Maddock v Penrith City Council

Supreme Court of NSW|2021-10-14

Judgment

HER HONOUR: This matter involves a Notice of Motion filed 6 April 2021 seeking to strike out the claim as against the first defendant.
The first defendant, by way of Notice of Motion filed 6 April 2021, relevantly seeks orders that: 1. the paragraphs of the plaintiff's Amended Statement of Claim relating to the first defendant be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiff is Mr Dean Maddock. The first defendant is the Penrith City Council ("Penrith Council"). The second defendant is Transport for New South Wales ("TfNSW"). Mr Sheldon SC appeared for the plaintiff. Mr Hutchings appeared for Penrith Council. The parties relied on a court book ("CB").

Background

On 17 May 2017, the plaintiff was riding his motorcycle in a generally northerly direction on Mulgoa Road in the vicinity of its intersection with Roscrea Drive. At the intersection there was an additional lane to the left which would permit a vehicle to pass another northbound vehicle waiting to turn or turning into Roscrea Drive. The left lane, however, ended abruptly in a right-hand corner without warning, the effect of which was to create a sudden, very tight righthand corner for a north travelling vehicle utilising the left lane.
The plaintiff sues both Penrith Council and TfNSW, the first as the road authority within the meaning of the Roads Act 1993 (NSW) ("Roads Act") and the second as having assumed the role of a roads authority with respect to some aspects of the road's operation.

The pleadings 1. The plaintiff, by Amended Statement of Claim filed 24 June 2021 ("ASC"), pleads the following: "[1] The First Defendant is a Local Government Authority. [1A] The second defendant (formerly roads and martime services) is a NSW government delivery agency. [2] At all material times the First and/or Second Defendant was responsible for the care control and maintenance of Mulgoa Road, between the intersection located next to properties 1351 and 1328 of Mulgoa Road and Rosecrea Drive in the State of New South Wales. [3] On or about 7 May 2017, the Plaintiff was riding a motorcycle on Mulgoa Road travelling towards Penrith. [4] At the intersection of Rosecrea Drive and Mulgoa Road the roadway in the direction in which the Plaintiff was travelling was broken into two lanes. [5] The right hand lane was a turning lane for vehicles making a right hand turn into Rosecrea Drive. [6] The left hand lane was for traffic continuing along Mulgoa Road. [7] In order for a vehicle to proceed directly along Mulgoa Road at that intersection it was necessary for that vehicle to move to the left to pass the turning lane. [8] The left hand lane ended abruptly just beyond Rosecrea Drive. [9] Shortly after the intersection in the direction of travel by the Plaintiff, Mulgoa Road deviated to the right ('the right hand bend'). [10] The left hand lane changed direction abruptly at the commencement of the right hand bend. [11] The combination of the deviation of the left hand lane and it's abrupt change of direction at the commencement of the right hand bend created a risk of harm. [12] The risk of harm was that persons could be injured as a result of vehicles failing to negotiate the right hand bend and leaving the roadway. [13] The risk of harm was foreseeable. [14] The risk of harm was not insignificant. [15] As the Plaintiff was negotiating the right hand bend, travelling within the speed limit of 60kph his motorcycle left the roadway at the right hand bend. [16] The right hand bend was not marked with any signage to indicate that the road changed direction at that location. [17] As a result of the motorcycle leaving the roadway the Plaintiff suffered injury loss and damage. [18] In the circumstance the defendants owed a duty of care to the Plaintiff was in breach thereof and was were negligent. Particulars of injuries against both defendants [a] Failing to take reasonable care for the Plaintiff's safety; [b] Placing the Plaintiff in a position of peril in the circumstances; [c] Constructing a left hand overtaking lane adjacent to the right hand bend; [d] Failing to install a barrier marked with chevrons or similar signage to identify the presence of the right hand bend to motorists; [e] Failing to reduce the speed limit at that location to a speed which would have permitted the Plaintiff to negotiate the bend at a safe speed; [f] Designing and constructing the roadway in way which created the risk of harm. [19] As a result thereof the Plaintiff was injured and disabled and suffered loss and damage."

