O'Connor v State of New South Wales & Anor

Supreme Court of NSW|2017-02-09|Before: Adams J, Mr P, Mr J

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Schubert v Lee (1946) 71 CLR 589; [1946] HCA 28 Whitehouse v Fellowes (1861) 10 CB (NS) 765 Winnote Pty Ltd v Page [2006] NSWCA 287 Category: Procedural and other rulings Parties: Timothy Stephen O'Connor (Plaintiff) State of New South Wales (First Defendant) Kimberley Arthur Williams (Second Defendant) Representation: Counsel: Mr P E King (Plaintiff) Mr J S Emmett (First Defendant)

Solicitors: Doyle Edwards Anderson Lawyers Pty Ltd (Plaintiff) Crown Solicitor's Office (First Defendant) File Number(s): 2015/311550

Background

Giano is a rural property north of Dubbo of approximately 1,447 acres. It comprises five parcels of Torrens title land situated to the north of Medway Road. The plaintiff's family has owned these properties since 1952. The plaintiff became part owner in 1991 and the sole owner in 2006 following the death of his father.
Giano is situated on Medway Road. Medway Road is a Crown road. It is 40 metres wide. It travels in an east-west direction and joins with Mogriguy Road on its eastern end and the Newell Highway on its western end. The approximate distance between Mogriguy Road to the east of Giano is three kilometres and the distance to the Newell Highway to the west of Giano is 5.5 kilometres. That portion of Medway Road from the Newell Highway on the west to the easternmost point of the southern boundary of the plaintiff's property is a council road, maintained by what is now referred to as the Dubbo Regional Council. It is only that portion of Medway Road that continues east from the plaintiff's property towards Mogriguy Road that is a Crown road and the subject of these proceedings.
On or about 1 May 1985, the then Minister for Natural Resources gave a permissive occupancy to the New South Wales Field and Game Association (Dubbo Branch) over the southern half of the easternmost part of Medway Road to operate as a shooting range. The area of the occupancy was a fenced area approximately 390 metres long and 20 metres wide. The remaining northern half of the road was retained for public access. The permissive occupancy left an area of Medway Road approximately 20 metres wide unaffected. In 2006, a public access gate was installed, which provided access from Medway Road to Mogriguy Road. It was not until that time that the plaintiff ever sought to access his property via Medway Road.
On or about 12 January 1993, Mr P J Montgomery on behalf of what was then the NSW Lands Department ("the Department") authorised a section of Medway Road to be used for the purposes of a waterway in connection with conservation works being carried out by the plaintiff's neighbour, Mr Williams. The decision is reflected in a letter to Mr Williams on 12 January 1993 in these terms: "Further to recent telephone discussions it is confirmed that this Office will allow the use of the road north of portion 25 Parish Goonoo for the purposes of waterway in connection with conservation works presently being carried out on your land. It is suggested that you allow a strip of land within portion 25 to regenerate naturally so that it might be possible to relocate the waterway should there be any future proposal to open (construct) the road. A diagram of the proposal, as I understand it, is enclosed."
The decision was made pursuant to s 34 of the Crown and Other Roads Act 1990 (NSW), which provides as follows: "Use of a Crown road 34 (1) A Crown road is open to the public as of right for the purpose of passing and re-passing, irrespective of whether it is formed or constructed as a road. (2) Subsection (1) is subject to the provisions of Parts 4 and 5 of this Act and section 72 of the Crown Lands Act 1989. (3) Until closed in accordance with section 45, a Crown road is not capable of being reserved, dedicated, sold, leased or otherwise disposed of under the provisions of the Crown Lands Acts. (4) However, the Minister may, in accordance with the Crown Lands Acts, grant easements, licences or permits over or in respect of a Crown road so long as they are not inconsistent with the public right conferred by subsection (1). (5) A Crown road is not a public road for the purposes of Part 9 of the Local Government Act 1919."
The waterway consent resulted in diversion of water from Mr Williams' land onto Medway Road. The practical effect of this waterway was that a series of five earthen contour banks were constructed across the Medway Road for a distance of approximately 800 metres. The photographs exhibited to the plaintiff's affidavit dated 24 May 2016 and the photographs and the videos referred to in the affidavit of Andrew Bell dated 29 June 2016 depict an unsealed (dirt) road in both dry and wet conditions. It can be observed that the road is lined by trees in most parts and that a number of contour banks of varying size run roughly horizontally across it. By the plaintiff's count there are five contour banks. The images also show that the dirt road is in varying states of repair throughout.
The plaintiff relied upon his affidavit sworn on 24 May 2016. He complains that the contour banks are large and cause an obstruction to vehicles to the point of making the road impassable at times. He also complains that the water that is diverted onto Medway Road causes the road to flood, which restricts and in some parts blocks access to his property from the eastern end of Medway Road. He complains that the diversion of water has caused erosion and degradation of Medway Road. The photographs tendered depicted the state of the road.
The plaintiff acknowledges that the permissive occupancy was terminated in 2009 and that the shooting club thus ceased to operate from Medway Road at that time. He accepts that there are no physical structures left from the shooting club, but claims that considerable amounts of spent bullet casings, lead shot and fragments of "clay targets" were left behind after the shooting club left that location, with damage to the soil, vegetation and surrounding area, including the water table, still evident and ongoing.
The plaintiff states that he has engaged in communication with the Land and Property Management Authority, Dubbo City Council and numerous other public servants and politicians over a number of years about the eastern portion of Medway Road. He states that they have refused to remove the contour banks.
The plaintiff's affidavit does not contain any allegation of any contamination of his land. Rather, his complaints focus on the lack of proper access to his property.

