works would impact upon the utility; 4. determine whether the utility needed to be relocated or merely protected; 5. determine whether that work could be performed by the D&C contractor ("contestable work") or whether it would have to be done by the utility provider itself ("non-contestable work"); 6. plan for the work; and 7. undertake the utility work.

Initial planning

1. In 2012, the State published its "NSW Long Term Transport Master Plan" ("the Master Plan"). The Master Plan included the "Sydney Light Rail Strategic Plan". Sydney's light rail future was focused on expanding light rail services in the CBD and inner city. As identified, the NSW Government would focus on the customer as the centre of Sydney's light rail future. A light rail in the CBD would benefit a range of users.
2. After setting out the proposed route, the State identified that the SLR would cost approximately $1.6 billion to complete, which was funded by a transport budget and a PPP arrangement.
3. It stated: "Construction on the project will take place in stages, with city streets closed in sections to minimise disruption to residents, businesses and commuters. We are consulting with the City of Sydney, Sydney Business Chamber, NSW Property Council and other stakeholders to understand how we can support businesses during construction. Once completed, light rail will significantly benefit businesses along the route. Construction is likely to take five to six years to complete."
4. Plainly, the State identified from the outset that construction would take place in stages, with city streets to be closed in sections to minimise disruptions to residents, businesses and commuters.
5. On 19 February 2013, the first of many delivery strategy workshops took place. At least at that time, the defendant contemplated that the SLR construction would be divided into "Early Works" and "Civil Works".
6. The scope of the Early Works was identified as including: 1. utilities; 2. bus and pedestrian networks; and 3. enabling works.
7. In the first delivery strategy workshop on 19 February 2013, the defendant recognised that utilities would be a primary area of risk and that the presence of utilities created a very uncertain environment (as it was recorded in the workshop minutes).
8. Indeed, in that very first delivery strategy workshop, the defendant identified the following risks associated with its planned Early Works program:

• lack of agreement with utility providers as to the typical treatment of utilities (protect, relocate or replace);
• delayed agreements with utility providers;
• lack of interdisciplinary design coordination, and lack of efficiencies regarding service treatments;

Entry into Development Agreement with City of Sydney Council

1. On 18 December 2013, the defendant entered into a Development Agreement with the City of Sydney Council ("the Council"). In the recitals to the Development Agreement, it is noted that the defendant and the Council sought to minimise the impact of the project's construction on the community, businesses and residents in the Local Government Area ("LGA"). The Council wished to ensure the effective integration of the project into the public domain.
2. In cl 6.1 of the Development Agreement, it was noted that the defendant would be responsible for the project's design. The defendant would design the works in accordance with its fundamental obligations, technical requirements, city codes and standards and other obligations under the agreement.
3. One of the technical requirements set out in Schedule 7 of the Development Agreement related to the light rail stops. Stops were to be designed in compliance with statutory requirements and were to permit maximum pedestrian permeability and accessibility. The defendant agreed to consult with the disability sector as part of the process of determining disability requirements. It agreed to provide a step-free access to one portion of each stop in the pedestrianised areas. It agreed that along the route in the City of Sydney LGA, the defendant would: 1. minimise use of barriers and fences; 2. minimise surrounding level changes; 3. minimise steps; and 4. be integrated where possible at the level of the surrounding environment. This is relevant to the plaintiffs' complaint about Modification 25.
4. Further, the defendant agreed that during the delivery phase of the SLR construction, staging of the works would be developed to demonstrate a balance between efficient construction methods and to minimise impacts on business operations and resident amenities (Schedule 7, cl 2.2.2).

Further consideration of utilities risk

1. The analysis and discussion of risks and options for the delivery of the SLR continued throughout 2014.
2. By January 2014, the defendant had updated its Commercial and Financial Principles document for the purposes of the Commercial & Financial Delivery Group. It noted that optimal risk transfer to OpCo was being achieved. It stated that the investigation, protection, relocation and modification of utilities, as well as the provision of services for construction operations by OpCo, was being allocated to OpCo. OpCo would be required to accept the risk of any work undertaken by the managing contractor (Early Works) and also to undertake any further work as required.
3. Further, all risks associated with utility services works were to be transferred to OpCo. The defendant stated that, by the time of entry into the Project Deed, it would have undertaken comprehensive site investigations into the utilities.
4. At a meeting of the defendant's Light Rail Advisory Board on 9 January 2014, reference was made to the key risk of utilities. The known utility service relocations were proving more complex than anticipated, which would result in severe impacts on the road and footpath network and critical services, delays in completion of the work schedule and additional costs to complete the works.
5. Following a meeting with Ausgrid on 14 January 2014, the defendant's consultant, Ryan Andriessen of the Arup Group, provided a summary of the meeting. He noted that Ausgrid intended to write to the NSW Premier advising that the Ausgrid works required for the SLR project would cost more than $500 million and would take six years to complete. Specifically, Ausgrid suggested that the proposed Early Works program for the nominated intersections (there were going to be six) was not feasible. It thought that the proposed Early Works would take three years. At best, the detailed design for those intersections could be completed by November 2014.
6. Ausgrid also identified the likely issues arising in relation to the works to be performed under the Early Works contract.
7. On 15 January 2014, Ausgrid wrote to the Utilities Reference Group (which had been established by the defendant) noting that before any budget could be established, there needed to be clear agreement between each utility owner and the defendant on what needed to be moved, where it would be moved to, the resources and time required and the provision of access to the utility. Mr Vince Graham, the CEO of Ausgrid, observed "[m]y significant concern is that the project and timetable already approved by the government for this project includes an allowance for utility relocation that does not reflect the scope and complexity of the work required".

The occupation fee regime

1. At a meeting of the CBD and South East Light Rail Client Control Group ("the Client Control Group") on 3 March 2014, it was proposed that an occupation fee regime would be implemented in order to minimise the duration of construction activities in the individual sections of the SLR.
2. An occupancy fee would be developed to: 1. encourage proponents and OpCo to minimise disruption in the defined fee zones; 2. value the benefits to the proponents as they related to occupation; 3. inform various affected communities in relation to planned occupancy; and 4. provide the defendant with a management tool to deal with unanticipated occupations.
3. Occupation of a fee zone in a "fee area" would commence on the day when OpCo's activities in that fee area required diversion of traffic from traffic lanes. It would be deemed to be continuous until the "Occupation Succession Date". The proposed fee zone rates would vary between $7,200 per day for public spaces and roadways, and $3,200 per day for areas which would become the light rail corridor. A proposed Occupation Fee Schedule was attached to the meeting minutes.

Publication of the Request for Proposal

1. Then, on 7 March 2014, the defendant published its "Sydney Light Rail Public Private Partnership - Request for Proposal (Overview)" ("RFP"). As stated in the RFP, the scope of the SLR PPP included: 1. the design, construction and financing of all infrastructure and rolling stock associated with the SLR, including the incorporation of Early Works; and 2. the customer service operations and maintenance of the SLR from 1 July 2015 until the end of the term.
2. Section 5.8 of the RFP dealt with utility providers and infrastructure owners. The defendant proposed that all of OpCo's activities which impacted utility services would be carried out in such a manner that: 1. did not affect the structure and integrity of the utility services; 2. monitored the condition and provided protection of utility services; and 3. minimised any disruption and avoided damage to utility services.
3. By 10 March 2014, the defendant had undertaken surveys along the SLR route which comprised of 105,032 electronic files, all to be issued to the proponents for tender on secure hard drives.
4. In the defendant's Client Control Group meeting of 17 March 2014, there was some discussion as to the proposed occupation fee regime. The Client Control Group requested a paper from Ernst & Young accountants addressing: 1. details of the rationale of the proposed occupation fee regime within the overall commercial context of the PPP framework; and 2. sufficient evidence that the proposed occupation fee regime would effectively deter OpCo from extending the occupation of fee zones and, further, that it would encourage OpCo to meet overall project objectives.
5. Ernst & Young was also asked to analyse whether the proposed rates and the occupation fee regime would be expected to deter OpCo from occupying traffic lanes during peak traffic periods.
6. The only inference from the minutes of the Client Control Group is that the defendant was aware that it needed to provide sufficient incentive and deterrence to OpCo so as to make its staged construction method effective.
7. For reasons which are not clear, the Ernst & Young report responding to the above-noted request was not made available to the Court. At the hearing, Mr Bannon indicated that a copy of the report had been requested from the defendant but they had not received a response. Mr Miller then indicated that a Notice to Produce had been issued to Ernst & Young, but neither Ernst & Young nor the defendant were able to locate the report. The absence of such an advice may be important.

Entry into Early Works contract

1. On 30 June 2014, the defendant entered into an Early Works contract with Laing O'Rourke Australia Construction Pty Ltd as the managing contractor. The Early Works contract contained two packages. The first package was in respect of non-utility Early Works, such as the demolition of certain structures (for example, the Olivia Gardens and the Parklands Tennis Centre). The second package involved key intersection work. Six intersections were identified, being: "Portion 2.1 George Street / Grosvenor Street / Bridge Street; Portion 2.2 George Street / Hunter Street / Margaret Street; Portion 2.3 George Street / Park Street / Druitt Street; Portion 2.4 Pitt Street / Rawson Place / Eddy Avenue; Portion 2.5 Eddy Avenue / Elizabeth Street / Chalmers Street; and Portion 2.6 Chalmers Street / Devonshire Street / Randle Street."
2. Although it is not clear why those intersections were specified, it is apparent from the terms of the Early Works contract that they must have been considered important to traffic flow and, in particular, the bus routes in Sydney.
3. The intersections of George Street and King Street, and George Street and Market Street (being the intersections enclosing the Strand Arcade's western entrance and the start of the underground walkway from Myer to Sydney Town Hall) were not included as part of the Early Works contract.
4. The key requirements of the Early Works contract included: 1. removing all obstructions from the light rail corridor so that OpCo could construct all required SLR infrastructure without impediment. The majority of the obstructions were existing utilities that required modification and/or relocation; 2. completing the works in time to allow for the relocation of the existing bus network off George Street; 3. minimising the impact to traffic during the works; 4. constructing a structural slab as an enabler for OpCo; and 5. reinstating the road surface to allow the intersections to be trafficked.
5. Plainly, the point of the Early Works contract was to ensure that, at the specified intersections, all utilities treatments and other obstructions which might impact upon the SLR construction were dealt with in advance of OpCo commencing work on the intersections. Further, it aimed to ensure that the work was done at night and on weekends, so as to not disrupt the flow of traffic (in particular, buses) through those intersections. Indeed, Stephen Lewcock (a utilities manager who worked on the SLR project and gave evidence at the hearing) states in an email of 13 August 2014 that the aim was to clear the intersections to enable the D&C contractor to construct the track slabs as quickly as possible, with minimal disruption to the public.

Further assessment of risks

1. On 18 July 2014, the defendant again published an updated Risk Register. One of the risks identified included compensation and nuisance claims by impacted stakeholders and businesses. Utilities remained a major risk. That risk included the potential that the defendant would be unable to reach a timely agreement with respect to the appropriate treatment of affected utility services. The extent of the works remained unknown and treatment strategies needed to be agreed with third party providers. Reference was made to the fact that the Ausgrid process would take three months. Existing protocols and procedures were deemed too slow and "not reactive enough" to support the SLR works program.
2. A major risk was identified as being the unplanned discovery of additional utility services, which would necessitate additional expenditure in order to complete the required works within the program allowances.
3. In a Contract Finalisation Summary prepared by the defendant dated 11 August 2014, the defendant noted that it was receiving very strong push-back on the utilities risk from the market.
4. At a workshop meeting dated 19 August 2014, utilities were again discussed, with the main issue being "known" versus "unknown" utilities. The question of fee zone occupancy was also considered. There was a reference to the perception of performance on George Street in front of businesses and a change of governments being the biggest risks. The defendant was most concerned about Zone A (that is, George St). Politicians were noted to be "spooked" by the experience of building the light rails in Edinburgh and the Gold Coast; in respect of the latter, it was said that 15% of nearby business owners "went bust".
5. On 1 September 2014, a draft version of a "Deed for Adjustment Works to Network Assets" was prepared between Ausgrid and the defendant.
6. In its "Consolidated Clarification: Returnable 8 - Options," CSY noted that the current scope of the investigation works for Route A (being Circular Quay to Central) was "100% level B and level A survey." Level B survey involved a full geophysical survey, including the location of cables and ground-penetrating radar. Level A survey involved a full internal survey of pit/manholes and the potholing of assets to determine exact depth.
7. At least on the defendant's case, CSY's document "Underwritten Clarification: Returnable 5 - Engineering, Architectural and Urban Design" (dated 15 September 2014) is an important document. Therein, CSY put forward its Initial Utility Services Treatment Plan, which provided for the identification of utilities through to the treatment and resolution of utilities issues. It observed that the treatment of existing utilities was a key delivery risk for the project.

Conclusions from planning documents

1. A number of things are clear from the pre-Project Deed documents, including that: 1. the defendant's original intention was to deliver the project through an extensive Early Works contract, which would include the utilities treatments followed by a separate Civil Works contract. Over the pre-Project Deed period, particularly in 2014, that plan changed such that the defendant decided that the utilities treatment works would form part of the Civil Works contract and the Early Works contract would be limited to six key intersections (and would include utilities treatments); 2. the defendant was aware of the significant risk to business owners along the SLR route arising from the construction activities. It was aware that the construction of the SLR would have a significant impact on businesses. It was aware of the Gold Coast experience in which 15% of businesses along that route had failed during the construction period. It was aware that it needed to minimise interference with local businesses as far as possible and that doing so would be critical to the viability of the businesses; 3. the defendant was well aware of the utilities risk. It was one of the primary risks associated the project, particularly bearing in mind that the project would require excavation of one of Sydney's busiest streets (being George Street); 4. at the time of entry into the Project Deed, the defendant was aware that it had not yet discovered all utilities along the route and that there would be unknown utilities. It was aware that the discovery of unknown utilities could delay the Civil Works. It was aware that its investigation into utilities was more thorough along Route A (which included George Street) than other areas, such as Anzac Parade. It was aware that the discovery of unknown utilities would delay the progress of the construction works. It was aware that 30% of the utilities being discovered through the trenching contract were unknown utilities; 5. at the time of entry into the Project Deed, the defendant was aware that no agreement was in place with the major provider of utility services, Ausgrid, or indeed, other utility providers (such as Sydney Water) as to how their utilities could be treated. This was identified by the defendant as another risk to the performance of the Civil Works, that is, the risk remained that Ausgrid might require different treatment methods from those identified in the Project Deed. This is what the D&C contractor said occurred and what led to a substantial claim for compensation from the D&C contractor; 6. the defendant had been warned by Ausgrid that the defendant's own plans, in terms of cost and timing in dealing with the utilities, was likely to be a significant underestimation. Ausgrid had warned in very direct terms that the treatment of utilities would take much longer and cost much more than might have been anticipated. Ausgrid had also cautioned that the timetable for the Early Works contract was unachievable; 7. at no point prior to entry into the Project Deed was there any statement by the defendant, through its various planning groups or Risk Register, that the significant risks that it had been highlighting were somehow reduced. For example, there is no statement that those risks which were highlighted as being major, such as the risk of unknown utilities or delay risks associated with the absence of agreements with utility providers, were reduced by December 2014; and 8. the defendant was aware that it needed to engage the proponent on terms that work would be done by the D&C contractor in stages, with limited concurrency between the stages. Thus, it needed to both impose a fee zone schedule and impose terms which would deter OpCo from not complying with that fee zone schedule. This was critical to minimising harmful interaction with business owners along the SLR route.

The way in which the SLR Project was intended to be delivered

1. Having regard to all of the planning, discussions, meetings, reports, negotiations and statements by the defendant, it is clear that by the time of entry into the Project Deed, the defendant intended that the SLR would be delivered in the following way: 1. through two separate contracts, being: 1. an Early Works contract, which would require the managing contractor to undertake work at six specified intersections along the SLR route, in advance of the work being commenced by the Civil Works contractor. This work was required to be completed by 17 April 2015. The work would include utilities treatments; and 2. a PPP for the design, construction and operation of the SLR for a period of 15 years. The successful proponent (OpCo) would enter into a project deed with the defendant and simultaneously enter into a D&C contract with the nominated Civil Works contractor; 1. under the terms of the Project Deed, the defendant would be required to pay OpCo approximately 50% of the costs associated with the design and construction of the SLR. OpCo would then make its profit through the operation of the SLR for a term of 15 years after completion of the construction of the SLR; 2. having regard to the very substantial utilities risk that the defendant was aware of and had identified, there would be some risk sharing between the defendant and OpCo in respect of that utilities risk; 3. construction of the SLR would commence in 2015 and be completed by March 2019; 4. construction was to take place in stages - that is, in 31 fee zones - so as to minimise the disruption to residents and business owners along the SLR route; 5. the Project Deed would contain an Initial Delivery Program and an Occupation Schedule specifying when the D&C contractor would be in occupation of each fee zone. The Project Deed would include terms which required the D&C contractor to undertake work in each fee zone for a specified period before moving onto another fee zone.
2. The terms of the Project Deed would provide both an incentive to undertake work in the staged manner and a deterrent from remaining in occupation of any particular fee zone for excessive periods.

The Project Deed

1. The Project Deed is an extensive document comprising 317 pages with thousands of pages of annexures. The "Definitions" section is itself 62 pages.
2. The Project Deed did not just cover the design and construction of the SLR. The agreement which ALTRAC and the defendant entered into was to the effect that ALTRAC would be paid a certain sum in respect of its design and completion of the SLR and that, thereafter, it would have a right to operate it for a period of 15 years.
3. The original date for completion of the SLR was 16 March 2019. The term of the agreement with ALTRAC was intended to expire 15 years after that date (on 16 March 2034). As previously noted, I will refer to ALTRAC as OpCo when discussing the Project Deed (adopting the terminology used in the deed).
4. As specified, the objectives for the project included: 1. to deliver world class light rail services; 2. to provide an appropriate customer experience; 3. to develop a long-term collaborative working relationship between the defendant and OpCo and OpCo's contractors; and 4. to design, deliver, test, commission, operate and maintain a safe light rail system.
5. OpCo's primary obligations were to: 1. arrange for financing; 2. design and construct the SLR works; 3. operate and maintain the SLR during the operations phase; 4. hand the equipment back to the defendant on the end date; and 5. "…engage with the community and implement proactive stakeholder and community liaison strategies to minimise disruption and develop community 'ownership' of the SLR."
6. The defendant's primary obligations (without limiting any other obligations under the Project Deed) were to: 1. grant OpCo the licences under cll 12.1 and 12.4 of the Project Deed; and 2. pay OpCo in accordance with cl 25 of the Project Deed.
7. Clause 4.6 specified that, except as expressly stated in the Project Deed, OpCo accepted all risks associated with the project and would not be entitled to make any claim against the defendant arising out of or in connection with such risks.
8. OpCo's general obligations were set out in cl 9. Pursuant to cl 9.1, OpCo agreed that it had allowed for the provision of all work and materials necessary for its activities and that all work and materials were to be undertaken and provided by OpCo at its own cost. They would form part of OpCo's activities and would not constitute a modification. They would not entitle OpCo to make a claim, except as expressly provided by the Project Deed.