The defence of the first defendant

In its defence filed 18 March 2021 ("D1 Defence"), Penrith Council pleads that as at 7 May 2017, Mulgoa Road was classified as a "main road" falling within the definition of a "classified road" under s 64(1) of the Roads Act which placed it under the control of TfNSW, formerly the Roads and Traffic Authority NSW ("RTA"): D1 Defence at 19.
Penrith Council denies it had care, control and maintenance of Mulgoa Road, including that part of the road at the intersection between Mulgoa Road and Roscrea Drive: D1 Defence at 19.

The defence of the second defendant

In its defence filed 11 September 2020 ("D2 Defence"), TfNSW denies it was the roads authority for Mulgoa Road, saying that at all material times, pursuant to s 7 of the Roads Act, Penrith Council was the owner and the roads authority for Mulgoa Road: D2 Defence at 2. Pursuant to the Schedule of Roads classified under the Roads Act, Mulgoa Road was a main road - known as MR155 - and administratively classified as a 'State Road': D2 Defence at 2.
TfNSW argues that it exercised road authority functions to the extent necessary for the functioning of Mulgoa road as a State Road pursuant to the Roads Act: D2 Defence at 2. Further it says it was permitted to carry out traffic control work on the road, on the basis that s 87 of the Roads Act provided the powers to "carry out traffic control work', and to carry out "traffic control work" includes activities in connection with the installation of traffic control facilities. It says that pursuant to s 45E of Part 6 of the Transport Administration Act 1988 (NSW) "traffic control work" is defined to include any "sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn advise or inform drivers of vehicles of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards": D2 Defence at 2. It should be noted that s 45E of Part 6 has been repealed as of 1 December 2019 and an identical definition now appears at Schedule 1 Part 2A of the Transport Administration Act 1988 (NSW).
To extent it exercised the functions of the roads authority, TfNSW argues that by virtue of s 65 of the Roads Act it is entitled to the immunities of a roads authority.

The law - Strike out

Penrith Council relies upon r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") which relevantly reads: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or … (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
Recently in Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq at [44] stated: "[44] The principles on a summary dismissal application are well known. There is a high threshold to be satisfied. The test generally applied on applications for summary disposal of part or all of proceedings is that set out in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128-9. It is necessary for there be a very clear case before proceedings will be summarily dismissed (General Steel at 129; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91). As Dixon J (as his Honour then was) noted in Dey at 91, "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process"."
UCPR 14.28 enunciates grounds, upon which a defective pleading may be struck out. Whereas UCPR 13.4 focuses on the weakness of a party's case rather than defects of pleading: see Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.
In Shaw v State of New South Wales [2012] NSWCA 102 at [129]-[133] Barrett JA held: "[129] The relevant paragraphs of the third further amended statement of claim were struck out under rule 14.28 of the Uniform Civil Procedure Rules… The power exercised by the court was one given to it by the rules, with the result that s 56(2) required the court, when exercising the power, to give effect to the "overriding purpose" stated in s 56(1): "The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings." … [133] Those directives may require and justify steps which, although not otherwise imperatively indicated, will contribute to the timely and efficient dispatch of the court's business: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175."

First defendant's submissions

In Penrith Council's submission, the central issue raised by its Notice of Motion is whether it should be called upon to meet the plaintiff's claim considering: 1. The content of D1 Defence in which Penrith Council denies responsibility for the road; 2. The content of D2 Defence in which TfNSW accepts responsibility for the road; and 3. Correspondence dated 13 October 2020 and 4 March 2021 from TfNSW addressed to the plaintiff (and cc'd to Penrith Council) further articulating the basis upon which it accepts responsibility for the road.

The content of D1 Defence to the ASC

Penrith Council submitted that it is evident that at the time of pleading the ASC the plaintiff was uncertain as to which defendant was responsible for the road upon which the plaintiff is said to have had the alleged accident.
In this regard Penrith Council noted that the plaintiff, in the ASC stated at [2]: "[2] At all material times the First and/ or Second Defendant was responsible for the care control and maintenance of Mulgoa Road, between the intersection located next to properties 1351 ana 1328 of Mulgoa Road and Rosecrea Drive in the State of New South Wales."
Penrith Council noted that in answer to this paragraph it pleaded at [3] of D1 Defence: "[3] In answer to paragraph 2 of the ASOC, the first defendant: a. says that as at 7 May 2017, Mulgoa Road was classified as a "main Road" falling within the definition of "classified road" under section 64(1) of the Roads Act 1993 (NSW),(the Act) placing it under the care and control of the Second Defendant, formerly the Roads and Traffic Authority NSW (RTA); b. denies it had the care, control and maintenance of Mulgoa Road, NSW, including that part of the road at the intersection between Mulgoa Road and Roscrea Drive; c. otherwise denies the paragraph."