Procedural history

These proceedings were commenced on 23 October 2015 by way of summons filed in the Equity Division. Judicial review was sought of both the decision to grant the permissive occupancy in 1985 and the decision to grant the waterway consent in 1993.
On 18 January 2016, the plaintiff filed an amended summons and points of claim in the Common Law Division. On 18 March 2015, the State filed a notice of motion seeking that the amended summons and points of claim be struck out pursuant to r 14.28(1) of the UCPR. The parties subsequently exchanged written submissions.
On 24 May 2016, the plaintiff filed a notice of motion seeking an order, pursuant to r 59.10 of the UCPR, for an extension of time in which to commence proceedings for judicial review.
On 13 September 2016, the matter came before Harrison AsJ. Her Honour made a number of orders by consent at that time. The points of claim filed 18 January 2016 were struck out with a costs order made against the plaintiff. The plaintiff was ordered to serve a further amended summons ("FAS") and amended points of claim ("APoC") on the State in draft form by 7 October 2016. The State was to notify the plaintiff whether it consented to or opposed the draft FAS and APoC by 14 October 2017. It was ordered that such drafts were to exclude the application for judicial review with respect to the permissive occupancy.
On 7 October 2016, the plaintiff served a draft FAS and APoC on the State. They included an application for judicial review of the decision to grant the permissive occupancy.
On 12 October 2016, the State wrote to the plaintiff's solicitor, indicating that it did not consent to the FAS and APoC and seeking further and better particulars. That letter raised a number of issues, including, among other things, that there were deficiencies in the pleadings in relation to denial of procedural fairness and jurisdictional error, that there was no basis for maintaining a claim of public nuisance, and that there was no basis identified for a duty of care at common law. The letter noted that the drafts did not exclude the application for judicial review with respect to the permissive occupancy.
On 25 October 2016, the Registrar made orders requiring the plaintiff to respond to the letter of 25 October 2016 no later than 2 November 2016 and to file any application to file an amended summons and APoC and any application for an extension of time pursuant to r 59.10(2) of the UCPR, by 9 November 2016. The Registrar also listed the matter for hearing on 9 February 2017.
On 3 November 2016, the State wrote to the plaintiff's solicitor requesting a reply to its letter of 12 October 2016. On 16 November 2016, the State indicated to the plaintiff's solicitor that he had not complied with the orders of the Registrar made on 25 October 2016.
On 23 November 2016, the plaintiff's solicitor responded to some of the issues raised in the State's letter of 12 October 2016. He indicated that no changes would be made to the proposed FAS and APoC. On 25 November 2016, the State sent a further letter identifying the issues that had not been addressed.
On 28 November 2016, the plaintiff filed and served the present notice of motion, as well as a FAS and APoC ("the first APoC") in the same terms as those served on 7 October 2016.
On 15 December 2016, the State wrote to the plaintiff's solicitor indicating that if, following the hearing on 9 February 2017, the plaintiff were not granted leave to file a FAS and APoC, the State would seek that the amended summons filed 18 January 2016 be "struck out" pursuant to r 13.4 of the UCPR. (I will return to the question of that application later in these reasons.)
On 23 January 2017, the plaintiff served written submissions on the State and provided a further draft of the APoC ("the second ApoC"). The second APoC omitted reference to jurisdictional error in relation to the permissive occupancy, but contained allegations that had not previously been raised, including allegations of lead or lead-oxide water and air pollution. On 2 February 2017, the State wrote to the plaintiff's solicitor seeking copies of documents to which the second APoC referred. The plaintiff's solicitor provided some of those documents on 3 February 2017.

The plaintiff's actions

The plaintiff seeks judicial review of decisions made by delegates of the Minister and also brings actions in negligence and nuisance in a single initiating process. Proceedings for judicial review are to be commenced by way of summons (r 59.3(1) of the UCPR), whereas proceedings in negligence are to be commenced by way of statement of claim (r 6.3(b) of the UCPR). There are further procedural difficulties with the way the proceedings have been brought. Section 5(1) of the Crown Proceedings Act 1988 (NSW) provides that the proper defendant in civil proceedings brought against the Crown is "The State of New South Wales". Proceedings for judicial review require both the decision-maker and anyone directly affected by the decision to be joined. It is on this basis that Mr Williams has been joined as the second defendant. Despite a number of requests to do so, the plaintiff has still not joined the Minister as a party with respect to the proceedings for judicial review.
The plaintiff initially sought leave to file the FAS and the first APoC in the form attached to the amended notice of motion that was filed in court at the hearing of the motion. The relevant portions of the first APoC are extracted below at [34] and [38]. The second APoC was attached to the plaintiff's written submissions dated 23 January 2017, the relevant parts of which are extracted below at [36] - [37] and [40]. Although that document was prepared later in time, it was not annexed to the amended notice of motion upon which the plaintiff moved before me. There were thus two APoC documents before the court in different terms that the plaintiff sought leave to file.
The second APoC includes three sets of allegations: 1. that the decision to grant the waterway consent was affected by jurisdictional error on a number of bases; 2. that the State breached its duty of care to the plaintiff in granting both the permissive occupancy and the waterway consent and that the plaintiff has suffered loss and damage as a result of that breach; and 3. that the conduct of the State in relation to the grant of both the permissive occupancy and the waterway consent has caused a nuisance.