The Contract Summary

1. The defendant prepared a document which it described as the "Sydney Light Rail Public Private Partnership Final Contract Summary" ("Contract Summary") dated 25 August 2015. The summary itself is 56 pages long. I will refer to it, not as an aid in interpreting the Project Deed, but as evidence of what the defendant intended and thought could reasonably have been achieved.
2. The defendant identified the key benefits of the SLR as being: 1. unlocking of capacity in the CBD; specifically, when combined with a redesign of the bus network, approximately 220 fewer buses would be required in the CBD during the morning peak; 2. faster, more reliable and comfortable public transport; 3. urban renewal and improved amenity. The SLR would include a one-kilometre pedestrianised zone along George Street, between Hunter Street and Bathurst Street; and 4. integration of the SLR with the Inner West Light Rail.
3. The defendant said it adopted a risk-sharing arrangement in accordance with Infrastructure Australia's "National PPP Guidelines". This risk allocation process resulted in various risks either being retained by the State, transferred to the private sector, or shared between the parties.
4. Included in the Contract Summary is a section headed "Section Access," which states: "Transport for NSW and OpCo have agreed a section access regime that incentivises OpCo to minimise disruption during construction. OpCo will be liable for a daily fee for each day that its occupation of a zone exceeds an agreed base occupation period. Where OpCo vacates a zone earlier, it will be entitled to a credit. OpCo's liability for daily fees and entitlement to credits are capped."
5. Plainly, the defendant was announcing to the public that it had put in place a system that was intended to ensure minimal disruption with businesses along the SLR route and that it had incentivised the D&C contractor to make sure that that would happen. In explaining the means by which it had incentivised OpCo, it only referred to the daily fee payable, should OpCo exceed the agreed base occupation period. No mention was made of what the defendant says in this case was the real incentive, being the D&C contractor's holding costs.

The fee zone strategy

1. Consistently with the announcements made by the government and the representations made to business owners during the government's promotion of the SLR, the defendant developed what I would describe as a fee zone strategy. As the government was aware that the impact of the SLR construction on businesses along the route would be significant, it set in place a strategy for the project to be delivered in stages. Whilst there would be some overlap, there were 31 separate fee zones. Through the Project Deed, the defendant established occupation periods for each fee zone. Further, the IDP attached to the Project Deed set out OpCo's delivery program in each fee zone.
2. The IDP had been an integral component of the project delivery since the first Request for Proposal was sent to potential proponents in March 2014. Proponents were informed that the IDP must be consistent with their proposals, including the initial project plans and its design, procurement, construction and commissioning strategies. It was required to be supported by a separate schedule which included the date of commencement of occupation of the fee zone and the base fee zone occupation duration.
3. The point is that the IDP was intended to be a document prepared by OpCo, in conjunction with the defendant, which was consistent with all of its design, procurement, construction and commissioning strategies. Integral to the construction of the SLR was that it be completed in stages. The IDP must be viewed as a realistic and reasonable estimate by OpCo as to how the work could be done consistently with the defendant's fee zone requirements, based on the information available at the time of entry into the Project Deed and assuming that the utilities risk was appropriately reduced through the pre-Project Deed investigation and planning.
4. The IDP included approximately 4,600 activities, organised within a nine-level hierarchical work breakdown structure. The key dates set out in the IDP were: 1. 15 December 2014 - contract close; 2. 18 February 2015 - financial close; 3. 16 March 2019 - final performance testing; and 4. 16 March 2009 - project completion.
5. Each program in the IDP stipulated working and non-working days and the number of working hours per working day.
6. The detail contained in the IDP was extensive. It has been extensively reviewed by the programming experts, being Mr Griffith and Mr Ian McIntyre. It is beyond the scope of this judgment to comment on the hundreds of pages of annexures to the reports of Mr Griffith and Mr McIntyre, although a review of the annexures does provide some key information in respect of deficiencies in the IDP, problems which emerged immediately with the IDP and the extensive changes which were necessarily made to the IDP (that is, extensive delays) arising, in particular, from utilities issues and modifications in Fee Zones 6 and 29.

1. The defendant's fee zone strategy was intended to ensure that the disruption to business owners along the route was kept to a minimum. Ensuring that the work was done in stages and that the D&C contractor was sufficiently deterred and incentivised was integral to minimising the disruption to businesses.
2. However, every time a UWE occurred, and OpCo could demonstrate that a delay to the Occupation Cessation Date for a fee zone was caused, then OpCo could make a claim for an extension to the Base Fee Zone Occupation Period. If the condition precedents for relief had been complied with, the defendant would grant an extension of the relevant Occupation Cessation Date, to the extent and for as long as the relevant event prevented OpCo from performing the works for which a relevant Base Fee Zone Occupation Period was required.
3. Further, as set out in cl 26.1 of the Project Deed, if a Compensation Event (which is defined to include a UWE) caused OpCo to incur loss, OpCo could claim compensation in accordance with cl 26 (Compensation Events). To the extent that any claim for compensation included a claim for losses OpCo had incurred and which arose out of or in connection with any delays in delivery activities, OpCo was entitled to compensation for loss in respect of the period of time for which it had been granted an extension of time.
4. The fee zone strategy thus required the D&C contractor to complete its work in any particular fee zone in accordance with the Occupation Schedule, or else it would be subject to a financial penalty, except that: 1. the D&C contractor could obtain relief from such penalty and indeed claim compensation for certain events, including (and relevantly to this matter) a UWE; and 2. the maximum penalty for overstay over the life of the project was $7.5 million.
5. The plaintiffs say that such a contractual arrangement was so unreasonable that no authority exercising the powers of the defendant would have entered into the Project Deed on those terms.
6. The defendant rejects this. It says that looking at those terms in isolation ignores the importance of the very significant impost on the D&C contractor arising out of moving from one fee zone to another and leaving work incomplete, being the D&C contractor's own costs. Specifically, leaving construction at a standstill in various fee zones would have cost the D&C contractor a significant sum. The defendant says that the amount it would cost the D&C contractor in internal costs gave rise to an incentive to complete in accordance with the IDP.

Announcement of the construction schedule

1. In May 2015, the defendant published a media release to the effect that the SLR construction would begin at Moore Park in September 2015, with construction on George Street beginning in October 2015.
2. After outlining the need for change and the benefits of the SLR, the defendant informed the public that the light rail route had been divided into 31 individual zones to minimise, as much as possible, the impacts of the construction on discrete areas. It provided a tabled list and a map of the 31 zones, noting that construction would take place between the following dates: 1. Fee Zone 5: 23 October 2015 to 12 August 2016; 2. Fee Zone 6: 3 December 2015 to 16 October 2016; and 3. Fee Zone 29: 19 February 2016 to 6 September 2016.
3. The defendant stated, "ALTRAC can alter its construction schedule but not the duration within any individual zone, if required. If changes to the construction schedule are required, ALTRAC must provide a notice of 60 business days. The public will be fully advised of any changes well in advance of works taking place…".
4. Evidently, the defendant was telling the community that although the party doing the work could change its schedule, it could not change the length of time that it was working in each fee zone. To the extent to which the defendant believed, thought or intended this, it proved to be quite wrong.
5. The media release was re-published in part by various media companies, including in an article by the Daily Telegraph.

Lay evidence as to interference with businesses

1. As is clear from their evidence, there was either actual construction work or the appearance of construction activities outside the lead plaintiffs' businesses for periods far in excess of what was contemplated.

Ms Hunt's evidence

1. Ms Hunt prepared four statements dated 2 December 2020, 21 May 2021, 2 September 2022 and 25 October 2022. Much of her evidence is uncontroversial and provides the basis for my earlier comments on the Hunt Leather stores. Further, much of her evidence is relevant to damages issues, on which I will comment later.
2. In her first statement, Ms Hunt provided a detailed chronology as to her observations of the SLR construction activities and the ways in which those construction activities affected Hunt Leather's business in both stores. She became aware of the plans to construct the SLR through media releases and through direct communications during 2014. She says that she was encouraged by the plans for the works to be staged in order to minimise disruption to individual businesses.
3. Ms Hunt says that an important aspect of the Strand Arcade positioning was the increased patronage by international visitors walking up George Street from Circular Quay. From her own observations and those of her staff, the level of patronage by international visitors decreased markedly during the SLR construction.
4. In cross-examination, Ms Hunt was challenged about her general observations as to the effect of the SLR construction on the Hunt Leather stores and her observations as to the activities which were undertaken.
5. There was no real challenge to Ms Hunt's evidence in respect of the period up to December 2017. That is because there is no dispute that, at least between the time of commencement of construction and December 2017, Fee Zone 5 was the subject of regular construction activities and remained boarded up during that time. Specifically, there were hoardings on both sides of the road on George Street and, in particular, directly out the front of the Hunt Leather Strand Arcade store.
6. Ms Hunt was also shown a daily photographic record taken around midday each day from a point further north on George Street, looking down George Street towards Market Street. The point of this photographic record (or, at least, the defendant's reason for referring to the photographic record) was to demonstrate that any suggestion by Ms Hunt that construction was being undertaken on a continuous basis after December 2017 could not be correct.
7. It is clear from the daily photographic record that George Street between King and Market Streets was re-opened in December 2017 and the hoardings which had been in place up until that time were removed (albeit the hoardings remained in place at both King and Market streets).

Steven Foulstone's evidence

1. Mr Foulstone was the manager of the Hunt Leather Strand Arcade store. His evidence related mainly to the level of noise experienced at the store, as well as the noise testing that was undertaken for the purposes of this case. He was also asked about the viability of closing the doors which opened onto George Street. His evidence was uncontroversial and supportive of Ms Hunt's evidence.

Mr Zisti's evidence

1. Mr Zisti prepared five statements dated 2 December 2020, 18 January 2021, 14 May 2021, 2 September 2022 and 25 October 2022.
2. According to Mr Zisti, he chose Anzac Parade for his restaurant business because it was on a main road and easily accessible to the public. It had large windows out the front which allowed natural light and enabled customers to look into the premises.
3. The restaurant generally opened seven days a week, from 5.00pm to 10.00pm. It occasionally opened for lunch between 12.00pm and 3.00pm. Its customers were mainly families from the local area and, in its later years, students from the University of New South Wales.
4. According to Mr Zisti, the primary source of revenue up until the commencement of the SLR construction was in-house dining, rather than takeaway. Throughout the operation of the restaurant business, Mr Zisti used food delivery apps to deliver takeaway food, including Menulog, Deliveroo and then later, Uber Eats.
5. In June 2013, Mr Zisti opened a coffee cart on the footpath outside the restaurant, which he named Giddy Up. He says that was successful, generating sales of approximately $5,000 to $6,000 per week.
6. In the period immediately prior to the commencement of the SLR construction, Mr Zisti had developed his business such that revenue was generated from: 1. in-house dining; 2. takeaway pick-up orders placed directly with the restaurant; 3. takeaway delivery orders placed directly with the restaurant; 4. takeaway orders placed via the "Giddy Up" app; and 5. takeaway and delivery orders placed through other food apps, as noted above.
7. Mr Zisti did not keep a record of the revenue split between these methods of generating income. However, he estimates that approximately 90% of revenue was from in-house dining.
8. Mr Zisti became aware of the proposed SLR construction through the media in or about 2012. In 2013, he visited the Gold Coast and whilst he was there, he visited some shop owners who had operated during the construction of the Gold Coast Light Rail. He says that because of this, he became aware of the potential for disruption to his restaurant business arising out of the SLR construction.
9. Mr Zisti says that during the period leading up to the SLR construction, his sales were continuing to increase (I will discuss this later in this judgment).

Expert evidence

1. The parties relied on a range of expert evidence, some of which may be critical to the outcome of the case and some of which was barely relevant. That expert evidence included: 1. utilities experts - Edward Szmalko on behalf of the plaintiffs and Craig Sampson on behalf of the defendant. The defendant also adduced evidence from Stephen Lewcock, a utilities manager who had been employed on the SLR project; 2. planning and programming experts - Mark Griffith on behalf of the plaintiffs and Ian McIntyre on behalf of the defendant; 3. procurement expert - Jarred Hardman on behalf of the defendant; 4. noise experts - Neil Gross on behalf of the plaintiffs and Renzo Tonin on behalf of the defendant; 5. air quality experts - Gary Graham on behalf of the plaintiffs and Aleksander Todoroski on behalf of the defendant; 6. traffic experts - Oleg Sannikov on behalf of the plaintiffs and Shaun Smedley on behalf of the defendant; 7. retail experts - Chris Abery on behalf of the plaintiffs and Ian Shimmin on behalf of the defendant; and 8. quantum experts - Tony Samuel on behalf of the plaintiffs and Ashley McPhee on behalf of the defendant.
2. Other than the utilities experts, the experts in each discipline met in conclave and prepared joint reports. In accordance with the orders I made prior to the commencement of the hearing, Mr Szmalko and Mr Sampson did not meet in conclave or provide a joint report. They gave evidence independently of each other.
3. Without intending to limit or exclude anything said by the experts, the point of the expert evidence in each discipline may be summarised as follows: 1. the utilities and procurement experts opined on the risks associated with utilities on the project, the defendant's knowledge of those risks, the delivery model adopted by the defendant, and the process of engagement with OpCo and negotiations as to the contractual terms; 2. the programming experts also commented on risks associated with the project, the way in which the project was to be delivered, the proposed timeframes, the actual periods in which the D&C contractor was engaged in work in each fee zone and the reasons for the delayed occupation of each fee zone; 3. the dust experts offered projections on the likely level of dust which might have been experienced in these fee zones, the relevant standards and the steps actually taken and the steps which should have been taken to reduce the level of dust; 4. the noise experts commented on the likely level of noise arising from the construction activities, the steps actually taken to reduce the noise and the steps which should have been taken to reduce the noise; 5. the traffic experts commented on the methodology for counting traffic and specifically, whether there was any reduction in traffic in Fee Zone 29 as a result of the construction activities; 6. the retail experts commented on the retail market as it existed around the time of the construction of the SLR and offered projections as to how the lead plaintiffs' businesses might have fared but for the construction activities being undertaken in the relevant fee zones; and 7. the quantum experts undertook mathematical calculations, having regard to various assumptions as to the profitability of the businesses prior to the commencement of the construction of the SLR, and analysed the reduction in profitability as a result of the SLR, having regard to the assumptions that they had made.

Mr Szmalko

1. Edward Szmalko is the manager and director of NEN Consulting Pty Limited, which I understand to be his own consulting firm. He holds a Bachelor of Electrical and Electronic Engineering. He is qualified for and has had practical experience in the application of internationally recognised project management and methodologies.
2. Mr Szmalko had no involvement in the SLR project but he was aware of its general nature and scope. He believed from media coverage and other public documentation that the project was delivered around two years later than expected (in fact, the completion date was a year late).
3. Whilst there was no specific challenge to Mr Szmalko's expertise, the defendant emphasised in cross-examination that Mr Szmalko's experience in large-scale infrastructure projects was not prior to 2015.
4. Mr Szmalko offered many opinions in his reports. Not all of his opinions were subject to any challenge or necessarily in dispute. However, many of his important opinions were the subject of cross-examination and were challenged. He was certainly challenged as to the basis for some of his opinions.
5. Mr Szmalko prepared a 350-page report dated 10 June 2021.
6. In that report, he said that he was provided with letters of instruction and asked to make quite a number of assumptions regarding the duties and obligations of the defendant and its dealings with Ausgrid. Some of his opinions reflect his assumptions rather than analysis of what actually occurred.
7. Mr Szmalko was instructed to answer the following questions: "(a) In the course of planning and procuring the Project, how did TfNSW go about managing risks associated with utilities (such as identifying the existence, location and physical characteristics of utilities potentially affected by the works and negotiating treatment requirements necessary to satisfy affected utility providers)? (b) Was any aspect of TfNSW's approach that you have identified in answer to question (a): (i) inconsistent with any of the Duties [as defined above]? (ii) otherwise inappropriate in the circumstances, having regard to the assumptions you have been asked to make and the information provided to you? If so, in what way, and why?"
8. In his second report, dated 6 September 2022, Mr Szmalko was asked to review and comment on the expert reports relied upon by the defendant, being those of Mr Hardman, Mr Sampson and Mr Lewcock.

Challenges to Mr Szmalko's evidence

1. Mr Szmalko was challenged during cross-examination on a number of aspects of his reports. I have already referred to that aspect of his evidence which may be based on incorrect assumptions.
2. In my view, as emerged during cross-examination, there are a number of problems with parts of Mr Szmalko's evidence (both in written and oral form): 1. as Mr Szmalko himself acknowledged, he was asked to assume a number of things and then opine on the planning and design phase of the project, the defendant's approach to the risks associated with the project and the terms of the Project Deed. He acknowledged that he was not provided with documents which related to the actual work performed by the D&C contractor after it entered into the Project Deed; 2. some of the assumptions made by Mr Szmalko ultimately turned into his own opinions. In fact, when endeavouring to explain certain matters, he said so. He was unable to offer any opinion as to whether, in undertaking the work relating to the utilities, there had been actual compliance with the six steps that he had identified as the Utilities Mitigation Steps. Although he identified the six steps as being necessary, his evidence as to whether the six steps were actually complied with, when they were complied with and by whom, was somewhat vague; 3. Mr Szmalko used certain words about the defendant's provision of information, such as "misrepresent" and "mislead," but was unable to say whether this actually had an effect on the staging of the work after entering into the Project Deed; 4. Mr Szmalko's opinions about how work was done in the industry prior to 2014 were based on what he was told by others, as he appears not to have had any relevant experience in utilities management prior to 2014; 5. Mr Szmalko was critical of the reduction in the scope of the Early Works contract, although he did not acknowledge why the scope was reduced. Further, the original Early Works contract was limited to six intersections and included utilities treatment. As I have said, the Early Works contract required Laing O'Rourke to undertake the work on weekends and at night. However, the scope of the Early Works contract was significantly reduced, such that the work was only performed in respect of two intersections; 6. Mr Szmalko stated that it was the defendant's intention to transfer all of the utilities risk to OpCo but when pressed, he said that he meant something less than a transfer of the whole risk. However, as expressed in his reports, he had proceeded on the basis that the defendant intended to transfer all of the utilities risk to OpCo and subsequently opined that it had failed to do so; 7. Mr Szmalko referred to the Ausgrid guidelines as having contractual force and requiring more than the relevant standard. Considerable time was taken in the cross-examination trying to identify the standard to which he was referring and where it might be found in his reports; and 8. it was put to Mr Szmalko that the defendant actually undertook the utilities work in accordance with the six steps. Mr Szmalko declined to offer any opinion as he said he did not know how the work was done.