The second defendant's correspondence to the plaintiff

Penrith Council noted that annexed to the Affidavit of Chris Wood filed 6 April 2021 ("Aff Chris Wood 6/4/21") is a letter dated 13 October 2020 ("the 13 October letter") addressed to the plaintiff's solicitors from Mr Greg Carruthers Smith, Partner, Wotton and Kearney, the solicitors for TfNSW (CB 66).
Penrith Council noted that the letter identified that TfNSW sent the letter: 1. mindful of its obligations as a model litigant; 2. that considering that obligation it amplified that it accepted responsibility for the design, construction, inspection and maintenance of Mulgoa Road, Penrith.
Penrith Council noted that the 13 October 2020 letter included the following representations: "[9] Since at least 1993, TfNSW (and its predecessors in title, RMS and RTA) has undertaken the asset management of the road carriageways for State roads, including Mulgoa road. RMS undertook the management of the road even though it was neither the owner nor the roads authority for the road. TfNSW has and continues to undertake those functions to the extent necessary for the functioning of the road as a State Road. [10] TfNSW manages Mulgoa road and accepts responsibility for all funding, priorities and outcomes for the road. [11] If a road is classified, as Mulgoa road is, then TfNSW may engage its powers pursuant to the Roads Act to perform the following functions: 11.1 construction; 11.2 inspections; 11.3 maintenance; 11.4 control of roadworks; 11.5 control of traffic control work; 11.6 regulating structures and activities; and 11.7 the carrying out of the works. … [14] We note the pleadings against both Defendants assert that they were negligent in, amongst other things: 14.1 constructing a left hand overtaking lane adjacent to the right hand bend; 14.2 failing to install a barrier marked with chevrons or similar signage; 14.3 failing to reduce the speed limit at the location; and 14.4 designing and constructing the roadway in a way which created the risk of harm. [15] The first 3 of those allegations appear to relate to traffic control facilities. Pursuant to section 87 of the Roads Act, only TfNSW had the power to carry out traffic control work. Further, in the period leading up to the accident, or least since 1993, the Council had no inspection, maintenance and/or design/construction responsibilities with respect to Mulgoa road within the relevant nominal work limits. Although it was technically the owner and the road authority (in name) it had no management role as TfNSW had elected to take on management responsibilities by engaging its powers and functions under the Roads Act. [16] There does not appear to be any cause of action linked to any inspection or maintenance responsibility pertaining to the area of the road reserve that is outside the nominal work limits. Accordingly, there does not appear to be any basis for the Council to be involved in these proceedings. [17] To the extent that we can clarify this issue any further, please contact us so that we may obtain further instructions from TfNSW.
Penrith Council further noted that annexed to Aff Chris Wood 6/4/21 is another letter dated 4 March 2021 (CB 92) ("the 4 March 2021 letter") and submitted that the effect of this second letter is to confirm that there can be no fact in issue in the proceedings as to the identity of the responsible roads authority, and therefore, the correct defendant to answer the plaintiff's claim. Penrith Council noted the following passage from the second letter: "[2] … Some of the propositions made in your 22 February letter ("this is a classic case where two Defendants are pointing the finger at each other") could not survive a proper reading of our 13 October letter ("there does not appear to be any basis for the Council to be involved in these proceedings"). We had invited you to contact us if you sought any further clarification on those matters, however we have not heard from you until your letter of 22 February 2021. [3] If there remains any ambiguity in the face of our client's Defence and our 13 October 2020 letter, we make the following points. 3.1 Our client has pleaded, and maintains, that the relevant road authority for Mulgoa Road was the first defendant, Penrith City Council. 3.2 However, our client has also pleaded that it exercised road authority functions with respect to the road1. Our client had the power to exercise the functions of a roads authority, even if not the road authority, pursuant to s 64(1) of the Act. We discuss the history of the arrangement between TfNSW and the councils, and how it works from an administrative perspective, in our letter dated 13 October 2020. 3.3 Your letter states that our client's Defence "is intended to contend that Mulgoa Road is a main road" within the meaning of s 46 of the Act. That is correct. And because the road was classified as a 'main road', it also falls within the definition of a 'classified road' under the Act. It is these classified roads that TfNSW had the right to exercise the functions of a road authority on, pursuant to s 64(1) of the Act. 3.4 Your letter states that s 71 of the Act confers power upon the roads authority (the Council) to carry out roadwork on the road. That is correct, but that must be read in connection with s 64(2) of the Act, which prevents the road authority (the Council) from exercising its functions in any way inconsistent with TfNSW exercising the functions of the road authority under s 64(1). In effect, by virtue of s 64 of the Act, only TfNSW (or its delegates) could have carried out roadwork on the road in the relevant period. 3.5 Pursuant to s 146(1)(a) and (d) of the Act, the Council is not liable simply because it was the owner in fee simple of the land. [4] Given all the above, we repeat what we said in our 13 October 2020 letter. It is difficult to see why the Council remains a Defendant in these proceedings. TfNSW accepts that it was and remains responsible for the management of Mulgoa Road (within the nominal work limits) and the Council had no role to play while TfNSW was exercising its statutory power."
Penrith Council submitted that therefore, the facts in issue are defined.
In Penrith Council's submission TfNSW's position appears tolerably clear and is plainly one that it could not resile from (even if it should ever want to) without dire consequence, noting that both Penrith Council and TfNSW are required to act as model litigants.
Further, Penrith Council submitted that the overriding purpose of the Civil Procedure Act 2005 (NSW) requires (at the very least) the striking out of the claim against it as pleaded in the ASC as it has the effect of hindering the efficient progress of the litigation.