The further amended summons

The proposed further amended summons sets out the relief claimed as follows: "1. A declaration that the consent for use of Medway Road as a waterway granted on 12 January 1993 and/or such decision or other decisions of the First Defendant having the effect of obstructing or otherwise adversely affecting the use by the public and the Plaintiff of or impeding the eastern end of Medway Road, Dubbo, is invalid. 2. Orders in the nature of a writ of certiorari and/or prohibition with respect to the decision[s] to grant consent to obstruct Medway Road referred to in paragraph 1 herein being an error of jurisdiction on the fact of the public record. 3. An order that the Defendant, in accordance with section 147(2) of the Roads Act 1989 (NSW), grant an easement, permit, license or consent with respect to Medway Road, Dubbo so as to grant reasonable access to the Plaintiff in relation to his property "Giano". 4. An order restraining the Defendant, by its servants, agents or other representatives, from obstructing vehicular and other access of the Plaintiff over the eastern end of Medway Road, Dubbo. 5. DELETED. 6. An order restraining the Defendants, by its or their servants, agents and other representatives, from preventing reasonable access of the Plaintiff over the eastern end of Medway Road, Dubbo. 7. An order that the Defendants, by its or their servants, agents and other representatives take all reasonable steps to restore vehicular and other access to the Plaintiff to Giano from the eastern end of Medway Road, Dubbo. 8. The particulars referred to in UCPR Rule 59.4(b) and (c) with respect to the decisions referred to paragraphs 1 and 2 herein are set forth in the Points of Claim as directed by the Court on 13.09.2016. 8A. An order to the extent necessary extending the time for the Plaintiff to see the orders in paragraph 2 to the date of filing of the proceedings herein, or as the Court shall direct. 9. Damages. 10. Interest. 11. Costs."

The proceedings for judicial review

There are only minor differences between the first and second APoC in relation to the proceedings for judicial review. I will thus only set out paragraph [19] of the second APoC as follows: "[19] The Defendant's decision to grant the Waterway Consent, including the renewal of Enclosure Permit No 138351 with respect to the Contour Banks and Water Diversion on or about 5 August 2008: (a) resulted in a denial of fairness to the Plaintiff by reason of the Defendant's failure to give the Plaintiff notice of the proposed Waterway Consent and/or to allow the Plaintiff to lodge submissions about the proposed Waterway Consent prior to the decision to grant the Waterway Consent being made; (b) the decision was based on an error of fact in that the Defendant stated that Medway Road was "not open" when, in fact, it was; (c) failed to have any or proper regard to the Crown Lands Act 1989 and/or Roads Act 1993 and/or the Crown Lands and Other Roads Act 1990; (d) failed to have any or proper regard for the interests and rights of the public and the plaintiff in relation to Medway Road and access to Giano."