Mr Lewcock

1. The defendant relied on the affidavit of Mr Lewcock dated 11 November 2021. Mr Lewcock is a Utilities Manager employed by Australian Utilities Solutions Pty Ltd. He is currently advising the defendant on the Parramatta Light Rail and other projects. He has been in that role since 2016.
2. Between September 2013 and December 2015, he was employed by Turner and Townsend Pty Ltd as a Director of Infrastructure, specialising in utilities management. Turner and Townsend was contracted by the defendant to assist in the tender phase of the SLR.
3. During 2013 to 2016, Mr Lewcock was also the Senior Project Manager (Utilities) for the SLR.
4. Mr Lewcock has 16 years of experience in the construction industry, which includes 11 years specialising in utilities in the context of infrastructure projects. He previously worked on the Dublin Tram project and on the Edinburgh Tram project. He was the enabling works Construction Manager responsible principally for utility relocations on the Edinburgh Tram project. The Edinburgh Tram project consisted of approximately 2,500 utility relocations. At the same time that he was working on the SLR, he was also the Utilities Lead Manager advising on other light rail projects such as the Canberra Light Rail, Newcastle Light Rail, Parramatta Light Rail, Sydney Metro and Auckland Light Rail.
5. Mr Lewcock was asked to provide an affidavit in response to the affidavits of Mr Szmalko. He identified and responded to three criticisms of the defendant that were raised by Mr Szmalko, being: 1. the defendant did not undertake sufficient investigations as to the existence, condition and location of utilities likely to be affected by the SLR prior to issuing the RFP and entering into the Project Deed; 2. the defendant failed to properly consult with and obtain approval from utility providers (in particular, Ausgrid) in relation to the proposed treatment of assets belonging to those utilities prior to issuing the RFP and entering into the Project Deed; 3. the defendant failed to conduct sufficient early works prior to entering into the Project Deed, to minimise the potential for disruption and delay to OpCo after entry into the Project Deed (that is, the scope of the Early Works contract).
6. Mr Lewcock disagreed with each of these criticisms.
7. Mr Lewcock said that after commencing work in September 2013, he quickly became aware that, from a utilities perspective, the SLR project was likely to be far more complicated than any other Australian infrastructure project about which he had knowledge. In particular, he identified: 1. the location of utility assets in a congested CBD; 2. the amount of traffic congestion on George Street; 3. the quantity and complexity of assets in George Street (particularly the Ausgrid assets); 4. the complexity of the Ausgrid 11KV triplex system; 5. the criticality of the utility assets in the CBD; 6. the age of the assets; 7. the location of the roads inhibiting access; and 8. the imprecise nature of the information as to the existence and condition of the utilities.

Cross-examination of Mr Lewcock

1. The plaintiffs' cross-examination of Mr Lewcock was focussed on the processes adopted and decisions made by the defendant as to the investigation and treatment of utilities, along with the consideration given to differing delivery models for the SLR.
2. Mr Lewcock was cross-examined about his experience on the Edinburgh, Dublin and Parramatta light rail systems. This was presumably in an attempt to establish that things had been done differently in other places. Namely, agreements had been entered into prior to the relevant civil works and there had been proper and complete identification of utilities prior to the commencement of those works.
3. On the Edinburgh Tram project, Mr Lewcock was responsible for removing all conflicts in the Edinburgh city centre which could prevent the infrastructure from being constructed. Ninety percent of those conflicts were utility conflicts. It was put to him that in respect of the Edinburgh Tram project, there had been a Multi Utilities Diversion Framework Agreement in place which was similar to an early works contract. Mr Lewcock did not recall this and it was not otherwise established by the plaintiffs.
4. Mr Lewcock disagreed that the removal of the utilities conflicts took place in advance of the construction of the Edinburgh Tram. He said that the construction had started but it subsequently ceased because there was a dispute as to whether the light rail corridor had been properly cleared.
5. He disagreed that the Edinburgh Tram construction followed the removal of utilities conflicts by another contractor; Mr Lewcock said there had been an early works package but it had not been completed in advance of the civil works contractor starting. He agreed that his experience was that there were significant delays in the performance of the early works contract because of the number of utilities which needed to be dealt with. He was not sure precisely why there had been delays but he agreed that there were complexities in removing the utilities along the light rail corridor. He accepted that it had been necessary to enter into agreements with utility providers, which took some time. He accepted that there were delays but maintained that the actual project was delivered in advance of time.
6. In respect of the Dublin Tram, Mr Lewcock said that the model was very different. That is because the government actually constructed their own infrastructure. The main contractor did all of the works, including the utilities works. The early work on utilities was very limited and mainly involved changing corners on kerbs to enable traffic diversions to advance the main works.

Mr Sampson

1. Mr Sampson prepared reports dated 23 December 2021 and 15 November 2022.
2. Mr Sampson was asked by the defendant to respond to Mr Szmalko's criticisms. Mr Sampson is a civil engineer who provides consulting services to major infrastructure projects in Australia. He has worked on a number of light rail projects, commencing with the Gold Coast Light Rail in 2010 progressing through to Stages 2 and 3 of that project, as well as the Canberra Metro and the Parramatta Light Rail. He said that he was very familiar with the importance of design and integration of utility treatment works, the necessity of accurate utility asset locations and the need to undertake extensive subsurface utility investigations. He said he was familiar with the difficulty in obtaining utility authority approvals for integrated utility treatments and the need for sufficient design information in this process.
3. Mr Sampson reviewed the different quality levels of information in respect of the SLR utilities (being quality levels A to D) with reference to the Standard (AS5488-2013). He pointed out that Mr Szmalko had made multiple references to the 2019 version of the Standard in preference to the 2013 version, despite the fact that Mr Szmalko commented on what the defendant should have done in 2013 and 2014.
4. Mr Sampson said that, in his experience, in 2013 and 2014: 1. it was only possible to have utility assets at 100% quality level A if the entire length of the asset had been sighted and surveyed. With respect to the SLR, that did not happen; 2. in 2013, much less focus was placed on the importance of engagement with utility providers to confirm utility treatment options. Rather, there was a focus on passing all the risks to the relevant contractor, leaving it to them to resolve issues with the utility providers. By way of example, Mr Sampson referred to Stage 1 of the Gold Coast Light Rail, whereby the risk was left to the contractor to deal with utility providers. That may be right and the defendant in this case originally intended to transfer the risk to OpCo; 3. Mr Sampson disagreed with Mr Szmalko's criticisms of the level of utility investigations, noting that by the time of its Returnable 8 options from CSY, the survey coverage for route A (which included Fee Zones 5 and 6) was 100% level B and level A survey. In his opinion, these figures exceeded Mr Szmalko's generalised quality level estimates; 4. Mr Sampson suggested that all utility quality levels should only be used as a guide. In some circumstances, even quality level B data could be far too inaccurate for determining an appropriate utility treatment in congested areas; and 5. further, it would always be necessary for the contractor to undertake additional quality level A investigations for its design and construction needs. He stated: "[f]or the Sydney light rail project, due to the age of the existing utilities and the extremely congested subsurface environment, with the potential for a considerable number of unknown utilities, I would expect the D&C contractor to undertake many long slot trenches (longitudinal and transverse) as part of their subsurface investigations."

Summary of findings on utilities experts

1. As I have identified in my review of the evidence of the utilities experts, there are a number of problems with Mr Szmalko's evidence. Specifically, some of the assumptions he made are not borne out by the evidence and some of his conclusions are directly contrary to the evidence. The basis of some of his opinions is not clear. To the extent that he offered opinions on any alternative delivery model or on the basis that the defendant intended to completely transfer the risk to OpCo through the Project Deed, those opinions cannot be accepted.
2. Further, I accept the evidence of Mr Lewcock and Mr Sampson on the difficulties that would have arisen if Mr Szmalko's proposed alternate delivery models had been adopted.
3. Having said that, there is some consistency between the utilities experts on a number of issues. The deterrence clause (cl 12.3) in the Project Deed was described as unique. Investigating utilities prior to commencing the Civil Works was important and necessary. The general effect of Mr Szmalko's Utilities Mitigations Steps was not really in dispute. The fact that the trenching contract was unlikely to have discovered all utilities was not in dispute, as it was merely a survey. The suggestion of 100% quality level A in Fee Zone 5 was apt to mislead.
4. It is also clear from the evidence of Mr Lewcock and Mr Sampson that, as I have already accepted with reference to the pre-Project Deed documents, the presence of unknown utilities was a big risk on this project and that the requirements of utility providers were not finalised and remained a risk at the time of entry into the Project Deed.
5. Mr Sampson said that the discovery of previously unknown utilities would make a huge difference to the outcome. As I will explain, he was correct.
6. To a certain extent, the defendant's expert evidence on utilities tended to highlight the significance, risk and complexity of the utilities problem. The defendant's evidence assisted its case in resisting the s 43A unreasonableness point but also highlighted the fact that the defendant was well-aware of the risk of substantial delay in completing the Civil Works at the time it entered into the Project Deed.

Mr Hardman

1. Mr Hardman prepared a report on behalf of the defendant in relation to procurement and risk management. He has worked on some of Australia's largest infrastructure procurements.
2. In carrying out his investigations, Mr Hardman focussed on the structure adopted by the defendant in planning and procuring the SLR project, whilst also considering key industry guidelines and practices. He did not consider that the defendant's conduct in managing the utilities risk fell short of the ordinary industry standard. In particular, he criticised Mr Szmalko for ignoring the basic principles of commercial negotiation in his comments about risk management and document negotiation. He said that Mr Szmalko did not consider that the market was never willing to accept the full risk transfer. As I have already observed, that is so.
3. He believed that, if Mr Szmalko's views about the way in which the defendant should have proceeded were followed, then the defendant would have had to: 1. ignore the PPP guidelines; 2. adopt an approach to risk management which did not comply with the ISO 31000 standard; 3. ignore market feedback; 4. require the detailed design to be completed prior to RFP release to allow Ausgrid to develop treatments for utilities; and 5. require tenderers to price full risk transfer.
4. Mr Hardman said that the outcome of this approach would have been unacceptable. By this, he meant commercially unacceptable at the pricing level.
5. Much of Mr Hardman's report was devoted to what I will describe as "general risk management approaches". Further, according to Mr Hardman, having regard to the defendant's Risk Register of July 2014, the stages which Mr Szmalko described as the Utilities Mitigation Steps were actually reflected in the controls and risk treatments identified by the defendant.
6. Mr Hardman was cross-examined somewhat robustly. There was certainly a challenge to his expertise and his general approach. Whilst Mr Hardman only offered opinions on matters which he was asked to opine by the defendant, I do not consider that his particular expertise and opinions add a great deal to the determination of the outcome. Whilst he made criticisms of Mr Szmalko's opinions (which were similarly made by other experts) which I accept, his approach to risk management was generic.
7. He did identify inconsistencies in Mr Szmalko's evidence but I am not certain that all of his comments would fall within the well-understood meaning of an expert opinion.

Programming expert evidence

1. The plaintiffs retained Mr Griffith as their programming expert. The defendant retained Mr McIntyre as its programming expert. Both experts sought to demonstrate and explain the time that the D&C contractor occupied individual fee zones, although they approached that task differently. At times during their evidence, it did seem like this was a construction case between a principal and a contractor, rather than a claim for damages in nuisance.

Mr Griffith

1. Mr Griffith is a director of Latitude Consulting Engineers. He has over 30 years of engineering experience. He has provided management advice to owners, contractors and governments in relation to programming, contracting, administration and cost analysis, quality control and occupational health and safety. He has provided expert opinions in relation to the assessment of delays and extensions of time, cost analysis defects and project management practice.
2. Mr Griffith prepared an expert report dated 9 June 2021, a reply report dated 6 September 2022 and a supplementary report dated 16 October 2022.
3. Whilst Mr Griffith was not retained initially to offer an opinion about the quality of the defendant's utilities investigations or management, he ended up doing so. Rather, he was asked to assume that the defendant had failed to properly manage the utilities risk. Based on his own project management experience, he ultimately concluded that this assumption about the management of the utilities risk was consistent with the opinions he had formed about the defendant's conduct.
4. Mr Griffith considered that the delay risk associated with unknown utilities should have been known to the defendant. He says that the defendant should have taken further steps to reduce this risk by: 1. undertaking more utility surveys covering the rail alignment and adjacent properties with statistical analysis of the differences between the utility plans and survey results; and 2. reaching concluded agreements with utility providers that clearly defined treatment plans and agreed expected procedures.
5. Mr Griffith's expertise lay in the assessment of whether there were delays in the completion of the SLR Project and the cause of those delays. Notably, the defendant challenged Mr Griffith's evidence relating to the cause of the delays and the reasoning applied in reaching his conclusions. The defendant also suggested that the assumptions made by Mr Griffith were not available.
6. However, in his assessments, Mr Griffith had regard to the events which actually occurred. He considered the "as-built" documents (the documents which recorded what was happening on the project during the period of construction). He also undertook a Windows (computer) analysis, which verified his conclusions.
7. Mr Griffith opined that the SLR project took longer than it should have, stating that the planned occupation of Fee Zones 5, 6 and 29 was extended due to the defendant's conduct.

1. He included a further table indicating the periods of further work after occupation ceased, as follows: Fee Zone Start Finish Duration (days) Fee Zone 5 25-Feb-19 30-Aug-19 187 King Street Intersection 31-Oct-18 10-Aug-19 284 Market Street Intersection 31-Oct-18 14-Sep-19 319 Fee Zone 6 04-Feb-19 05-Dec-19 305 Market Street Intersection 28-Mar-19 14-Sep-19 171 Park & Druitt Street Intersection 21-Dec-18 04-Dec-19 349 Fee Zone 29 26-Jun-19 12-Mar-20 261

1. In my view, the periods of fee zone occupation were not quite as extensive as he suggests but, on any view, they were much longer than planned and exceeded two years.
2. Mr Griffith prepared an amended IDP, reflecting what he says would have been reasonable allowances for the works and, in particular, the utility treatments, should the defendant have undertaken those further steps he suggests. There is obviously hindsight in the calculation but the point is to provide some indication of what might have been a reasonable timeframe for the works to have been completed in each fee zone, assuming more knowledge and agreement in respect of utilities at the outset, (thereby meaning less delay during the works).
3. Mr Griffith identified the cause of the delays in the occupation of Fee Zones 5, 6 and 29 as being: 1. the number of modifications issued by the defendant during the course of the construction work; 2. the discovery of many previously unknown utilities, leading to delays in the treatment these utilities; and 3. delays in reaching agreement with utility providers in respect of the treatment of the utilities.

Mr McIntyre

1. Mr McIntyre prepared two reports dated 11 February 2022 and 17 November 2022. He was initially asked two questions, being: 1. what works occurred in Fee Zones 5, 6 and 29 relevant to the complaints made in paragraphs 16(a) and 16(a)(i) of the Statement of Claim within the proximity of the premises referred to in those paragraphs? and 2. did he agree or disagree with Mr Griffith's opinion as to whether the utilities conduct and any failures identified resulted in any of the Fee Zones 5, 6 or 29 being occupied for longer than otherwise expected?
2. As he said in his report, the main objective of his investigation and analysis was to identify what construction and related work was performed in Fee Zones 5, 6 and 29. He adopted a classification system for the construction and related works. Construction activities which he identified as Category 2 were mostly relevant to his analysis. He defined Category 2 activities as moderate or heavy construction or related works. He analysed when Category 2 works were being performed in Fee Zones 5, 6 and 29.
3. He also examined and analysed the information relating to the workdays required to complete Category 2 works that occurred within 100 metres (50 metres either side) of the business premises. In undertaking a daily analysis of Category 2 works through the as-built documents, Mr McIntyre was able to conclude that Category 2 work only occurred in the fee zones for a proportion of the extended occupation period claimed.
4. Mr McIntyre's analysis may be somewhat illusory, particularly if the D&C contractor was constantly starting and stopping work or was absent for long periods arranging utility treatments. If this were a different type of claim, that analysis may be critical but I am not sure how the intermittent use of heavy machinery would have helped Mr Zisti when the construction site was directly outside his premises. It is not as if potential patrons had advance notice of when their enjoyment of the restaurant premises might have been disturbed.
5. Mr McIntyre's analysis was modified somewhat as a result of the expert conclave. I will refer to his amended analysis further when considering the joint report.
6. The second question Mr McIntyre was asked to answer was whether the utilities conduct or any failures identified resulted in the occupation of the fee zones for longer than initially planned. Mr McIntyre did not consider that it was possible to answer this question. He did not agree with Mr Griffith's methodology of comparing what actually happened with what was shown on the program adopted by the D&C contractor at an earlier point in time. He said that to do so would involve an assumption that the activities on the project would have occurred at the time shown on the IDP. He considered that such an assumption was unwarranted. He rejected Mr Griffith's opinion as being unsound because it was based upon flawed assumptions and methodologies.