The plaintiff's submissions

The plaintiff submitted that for the most part, the legal character of a public road is defined by the Roads Act.
The plaintiff noted that s 7 of the Roads Act reads: "The council of a local government area is the roads authority for all public roads within the area, other than - (a) any freeway or Crown road, and (b) any public road for which some other public authority is declared by the regulations to be the roads authority."
Penrith Council is therefore, in the plaintiff's submission, the road authority within the meaning of the Roads Act, for Mulgoa Road.
The plaintiff noted that s 64 of the Roads Act provides: "(1) TfNSW may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and, in the case of a classified road, whether or not that road is a public road. (1A)…. (2) The roads authority for a road with respect to which TfNSW is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by TfNSW"
The plaintiff submitted that TfNSW is empowered to exercise the functions of a road authority, but it does not become the roads authority under this provision.
The plaintiff submitted that the roads authority does not cease to be the roads authority for a road which is classified, but its role is circumscribed such that it cannot exercise its power as a roads authority in a manner which is inconsistent with the manner in which the function is being exercised by TfNSW. The plaintiff stated that the use of the present continuing tense in relation to TfNSW's exercise of powers is to be noted.
The plaintiff noted that s 71 of the Roads Act is in the following terms: "A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control."
In the plaintiff's submission, Penrith Council's application is premature. The plaintiff submitted that he is still in the process of identifying a primary fact, namely the date on which the offending "slip lane" was added, by whom and in what context. The plaintiff noted he has served an expert report and submitted a Draft Further Amended Statement of Claim for the consent of both defendants, which picks up the essence of the expert's opinion, to which Penrith Council has provided a non-committal response regarding consent.
The plaintiff submitted that given the evidence gathering process continues, including seeking from Penrith Council its file in relation to the subdivision which led to the creation of Roscrea Drive, the application should be dismissed on that basis alone.
The plaintiff noted that Penrith Council relies on an argument that the concessions made by TfNSW mean it can have no liability to the plaintiff, not because Penrith Council could not be liable in the way the case has been pleaded, but because TfNSW concedes certain matters. In the plaintiff's submission this renders the present motion an application for summary dismissal not an application to strike out pleadings. However, the plaintiff submitted that either way Penrith Council's approach does not allow for important qualifications in TfNSW's statement of its position which leave a clear, arguable pathway to Penrith Council's liability.