The proceedings for negligence

The claim in negligence is pleaded at [24] - [27] of the first APoC as follows: "Duty of Care & Breach [24] The Defendants and each of them knew or ought to have known that Medway Road provided the Plaintiff with his only legal means of access to Giano. [25] The Defendants and each of them owed a duty of care to the Plaintiff to ensure that, at all relevant times, Medway Road provided the Plaintiff with reasonable access to Giano and to protect the interests of the Plaintiff in respect of Medway Road. [26] The Defendants have each breached their duty of care to the Plaintiff. Particulars a) The Defendants failed to have any or proper regard to the interests of the Plaintiff when making decisions in respect of the Permissive Occupancy and the Waterway Consent; b) The Defendants failed and/or refused to review its files in relation to Medway Road and the Permissive Occupancy and/or Waterway Consent when requested by the Plaintiff to do so; c) The Defendants have failed and/or refused to remove the obstructions caused by the Permissive Occupancy and Waterway Consent; d) The Defendants have failed to ensure that Medway Road provides the Plaintiff with reasonable access to Giano. Loss & Damage [27] As a result of the negligence of the Defendants, by its or their servants and/or agents, the Plaintiff has suffered loss and damage. Particulars The Plaintiff repeats the particulars of loss pleaded at paragraph 23"
(The particulars of loss pleaded in paragraph 23 of the first APoC are extracted below at [37].)
The claim in negligence is pleaded at [12], [14] and [17] of the second APoC as follows: "[12] The Permissive Occupancy restricted the Plaintiff's access to Giano via the eastern end of Medway Road and has prevented and continues to prevent reasonable use of Medway Road by the Plaintiff to Giano and has impeded his reasonable access to his land. Particulars a) Fencing was installed around the perimeter of the Permissive Occupancy (an area of 7,800 square metres) preventing access to an area approximately 20 metres across the width of Medway Road and for a length of approximately 390 metres. b) Structures were built including toilet blocks, club shed, kiosk, traps and shooting stations within the Permissive Occupancy area c) Extensive overgrowth of trees and vegetation on the remaining portion of Medway Road heavily restricted vehicle access past the Permissive Occupancy area. d) The use of Permissive Occupancy area occurred as a live fire shooting range [sic]. … [14] The use of the Permissive Occupancy area as a shotgun shooting range occurred with the knowledge and consent of the First Defendant, its servants or agents and has left the site (and the land to the south of the Permissive Occupancy Area) contaminated with lead and lead oxides. Particulars e) The spent lead shot, casings and clay targets used during the course of 24 years has [sic] accumulated on Medway Road and the privately owned land to the south of Medway Road causing contamination ["the pollution"] f) The contamination of the soil and grass from lead fragments has included the risk of contamination of Giano from airborne dust and lead oxide. g) The contamination of the soil has led to contamination of the water table. h) The contamination has adversely affected once pristine soil and pasture and has affected the values of properties adjacent to Lot 751 including Giano. … [17] The Contour Banks and Water Diversion restrict the Plaintiff's access to Giano by the eastern end of Medway Road. Particulars a) The Contour Banks are large and present a complete or partial obstruction to vehicles using the track along Medway Road. b) The Contour Banks divert and direct the flow of water during and after rain on to and across Medway Road which leads to flooding, ponding and damage to the track caused by erosion. c) The extensive overgrowth of trees and vegetation off the track prevent the use of the remaining portion of Medway Road. d) The Water division [sic] prevented the use of Medway Road and impedes access to for [sic] the Plaintiff and had caused erosion which requires the Plaintiff to undertake temporary repairs of the Medway Road surface from time to time with consequential expense and loss of time."
After pleading jurisdictional error in respect of the waterway consent at [19], the second APoC continues in these terms at [20] - [23]: "[20] The First Defendant knew or ought to have known that Medway Road provided the Plaintiff with his only legal means of access to Giano. [21] The First Defendant owed a duty of care to the Plaintiff to ensure that, at all relevant times, Medway Road provided the Plaintiff with reasonable access to Giano and to protect the interests of the Plaintiff in respect of Medway Road. [22] The First Defendant by its servants or agents breached its duty of care to the Plaintiff in wrongfully causing difficulties of access for the Plaintiff to Giano, and airborne pollution to Giano and pollution of the water table under Giano. Particulars a) The First Defendant failed to have any or proper regard to the interests of the Plaintiff when making decisions in respect of the Permissive Occupancy and the Waterway Consent and in continuing the said adverse uses of Medway Road causing disturbance, loss and damage to the Plaintiff. b) The First Defendant failed and/or refused to review its file in relation to Medway Road and the Permissive Occupancy and/or Waterway Consent when requested by the Plaintiff to do so or to conduct any reasonable investigation into the said adverse use of Medway Road causing disturbance, loss and damage to the Plaintiff. c) The First Defendant has unreasonably failed and/or refused to remove the obstructions and disturbances caused by the Permissive Occupancy and Waterway Consent; d) The First Defendant has unreasonably failed to ensure that Medway Road provides the Plaintiff with reasonable access to Giano and use of Giano undisturbed by the pollution complained of, the Contour banks and the Water Diversion. [23] As a result of the breaches of duty of the First Defendant, its servants or agents the Plaintiff has suffered loss and damage. Particulars a) loss of value in land at Giano; b) costs of undertaking works to remove obstructions and contamination of Medway Road c) loss of income from employment in the mining industry d) loss of business income and production associated with operating Giano as a cattle feed lot e) emotional stress f) costs of investigating the facts and circumstances associated with pollution, Contour Banks and Water Diversion g) costs of obtaining legal and expert advice."

The proceedings for nuisance

The first APoC pleads nuisance at [20] - [23] as follows: "[20] Further and in the alternative, by the conduct alleged in paragraphs 11 - 19 inclusive, the Defendants, by their servants and/or agents, has each caused or permitted obstruction of the public right of way over Medway Road and unreasonably restricted the Plaintiff's right of access to his own land thereby creating a public nuisance, which has caused damage to the Plaintiff of greater severity and extent than other members of the public. [21] The Defendants, by their servants and/or agents, having control of Medway Road, has each caused or permitted undue disturbance to the Plaintiff's use and enjoyment of his land and/or adversely affected the value of his land, and his right of access to his land along Medway Road. [22] Unless the orders sought herein are obtained the Defendants, by their servants and/or agents, will continue the said nuisance and cause further loss and damage to the Plaintiff. [23] As a result of the said nuisance, the Plaintiff has suffered loss and damage."
The same particulars of loss extracted at [37] above are then pleaded.
The second APoC pleads nuisance at [24] - [27] as follows: "[24] Further and in the alternative, in the premises and on the facts pleaded in paragraphs 14, 16 and 17 the First Defendant, in granting the Permissive Occupancy and the Waterway Consent, and in permitting or allowing the pollution of Medway Road and its environs including the water table, the Contour Banks and the Water Diversion created and maintained a nuisance in respect of Medway Road to the land of the Plaintiff at Giano. [25] The said conduct of the First Defendant in its servants or agents on and in relation to its land at Medway Road thereby has caused a nuisance at law. The Plaintiff will rely on the Land Board hearing report of 23.10.2007 as to the Contour Banks. [26] The adverse effects of the nuisance have been such that the Plaintiff has been unable to use his primary and preferred access to Giano, and has threatened the biosecurity of the groundwater and of local pastures, and has adversely affected the property value of Giano as to which the Plaintiff will rely on the report of Ruralco Property - Davidson Cameron Real Estate [Mr P Dwyer] dated 2.9.2014. [27] As a result that Plaintiff has lost his employment in the mining industry which he had undertaken for 20 years, had had his peace of mind disturbed, is unable to sleep except fitfully and until the matter is resolved the effect continues upon him and his land."

The notice of motion

I propose to address the matters raised in this motion in three parts.
First, I will consider whether leave ought to be granted under r 59.10(2) of the UCPR for the plaintiff to bring proceedings nearly 23 years out of time. The State opposes such leave being granted for a number of reasons, including the prejudice caused to it by the significant delay.
Second, I will consider whether the plaintiff ought to be granted leave to file the FAS and APoC. The State opposes leave on the basis that both documents remain embarrassing, unclear and insufficiently particularised. The State seeks that the amended summons be struck out.
Third, I will consider the question of the appropriate orders regarding the future conduct of this matter.