Joint programming evidence

1. Although Mr Griffith's and Mr McIntyre's reports (when combined) were 1500 pages, the joint report focussed on an analysis of the number of days that each expert identified the D&C contractor as having occupied Fee Zones 5, 6 and 29.
2. Mr McIntyre maintained his form of classification (Category 2) as being the number of days when the D&C contractor was performing construction work in each particular fee zone. Mr Griffith used broader criteria for identifying the periods of occupation; he included periods when there were no barricades up and when minor construction work was being undertaken in the fee zones.
3. Mr McIntyre distinguished between work which he identified as occurring in the "full zone," which was anywhere within the fee zone and the "proximate zone" (in Fee Zone 5, this was very close to the Strand Arcade). For example, Mr McIntyre said that in Fee Zone 5, work occurred in the Full Zone for 514 days during the execution period (1,553 days) but in the proximate zone, work occurred on 410 days during the execution period.
4. Mr Griffith agreed with this analysis, except he thought that, with respect to Fee Zone 5, there were an additional 31 days during which work was carried out in the full zone and an additional 19 days during which work was carried out in the proximate zone.
5. It follows that in Fee Zone 5, actual construction work took place for around 514-545 days between 2015 and 2019. The days were not consecutive and the hoardings remained in place up to December 2017, regardless of whether actual construction activity occurred on a particular day.
6. In respect of Fee Zone 6, the experts disagreed as to whether any analysis was necessary. Mr McIntyre said that, as the plaintiff did not complain of noise and dust, no analysis was necessary, whereas Mr Griffith undertook the analysis, concluding that Category 2 works were carried out over 424 days in Fee Zone 6.
7. In respect of Fee Zone 29, the experts differed. Mr Griffith concluded that Category 2 works were carried out in Fee Zone 29 for 759 days in the Full Zone and 133 days in the Proximate Zone. Mr McIntyre concluded that works occurred in the Full Zone for 367 days and for 75 days in the Proximate Zone. Again, it is not suggested that this work was always carried out on consecutive days or that the hoardings were removed between the periods of work.

Corrected IDP Corrected IDP Category 2 Workdays Actual Category 2 Workdays Increase % Increase (days) Full Zone 212 645 304% 433 Proximate Zone 175 429 245% 254

Fee Zone 6: IDP IDP Category 2 Workdays Actual Category 2 Workdays Increase % Increase (days) Full Zone 175 542 310% 367 Proximate Zone 141 424 301% 283

Corrected IDP Corrected IDP Category 2 Workdays Actual Category 2 Workdays Increase % Increase (days) Full Zone 229 542 237% 313 Proximate Zone 191 424 222% 233

Fee Zone 29: IDP IDP Category 2 Workdays Actual Category 2 Workdays Increase % Increase (days) Full Zone 115 759 660% 644 Proximate Zone 55 133 242% 78

Corrected IDP Corrected IDP Category 2 Workdays Actual Category 2 Workdays Increase % Increase (days) Full Zone 147 759 516% 612 Proximate Zone 79 133 168% 54

1. Mr Griffith said that the D&C contractor occupied Fee Zone 5 up until March 2018. The defendant said that the occupation of Fee Zone 5 ended in December 2017, when all of the barricades and hoardings were removed and when the area between King and Market Streets was opened up for Christmas.
2. When Mr Griffith was shown photographs of Fee Zone 5 taken in February 2018, he agreed that the defendant was not occupying the fee zone at that time. There is thus some uncertainty as to the basis upon which Mr Griffith concluded that the defendant was in occupation of Fee Zone 5 after December 2017. On my analysis, whilst some occasional work continued to be performed in Fee Zone 5 in 2018-2019, the hoardings came down before Christmas 2017.
3. The dates on which the defendant's occupation of the three specified fee zones commenced and ended is important because it is part of the plaintiffs' claim that nuisance is not established by a daily analysis of the construction, but through consideration of the total period in which hoardings and barricades were present and when construction work was undertaken.
4. The barricades were present because construction work was being undertaken, it was expected that further construction work would be undertaken, or it was being carried out elsewhere along the SLR route.
5. Mr Griffith undertook his analysis by considering the IDP and then adjusting or correcting it, having regard to any modifications that were made. He described this as a "corrected IDP".
6. The defendant generally accepts that the D&C contractor was in occupation of Fee Zones 5 and 29 for much longer than the IDP (whether corrected or not). For example, in Fee Zone 5, the defendant accepts that the D&C contractor was in occupation until December 2017, which is only three months earlier than Mr Griffith's suggested date. It follows that, even on the defendant's analysis, the D&C contractor was in occupation of Fee Zone 5 for close to 500 days more than the time projected in the IDP.
7. Mr Griffith opined that, even though the Ausgrid treatment plans in respect of known utilities were finalised in February 2016, the discovery of a large number of unknown utilities (not just those belonging to Ausgrid) during the actual construction work delayed the construction activities, meaning that the D&C contractor remained in occupation for the extended period.

Summary of programming evidence

1. I am persuaded by Mr Griffith's analysis of what happened on this project. I do not accept, as the defendant submits, that no conclusion on the cause of the substantial prolongation of the D&C contractor's occupation in the fee zones could be made without tracing the impact of every utility across the life of the project. I do not accept the defendant's submission that no conclusion can be drawn without evidence of the D&C contractor's resources and how the delays in each fee zone might have been caused by under-resourcing on the part of the D&C contractor.
2. In the end, there was little between Mr Griffith and Mr McIntyre in terms of their assessments of the occupation periods. There was also little between them in terms of the number of days that the D&C contractor actually performed work in the fee zones. Mr McIntyre developed a categorisation system which was helpful in determining when work was performed in each fee zone and the D&C contractor's occupation of each fee zone. This is relevant to assessing the period of any nuisance, although it is not determinative.
3. The real difference between Mr Griffith and Mr McIntyre related to whether Mr Griffith could offer an opinion on the cause of the delays based on his methodology and analysis, or whether, as suggested by Mr McIntyre, that methodology did not provide a proper basis for expressing an opinion as to cause.
4. Of course, Mr McIntyre did not offer any opinion as to the cause of the prolonged periods of occupation, merely suggesting that Mr Griffith's approach was flawed. Further, Mr McIntyre did not offer any opinion as to what a reasonable allowance for the performance of the work in the fee zones might have been, assuming that sufficient utility investigations were undertaken and agreements with providers were in place prior to the commencement of work. Rather, he suggested that, because the so-called counterfactual would involve an entirely different delivery model, there could be no reference to the IDP as a base from which to work.
5. Whilst the defendant submits that the plaintiffs have not proved the counterfactual, I understand the plaintiffs to be submitting that the counterfactual is the amended IDP. Of course, it would have always been difficult for the defendant to put forward some alternative counterfactual (not that it was required to do so) because it says that the nuisance was inevitable. I do not accept this. Nor do I accept that in a nuisance claim, the plaintiffs must necessarily expose a counterfactual.

Project scope changes

1. As set out in paragraphs 12(c) and 12(d) of the Statement of Claim, the plaintiffs allege that during the course of the project, the defendant issued the D&C contractor with approximately 60 directions to change the scope of those works. The plaintiffs allege that a substantial cause of the project scope changes was the failure by the defendant to effectively plan and procure the project between 2011 and 2014. The particular project scope changes or modifications upon which the plaintiffs rely are: 1. Modification 25, regarding the relocation of the QVB stop; 2. Modification 33B, regarding roadworks in Fee Zone 29; 3. Modification 48, regarding smart poles and underground cables; and 4. Modification 59, regarding the timber poles on Anzac Parade.
2. These modifications relate to the particular fee zones that are the subject of the current proceedings. In my view, the only complaint of substance is in respect of Modification 25.

Modification 25

1. Modification 25 was issued on 26 February 2016. The construction activity relating to Modification 25 commenced on 14 November 2016 and finished on 18 August 2017. It required the D&C contractor to position the QVB stop approximately 30 metres south of the location shown on the reference design drawings. Further, the D&C contractor was required to maximise the reduction in platform height relative to the surrounding footpath without risking the integrity of the pedestrian tunnel beneath Market Street and without impacting the driveway of the Hilton Hotel.
2. The D&C contractor said that the net financial impact of the modification would be $14,897,687 and that there would be the following delays in occupation cessation of the fee zones: 1. Fee Zone 6: 442 calendar days; 2. Fee Zone 2: 4 calendar days; 3. Fee Zone 4: 43 calendar days; and 4. Fee Zone 5: 49 calendar days.
3. The D&C contractor said that prior to the issue of Modification 25, it had been proceeding with the design of the QVB stop at the location shown in the reference design. It had increased road levels to reduce conflicts with utilities and to avoid impacts on the wearing slab above the QVB pedestrian tunnel. However, all of that work ceased on receipt of Modification 25.
4. The D&C contractor maintained that there had been a significant increase in the scope of works associated with the modification, in particular, due to issues associated with relocating the high-pressure Jemena service at the George and Market Street intersection. The D&C contractor said that its pre-modification design was based on adopting a road and track alignment through the George and Market Street intersection that went over the top of the slab to avoid any impact to the wearing slab and the QVB pedestrian tunnel structure.
5. It must be borne in mind that there was a significant dispute between the D&C contractor and the defendant in respect of the D&C contractor's claim arising out of Modification 25. This issue was the subject of earlier litigation and it is not my function to resolve such a dispute.
6. The defendant says that this design issue was part of the D&C contractor's scope and was not resolved prior to the execution of the Project Deed because: 1. the defendant was not the SLR designer; 2. the reference design alerted the D&C contractor to the potential for a clash between the rail slab and the roof of the tunnel below; 3. accordingly, the D&C contractor was charged with resolving that clash as part of its design scope; 4. clause 13.1(b) of the Project Deed required the D&C contractor to design the SLR works in accordance with third party agreements; and 5. the Development Agreement mandated only that there be disability compliant access to the platforms of these stops (I have referred to this in my review of the planning documents).

Modification 33B

1. Modification 33B related to Fee Zone 29. Modification 33B involved a revised kerb design. The revised design was directed in May 2016 and the road design was completed in September 2017.
2. The defendant disputes that this modification could have caused any delay to the construction works in the area surrounding Mr Zisti's restaurant. The defendant says that Mr Griffith did not undertake any project-wide critical path analysis which might establish that the Modification 33B works caused a delay. It submits that Mr Griffith did not explain how completion in September 2017 could have caused the sort of delay which occurred in Fee Zone 29. I agree with the defendant's analysis. In my view, the cause of the substantial prolongation of construction works in Fee Zone 29 was the problem with utilities (as I will discuss later in this judgment).
3. Modifications 40 and 59 received little attention during the proceedings.

LEGAL PRINCIPLES

1. The parties differ markedly in their approach to the law which applies to this case and their differences have some impact on the outcome.

The tort of nuisance

1. Nuisance is a tort. The law of torts is concerned with the allocation of losses which arise incidental to the activities of people in modern society. [2] Perhaps the most well-known and common tort is negligence.
2. There are many cases where precisely the same facts would establish liability both in nuisance and in negligence. [3] It may be that this case could have been framed in both negligence and nuisance, but it is not. It is only brought in nuisance. It is important not to confuse the concepts. Further, it is important to observe that the plaintiffs do not particularise any failure to exercise reasonable care as part of their pleadings. They refer to failures by the defendant but they do not plead the existence of a duty of care, risk of ham or negligence. They refer to the defendant's failures in the context of delays in the construction activity.
3. One of the central areas of dispute in these proceedings is whether, in order to succeed in their cause of action in nuisance, the plaintiffs must establish that the defendant failed to take reasonable care or acted negligently. The defendant says that the plaintiffs must establish that the defendant failed to take reasonable care in order to succeed. The defendant's position on nuisance is best summarised in its closing submissions, as follows: "To suggest that the burden of proof shifts to the Defendant is inconsistent with the very premise of the entire issue. In these circumstances, the existence of negligence is fundamental to, or definitional of, the existence of the nuisance. That is to say, it is only the negligent carrying on of the activity that turns it into an "unreasonable user" of land, with the result that there is a legal nuisance. So much is apparent in the formulation of the issue in Harrison v Southwark and Vauxhall Water Company [1891] 2 Ch 409 at 413. To the extent that Andreae v Selfridge's & Co suggests otherwise it does not represent Australian law. It is thus a matter that the plaintiff must prove in order to establish the existence of the tort. (In any event, the evidence plainly shows that the construction of the light rail was reasonable, as developed elsewhere in these submissions)."
4. On one view of the case law, there may be some difference of opinion about those propositions. Having said that, the High Court of Australia has not yet held that, in order to succeed in nuisance in a case such as this, a claimant must establish that the tortfeasor acted without reasonable care or "negligently".

The meaning of unreasonable in nuisance

1. In Elston v Dore (1982) 149 CLR 480 at 488; [1982] HCA 71, the Court (per Gibbs CJ, Wilson and Brennan JJ) observed that, whilst "negligence in the narrow sense is not essential, fault of some kind is almost always necessary." In Gales Holdings, the Court similarly observed that in nuisance, liability is not strict. [5] Fault of some kind is essential. Negligence would suffice, although it is not necessary.
2. In Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 897, Lord Atkin observed that a deliberate act or negligence is not an essential ingredient of the tort of nuisance but there must be a degree of personal responsibility, which his Honour said was connoted in the definition of the word "use".
3. In Hargrave v Goldman, Windeyer J noted that negligence is not a necessary element in nuisance. His Honour said (at 62): "Negligence is not a necessary element in nuisance, although it may be an ancillary element in some forms of nuisance: see Jacobs v. London County Council (1950) AC 361 per Lord Simonds (1950) AC, at p 374 and Sedleigh-Denfield's Case (1940) AC 880, per Lord Wright (1940) AC, at p 904."
4. In my view, it is important to have regard to the context in which the concept of "reasonableness" is used. The defendant's emphasis on the reasonable user principle shifts the focus to the conduct of the defendant and away from the nature of the harm suffered by the plaintiffs and their interests.
5. Professor Fleming suggests: "Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort at the time and place. Reasonableness in this context is a two-sided affair. It is viewed not only from the standpoint of the defendant's convenience but must also take into account the interest of the surrounding occupiers…". [6]
6. Whether there has been such substantial and unreasonable interference does not depend entirely upon what the occupier of the land intended. The question is whether, in all of the circumstances of the case, including the relationship between the plaintiffs as landowners and the defendant as the owner of property (or, in this case, the relevant statutory authority which is said to have created the nuisance and the plaintiffs as business owners), the interference with the use and enjoyment of the plaintiffs' land was unreasonable.

Common and ordinary

1. The next issue is whether a description of the defendant's use of the land as not being common and ordinary changes or reduces the requirements for an actionable nuisance.
2. The plaintiffs' Case A is based on the proposition that the use of the roads constituting the light rail route was not common and ordinary and, as such, it is only necessary to establish that the interference with the plaintiffs' land was substantial in order to succeed. According to the plaintiffs, questions of reasonableness do not arise.
3. In Fearn, Lord Leggatt (at [24]) accepted that the law of private nuisance prioritises the general and ordinary use of land over more particular and uncommon uses, again emphasising the reciprocal nature of the "give and take" principle.
4. On the other hand, Lord Sales did not consider that the question of whether the defendant acted in accordance with the common and ordinary use of land and locality was the "be all and end all" of the test for nuisance. His Lordship thought that this would "seriously distort the tort" (at [227]). He said so for the following reasons: 1. firstly, such an exclusive focus places excessive weight on one side of what is inextricably a two-sided relationship (at [227]); 2. secondly, a claimant landowner and a defendant landowner may each wish to use their property in ways which are not common and ordinary according to the standards of the locale, and the test governing any conflict between those uses must be capable of accommodating such situations in a just manner (at [229]); 3. thirdly, to make a claim in nuisance turn on whether the defendant's use of its land is common and ordinary would cause the law of nuisance to have a disproportionate impact on the general right of landowners to use their land as they wish. It would stultify the development of land. As his Lordship said, "[i]f land can be developed for new uses in ways which reasonable accommodation on both sides would allow, the law of nuisance should not prevent it" (at [230]); and 4. fourthly, whilst his Lordship accepted that questions of common and ordinary use might be central to the tort of nuisance, he did not think that the concept was capable of providing a solution in all cases. It is still necessary to have recourse to the more general principle of objective reasonableness (at [232]).
5. It seems to me that the observations of Lord Sales with respect to common and ordinary use are more consistent with the law as it has developed in Australia. An assessment of what is reasonable between the parties, allowing for "give and take" and a whole range of factors, is fundamental to the law of nuisance. Further, I agree with the defendant's submissions regarding the plaintiffs' focus on the words "common and ordinary." It is difficult to accept that in finding that the use of the roads was not common or ordinary, the tort essentially becomes one of strict liability. This would hardly allow for technological advancements, fluctuations in construction activity and developments in land use.

Was the use of the land out of the ordinary or uncommon?

1. George Street - or at least George Street north, near The Rocks - was the first road built in Australia by European settlers. Over a period of more than 200 years, it has been modified and developed to become one of the busiest (if not, the busiest) street in Australia. Trams stopped running along George Street in 1958. The tram tracks were removed at that time. Between 1958 and 2019, George Street was open for exclusive use by vehicular and pedestrian traffic, including buses.
2. Whether the use of land is common and ordinary is essentially a matter of impression and evaluation. Each case is different and there is no guiding principle or test through which the Court can consider whether a particular use is common and ordinary.
3. The defendant's position is that carrying out construction activity on a road is a common and ordinary use of the land, as roads are regularly altered and maintained. That would be correct if the defendant had merely been carrying out roadworks. However, that description of the work being undertaken during construction of the SLR route is perhaps too simple and rather ignores the context in which the work was being done. I say this for the following reasons: 1. firstly, the defendant was not a roads authority. It was a statutory agency with the powers and functions set out in the TA Act, which included the development and administration of public transport systems; and 2. secondly, roadworks do not normally involve the laying of rail tracks on a road, the excavation of the road surface and the erection of platforms or stations along some of Sydney's busiest streets.
4. In the end, I do not consider that the use of the roads - that is, George Street and the other roads comprising the SLR route for the purposes of constructing the light rail - was a common and ordinary use of those roads. It was exceptional.
5. Having said that, as I have already discussed, such a finding does not have the significance that the plaintiffs suggest. In my view, it is merely a factor to be assessed in considering the reasonableness of the interference. It does not lead to the imposition of a form of strict liability.