The Circumstances

In the plaintiff's submission the starting point of Penrith Council's application is the assertion that TfNSW "accepts responsibility for the road" contained in Penrith Council's submissions at 7.
The plaintiff submitted that this submission does not address the 3 facets of the plaintiff's case, namely: 1. the ongoing care control and maintenance of the road; 2. the fact both defendants remain empowered to perform work on the road; and 3. responsibility for construction of an additional lane, to the left of the main trafficable lane, which ended (without warning) in the middle of a right-hand bend: see ASC at [8], [10] and [16]. The construction of the road is alleged to have been undertaken negligently: ASC at 18 and (f). Further, the 2nd proposed further amended statement of claim adds an allegation that one or other defendant constructed the additional lane.
The plaintiff noted that Penrith Council denied the allegation of care, control and maintenance at [3] of D1 Defence, suggesting that at the date of accident the position with respect to the road was such as to place it under the care control and management of TfNSW.
In response the plaintiff submitted that axiomatically, the potential basis of liability is not confined to the day of accident: it is not, and could never have been understood to be, the plaintiff's case there was some dereliction of duty occurring specifically on the day of the accident. Rather, the day of the accident is merely the day on which the tort of negligence became complete when, as the result of a breach occurring earlier, the plaintiff suffered damage.
The plaintiff further noted that in response to [18] of the ASC, Penrith Council cited s 64(1) of the Roads Act and said the section establishes TfNSW was "empowered" to "override any rights powers (sic) the First Defendant may have had": D1 Defence at 19. The plaintiff submitted that this is not the effect of the section.
The plaintiff submitted that s 64 of the Roads Act envisages the road authority proper and TfNSW having concurrent powers. Penrith Council is only precluded from exercising its powers if (a) TfNSW has exercised its powers (more correctly, if those powers are being exercised), and (b) if the proposed manner of exercise by the council is inconsistent with TfNSW's exercise of its powers. The plaintiff submitted that this is the position adopted by TfNSW in it's the 4 March 2021 letter at [3.4].
In the plaintiff's submission, s 64 of the Roads Act is permissive not mandatory and this bears on the meaning and practical implications of the word "manner" and the use of the continuing present tense ("is being") in subsection (2).
The plaintiff noted that the foregoing means it does not follow from TfNSW's involvement in Mulgoa Road that Penrith Council had no power and/or no involvement. The asserted inability of the council to undertake activity on the road, in the plaintiff's submission, would depend on there being evidence as to what TfNSW did and whether the council activity in question was inconsistent with TfNSW's exercise of its powers. The plaintiff submitted that is obviously a factual question the answer to which depends on evidence, and which would and should be determined at a final hearing after all the evidence has been gathered.
The plaintiff submitted that it is therefore wrong to suggest Penrith Council was stripped of all power and capacity to do anything about Mulgoa Road. Whether it did anything and whether it should have done anything are matters to be determined on all the evidence once adduced at a final hearing.
The plaintiff then submitted that similarly, D1 Defence at 19 and (c) ignores the actual words of s 64 of the Roads Act and misstates the combined effect of ss 71 and 64 of the Roads Act.
The plaintiff submitted that s 71 of the Roads Act permits the road authority to carry out road works, and the effect of s 64 of the Roads Act is not to remove that power, but rather to prevent it from being exercised in a manner which is inconsistent with TfNSW's exercise of its powers under s 64 of the Roads Act. In the plaintiff's submission it follows Penrith Council could carry out road work provided it did so in a manner not inconsistent with TfNSW exercise of its powers. The plaintiff noted that this construction is supported by the 4 March 2021 letter at [3.4].
The plaintiff noted that TfNSW only accepts responsibility for "inspection, maintenance and/or design construction" since 1993: the 13 October 2020 letter at [15]. The plaintiff submitted that the current evidentiary position is that neither defendant knows when the additional lane was added and noted that its own investigations to determine that fact are continuing.
In the plaintiff's submission, in those circumstances it cannot be said Penrith Council is other than an entirely proper defendant because: 1. the concession by TfNSW as to care etc. dates only from 1993 and it is distinctly possible the lane was added prior to that time; 2. the lane may have been added as part of or in connection with development consent to the subdivision on Roscrea Drive; and 3. Differing considerations apply to Penrith Council and TfNSW: the latter may accept the road with the slip lane and do nothing about it, hiding behind s 45 of the Civil Liability Act 2002 (NSW) whereas if Penrith Council designed and/or built the road there is no question of a failure to carry out road work by it.
The plaintiff submitted that the 13 October 2020 letter does not do what 15 of Penrith Council's submissions contend. Rather in that letter TfNSW accepts responsibility for management of the road at [3] (apparently since 1993 at [9]) and funding, priorities and outcomes at [10]. It then says it may do certain things at [11], but not that is has done any or all of those things. At [15] it, again, limits its concession to "from 1993", in circumstances where neither defendant can say when the additional lane was constructed.
The plaintiff submitted that Penrith Council is the only road authority, and under none of the provisions discussed does TfNSW become the road authority. The plaintiff submitted that if what Penrith Council intended to submit is TfNSW accepted responsibility at the time of accident, the qualifications to that assertion have been identified: it only accepts any responsibility from 1993 and acknowledges as correct the view Penrith Council retained its power. There is no concession to the effect that when the additional lane was designed and installed TfNSW had any relevant power over the road.