Leave to commence proceedings for judicial review out of time

Submissions on behalf of the plaintiff

The focus of Mr King's submissions as to why the plaintiff should be granted an extension of time to bring proceedings for judicial review was on the merits of the case.
In his written submissions, Mr King contended that the Minister's decision to grant the waterway consent over Medway Road to Mr Williams in 1993 was outside jurisdiction. Mr King submitted that the source of the requirements of natural justice is the common law and that, where a statute fails to afford procedural fairness, the common law will supply the omission. He cited the decision of Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at 658 [66] in support of that proposition. He submitted that the waterway consent conflicts with the plaintiff's right to access his property via Medway Road. He further submitted that the decision-maker exceeded his powers.
Mr King did not accept that the terms of s 34 of the Crown and Other Roads Act mean that the right of reasonable access is protected by the legislation. He relied upon the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 in support of the submission that the decision-maker failed to have regard to a relevant consideration, namely the requirement that the road be "open". He submitted that the authorisation of the waterway consent in the letter dated 12 January 1993 was the authorisation of an obstruction and hence that it breached s 34(4) of the Crown and Other Roads Act.
Mr King relied on the meaning of the word "open" and argued that, from the date that the decision was made to allow Medway Road to be used for purposes other than a highway (namely, for the purposes of a waterway), it was no longer a Crown road that was open to the public as of right and that the waterway both impeded and prevented the plaintiff's right of unobstructed passing and re-passing.
The waterway consent given to Mr Williams in connection with the carrying out of conservation works on his land in order to prevent erosion resulted in erosion on a public highway by way of "erosion transference". As such, the decision to allow the erection of contour banks and the flooding and erosion of public land in order to permit private land to benefit from conservation works was impermissible.
Mr King further submitted that the plaintiff was denied procedural fairness, given that his property fronts Medway Road. The fact that the plaintiff was not using the road is irrelevant, given that his complaint is based upon the obstruction of the road and not his usage of the road.
Mr King relied on the headnote in Schubert v Lee (1946) 71 CLR 589; [1946] HCA 28 in that respect: "In order to establish that a highway has been obstructed it is not necessary to prove that any person has actually been impeded"
In his written submissions, Mr King denied that there was any requirement to join the decision-maker in circumstances where the State does not dispute that it is responsible for the acts and omissions of the Minister. During the hearing of the motion, Mr King conceded that the Minister could be joined if required.
As for the question of delay, it was submitted that the plaintiff only became aware of the basis for the decision and the way in which it operated in September 2012 through an application under the Government Information (Public Access) Act 2009 (NSW).

Submissions on behalf of the State

Mr Emmett noted that the State's file in relation to the decision to grant the waterway consent in 1993 has been destroyed. As such, there is no way of knowing whether there was in fact a failure to give the owner of Giano notice of the proposed waterway. In any event, it was submitted that as a matter of law there is no requirement to accord procedural fairness before making such a decision.
It was noted that the requirements of procedural fairness are determined by reference to the statute granting the power being exercised. Mr Emmett relied upon the terms of s 34(4) of the Crown and Other Roads Act. It was submitted that the statutory proviso in s 34(4) means that any persons wishing to use the Crown road would not need notice of the application because the legislation protects their right of reasonable access.
Mr Emmett further relied upon the fact that the waterway consent was granted in 1993, at a time when the plaintiff was not using the eastern end of Medway Road. The plaintiff has conceded that he only started using that part of Medway Road in 2006 when the public access gate was erected. It was submitted that it could not be a denial of procedural fairness to fail to notify a person who was not using that portion of the Crown road at the relevant time and thus was not affected by the decision.
Mr Emmett then addressed the question of whether there was an asserted error of fact. His primary submission was that the material does not establish such an error, but that, even if it did, an error of fact is not a sufficient basis for establishing jurisdictional error. He submitted that reliance upon the words "should there be any future proposal to open (construct) the road" ignores the word in parentheses. It was submitted that what Mr Montgomery was talking about was the possibility of the actual construction of a road in the future. In this way, there is nothing to suggest that he was of the mistaken view that there was no road "open" at that time.
In addition to relying upon there being no prospects of success, Mr Emmett relied upon the significant delay since the grant of the waterway consent. He submitted that this would provide a compelling discretionary reason to refuse the relief sought. It was noted that both Mr Montgomery and Mr Frapple have been retired for 18 years and 15 years respectively.
Mr Emmett noted that the plaintiff was informed by the Crown Solicitor's Office as early as 29 March 2016 that he needs to add the Minister for Lands and Forestry (formally the Minister of Lands and Water) as the person or body responsible for the impugned decision: r 59.3(4) of the UCPR. This has still not been done.