The concept of fault

1. Having accepted that establishing negligence is not a necessary element of nuisance, it is necessary to consider what is meant by the term "fault" in the law of nuisance.
2. The question arises as to how the defendant could be at fault if it was not negligent. It seems to me that, consistently with the approach in both Southern Properties and Prestage (and the statement of principle in Gales Holdings), the fault requirement may be established through the mechanism of foreseeability and the creation of the state of affairs which led to the nuisance. In that way, a defendant can be seen to have some personal responsibility for that which befalls the claimant. After all, the essence of the tort of nuisance is the harm suffered, not the conduct. Fault may be established if the defendant, with knowledge of the risk of substantial harm to its neighbour's property, creates a state of affairs which results in a substantial and unreasonable interference.
3. In Clerk & Lindsell on Torts, the authors identify three situations whereby a defendant has created a nuisance, the first being: "(a) if the defendant deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and that harm is considered by a judge to be an unreasonable infringement of his neighbour's interest in his property, and therefore an unreasonable user by the defendant of his property, the defendant is liable for the foreseeable consequences. This proposition covers all those cases of obvious or "patent" nuisances, and they are peculiarly the cases which call for prevention or prohibition by injunction. It is no defence that the defendant believed he was entitled to do as he did or that he took all possible steps to prevent his action amounting to a nuisance." [7]
4. The statement in the first sentence above is reflective of the plaintiffs' case. The plaintiffs submit that there has been a deliberate use of the land in circumstances in which the defendant knew there would be interference with the plaintiffs' land and, further, the plaintiffs submit that I should find that the harm was an unreasonable infringement on the use of their land, such that the defendant was an unreasonable user of its land.
5. Foreseeability is an essential element of the tort of nuisance, otherwise the liability would be strict. That is, liability would be imposed whether or not the defendant had foreseen the risks associated with the use of its land.

The application of the Civil Liability Act

1. The CLA commenced on 20 March 2002. The CLA has been amended on a number of occasions, most relevantly for the purposes of this case, by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), which amended the CLA with the introduction of s 43A.
2. There is no dispute that the provisions of the CLA could apply to these proceedings, although the extent to which they do may be limited because the cause of action which the plaintiffs pursue is not in negligence but in nuisance.

Part 1A of the CLA

1. The parties take differing positions as to whether Part 1A of the CLA applies. Part 1A applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise (s 5A(1)).
2. Negligence is defined in s 5 to mean a "failure to exercise reasonable care and skill".
3. The application of Part 1A is not dependent on how the cause of action is framed (Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 303 ALR 583; [2013] NSWCA 361 at [86], per Gleeson JA). Having regard to the definition of negligence, Part 1A applies to any claim for damages resulting from a failure to take care (Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41], per Leeming JA).
4. The defendant submits that nuisance is a fault-based tort and that the plaintiffs cannot succeed against the defendant without establishing negligence on its part.
5. Further, on the defendant's approach, if s 43A of the CLA applies, then the standard even for a nuisance claim is that set out in s 43A(3), being that the act or omission of the defendant was "in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power."
6. The plaintiffs submit that Part 1A of the CLA is not applicable. They submit that the tort of nuisance is not based on a failure to take care or whether the defendant acted in breach of any duty of care. Questions of unreasonableness arise in a different context.
7. On the defendant's case, Part 1A does apply. It would follow that s 5B applies and the analysis mandated by s 5B must be undertaken.
8. In Paul v Cooke, Leeming JA identified (at [40]) that the term "negligence" is used in differing ways in different parts of the CLA. It may be a reference to the tort of negligence or merely a convenient way of describing a failure to take care. This is evident from the definition of negligence in s 5.
9. As is evident from my analysis of the relevant legal principles, I do not accept that to succeed in an action in nuisance, a plaintiff must establish that the defendant was negligent (or failed to take care), although it may do so. In the present case, the fact that the defendant may establish that it did not fail to take care as part of its defence does not mean that the claim is for damages resulting from a failure to take care.

Part 5 of the CLA

1. The parties agree that Part 5 of the CLA ("Liability of public and other authorities") may apply. Part 5 applies to a civil liability in tort. It extends to any such liability, even if the damages are sought in an action for breach of contract or any other cause of action.
2. The only cause of action pursued by the plaintiffs is nuisance. That cause of action gives rise to a civil liability in tort. As such, the provisions of Part 5 apply to these proceedings.
3. Further, there is no dispute that the defendant is a "public or other authority" within the meaning of that term, as defined in s 41 of the CLA.
4. The opening words of s 42 of the CLA are: "42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies…"
5. Section 42 thus specifies the principles which must be applied when determining whether the public authority has a duty of care or has breached a duty of care in proceedings for civil liability. That is not this case.
6. Section 43 expressly applies to a claim for breach of statutory duty.
7. In Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [87], Basten JA expressed doubt as to whether s 43 would apply to a claim in negligence for a breach of the duty to take reasonable steps to protect the safety of a prisoner, as distinct from a claim for a breach of statutory duty, suggesting that the former would be a claim in respect of a duty arising under the general law, rather than a statutory duty.
8. In McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [167], Macfarlan JA observed that s 43 of the CLA would not apply to a liability based on a common law duty of care. [8]
9. There is no claim against the defendant based on a breach of statutory duty and, thus, s 43 of the CLA does not apply.
10. The only section within Part 5 of the CLA that could apply is s 43A.

SECTION 43a OF THE CIVIL LIABILITY ACT

1. Section 43A of the CLA may apply because, as set out in s 43A(1), the section applies to proceedings for civil liability to which Part 5 applies. Part 5 applies to civil liability in tort. If the defendant has a liability, it will have a liability in tort and as such, s 43A may apply.
2. However, in my view, s 43A does not apply to the plaintiffs' claims.
3. Section 43A is in the following terms: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
4. Section 43A does not operate as a defence. That has been made clear by the Court of Appeal in a number of cases (e.g. Queensland Bulk Water Supply Authority (t/as Seqwater) v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206 ("Rodriguez") and Della Franca v Lorenzato; Burwood Council v Lorenzetti [2021] NSWCA 321 ("Della Franca")). I am thus not determining primary liability and assessing whether the defendant has a defence based on s 43A.
5. If it did, the approach may be different. If I were to find the defendant liable in nuisance, I would then go on to apply s 43A on its terms, as it applies to any cause of action in tort.
6. In Della Franca, Basten JA held at [8] (with reference to the characterisation of s 43A as a defence) that: "That characterisation obscures the true operation of the section. When the section is engaged, it identifies the standard of care, in place of that identified in s 5B of the Civil Liability Act. Accordingly, the application of the section should be addressed before considering whether there has been a breach of duty to which the section applies."

Parties' submissions on special statutory power

1. The defendant identifies the relevant special statutory power as being that conferred by s 104O of the TA Act. Alternatively, the defendant relies on the powers conferred under Schedule 1 of the TA Act, which sets out the functions of Transport for NSW. It specifically relies on cl 9, which confers a power on the defendant to contract in connection with the exercise of the functions specified in Schedule 1.
2. Section 104O of the TA Act is in the following terms: 104O Development and operation of light rail systems (1) TfNSW may develop light rail systems, or facilitate their development by other persons. (2) TfNSW may operate light rail systems, or facilitate their operation by other persons.
3. The defendant submits that, at all relevant times, it was developing or facilitating a light rail system. As that power is conferred under a statute and is of a kind that persons are generally not authorised to exercise without specific statutory authority, then the exercise of the power under s 104O is the exercise of a special statutory power (according to the defendant).
4. The defendant submits that the power conferred by s 104O is a power to develop, or facilitate the development of, light rail systems. It is thus a forward-looking or prospective power. It is a power to engage in actions that will bring a light rail system into existence.
5. One of the things that needs to be achieved to bring about a completed light rail system is the declaration of a route under s 104N(2) of the TA Act. The defendant says that it would make no sense to suggest that the power to develop a light rail system cannot be activated until the route is formally declared. As such, the defendant submits that its entry into the Early Works contract and the Project Deed were within the exercise of the power under s 104O.
6. The defendant submits that the term "transport infrastructure" would include the SLR. In s 3 of the TA Act, "transport infrastructure" is defined as follows: transport infrastructure means infrastructure used for or in connection with or to facilitate the movement of persons and freight by road, rail, sea, air or other mode of transport, and includes- (a) railways and railway infrastructure, and (b) roads and road infrastructure, and (c) maritime infrastructure and ports, and (d) transport safety infrastructure, and (e) systems, works, structures, buildings, plant, machinery and equipment that are associated with or incidental to transport infrastructure.

Consideration of special statutory power

1. Pursuant to s 104O of the TA Act, the defendant has the power to develop and operate light rail systems. Section 104O was part of the TA Act in 2014. Plainly, not everyone is entitled to develop or operate a light rail system. The power to do so is a power conferred by the TA Act.
2. However, the TA Act must be read as a whole. As the power in s 104O is to develop and operate light rail systems, regard must be had to other sections of the TA Act to determine what a light rail system is. Section 104N(1) of the TA Act commences with the words "for the purposes of this Act". As a matter of proper statutory construction, "light rail systems" when referred to in the TA Act must be given the meaning set out in s 104N(1).
3. Pursuant to s 104N(1), a light rail system is a system for the provision of light rail services along the route declared under s 104N(2). The power existing under s 104O is not a power to develop or operate a light rail system anywhere. It is only a power to develop or operate a light rail system along a declared route. As the SLR route was not declared until 11 September 2015, then the SLR did not become a "light rail system" as that term is understood in the TA Act until 11 September 2015.
4. Prior to 11 September 2015, the SLR was not a light rail system for the purposes of s 104O. In undertaking its planning and procurement of the SLR, the defendant could not have been exercising the power under s 104O.
5. It could only have been exercising the more general powers conferred under Schedule 1, cl 9.
6. Section 3E(1) of the TA Act specifies that the defendant has the functions set out in Schedule 1. The functions set out in Schedule 1 include "general functions" (Part 1) and "transport functions" (Part 2). The general functions set out in Part 1 include "transport planning and policy" and the transport functions set out in Part 2 include "transport infrastructure development."
7. Plainly, the defendant must have been exercising a statutory power in 2014 when it adopted the processes relating to the SLR, but the question remains: what was the "special" statutory power? It does not seem to me that the answer can be found by merely pointing to the general functions afforded to the defendant under the legislation which establishes it. To do so would conflate any statutory powers with special statutory powers.

Was the defendant's conduct in planning and procuring the SLR unreasonable in the sense used in s 43A of the CLA?

1. Although it is not strictly necessary that I make findings on this issue, for completeness (and as substantial expert evidence was directed to this issue), I will record my views.
2. In Rodriguez, the Court (per Basten JA, Meagher JA and Leeming JA) observed at [655] that a plaintiff seeking to establish that the defendant's acts or omissions were so unreasonable should do so through expert evidence. In this case, both parties sought to adduce expert evidence on that question, albeit the expert evidence was only finalised following some pretrial discussions in respect of the need for such evidence.
3. There is a difference between the standard of reasonable care and the standard imposed by s 43A of the CLA. That is the point of s 43A.
4. For the reasons already identified, I do not accept Mr Szmalko's opinion on this issue. His ultimate conclusion was affected by incorrect assumptions and a failure to articulate the basis of some of his opinions or consider what actually occurred. I also accept that the some of the experts' comments about competing interests (such as those made by Mr McIntyre and Mr Hardman) had merit.
5. It may be possible to work backwards with only the interests of business owners in mind but at the time of entry into the Project Deed, the defendant was faced with competing interests relating to the risks associated with the project and its own need to engage on terms which would deliver a light rail for the public benefit.
6. The evidence of Mr Sampson and Mr Lewcock on the s 43A issue made sense. It was consistent with my review of the planning documents. That is not to say that all of their evidence helped the defendant, as it did tend to highlight the significance of the utilities risk.
7. I prefer their opinions on whether the defendant's acts or omissions were so unreasonable that no authority would have considered it a reasonable exercise of its special statutory power (if it was special).
8. Although I found Mr Hardman's evidence to be somewhat generic, he made the following observation when opining that the defendant's conduct was not so unreasonable: "TfNSW had (and has) the responsibility to deliver better transportation for the community and in doing so was required to engage with contractors to deliver on its commitment and to achieve the objectives under the Transport Administration Act 1998 (NSW). I had to consider the context in which it was operating, including the external factors. In this case, the external factors included an element of what the construction industry was willing to accept. For the SLR Project, the market was very clear that they would not accept a full transfer of the risks associated with the utilities (see section 4.1.3 and 4.1.11 of my First Report). As a result, TfNSW spent an extensive amount of time to de-risk the project in an attempt to agree a risk allocation which would deliver value for money. At the time, this is what TfNSW and the contractor believed had been achieved."

What actually occurred?

1. Firstly, the entire SLR construction was not completed on time; completion was achieved in March 2020.
2. Further, and importantly for the purposes of this case, the proposed staging of the construction activities (to minimise disruption to businesses and residents) could only be described as a complete failure. At least in respect of Fee Zones 5, 6 and 29, the D&C contractor remained in occupation of each of those fee zones for prolonged periods far in excess of that which was planned and promised.
3. I set out a table which shows the planned occupation periods and the estimates of the programming experts as to what actually occurred: Fee Zone Occupation commencement Planned end Actual occupation cessation date 5 15 October 2015 21 July 2016 3 December 2017 6 25 November 2015 7 October 2016 30 November 2018 29 17 November 2016 2 June 2017 26 February 2019

1. The plan for the D&C contractor to complete the work in one fee zone before moving onto another also failed. I set out a table which shows the planned periods of concurrency between the fee zones and the actual periods of concurrency: Description As-Planned % As-Built % Increase in Concurrency Fee Zone Occupation 27% 60% 226% Utilities Treatments 8% 40% 500% Construction and Track Works Earthworks, Drainage & Trackways 6% 48% 800% Trackworks 9% 34% 380% Precinct 12% 45% 375%

1. Finally, I set out a table prepared by Mr Griffith contrasting the dates shown in the IDP for utility treatment works with the actual period during which utilities were discovered and treated: Fee Zone As-Planned As-Built Duration Variance Start Finish Duration Start Finish Duration 5 15-Oct-15 15-Dec-15 62 26-Oct-15 11-Mar-18 868 806 6 25-Nov-15 08-Mar-16 105 27-Jan-16 19-Oct-18 997 892 29 24-Nov-16 16-Jan-17 54 4-May-16 18-Jun-19 1141 1087

1. Further, the proposal to undertake work at six key intersections through the Early Works contract proved to be unsuccessful. Difficulties emerged between the Early Works contractor (Laing O'Rourke) and the D&C contractor. The Early Works contract was abandoned after work had only been attempted at two intersections. The D&C contractor then took on the work at those intersections as part of its main D&C contract.
2. Finally, the process which the defendant adopted to locate all the utilities along the route did not work. This is evident from the large number of unknown utilities discovered during the construction works.
3. It is necessary that I deal with some issues pursued by the parties relevant to their cases.

What caused the prolonged occupation in the fee zones?

1. The plaintiffs plead a causal relationship between the alleged failures in planning and the delay in the fee zones.
2. Central to the defendant's defence is the proposition that the plaintiffs could not (and did not) establish the cause of the prolonged periods during which the D&C contractor continued to undertake construction activities in each fee zone. The defendant said as much during its opening and closing submissions.
3. The defendant's programming expert, Mr McIntyre, did not consider that the approach of Mr Griffith was an available approach.
4. According to the defendant, causation could only be established by identifying each new utility which was discovered during the course of the construction and tracing the steps taken by the D&C contractor to obtain approval from the relevant utility provider. That would have involved: 1. identifying when each new utility was discovered; 2. assessing whether the utility was contestable or non-contestable; 3. examining when its existence was reported to the utility provider (for example, Ausgrid); 4. identifying the utility provider's response; 5. understanding what treatment of the utility was required; and 6. determining when it had been done.
5. This would have been impossible to do. According to the D&C contractor's Project Phase Delivery Report of January 2019, by that point in time, the D&C contractor had discovered 1759 unknown utilities along the route. This is in addition to more than 2000 known utilities which were recorded in a database provided to the D&C contractor prior to commencement of the work. Further, utilities continued to be discovered months and years after the work was supposed to be finished in the fee zones.
6. These records informed Mr Griffith's opinion that the defendant undertook insufficient utilities investigations prior to entering into the Project Deed and that the cause of the substantial delay in the fee zones was the ongoing discovery of unknown utilities.
7. Through his examination of the source documents, Mr Griffith identified the discovery of unknown utilities as follows: 1. in Fee Zone 5, there were 55 unknown utilities between 12 January 2015 and 19 July 2018; 2. in Fee Zone 6, there were 46 unknown utilities between 12 November 2015 and 30 May 2018; and 3. in Fee Zone 29, there were 103 unknown utilities between 17 December 2015 and 7 June 2018.

1. In all these circumstances, I accept that the construction activities in Fee Zones 5 and 29 took substantially longer than planned because of the discovery and identification of so many previously unknown utilities and the time taken to reach agreement with utility providers and treat the utilities. I also accept that in respect of Fee Zone 6, and to a much lesser extent Fee Zone 5, a substantial delay arose from the issues surrounding Modification 25.

A different delivery model?

1. Part of the plaintiffs' case involved attempting to develop an alternative delivery model in respect of the SLR. Through their experts, the plaintiffs endeavoured to establish that there was a better way of developing and constructing the SLR which would not have exposed businesses and residents to the lengthy and extensive disruption. The plaintiffs say that the delivery model pursued by the defendant was unreasonable (within the meaning of that concept in s 43A of the CLA).
2. The alternative delivery model which was initially developed by the plaintiffs involved the separation of the utilities investigation and treatment from the scope of the D&C contract through an early works contract. In fact, that was the model originally proposed by the defendant in 2013.
3. As the hearing progressed, the plaintiffs moved away from the use of an early works contract as an alternative delivery model. Instead, they contended that all of the work, including the utilities management and treatment, should have been undertaken under one contract with a requirement that the works be performed in stages or, as Mr Griffith said, "hole points". This was a model favoured by Mr Griffith and, as it emerged, also by Mr Sampson. At one point in his evidence, Mr Sampson described that form of contract as the best approach, albeit he moved away from that suggestion under subsequent questioning, pointing out some limitations to the approach.
4. In my view, the viability of such an alternative delivery model would have depended upon the stage at which the design process was finalised. There was a disagreement between the experts about the extent to which it would have been necessary to finalise the SLR design prior to reaching agreement with utility providers in respect of the treatment of their utilities. The defendant's experts, Mr McIntyre and Mr Sampson, suggested that asset owners would not have committed to any treatments until a completed design was available.
5. On the other hand, Mr Szmalko and Mr Griffith suggested that the alternative delivery model would have worked because the utility providers would have been willing to enter into agreements at the concept level design stage, that is, with much less detail in the design than the defendant's experts indicated.
6. My analysis of the documentation supports the defendant's position. I accept that utility providers, such as Ausgrid, would not have committed to individual utility treatments (that is, replacements, upgrades or coverings) until a detailed design was available.