Resolution

There are over 300 pages of material produced on Subpoena by Penrith Council. This material was exhibited as Ex 1D2. I was taken to numerous documents by the plaintiff's Counsel. It is only necessary to refer to a number of them that principally relate to the subdivision at Mulgoa and Mulgoa Road itself.
On 29 March 2001, in an exchange between the RTA and Penrith Council, the RTA proffers six comments for consideration by Penrith Council (Ex 1D2 p144): "Proposed Rural Torrens Title subdivision into 10 Lots off Mulgoa Road, Mulgoa I refer to your letter dated 15th February 2001 (Reference DA 00/5658) relating to the subject development application. The Roads and Traffic Authority (RTA) offers the following comments for consideration by Council: 1. The current proposed subdivision is not supported. 2. Only one access point is permitted on Mulgoa Road for the 'whole subdivision'. 3. Access to the 10 subdivision lots is to be from an internal road. 4. Intersection upgrade at the 'single' access point is required (road widening, right turn bay, deceleration lane, street lighting etc in accordance with Australian Standards). A detailed design plan for the access point, right turn bay, deceleration lane and associated works will need to be forwarded to the RTA for approval prior to the commencement of any roadworks. It may be noted that a plan checking fee (amount to be advised) and lodgement of a performance bond will be required prior to the release of the approved design plans by the RTA. The Authority will comment on the specific details of this intersection upgrade at the access point, when the detailed road design plans are resubmitted to the RTA. 5. Proposal to be in accordance with Council's Local Environmental Plan and Development Control Plan. 6. All roadworks, linemarking, signposting and associated works to be at no cost to the RTA."
In the margin, in red handwriting are comments made in relation to all of these 6 points. The writer did not agree with point 1. Points 2-6 were marked 'okay'. Next to point 4 was the notation "can be imposed on a condition".
On 14 May 2001, the RTA wrote to Penrith Council stating (Ex 1D2 101): "I refer to the applicant's letter dated 24th April 2001 (Reference DA 00/5658) relating to the subject development application. The Roads and Traffic Authority cannot support access off Mulgoa Road for the subject development on safety grounds. The Mulgoa Road frontage of the subject site is fronted on a bend in the road, therefore the site is not suitable for road widening or constructing an intersection, as there is inadequate sight distance available."
In a letter dated 29 August 2001, J. Wyndam Prince Pty Ltd wrote to Penrith Council as follows (Ex 1D2 73-4): "We act on behalf of Mulgoa Rural Lands Pty. Ltd. who have a Council DA for a 10 lot subdivision of No. 1348 Mulgoa Road currently awaiting approval from DUAP. Attached for your information are 2 copies of a concept drawing (Reg.No.6860/El) prepared by J.Wyndham Prince Pty.Ltd. and detailing proposed roadworks associated with the driveway access off Mulgoa Road into the subdivision. We understand a preliminary drawing was originally submitted and discussions have been undertaken with Council and the RTA regarding access configurations at the site. From these discussions we believe the RTA has agreed to an access at this location but in the form of a Austroads Type'C intersection. We believe there is considerable argument to adopt a modified intersection, based on the RTA's Road Design Guide, at this location. To assist your assessment of the concept drawing the following points should be noted:- 1. General Mulgoa Road is signposted at 60kph speed limit throughout the subject area. The road is generally level through the intersection. AADT figures are 6,500 (north of Mulgoa township) and are assumed as 67 for the 10 lot subdivision driveway access. The driveway has no through road access and will serve exclusively the subdivision. Currently the driveway already services 3 lots and a riding school. 2. Type 'C' Intersection - RTA preferred A Type 'C' intersection would force ail northbound through traffic to deviate clear of painted centre islands, wheras the proposal would allow vehicles to track generally along the existing road alignment except when required to pass a stopped vehicle. Adequate sight distance and taper lengths to the diverge would be difficult to achieve without considerable widening of the existing road at the southern end of the project A standard Type C would require a tapering and deceleration distance of 160 metres from the intersection. This we consider excessive for a driveway only access in a slow speed rural location. This proposal would require the relocation of an additional power pole and removal of several mature gum trees and shrubs. 