Consideration in respect of extension of time

It is to be accepted that in judicial review proceedings the question of whether an extension of time should be granted to bring proceedings is usually heard at the same time as the final hearing. Despite this, there are matters in which it is consistent with the case management principles in ss 56 - 58 of the Civil Procedure Act 2005 (NSW) ("CPA") that the question of whether an extension of time should be granted be considered prior to the final hearing.
In this matter, the plaintiff sought an order by way of notice of motion that an extension of time be granted to bring the proceedings by way of judicial review. Despite this, at the hearing of the motion before me Mr King sought to defer the question of an extension of time until a later date. Mr Emmett submitted that the question of leave was before me and should be considered at this stage of the proceedings. As I informed the parties at the hearing, I am satisfied that this is an appropriate case in which to consider the question of an extension of time for commencing the proceedings for judicial review prior to the final hearing.
Part 59 of the UCPR contains rules about judicial review proceedings. It came into effect on 15 March 2013. Rule 59.10(1) of the UCPR provides that proceedings for judicial review must be commenced within three months of the date of the decision. Rule 59.10(2) provides that the Court may "at any time" extend that time. Rule 59.10(5) provides that the time limit does not apply to any proceedings in which the setting aside of a decision is not required. Although Mr King relied upon this provision in passing, he accepted that it pertains to proceedings in which declaratory relief alone is sought. Even if this application did not seek a quashing of the relevant decision (as it does), as Beazley P and Leeming JA observed in Buttrose v Attorney General [2015] NSWCA 221 at [13], there is doubt as to whether the general provisions in Part 59 of the UCPR do not apply merely because the relief sought is declaratory.
Rule 59.10(3) is in these terms: "(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest."
In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J observed the following at [7]: "A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about."
In Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed), observed of r 59.10 at [65]: "UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55])."
The question of whether an extension of time should be granted is not to be confined either to the significance of the delay or the question of whether the plaintiff has a fairly arguable case. Each application turns on its particular facts. In some cases, an extension might be refused even though the delay is not significant on the basis that there is no fairly arguable case in any event. In other cases, an extension might be granted where there is significant delay but where the error is easily identified. The question of potential prejudice to a party caused by the delay is a significant consideration in all matters.
I am satisfied that none of the factors enumerated in r 59.10(3) weigh in favour of an extension of time being granted.
Although the plaintiff has a limited interest in the waterway consent, I am not satisfied on the material before me that the part of Medway Road affected by the waterway consent is inaccessible to him by vehicle. In this way, although the photographs before me show that the relevant part of Medway Road has earthen mounds on it, which make it more difficult to pass, I am satisfied that it is not "obstructed" in the way for which the plaintiff contends. Although it is not my role at this interlocutory stage to make findings of fact, it is nonetheless necessary for me to have regard to whether the plaintiff has a fairly arguable case for the purposes of this application for an extension of time. It is to be noted that the plaintiff has admitted the authenticity of the photographs in a notice to admit facts that was before me on this application.
As for r 59.10(3)(b), I am satisfied that significant prejudice flows to the State from the delay in commencing these proceedings.
I have had regard to the affidavit of Andrew Bell sworn 29 March 2016. Mr Bell is employed by the Department of Primary Industries in Dubbo. He is the Director of Regional Operations West and Western Lands Commissioner. The letter from Mr Montgomery to Mr Williams extracted above at [10] is annexed to the affidavit. It had a yellow "Post It" note on it that forms part of the copied document. The note is in these terms: "File Destroyed recorded in system on 20.12.94". The relevant file was thus destroyed over 22 years ago.
Mr Bell deposes that Mr Montgomery retired in 1998 and that no employment records are kept for him. Mr Montgomery signed the decision on behalf of Kevin Frappell, who was the Regional Director of the Department of Conservation and Land Management in 1993. Mr Bell recalls that he was working for the Department when Mr Frappell retired at least 15 years ago. No employment records are kept for Mr Frappell either.
Mr Bell has made inquiries both with the Department's document management system and with the NSW Soil Conservation Service seeking any file in relation to the waterway consent, but the inquiries have confirmed that no such file exists.
Correspondence annexed to Mr Bell's affidavit records that, in 2006 (at which time the plaintiff first began using Medway Road), the plaintiff complained about the waterway to the Department, claiming that it was "illegal". It is to be noted that it was also in 2006 that the plaintiff became the sole registered proprietor of the property upon the death of his father. In a letter dated 20 October 2006 to the Hon Tony Kelly, he claims to have complained about the obstructions to the Dubbo Lands office four years earlier (that is, in 2002).
The evidence before me on this application establishes that, since the relevant decision was made in 1993, the persons connected with it have retired and the file in question has been destroyed. The prejudice caused to the State by the delay in bringing these proceedings is significant. In circumstances where the file has been destroyed, it cannot even be ascertained whether a letter was sent to the owner of Giano in 1993 that was overlooked.
As for r 59.10(3)(d), I am unable to glean any public interest in the plaintiff's being able to pursue this application. It is not suggested that there is a threat to the safety of any person; again, without finally determining this issue, it seems that it is less convenient for the plaintiff to drive along Medway Road because of the contours on it. The State relied upon evidence that the entire length of the road is passable. The plaintiff does not allege that there is any particular risk that has materialised and caused him harm.
In addition to the above matters, it seems to me that, as McColl JA identified in Dyason v Butterworth, the three relevant factors to which it is necessary to have regard are the length of the delay, the reasons for the delay and whether the plaintiff has a "fairly arguable case".
The delay in this matter is significant. The decision was made on 12 January 1993 and these proceedings were commenced on 23 October 2015, nearly 23 years later. The length of the delay on its own is not decisive, but the more significant the length of the delay the more reluctant a court will be to grant an extension of time, unless a clear case of error is established.
As for the reason for the delay (r 59.10(3) (c)), the plaintiff's assertion that he was not aware of the decision until 2012 is hard to accept. In the correspondence attached to Mr Bell's affidavit, he started complaining of it in 2006 and claims to have complained about in 2002.
I am willing to accept, on the material before me, that the plaintiff may not have been aware of the decision until he started using the road in 2006 because he was not affected by the decision until that time. On the evidence before me, the plaintiff admits that he did not use that road until 2006, when a gate was built that provided him access to it. From the time that the decision was made in 1993 up until the plaintiff started using the road in 2006, there was no reason for the plaintiff to know about the condition of the road because he never used it. That fact is also relevant to consideration of the last relevant matter to which I must have regard: does the plaintiff have a "fairly arguable case" for judicial review in this matter?
Four errors amounting to jurisdictional error are identified in the APoC. They are that there was a denial of procedural fairness, that there was an error of fact (that the road was not open in 1993), that there was a failure to have regard to the terms of the relevant legislation, and that there was a failure to have regard to the "interests and rights of the public and the Plaintiff in relation to Medway Road and access to Giano". I shall consider each of these four grounds in turn.