Allocation of risk

1. The defendant disputes the plaintiffs' assertion that it failed in its contracting conduct because it allocated little of the utilities risk to OpCo.
2. The defendant was aware of the utilities risk from the time it commenced planning the project. It was a major risk of the construction process, both in relation to time and cost. At one point, it was described as an extreme risk. The likely proponents were also aware of the utilities risk. Mr Sampson said that the Gold Coast Light Rail experience was a turning point in the construction industry and the utilities risk was even more complex in the Sydney CBD.
3. As all of the experts attested to, the SLR project was likely to be one of the most complex infrastructure projects conducted, particularly as it required the excavation of the road, the building of a slab and the laying of a light rail line in some of the most crowded streets in Sydney, where there was likely to be a vast number of utilities.
4. The defendant's original plan was to ensure that the proponent took the utilities risk. However, the market would not accept that and, by 2014, the defendant had moved away from that plan. It moved to what it described as a risk sharing approach.
5. The defendant says that the effect of the Project Deed is that OpCo took on most of the utilities risk. OpCo was provided with draft utility agreements with Ausgrid and Sydney Water and data files representing the utility survey conducted by the defendant. The defendant says that when CSY was ready to tender, it effectively told the defendant that it was satisfied with the utilities information provided and did not need any more. Further, the defendant relies on Mr Hardman's evidence to the effect that, on his analysis, most of the utilities management risk was transferred to the D&C contractor. He said that the availability of Relief Events did not mean that the risk was not properly managed or that the risk was not transferred to the D&C contractor.
6. The defendant says that cl 12.3 of the Project Deed cannot be looked at in isolation. It says that there was no financial benefit to the D&C contractor in overstaying a fee zone and that there was a direct financial disadvantage in doing so. The defendant points to terms of the Project Deed which would result in the D&C contractor bearing part of the direct costs and not being reimbursed for fixed overheads or delay costs. Nor would it recover lost profits upon the occurrence of a UWE.

Matters raised by the defendant as part of its defence

Public benefit

1. The defendant submits that the construction of the SLR was for the public benefit. In support of this submission, it relies on a number of documents, including: 1. the "NSW Long Term Transport Masterplan"; 2. the NSW Government's document titled "Sydney's Light Rail Future: Expanding public transport, revitalising our city"; 3. the relevant State Significant Infrastructure ("SSI") application; 4. supporting documentation in respect of the SSI application; 5. the Secretary's environmental assessment report pursuant to s 115ZA of the EPA Act; and 6. the infrastructure approval and the environmental impact statement pursuant to s 115ZB of the EPA Act.
2. As might be expected, much of the material relied upon by the defendant is material which the defendant published many years ago to explain and justify the need for the SLR. As the documents suggest, the defendant had in mind: 1. significantly boosting the capacity and reliability of the public transport system; 2. providing the right transport model for the right task; 3. putting the customer first, in the sense that commuters could make short trips within the CBD and travel from the south-eastern suburbs of Sydney to the CBD in a simpler and faster way; 4. increasing capacity, thereby reducing crowding and congestion; 5. providing urban renewal opportunities; and 6. providing improved amenities.
3. The volume of material relied upon by the defendant for the purposes of establishing a public benefit contains documents explaining the NSW Government's rationale for its light rail policy and the development of the SLR. It is not necessary for me to say anything more about the public benefit of any such policy. Despite the plaintiffs' unwillingness to concede any public benefit, no evidence was adduced from the plaintiffs in response.
4. I am satisfied that in developing the SLR and entering into the PPP for the purpose of constructing and operating the SLR, there was a public benefit. It is not necessary for me to make findings about the State's predictions as to the type and level of benefit ultimately achieved.
5. Claims such as those pursued by the plaintiffs do not merely involve an exercise in weighing up detriment to members of the community against the asserted public benefit. In my view, the fact that the construction of the SLR served a public benefit is an important factor to consider in assessing the issue of reasonableness but the fact that there was a public benefit to the project does not operate as a defence.

Did the defendant fail to take care?

1. I have found this question a difficult one to answer because: 1. the plaintiffs do not plead the existence of a duty of care or any breach thereof; 2. the plaintiffs say in their Reply that proving that the defendant failed to take care is not part of their case; 3. the plaintiffs do not say that proving negligence is any part of Cases A, B or C as identified in their closing submissions; and 4. the defendant says that it is not obliged to prove that it did take care but says that, in any event, the plaintiffs have not proved that it failed to take care.
2. In my view, establishing that the defendant failed to take care is not essential, but whether the defendant failed to take care may have relevance in two ways: 1. firstly, should the defendant establish that the nuisance was the inevitable consequence of an exercise of its authority, it would then be necessary to consider whether the defendant acted with reasonable care; and 2. secondly, as identified in Southern Properties, whether the defendant failed to take care may be a relevant factor in assessing whether the substantial interference was unreasonable, assessed objectively between the parties.
3. As this is an issue pressed by the defendant, I will consider it. In my view, the defendant bears the onus of proving that it took all reasonable care (as it seeks to rely on that proposition in answer to the plaintiffs' claim).
4. I have also found the question a difficult one to answer because the failures identified by the plaintiffs in the Statement of Claim are particularised in the context of the delay, rather than a breach of any duty of care. Normally, when an allegation of a breach of duty of care by a statutory authority is made, there would be quite specific particulars in the Statement of Claim. I can only look at the evidence and make a determination based on the expert evidence as well as the planning documents.
5. I have already commented on the plaintiffs' proposed alternative delivery model. The suggestion that the defendant should have adopted an alternative delivery model rather ignores the reasons that it moved away from that alternative model in the first place. Further, an alternative delivery model dependent upon utility providers agreeing to utility treatments in advance of detailed design plans would not have worked because it is unlikely that the utility owners would have so agreed.

Defence of statutory authority

1. The defendant raises that it was a statutory authority exercising its statutory functions when it undertook the acts complained of by the plaintiffs. This is different from the issue which arises under s 43A of the CLA. The defendant says that the interference with the plaintiffs' land was the inevitable consequence of the exercise of its functions and, in circumstances in which it was authorised to undertake those functions, it cannot be liable in nuisance.
2. In Southern Properties at [121]-[123], McLure P explained the principles to be applied as follows: "121 The defence of statutory authority requires that the nuisance be an 'inevitable consequence of the authorised undertaking'. If the nuisance was an inevitable consequence of the authorised undertaking, the defendant will only be liable if, in the exercise of its statutory powers, it acted negligently: Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 [16]; Benning v Wong [1969] HCA 58; (1969) 122 CLR 249, 324 - 337 (Owen J). The reference to negligence is not to the tort. It is clear there is no requirement to prove that the defendant owed the plaintiff a duty of care. 122 In considering whether a nuisance is inevitable it is necessary to distinguish between statutory provisions that require a specified activity to be carried out and provisions that permit, but do not require, a specified activity to be carried out. In the former case there is no separate requirement of inevitability; any nuisance resulting from the activity will be authorised unless it is caused by negligence on the part of the person conducting the activity. All that is required is that the specified activity be executed (performed) with reasonable care. See Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed) [4.1.6.3]. 123 Where the statute permits the specified activity to be carried on, it must be shown that what the legislation authorised could not be done without creating a nuisance and that the nuisance was not caused by negligence. The inevitability limb focuses attention, not on the execution of the specified activity, but on the decisions relating to whether, when or how to undertake the authorised activity. Thus, if the creation of a nuisance could have been avoided by the proper exercise of the statutory power (i.e. one that was consistent with its scope and purpose(s)), the defence will fail even in the absence of negligence: Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 at [48] - [57]."

Was the interference with the plaintiffs' businesses substantial?

1. One of the limitations on an actionable nuisance is that the interference must be substantial.
2. The test of whether the interference is substantial is objective, rather than subjective. The fact that a claimant might find the interference significant or substantial does not mandate a finding that it was so.
3. What may be substantial is not capable of precise definition. It is only necessary to say that it is used in the context of the interference being significant, as opposed to minor.
4. In this action, there will be differing levels of interference with individual businesses, depending on a range of factors. That is the case even amongst the lead plaintiffs and when considering each of their businesses.

The Hunt Leather Strand Arcade store

1. The defendant accepts that the interference with the Hunt Leather Strand Arcade store was substantial, although it takes issue with the length of time for which it was substantial. However, it says that the plaintiffs' case lacks precision in terms of identification of the sort of activity leading to the interference and when it occurred.
2. Notwithstanding that submission, there was really no challenge to Ms Hunt's evidence as to the types and level of construction activity being undertaken in front of the Strand Arcade store at various times up to December 2017. Further, I do not accept that, for the purposes of considering whether there was an actionable nuisance, I must adopt Mr McIntyre's Category 2 classification and somehow quantity the interference in days or weeks, with reference to whether there was heavy machinery being used within 50 metres of the store. Certainly, some days would have been worse than others (on many days, there would have been no actual work) but the hoardings remained in place throughout the period, giving the appearance of construction work. The interference arises in the context of the noise and dust emanating from the site but also the proximity of the hoardings to the store meant it would be difficult for potential customers to know whether construction work was being carried out on a particular day or not. I do not think it was incumbent on Hunt Leather to prove on which days over the whole period heavy construction work was being undertaken within 50 metres of its Strand Arcade store. Whilst the defendant may establish through its Category 2 workday schedule that there were a number of days when no heavy machinery was being used, I do not accept that there would be no nuisance on those particular days.
3. In my view, the evidence of Ms Hunt and Mr Foulstone, coupled with documentary, photographic and expert evidence (including the evidence of the programming experts, Mr Griffith and Mr McIntyre) provides ample support for the proposition that the interference with the amenity and use of the Hunt Leather Strand Arcade store was substantial from the time when the construction activity started outside the store up to December 2017.
4. Ms Hunt said that some construction works commenced in November 2015. Intensive construction work commenced in Fee Zone 5 outside the Strand Arcade store around February 2016 with the arrival of machines, jackhammers, generators and dirt removal trucks.

After December 2017

1. Hunt Leather maintains that there was a continuing substantial interference over the subsequent 18 months because construction activity took place from time to time. Ms Hunt was taken through the defendant's exhibit, being the daily photographic record of George Street, particularly in between King and Market Streets. She pointed out various days on which activity was being carried out. That often involved the erection of bins or the digging of a particular hole, or similar individual events. A more extensive analysis was undertaken by the programming experts. I have already commented on their evidence.
2. Ms Hunt pointed to the fact that, on occasion, work was carried out at the intersection of George and Market Streets or it seemed that work was being carried out in Fee Zone 4 on George Street, further south of King Street. She complained that this would have deterred customers from walking up George Street. She believed that staff from the international hotels and cruise ships were warning people not to use George Street throughout the whole period of construction. Perhaps, they were being directed down to Barangaroo instead.
3. It is possible that the number of pedestrians walking along George Street was reduced and continued to be reduced, although there is really no evidence about that other than Ms Hunt's anecdotal evidence. I am prepared to accept that the type of customers Ms Hunt wanted to attract were deterred from walking past the Strand Arcade store by the general SLR construction activities.
4. However, I do not accept that the following matters which Ms Hunt points to as happening after December 2017 were such as to lead to a substantial interference with her business: 1. the fact that work was still being undertaken on George Street, further north of King Street, causing no disturbance to the Strand Arcade store but merely the potential for customers to not walk up George Street; and 2. the fact that there were occasional days during the post-2017 period when workers might have conducted activities in Fee Zone 5, such as digging a hole, erecting a pole or carrying out specific work on a utility. Any interference caused by that type of work would only have been temporary and minor.
5. It follows that I am not satisfied that the substantial interference with the use of the Strand Arcade store continued after December 2017.

The Hunt Leather QVB store

1. In my view, the Hunt Leather QVB store was in a different position, obviously geographically, but more importantly, in the context of the interference with the use and enjoyment of the store.
2. The QVB store opened inwards, onto the walkway inside the QVB. There was no door onto George Street. There was only a shopfront window. The Hunt Leather QVB store from the inside
3. There is no evidence that the operation of the QVB store was impacted by either dust or noise. Ms Hunt did not say so.
4. The interference is said to be constituted by the closure of Fee Zone 6 to vehicular traffic and the erection of hoardings and barricades in Fee Zone 6 (similar to Fee Zone 5).
5. However, the footpaths on both the eastern and western sides of George Street in Fee Zone 6 remained open, although it is possible that they might have been closed occasionally, perhaps for weekend work at the intersections at both ends of the fee zone. There was no physical impediment to pedestrians walking south from Town Hall (particularly, Town Hall station or the George Street cinema complex) along either the eastern or western sides of George Street. This includes the footpath outside the QVB.
6. In my view, in the circumstances of this case, an actionable nuisance could not arise merely from the closure of a road to vehicular traffic.
7. The complaint is that pedestrians would have been deterred from walking along the footpath in Fee Zone 6 because of the construction activity and, further, that those pedestrians walking on the eastern side of George Street in Fee Zone 6 would not have been able to see the Hunt Leather QVB store shopfront window. Also, Ms Hunt said that the window became dusty as a result of the construction activity and required constant cleaning.
8. None of that would have impeded customers from walking through the QVB, particularly if they were in the mood for shopping, thereby passing by the entrance to the Hunt Leather store inside the building rather than walking directly past the construction activity on the George Street footpaths. Ms Hunt points to the presence of hoardings on the roadway (not the footpath) as being likely to have deterred pedestrians from walking along George Street but there is no evidence of any substantial drop in pedestrian numbers walking along George Street.

Mr Zisti's restaurant

1. According to Mr Zisti, hoardings and barricades were erected outside his restaurant, or somewhere proximate to the restaurant, in May 2016.
2. Construction involving heavy machinery did not commence outside the restaurant until August 2016, although the construction site had been established before that time. Again, according to Mr Zisti, during the second half of 2016, the construction activities outside his restaurant included the use of heavy machinery and concrete pouring. In December 2016, a pedestrian crossing adjacent to the restaurant was closed.
3. This type of construction work continued throughout 2017 and, indeed, right up to 2019. In July 2018, there was construction activity on the footpath right outside the restaurant. This sort of construction activity continued until at least the end of 2018. According to Mr Zisti, some construction also continued in the first half of 2019, at which time he was attempting to establish his pasta bar.
4. Mr Zisti complains that during the construction period - specifically, during the period of heavy vehicle use - the amenity of his restaurant was affected by noise and dust. His shopfront window was often coated in dust. Plainly, Mr Zisti's Thai restaurant (and the pasta bar, for the short time it operated) were affected by noise, dust and interference with sight lines caused by the hoardings. There was construction activity being undertaken right outside his restaurant. It is the combined effect of all of these matters which is important.
5. The plaintiffs rely on expert traffic evidence on the question of whether there was a substantial reduction in traffic in Fee Zone 29 during the construction activities.
6. The plaintiffs obtained reports from Oleg Sannikov dated 21 May 2021 and 2 May 2022. The defendant obtained a report from Shaun Smedley dated 11 November 2021. They also prepared a joint report.
7. Their evidence related to the flow of traffic in Fee Zone 29 during the construction works. As George Street was permanently closed to traffic once the SLR construction commenced, their evidence was not relevant to Fee Zones 5 and 6.
8. The construction of the SLR in the centre of Anzac Parade resulted in the traffic lanes on Anzac Parade being changed. There had previously been three lanes travelling east which were directly outside Mr Zisti's restaurant. The construction of the light rail resulted a reduction to two lanes, with one being a bus lane. Most significantly, all parking became prohibited outside Mr Zisti's restaurant, as it had been transformed into a bus lane. There was thus only one other lane of vehicular traffic, other than the bus lane.

Was the interference with the plaintiffs' businesses substantial and unreasonable?

1. Another check or limitation on a claim in nuisance is that the interference or harm must be unreasonable.
2. As the interference with the Hunt Leather QVB store was not substantial, I need not consider it further.
3. Whether the interference with the plaintiffs' use of their properties was unreasonable must be assessed objectively, having regard to the position of both landowners (or occupiers) and the uses to which the land was being put.
4. This necessarily involves an evaluative assessment of the principle of give and take. It is not an assessment based on some legal standard. It is necessary to consider what would be reasonable for a person in the position of the plaintiffs to put up with, having regard to the principle of give and take.
5. In the context of the operation of particular businesses, the period of the interference must be an important factor in assessing reasonableness. In this case, the period of the interference was lengthy and much longer than the defendant had assured business owners would occur.
6. Other relevant factors in assessing whether the interference was unreasonable would include:

• the nature and purpose of the activities;
• the relationship between the parties, including the obligations of the landowner from which the nuisance emanates;
• the period during which the interference was substantial;
• the benefit of the activities to the public;
• whether the landowner took care to avoid unnecessary interference;
• whether there were self-help measures available to the claimants; and
• the extent to which the defendant might have known or anticipated that the interference would impact on the financial interests of the adjoining landowners.

1. I have already commented on all of these factors in this judgment. The fact that the works were for the public benefit is important. The fact that the defendant was a statutory authority exercising its powers for the long-term benefit of the community is important. These factors tend to suggest that the period during which construction activity should be permitted without giving rise to an actionable nuisance should be extensive. However, the period is not never-ending. Nothing about the defendant's power or authority permitted it to infringe the rights of the landowners and users along the route for an excessive period.

Was the level of interference foreseeable on the part of the defendant?