3. Modified BAL/BAR Intersection (Concept Plan6860/El) Our design is based on Type BAR and BAL Intersection types from the RTA's Road Design Guide (Figures 4.8.23 and 4.8.35) and existing site conditions. It is similar to an existing equestrian entrance located on Mulgoa Road to the north of the Mulgoa township. Minimum sight distances are exceeded on all approaches. Through traffic would be retained on the existing alignment, with provision for passing any vehicles that stop to turn into the site. We proposed to relocate the existing power/light pole, as noted, outside the clear zone. This is subject to Integral consultation once a concept plan is approved. We would further propose to remove a number of shrubs located within the clear zone, subject to Council approval. Concept Plan Reg. No. 6860/El which proposes a modified BAL/BAR type intersection is recommended for consideration at this location."
A handwritten file note dated 10 September 2001 refers to an inspection of the site and records the issue with the RTA in relation to the traffic access to Mulgoa Road (Ex 1D2 72).
By letter dated 19 September 2001, Gordon Williams, for the Environmental Planning Manager wrote to J. Wyndham Prince Pty Ltd, Engineers (Ex 1D2 71): "I refer to your correspondence regarding a possible design for access of Mulgoa Road to the proposed subdivision of the above premises. The RTA originally objected to the subdivision having access off Mulgoa Road and requested that access be provided from Vincent Road. However, after considerable discussions agreed to access off Mulgoa Road subject to a Type "C" intersection. It would not be appropriate for Council to support an intersection to a lesser standard than required by the RTA."
The plans for the subdivision into 10 lots of Malgoa Road, Malgoa commenced in around 15 February 2002. Penrith Council draws a delineation its role, and TfNSW (the then RTA), on the basis that Penrith Council was responsible solely for the subdivision and TfNSW was responsible for the construction of Mulgoa road, a main road. However, this analysis is not a clear cut one. There were various conditions of consent in relation to the Development Applications. Under the heading 'Construction' it stated: "The access point on Mulgoa Road shall be constructed to the RTA's type "C" layout and detailed design plans will need to be forwarded to the RTA for approval. It should be noted that a plan checking fee together with a performance bond will be required prior to release of the approved road design plans by the RTA."
On 26 September 2002, Matthew Freeburn, registered surveyor, notifed Gordon Williams at Penrith Council that (Ex 1D2 498): "The Mulgoa Road roadworks will be completed in approximately two weeks." Already completed for development are the internal roads, the fencing of the allotments, the landscaping, and the fencing of the restricted areas with additional sign-posts, etc."
There is a memorandum by the traffic engineer, Stephen Barnes, to the Environmental Planner, Gordon Williams dated 6 November 2003. It identifies the subject as (Ex 1D2441): "Subject: Proposed Vehicular Access - Lot 1027 Mulgoa Road, Mulgoa I refer to the above application seeking Council approval to provide an additional vehicular access for heavy vehicles onto Mulgoa Road from Lot 1027, DP 1025084. … Given that the proposed access is located on a State Road under the care control and management of the Roads and Traffic Authority the matter should also be referred to the Authority for further approval."
It is my view that the plaintiff's allegations that Penrith Council had care control and maintenance of Mulgoa Road, Mulgoa particularly in relation to the design and construction of the roadway during the period 2001-2002 which created the risk of harm, is arguable and is properly pleaded. These allegations made in the ASC rely on the evidence I have set out above. Penrith Council knows the case it has to meet. It may be that TfNSW has accepted the responsibility from 1993 onwards and the accident occurred on 17 May 2017. However, the construction and design of Mulgoa Road which took place in 2002-2002 is alleged to have been overseen by Penrith Council. The result is that the first defendant's notice of motion filed 6 April 2021 is dismissed.

The Court orders: 1. The first defendant's notice of motion filed 6 April 2021 is dismissed. 2. Costs are reserved. 3. The proceedings listed before the Registrar for directions on 4 April 2022 at 9am.

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: 21 March 2022

Roads Act 1993(NSW)ss 7, 64, 65, 87

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