Denial of procedural fairness

A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170]. At common law, procedural fairness is implied as a condition of the exercise of a statutory power. That is, as a matter of statutory construction, any statute conferring a power that can affect the interests of an individual is to be construed, unless a contrary intention is clearly indicated, as conferring that power conditionally in that it must be exercised in a manner that affords procedural fairness to that individual: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [75].
The relevant statutory provision is s 34(4) of the Crown and Other Roads Act, which provides that the Minister may "in accordance with the Crown Lands Acts, grant easements, licences or permits over or in respect of a Crown road so long as they are not inconsistent with the public right conferred by subsection (1)." Sub-section (1) provides that a Crown road is "open to the public as of right for the purpose of passing and re-passing, irrespective of whether it is formed or constructed as a road."
In order for the plaintiff's allegation of a denial of procedural fairness to be arguable, he would have to establish that the decision affected his interest and also that the statutory language was such that there was no contrary intention but that he was entitled to be heard on the decision that would adversely affect his interest. I am not satisfied that either of these two matters can be made out.
First, the only interest that the plaintiff had at that time was the right to pass and re-pass on the road. This is a right that any person who would pass and re-pass on that road would have. The conferral of power to grant an easement, licence or permit over the road is subject to ensuring that any right on the part of a member of the public to pass and re-pass is not adversely affected. In this way, I am satisfied that, as a matter of statutory construction, there was no requirement that any person who might pass and re-pass on Medway Road had to be given notice of the waterway consent. There was no need for this to occur because their rights were already protected by the terms of s 34(4) of the Crown and Other Roads Act.
Even if this were not the case, any requirement to notify a person whose rights might be affected by the decision could only extend to any person who used that road in 1993. On the plaintiff's own admission, he did not use that road at all from 1993 until 2006, 13 years later after the decision to grant the waterway consent was made.
I am not satisfied that the plaintiff has a fairly arguable case that jurisdictional error has been established by reason of the fact that he was not notified of the decision to grant his neighbour a waterway consent in 1993.

Alleged error of fact

The error of fact alleged on behalf of the plaintiff was that the decision-maker was under the misapprehension that the road was not open as at 1993. I am not satisfied that that is the case. The relevant decision is extracted at [10] above. The words upon which the plaintiff relies are the reference to the possibility of relocating the waterway "should there be any future proposal to open (construct) the road". It is the plaintiff's case that the use of the word "open" in that sentence discloses a mistake of fact on the part of Mr Montgomery to the effect that the road was not already open, when it was in fact open. The difficulty with this argument is that it completely ignores the words in parentheses. When the word "open" is read in conjunction with the word "(construct)", it is clear that the use of the word "open" means actually to construct a road, as opposed to the continuing in its present form as a dirt road.
Even if I were satisfied that there was an error of fact as disclosed, mere error of fact will not ground judicial review unless it relates to a jurisdictional fact or a manifestation of some error of law. I am satisfied, as was submitted on behalf of the State, that the question of whether the road was open or closed at the relevant time cannot be described as a jurisdictional fact in order to disclose any error of law. It was entirely a matter for the discretion of the Minister's delegate under s 34(4) to consider the state of the road and form a view about whether and to what extent this should bear upon the decision to grant the waterway consent.
I am not satisfied that the plaintiff has a fairly arguable case regarding any error of fact.

Failure to have regard to the legislation

The APoC describes this ground as failing to "have any or proper regard to the Crown Lands Act 1989 and/or Roads Act 1993 and/or Crown Lands and Another Roads Act 1990."
Mr King's submission was that it amounts to error to fail to have regard to the fact that the result of the decision was that the road was unpassable. There is nothing on the face of the decision that would form any basis for inferring that there was such a failure
It was asserted that jurisdictional error was established because the decision prevented the right of the public to pass and re-pass. The road was no longer "open" once the waterway consent was granted. I do not accept Mr King's submission that, if the road is more difficult to pass, that means that it is not "open". In support of his submission that making the road more difficult to travel on is sufficient, he relied upon the decisions in Johnson v Kent (1975) 132 CLR 164; [1975] HCA 4 and Schubert v Lee. I did not find either of those cases to be of assistance. Mr King was unable to cite any authority for the proposition that, for the purposes of construing s 34(4) of the Crown and Other Roads Act, a person is unable to "pass and re-pass" a road if it is more difficult to pass.
I do not accept that a decision that would create any "obstruction" at all is beyond the power of the Minister under s 34(4) of the Crown and Other Roads Act. The relevant question under s 34(4) is whether members of the public are able to "pass and re-pass". Although it appears that the contour banks may make passage more difficult, they do not prevent passage. The footage shows that the road is passable.
The plaintiff's complaint is that the road is not in good condition and that it is difficult to pass when it rains. It seems to me that I am permitted to have regard to the fact that there would be Crown roads all over the state of New South Wales, and in fact Australia, which are unsealed and therefore difficult to cross in wet weather. I am not satisfied that a decision to allow contours on a road is necessarily inconsistent with s 34(4) of the Crown and Other Roads Act. Mr King did not rely upon any other statutory provisions beyond s 34(4).