1. There can be no doubt that the defendant was well aware of the utilities risk. Although the defendant had carried out extensive investigations into the existence of utilities prior to entry into the Project Deed (and it provided a database of over 2,000 entries to OpCo prior to same) the defendant knew that there was a substantial risk (in the words of the defendant's own expert, Mr Sampson) that there could be unknown utilities, that is, utilities not yet discovered. According to Mr Sampson, the discovery of unknown utilities would have had a "huge impact on the outcome".
2. Further, the defendant knew that it had not yet entered into any agreements with utility providers as to the treatment of the utilities. That meant that there was a very substantial risk that whatever previously unknown utilities were found, there would be a delay in obtaining approval from the utility providers for dealing with the unknown utilities.
3. Further, in respect of the very large number of utilities which had been located, because there were no agreements in place, there was a risk of delay in reaching agreement. As I have already indicated, utilities were categorised as either contestable or non-contestable. Therefore, in respect of each non-contestable utility, it would be necessary to arrange for the utility provider to undertake the treatment works (which might involve relocating or upgrading the relevant utility). The defendant knew that Ausgrid had predicted that all of the works on its utilities would be non-contestable, meaning Ausgrid would be carrying out the work. Coupled with Ausgrid's warnings as to how long this all might take, this explains why the utilities risk was described as extreme.
4. These were all matters of which the defendant was well aware prior to entry into the Project Deed. Ausgrid had given the defendant very direct warnings and made quite specific statements that the process of locating and treating its utilities could take years.
5. Certainly, Ausgrid's warnings were issued prior to mid-2014. It is possible that when Ausgrid switched from its business as usual approach to setting up a dedicated team to handle the SLR utilities, the risk of the delay originally suggested (being multiple years) was reduced.
6. However, on the defendant's own evidence (per Mr Sampson and Mr Lewcock), the utilities risk remained high. Mr Lewcock, Mr Hardman and Mr Sampson opined that although the defendant had intended to transfer the utilities risk through the Project Deed, it became increasingly apparent that the proponent would not accept all of the risk. As Mr Sampson said, the problems with the Gold Coast Light Rail development marked an important moment in the civil contracting industry, when the risks associated with utilities became clear.

What is the period of the nuisance?

1. The question which then arises is how to determine the period of the nuisance.
2. Of course, the defendant must have been entitled to arrange for the construction of the SLR along the specified route. Not all interferences or impacts will give rise to an actionable nuisance. The principle of give and take permits landowners to use their land reasonably in the sense that I have identified. I have already rejected the plaintiffs' principal proposition that, if the use of the roads was out of the ordinary or uncommon, then the period of the actionable nuisance starts when the substantial interference commenced (meaning, on the plaintiffs' case, that damages would be payable from the time the works began).
3. Whilst I could use the dates in the IDP as a starting point, the plaintiffs put forward an amended IDP as representing a reasonable timeframe for the construction activities. The effect of that amended IDP is to extend the allowance for completion of work in the fee zones by between 3 and 5 months.
4. I set out a table: IDP Occupation Period Corrected IDP Occupation Period Period of Nuisance Start Finish Start Finish Start Finish Fee Zone 5 15-Oct-15 21-Jul-16 Fee Zone 5 15-Oct-15 01-Nov-16 Fee Zone 5 01-Nov-16 03-Dec-17 Fee Zone 6 25-Nov-15 07-Oct-16 Fee Zone 6 03-Feb-16 11-Mar-17 Fee Zone 6 11-Mar-17 30-Nov-18 Fee Zone 29 17-Nov-16 02-Jun-17 Fee Zone 29 12-Dec-16 03-Sep-17 Fee Zone 29 27-Jan-17 28-Feb-19

1. In my view, the amended IDP is an appropriate measure for determining the point at which the interference with the land became unreasonable. Mr Griffith undertook an analysis allowing more time for various activities, which were mainly utilities treatments. His amended IDP reflects what was reasonably achievable. It seems to me that there came a point when, despite the importance and complexity of the project, it was no longer reasonable to expect the plaintiffs as adjoining business operators to put up with the construction activity. At that point, the requirements for an actionable nuisance were satisfied.
2. As such, for Hunt Leather, the period of the nuisance commenced on 1 November 2016 and ended on 3 December 2017.
3. For Ancio, the period of the nuisance commenced on 27 January 2017 and ended on 28 February 2019.

IS THE DEFENDANT LIABLE FOR THE NUISANCE?

1. The defendant is not alleged to be vicariously liable for the conduct of the D&C contractor. Instead, the defendant is said to be liable for the nuisance because it was personally responsible for the creation of the state of affairs which led to the nuisance.
2. I am satisfied that the defendant should be found liable in nuisance for the following reasons: 1. that which occurred, being a prolongation of construction activities outside businesses along the SLR route, was plainly foreseeable by the defendant. Indeed, the defendant became aware of the very real risk of what occurred at least one year prior to entry into the Project Deed. Its own documentation establishes its knowledge of the risk that construction would be prolonged outside businesses due to the utilities risk. Ausgrid gave a number of warnings that the treatment of its utilities could not be undertaken in the timeframes proposed by the defendant; 2. the risk was so high that the other party to the PPP arrangement was not prepared to accept the utilities risk, other than to a limited extent. The defendant entered into the Project Deed in December 2014 (being the time when it had planned to enter into such a deed) when it must have known that there would likely be undiscovered utilities along the route. It did so on terms that it accepted all of the risk arising from the discovery of unknown utilities and also any risks in delay or costs arising out of any difference in the utilities already documented. It thus took on most of the utilities risk. It did so at a time when it had not concluded agreements with utility providers, being another matter which it identified in its pre-Project Deed documents as leading to a significant risk of delay; 3. despite assurances to business owners that, in order to minimise disruption to them, the work would be performed in stages and that it had taken steps to ensure that the D&C contractor complied with that requirement, the defendant contracted on terms that provided relief in respect of the utilities issues and provided no real deterrence for any departure from the Occupation Schedule. In other words, the defendant contracted on terms which meant that, if the risks (which it knew were high) eventuated, the interference with businesses along the route would be prolonged and potentially substantially so; and 4. further, it took the risk in respect of the requirements of the utility providers. According to the D&C contractor, the Ausgrid guidelines were quite different from the guidelines contained in the Project Deed. The defendant accepted the risk of this occurring.

PUBLIC NUISANCE

1. The plaintiffs plead that: "Through its conduct in: (a) authorising or permitting the construction of the Project; and or (b) causing the Civil Works Delay, The defendant has caused substantial and unreasonable obstruction or inconvenience to the public in the exercise of public rights, namely by the damage to and obstruction of roadways and footpaths through road closures and erection of hoardings (Public Nuisance)."
2. The plaintiffs then plead that, by reason of the public nuisance, the plaintiffs and the Group Members have suffered, and continue to suffer, loss and damage. They particularise that loss and damage in the same way as they particularise the loss and damage in relation to private nuisance.
3. The plaintiffs add that they have suffered non-economic loss by way of mental anguish, as well as loss of profit, both of which they have suffered due to the interference with their businesses.
4. The elements of the tort of public nuisance are less controversial. They are that: 1. there is a common injury to members of the public generally; 2. the defendant knew or ought to have known of the nuisance to the public generally; 3. the defendant had the means to abate the nuisance; and 4. the defendant failed to take steps to abate the nuisance. [11]
5. In Attorney-General v PYA Quarries Ltd (1957) 2 QB 169, Denning LJ observed (at 190) that the difference between private and public nuisance is that "a public nuisance affects her Majesty's subjects generally, whereas a private nuisance only affects particular individuals."
6. In considering how many people it might take to make a public nuisance, his Lordship went on to say (at 190-191): "I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."
7. A private action for public nuisance is only sustainable by an individual where the claimant can demonstrate that he or she has suffered substantial damage over and above that suffered in common with other members of the public so affected by the nuisance. Ms Hunt and Mr Zisti, who seek damages personally in public nuisance, point to the mental anguish which they have suffered as a result of the interference with their businesses and, further, the economic loss they have suffered as a result of such interference (which they say they have suffered over and above any injury suffered by other members of the public).

DAMAGES

1. The evidence as to damages issues comes from a number of sources, including: 1. the evidence of Ms Hunt and Mr Zisti; 2. the financial documents; 3. the evidence of the retail experts, Mr Abery and Mr Shimmin; and 4. the evidence of the accounting experts, Mr Samuel and Mr McPhee.
2. The lead plaintiffs maintain that, as a result of the nuisance, they have suffered significant financial losses. It is important to observe that those financial losses were sustained by the relevant corporate entities, not the individuals. The individuals (Ms Hunt and Mr Zisti) are only plaintiffs for the purposes of pursuing public nuisance claims.
3. Hunt Leather continued to trade through the period of the SLR construction and then during the COVID-19 pandemic (as much as it could). It still operates a store in the Strand Arcade, although it is now located in a different position.
4. However, Ancio ceased operating Mr Zisti's restaurant in April 2019. It did not renew its lease. It says that it is entitled to damages "in perpetuity" as if it is simply a matter of assessing damages forever because it has not operated the restaurant business since 2019. For the reasons I will identify, this cannot be so.
5. In assessing damages, the plaintiffs are entitled to be put back into the position that they would have been if not for the defendant's tortious conduct. It follows that the plaintiffs must establish the losses they have suffered as a result of the tortious conduct of the defendant. This presents some challenges for various reasons.
6. Whilst the plaintiffs are being compensated for loss of amenity, the nuisance is not established by loss of profit. In this case, their loss of amenity resulted in a loss of profit and damages will be assessed with reference to that loss of profit.
7. They are not entitled to damages merely because, at some point in time, their businesses were interfered with. Any assessment of loss commences on the date on which the action in nuisance arises, rather than the date on which the construction work commenced. To do otherwise would penalise the defendant for an earlier interference which was lawful and reasonable. Therefore, the period for which loss is assessed is the period of the nuisance and any subsequent period during which the profit of the business continued to be affected by the prior interference (the parties termed this the "recovery period").

Hunt Leather

1. As at 2015, Hunt Leather owned and operated a number of stores in Australia, being the stores at the Strand Arcade and the QVB, in addition to: 1. a Rimowa store in Martin Place, selling exclusively Rimowa products; 2. a store in Balmain; 3. a store in Melbourne; 4. a Longchamp store located in Melbourne, for which it relinquished the franchising agreement in November 2018; 5. a store in Brisbane, which was divided into a Hunt Leather store and a Longchamp branded store; 6. a Hunt Leather store in Perth; and 7. a Longchamp branded store in the MLC Centre.
2. On 1 February 2013, Hunt Leather entered into a lease with Ipoh Pty Limited in respect of the Strand Arcade. The term of the lease was five years commencing on 12 April 2013. There was a base rent with a percentage rent on top. As Hunt Leather never met the gross sales threshold relevant to the percentage rent, it never paid the amount of any percentage rent under the lease. Hunt Leather renewed the lease in 2018.
3. According to Ms Hunt, as at September 2014, the Strand Arcade store was generating sales of approximately $225,000 per month. Sales remained steady until September 2015.
4. In May 2015, Hunt Leather spent $700,000 fitting out the Strand Arcade store. The lessor agreed to contribute $376,250 towards that fit-out.
5. Ms Hunt said that since the Strand Arcade store opened, there was always a high amount of pedestrian traffic in and around the store. Staff reported that their new location in the Strand Arcade was attracting many international tourists. This included many Chinese and American tourists who would disembark from cruise ships at Circular Quay and walk up George Street. They were willing to spend a large amount of money purchasing Australian leather goods. Ms Hunt said that she decided to capitalise on this international market by ensuring that there was always a Mandarin speaker working at the Strand Arcade store and increasing the number of staff, as well as other measures.
6. For the financial year ending 30 June 2015, the Strand Arcade store recorded sales of $3,613,961. Between 2015 and 2019, spending by international tourists in Australia went from $6 billion to $10 billion. Unfortunately for Hunt Leather, this coincided with the period of the SLR construction works in George Street.
7. In November 2015, the Strand Arcade store recorded sales of $241,895. Ms Hunt said that the sales in November 2015 were 21% lower than in November 2014. The sales figures thus provided an early warning to her about the impact of the SLR construction, which had commenced in October 2015.

The retail experts

1. The plaintiffs served reports from Mr Christopher Abery, both in respect of Hunt Leather and Mr Zisti's restaurant. The defendant similarly served two reports from Mr Ian Shimmin.
2. Both retail experts then met in conclave and prepared joint reports dated 7 November 2022. They gave evidence concurrently.
3. Whilst there was some limited challenge to their expertise on certain issues, I am satisfied that both experts had sufficient expertise to opine on the matters about which they were questioned. Indeed, I was impressed by both experts. They did not strike me as advocating for any particular party and both demonstrated a thorough knowledge of the retail industry, as well as a thorough understanding of their own reports and the other expert's reports.
4. Whilst at one stage, Mr Bannon's questioning had the effect of suggesting that Mr Shimmin's evidence could not be serious, I rejected that assertion. I was satisfied that both experts were doing their best to comply with the expert witness code of conduct and were giving evidence to the best of their ability, based on opinions they held.
5. For the purposes of the joint report, both experts agreed on a number of matters relevant to the assessment of damages, as follows: "2.2. CBD & LUXURY GOODS MARKET 10. The following are the principal areas of agreement in relation to the luxury goods market: a. The Sydney CBD retail sector is a large and complex market with various sub-markets and a multitude of retail categories and store types catering to different groups which drive retail turnover volumes and growth. b. The Sydney CBD retail sector is also constantly changing resulting in new retailers and re-energised precincts and strips. c. The luxury goods market in Sydney is concentrated mainly in the Sydney CBD which has attracted new domestic and international luxury retailers over the last 10 years. d. The luxury goods market experienced strong growth in the decade leading up to the COVID-19 period due to growth in the key market segments including Sydney's population, the CBD workforce, and international visitors, as well as changes in consumer preferences. e. The luxury goods market is broadly defined based on quality, price, scarcity, and origin, with wide variations in retailers within the sector operating at different quality and price points and offering widely different levels of customer service and in-store experiences. f. Both Hunt Leather and Longchamp described their businesses as luxury retail stores during the relevant period, although we agree that Hunt Leather would have been more appropriately described as an aggregator of luxury and premium brands, or a 'boutique luxury' retailer, during the relevant period. g. We also note that Hunt Leather has changed its merchandise mix in recent years, and although some of the brands stocked by Hunt describe themselves as luxury (e.g. II Bisonte describes themselves as a 'sustainable luxury' brand), we agree that it is now more appropriately classified as an aggregator of premium brands."

1. Mr Abery said that Mr Shimmin's model was not a valid approach and did not consider that all of the negative factors should have been applied to Hunt Leather in undertaking projections but for the construction of the SLR.
2. Specifically, Mr Abery disagreed with Mr Shimmin's modelling insofar as it related to: 1. structural changes in the luxury goods sector; 2. impacts from new and refurbished luxury goods stores; 3. online impacts; 4. Barangaroo time diversion; and 5. group performance issues.
3. It is fair to say that the plaintiffs' approach to the modelling undertaken by Mr Shimmin was to reject it entirely as being completely arbitrary, not based on any proper analysis and quite contrary to the performance of any reasonable comparator.
4. As can be seen from the table, Mr Shimmin allowed one positive factor and then a number of negative factors. The positive factor was based on a weighted average of the increase in spending on luxury goods in Australia and the performance of the personal accessories section (which does not only include luxury goods).
5. It is apparent that there was a yearly increase in the luxury goods market between 2015 and 2019. However, the personal accessories market remained relatively flat.
6. Mr Abery did not dispute that there should have been reference to both the luxury goods market and the personal accessories market for the purposes of assessing any likely upward trends in the market, although he emphasised that the analysis should have been more store specific. As I am only assessing the loss to the Hunt Leather Strand Arcade store caused by the SLR construction activities, I agree with that approach.
7. There was greater dispute in respect of the negative factors set out in the table.
8. One of the criticisms of the modelling was that the percentage impact on Hunt Leather for each negative factor was not based on any particular statistic but was merely an estimate by Mr Shimmin. That is not to say that he did not have regard to extensive background information and his experience generally but even he tended to accept that the percentages could be variable and were merely estimates.
9. Mr Shimmin did have regard to material produced under subpoena by other retailers (all of which are subject to confidentiality requirements).

1. Mr Shimmin opined that even without the SLR construction, the Hunt Leather group could have expected its turnover to drop by $4,406,249. The reason for this is what Mr Shimmin described as "quantifiable revenue impacts" based on his modelling.
2. It is difficult to accept that a business with such a track record as Hunt Leather would have suffered such a diminution in profitability over the period 2016 to 2020, even without the construction activities. However, I accept that there was increased competition during that period.
3. As Mr Shimmin pointed out, there was an increase in luxury goods stores in the Westfield Sydney Shopping Centre and the Louis Vuitton and T Galleria stores were refurbished. The large Louis Vuitton store was only 100 metres from the Hunt Leather Strand Arcade store, albeit the Louis Vuitton store business was housed in a large building set well back from the corner of King and George Streets. Louis Vuitton also had the benefit of being a globally recognised brand.
4. I do not need expert evidence to understand that shoppers seek out such globally recognised brands.
5. In the end, while Mr Shimmin's analysis and reference to factors which would have impacted upon Hunt Leather's sales is important, I do not accept that I should apply his percentage discounts based on each of the factors. It is fair to have regard to some of the impacts (such as new stores, refurbished stores, and Barangaroo time diversions) but I do not accept that there should be such significant discounts for small player erosions and the performance of the Hunt Leather group. Hunt Leather has always been a small player, at least relative to Louis Vuitton.
6. Further, I am comparing the actual performance of the Strand Arcade store with what it would have been but for the tortious conduct of the defendant. The performance of all of the Hunt Leather stores in the 2015-2020 period was not as good as it had been in earlier years but that decline was multifactorial. I do not accept that the Strand Arcade store would have suffered from the same problems as stores in other positions selling different goods with profitability issues already present. A significant factor was the difficulties in the Longchamp branded stores.
7. I am sure that the performance of the Hunt Leather QVB store was not helped by the SLR construction along George Street but there were other factors which impacted upon the financial performance of the QVB store.

Expert accountants

1. The plaintiffs served four reports from Tony Samuel dated 19 May 2021, 16 June 2021, 12 August 2021 and 12 August 2022.
2. The defendant served four reports from Ashley McPhee, including two dated 25 March 2021 (one report on Ancio and the other on Hunt Leather) and two reports dated 29 June 2022 (one report on Ancio and the other on Hunt Leather).
3. The expert accountants met in conclave and produced a joint report dated 14 October 2022. They gave evidence concurrently.
4. There was substantial agreement between the experts on most matters. To the extent that there was any disagreement between them in respect of Hunt Leather, it related primarily to the assumptions which they were instructed to make by the respective parties and some variations of discretionary assessments made. In the end, it was the assumptions underpinning their assessments which differed.
5. For example, in offering their opinions as to the losses said to have been sustained by Hunt Leather for the financial year ending 30 June 2016, both experts had regard to the actual sales of Hunt Leather for the period July 2015 to October 2016, then came to a different view as to the percentage increase which should be allowed for the remainder of the financial year.
6. Mr Samuel allowed a 10% increase in sales for the period October 2015 to June 2016. Mr McPhee allowed a 5% increase for that same period.
7. Both experts assumed that the Hunt Leather stores would not recover to pre-SLR levels until a point in time after the construction had ended. Neither expert considered that the moment the construction works ended would be the point at which sales were no longer impacted by the construction works. Mr Samuel assumed an 18-month period of recovery, whereas Mr McPhee assumed a 12-month period of recovery.
8. Both experts assumed for the purposes of their calculations that, having regard to the performance of some of the other stores in the Hunt Leather group (Mr McPhee did not include the Longchamp stores), the performance of the Strand Arcade store would likely have gone down after 2016. The extent to which the experts considered that the performance of the Strand Arcade store would have decreased differed slightly.
9. Mr McPhee undertook two assessments. His first assessment was undertaken in a manner similar to that of Mr Samuel. He looked at past performance and the performance of the Hunt Leather group as a whole and then estimated the revenue of the Strand Arcade store, having regard to that past performance and actual performance. He then looked at the actual sales figures for the relevant period and used the difference as a basis for calculating loss. This was essentially the same process as that undertaken by Mr Samuel, although some of their variables differed.

Mr Zisti's restaurant

1. Mr Zisti said that the SLR construction adversely impacted his restaurant from the time that the hoardings were erected until they were dismantled. The business ceased trading in April 2019. Thus, the period during which it may have been impacted was May 2016 to April 2019.
2. According to Mr Zisti, for the year ending 30 June 2016, the restaurant generated sales of $981,699 with a net income before tax of $149,000. This was an increase in net income before tax of 50% compared to the previous year. Both lead plaintiffs had thus recorded substantial sales increases in the year before they were hit by the SLR construction.
3. I set out below a table from Mr Abery's report, which shows the increase in revenue:
4. Sales for the December 2016 quarter were $269,835, of which $24,000 was generated by food delivery apps. In other words, at least until the end of 2016, sales remained consistent. However, sales started to drop over the next six months. For the year ending 30 June 2017, the total sales were $902,160 with a net income before tax of $21,640. This means that there was an $80,000 drop in gross sales and a $128,000 drop in profit (before tax).
5. According to Mr Zisti, the restaurant was surviving through the use of food delivery apps but there were additional expenses associated with those apps. Although there was only a 10% drop in gross sales, there was an 85% drop in profit. He said this is all accounted for by the significant drop in dine-in and direct takeaway sales, with the business relying on food delivery apps to survive.
6. For the year ending 30 June 2018, the restaurant generated sales of $732,870, which was a drop of over $250,000 in gross sales from two years earlier. The business recorded a net loss of $16,111. Mr Zisti said that this was the first time the business had made a loss in the six years since he opened the restaurant.
7. In July 2018, he decided to save on expenses by closing the restaurant for lunch and only operating during the evenings. He thus lost revenue which was usually generated by university students who visited during the day.
8. At the same time, he was unable to find replacement Thai cooks and he decided to change to an Italian restaurant. After closing the business for a few weeks to remodel and refit the restaurant premises, Sugo Pasta Bar opened. He operated Sugo Pasta Bar from August 2018 to April 2019.

1. In other words, despite the upwards trend in the two years prior to the construction, the restaurant would have experienced a downwards trend regardless of the SLR.
2. Mr Shimmin suggested decreases in revenue as follows: 2017 2018 2019 2020 2021 (Q1-Q3) Hypothetical Revenue $1,003,899 $942,491 $921,833 $839,842 $561,986 Actual Revenue $992,408 $850,041 $126,745 - - Variance $11,491 $92,451 $795,088 $839,842 $561,986 Cumulative Variance $11,491 $103,942 $899,030 $1,738,872 $2,300,857

1. Mr Shimmin pointed to the pre-closure of the coffee cart, which operated in 2014 and contributed 11% in sales. He pointed to Mr Zisti's decision to cease trading on Mondays.
2. Mr Abery did not agree. He highlighted past performance and the significant upwards trend in the two years prior to the SLR.
3. Mr Samuel and Mr McPhee agreed on the actual revenue of the restaurant business as follows: Description Financial Year ending 30 June 2012 2013 2014 2015 2016 2017 2018 2019 AUD Total Sales 364,826 494,229 779,005 905,494 981,699 902,190 732,870 124,961 Other income 257 77 0 0 0 0 0 11,700 Government Rental Assistance 0 0 0 0 0 0 22,727 190,401 Total revenue 365,083 494,306 779,005 905,494 981,699 902,190 755,597 327,063

1. They also agreed the rate of gross profit as follows: Description Financial year ending 30 June 2017 2018 Revenue Stream Rate of gross profit, % Dine-in revenue 62.71% 63.13% Takeaway / delivery 45.82% 46.17% All revenue 55.65% 56.21%

1. There was also agreement on the appropriate methodology for estimating Ancio's loss: "(1) The appropriate methodology to estimate Ancio's loss is to assess the difference between: (a) actual financial position as a consequence of the project; and (b) hypothetical financial position, being the position it would have enjoyed: (i) absent the project, for Mr Samuel's scenario 1; and (ii) during and after the relevant construction periods, for Mr Samuel's scenarios 2 and 3."
2. There was agreement on discounting and interest.
3. However, there was disagreement about whether the restaurant's delivery and takeaway revenue should have been included in the loss calculation for the 2017-18 and 2018-19 financial years. Mr McPhee appears to have been instructed on the assumption that takeaway revenue would not have been impacted by the project. Mr Samuel disagreed with this, suggesting that the takeaway and delivery revenues declined in line with (and at the same time as) dine-in revenues.
4. For my part, I accept that: 1. over the five years prior to 2016, Mr Zisti had established a successful restaurant business which demonstrated a significant upwards trend in the two years prior to 2016; 2. like the Hunter Leather Strand Arcade store, such a significant upwards trend was probably unsustainable but that does not mean that there would have been a downwards trend; 3. there was a slight decline in the restaurant industry generally over the period of the construction activity (Australia-wide) but it is difficult to apply that decline to Mr Zisti's restaurant; 4. both the sales (positively) and profit (negatively) would have been impacted by the growth of food delivery apps, irrespective of the SLR construction. That is what occurred. More of Mr Zisti's revenue came from food delivery apps but his profit decreased due to the smaller margins; and 5. the upwards trend in the two years prior to 2016 was, to a certain extent, impacted by the operation of the coffee cart, which Mr Zisti ceased operating prior to 2016. Revenue must also have been affected by the decision not to trade on Mondays, although it is not clear how that would have impacted upon profit.
5. I accept that Mr Zisti's decision to move to food delivery apps was in part influenced by the decline in other sales but, bearing in mind the increasing availability of food delivery apps, it may be likely that he would have sought to increase revenue through food delivery apps irrespective of the construction.

Ex gratia payments

1. Each of the lead plaintiffs has already received a compensation payment pursuant to the Small Business Assistance Program ("the program") provided by the NSW Government.
2. As identified in the briefing document for approval by the Minister for Transport and Infrastructure ("the Minister"), the purpose of the program was to provide small businesses with financial assistance due to the SLR project taking longer than planned (referred to as "overstay").
3. Hunt Leather initially made an application pursuant to the program but it did not fall within the guidelines because its full-time employees exceeded the maximum number of 20. However, the Minister approved a change to the program so that businesses employing up to 50 full-time employees became eligible. Financial assistance was capped.
4. The accounting firm, Ernst & Young, assessed the impact of the overstay on the Hunt Leather business. Ernst & Young recommended that Hunt Leather receive a payment of $99,343, equivalent to two months rent. As identified by Ernst & Young, the shopfront to the Hunt Leather store was on the SLR alignment and proximate to the construction activity. It had been affected by sight line access, ambience and dust.
5. Ancio made a similar application. It received a payment of $13,600 (up to two months rent) again on the basis that construction was taking longer than expected. Ernst & Young accepted that the impact on the business continued (as evidenced by the reduced turnover) and that the restaurant's sales would continue to be affected until completion of the SLR project.
6. It is not suggested by the plaintiffs that the decision of the defendant to pay compensation under the program in any way affects the outcome of this matter, other than demonstrating that the defendant accepted that the business owners had been affected by the construction and that overstay contributed to a downturn in turnover.
7. The plaintiffs accept that the defendant is entitled to a credit for the amount of any ex gratia payments.

COMMON QUESTIONS

1. I set out below the common questions agreed on by the parties. 1. Is any liability that the defendant has in nuisance based on the defendant's exercise of or failure to exercise a special statutory power conferred on the defendant? 2. If so, was any act or omissions involving the exercise of or failure to exercise that special statutory power an act or omission that was in the circumstances so unreasonable that no authority having that special statutory power could properly consider that act or omission to be a reasonable exercise of or failure to exercise its power? 3. Does s 42 of the CLA apply to the allegations of nuisance advanced in these proceedings? 4. Was the construction of the SLR along the SLR route an ordinary or normal use of the land: 1. along every part of the route; or 2. only in certain parts of the route? 1. In doing any of the acts alleged in paragraphs 7, 9, 10A, 15 and 18 of the Statement of Claim, was the defendant exercising a statutory authority, being the s 104O power or the s 3E power? 2. If yes to 5, was any interference with the right to enjoyment of private land or obstruction or inconvenience to the public the inevitable consequence of the exercise of that statutory authority? 3. Does s 141 of the Roads Act have the effect that no public nuisance was caused by the defendant as alleged in these proceedings? 4. In circumstances in which the defendant did not undertake the construction activities, should the defendant be liable for any nuisance and, if so, on what basis? 5. Were the construction works of such a nature as to be capable of causing: 1. a substantial interference with the Group Members' interests in land located in the vicinity of Fee Zones 5, 6 and 29 or alternatively the project; and/or 2. a substantial obstruction or inconvenience to the public in the exercise of public rights on land in the vicinity of Fee Zones 5, 6 and 29 or alternatively the project causing any substantial loss or damage suffered by the Group Members appreciably greater in degree than that suffered by the general public? 1. Are such Group Members as have suffered loss or damage as a result of private or public nuisance for which the defendant is responsible and who have entered into a litigation funding agreement in connection with these proceedings entitled to claim as a head of damages their reasonable litigation funding costs incurred under any such agreement without needing to show: 1. that it was the nuisance of the defendant which rendered them impecunious so as to be unable to pursue their claims without the benefit of litigation funding; 2. that they would have pursued their claims against the defendant without litigation funding had they the means to do so; or 3. that they negotiated over the terms of the litigation funding agreement? 1. If yes to 10, what is a reasonable rate of litigation funding costs recoverable by such Group Members?

CONCLUSION

1. The first and third plaintiffs have succeeded, although Hunt Leather has only succeeded in respect of the Strand Arcade store. In my view, the interference with the Strand Arcade store and Mr Zisti's restaurant was substantial and unreasonable for a period. The defendant is responsible for such interference because it created the state of affairs which led to the extended period of interference in circumstances in which the harm was foreseeable and, indeed, predictable.
2. The defendant sought to minimise the interference with the businesses along the SLR route through its fee zone strategy but its fee zone strategy failed for the reasons I have identified.
3. The defendant may have been exposed to additional costs but the persons who ended up bearing the costs of the prolonged construction activity in the fee zones were some of the business owners along the light rail route. They had been promised minimal disruption and a staged process of construction, which would have seen them exposed to the construction activities for months, rather than years.
4. On any view, the original projections by the defendant were optimistic and not soundly based. I have thus allowed a longer period than that originally projected as being reasonable. There was obviously a degree of imprecision in trying to work out the point at which the interference with the businesses (which commenced when the construction work commenced) became unreasonable. I have relied on the opinion of the only expert who really attempted to undertake the analysis, Mr Griffith, in this regard. I have also accepted Mr Griffith's opinion as to the cause of the prolonged period of construction in Fee Zones 5, 6 and 29.
5. There is no alternative opinion or alternative evidence. There are merely assertions that Mr Griffith's analysis is flawed.
6. I have rejected the defendant's statutory authority defence of inevitability.
7. Further, I have found that s 43A of the CLA does not apply in the circumstances of this case.
8. I have also rejected the plaintiffs' claims in public nuisance.
9. Those findings may assist going forward, bearing in mind that my determination only relates to two members of the class and three (out of 31) fee zones. However, it seems to me that there remains a significant problem in applying my findings about substantial and unreasonable interference to all members of the class. To the extent that this judgment, through the common questions and my findings in respect of the lead plaintiffs, is intended to provide a basis for the assessment of entitlements of other members of the class, I emphasise these matters: 1. the reason that Hunt Leather and Ancio have succeeded is, in part, that they operated small businesses which were highly susceptible to the effects of construction activities without any means of reducing the impact. It is not difficult to understand how a small boutique luxury goods store which opened directly onto the construction works would suffer because of those works. It is not difficult to understand how a small specialist restaurant which relied on the amenity of its premises would suffer as a result of construction activities happening right outside its front door; 2. however, the position may be different with other businesses. Mere proximity to the construction works does not establish substantial interference, no matter what the period of interference, as I have found in respect of the Hunt Leather QVB store. Many businesses may have been affected by the construction of the SLR in ways which would not constitute a nuisance, despite some diminution in profitability flowing from the construction of the SLR; and 3. it must be remembered that the defendant was a statutory authority and was trusted with the responsibility of improving public transport in Sydney. Infrastructure development will always result in some impact on businesses in the relevant area and changes to an area caused by infrastructure development may have a detrimental effect on businesses. I do not consider that persons would have an actionable nuisance merely based upon factors such as: 1. the closure of a road to vehicular traffic; 2. changes in parking restrictions, such as parking being prohibited outside a business; 3. changes in traffic conditions, resulting in a reduction in vehicular traffic; 4. reductions in pedestrian traffic; 5. premises becoming dusty in ways which could be relieved through self-help measures, such as by cleaning; and 6. line of sight restrictions.

SUMMARY OF JUDGMENT This Summary was delivered orally on 19 July 2023. Introduction

1. These proceedings are representative proceedings pursuant to Part 10 of the Civil Procedure Act 2005 (NSW) ("CPA"). The proceedings are pursued on behalf of the persons said to be affected by the construction and development of the Sydney Light Rail ("SLR") between Circular Quay and Randwick/Kingsford in Sydney.
2. The defendant is the NSW Government agency which planned, designed and managed the processes leading towards the construction of the SLR, although it did not actually undertake the construction work.
3. There are four lead plaintiffs, being: 1. Hunt Leather Pty Ltd ("Hunt Leather"), which operates a retail leather goods business; 2. Ms Sophie Hunt, who has been the Chief Executive Officer of Hunt Leather since approximately 2003; 3. Ancio Investments Pty Ltd ("Ancio"), being the trustee of the unit trust known as the Ancio Unit Trust, which between May 2009 and April 2019 operated a restaurant business on Anzac Parade in Kensington; and 4. Nicholas Zisti, who was the sole director of Ancio and operated and who had responsibility for the restaurant.
4. The hearing which took place during in November to December 2022 was to determine: 1. the liability of the defendant to the lead plaintiffs; 2. the amount of damages (if any) which would be payable by the defendant to the lead plaintiffs; and 3. agreed common questions.
5. Although the legal representatives for the plaintiffs estimate that there may be thousands of people who fall within the class defined as Group Members, the initial hearing was only in respect of the lead plaintiffs. However, like all class actions, the purpose of the hearing was also to determine common questions which may impact on the entitlement of other Group Members to any damages.
6. In this matter, there are particular difficulties with the potential common questions as, unlike some class actions where there may be a single cause of loss sustained by all members of the class, the causes of any loss suffered by Group Members are in dispute and may vary.
7. Fundamentally, that is because there may be substantial differences between the impact that the construction of the SLR had on landholders and business owners at certain points along the route compared to others. This was demonstrated in the initial hearing because Hunt Leather occupied stores in what is described as Fee Zones 5 and 6 on George Street in the Sydney Central Business District ("CBD"), whereas Mr Zisti's restaurant operated in Fee Zone 29 on Anzac Parade in Kensington.

Endnotes

1. It is noted that s 115ZB no longer exists under the current legislation, however, similar provisions are contained in Pt 5, Div 5.2, Subdiv 2 of the Environmental Planning and Assessment Act 1979 (NSW) as it stands in 2023.
2. John Fleming, Fleming's the Law of Torts, Carolyn Sappideen and Prue Vines (eds) (Thomson Reuters, 10th ed, 2011) at [1.20], p 5.
3. Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 ("The Wagon Mound (No 2)") at 639.
4. Citing PH Winfield, Winfield on Tort: A textbook on the law of tort, T Ellis Lewis (ed) (Sweet & Maxwell London, 6th ed, 1954) at 536.
5. See, for example, Emmett JA at [141]-[144].
6. John Fleming, Fleming's the Law of Torts, Carolyn Sappideen and Prue Vines (eds) (Thomson Reuters, 10th ed, 2011) at [1.20], p 500.
7. John Frederic Clerk and William Harry Barber Lindsell, Clerk & Lindsell on Torts, Anthony M Dugdale and Michael A Jones (eds) (Sweet & Maxwell, London, 19th ed, 2006), p 1184.
8. See also Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1 at [92], per Macfarlan JA.
9. See the Transport Administration (General) Amendment (Light Rail) Regulation 2015 (NSW).
10. Mark Aronson, "Government Liability in Negligence" (2008) 32(1) Melbourne University Law Review 44, p 51.
11. See Onus v Telstra Corporation Limited [2011] NSWSC 33 at [109]-[110] (per Price J).
12. John Fleming, Fleming's the Law of Torts, Carolyn Sappideen and Prue Vines (eds) (Thomson Reuters, 10th ed, 2011) at [1.20], p 5.
13. Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 ("The Wagon Mound (No 2)") at 639.
14. See Onus v Telstra Corporation Limited [2011] NSWSC 33 at [109]-[110] (per Price J).

Amendments 15 December 2023 - Paragraph [1108(1)] changing the word "revenue" to "profit" and adjusting a date from 3 September 2017 to 27 January 2017. Paragraph [1108(2)] changing the word "revenue" to "profit" and adjusting a date from 3 September 2017 to 27 January 2017. Table at paragraph [935] adjusting a date from 3 September 2017 to 27 January 2017. Paragraph [938] adjusting a date from 3 September 2017 to 27 January 2017. 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. Decision last updated: 15 December 2023