Failure to have regard to the interests of, inter alia, the plaintiff

This ground has no merit. There was no requirement for the decision-maker to have regard to the plaintiff's rights in 1993 regarding access to his property. The relevant obligation was to ensure that members of the public were able to pass and re-pass. On the plaintiff's own admission, he did not use Medway Road until 2006. In addition to not being satisfied that there was any statutory requirement to have particular regard to the plaintiff's interests when making the decision, I am not satisfied on the material before me that his interests and rights in accessing his property have been denied in any event. The evidence before me was that the road is passable.

Other considerations

The relief sought could not be granted without the joinder of all of the necessary parties. It would be necessary to add the Minister for Lands and Forestry (formerly the Minister of Land and Water) as the person or body responsible for the impugned decision (UCPR 59.3(4)), as well as Mr and Mrs Williams. The State of New South Wales is named in relation to the action in tort under s 5(1) of the Crown Proceedings Act, but there are different requirements under Part 59 of the UCPR.
An issue arose as to whether the waterway consent had been revoked in any event. There is some material to suggest that that is the case. If that were the case, it would be a further factor militating against an extension of time to bring these proceedings. I have presumed for the purpose of this decision that the waterway consent is still extant.
In Hanna v Cth DPP [2016] NSWSC 325, RA Hulme J considered an application for an extension of time in which to bring proceedings for judicial review. The plaintiff sought to challenge a conviction in his absence out of time. The decision in question was that of the Local Court on 7 November 2005 and the proceedings for judicial review were commenced on 18 August 2015. His Honour held that the delay of 10 years was too long and refused an extension of time. His Honour observed this at [47]: "In my view, the delay is just too great. It is not sufficiently explained and cannot be lightly excused. The prejudice is too severe in allowing judicial review of a Local Court matter that was finalised over 10 years ago, when most of the records of the court and those of the prosecutor have been lost, simply as a result of events which are expected to occur as a result of the passage of time. I am firmly of the view that the application should not be granted."
It is to be accepted that the decision as to whether an extension of time should be granted is discretionary and that each case must turn on its own particular facts. Nonetheless, his Honour in Hanna v Cth DPP placed considerable weight on the prejudice, through loss of records, caused by the significant delay of 10 years. That prejudice, a fortiori, is present here. The delay is extreme and, I am satisfied, has caused such prejudice to the State that, especially when combined with the fact that I am not satisfied that plaintiff has a reasonable arguable case in any event, means that the application for an extension of time should be refused.

Conclusion

I am not satisfied that the plaintiff has established that an extension of time should be granted to bring these proceedings for judicial review nearly 23 years out of time. None of the factors relevant to such a determination militate in favour of an extension of time being given.
It will now turn to consider the proceedings brought in negligence and nuisance.

Should leave be granted to the plaintiff to file the amended summons and amended points of claim?

Submissions on behalf of the plaintiff

In his short written submissions dated 23 January 2017 (to which the second APoC were attached), Mr King submitted that the proposed amendment clearly informs the first defendant of the nature of the case that it must meet. He submitted that the details of the land holdings and title and the relevant circumstances are set out in the APoC and that the case is further explained in the affidavit of the plaintiff sworn 24 May 2016. Those submissions do not otherwise address any specific complaint made by the State as to the inadequacy of the APoC.
In his submissions in reply dated 8 February 2017, Mr King submitted that the fact that the nuisance case is confined by the negligence case is "not a reason to refuse leave where the nuisance is properly pleaded which is not in dispute." He further submitted that, "In fact the pleading comes straight from Bullen and Leake [18th ed]." He submitted that there is no "sound basis" to refuse leave on this reasoning.
It was further submitted that the complaint of limitation is "misconceived" because the action seeks injunctive as well as compensatory relief "…in respect of ongoing affectation of the plaintiff and his interests after years of lobbying and submissions to the State." He submitted that the only effect of the limitation period is to deny the plaintiff a remedy in respect of losses more than six years prior to the litigation being commenced, not to exclude the cause of action altogether.
At the hearing, Mr King stated that the only reason that the proceedings were commenced by way of summons is because judicial review was sought. He accepted that the appropriate originating process for his claims in negligence and nuisance was a statement of claim.
Mr King described the duty of care owed to the plaintiff as a duty to take reasonable steps to ensure that the land was not polluted. With respect to the claim for nuisance, Mr King submitted that the State's position that the claim is out of time is misconceived. He relied upon the decision in Delaware Mansions v City of Westminster (2001) 1 AC 321. That was a decision concerning public nuisance in which the fact that the nuisance was continuing meant that the time limit did not apply. He also relied upon the decision in the Whitehouse v Fellowes (1861) 10 CB (NS) 765 at [24], where it was held that there was a continual nuisance giving rise to a fresh cause of action on each occasion when there was flooding as a result of the negligent work. Mr King submitted, by way of analogy, that the negligent act in the present case was the failure to prevent pollution of the public land when it was being conducted as a shooting range.
Mr King also relied upon the decision of McDougall J in Bong Bong Town Centre v Illawarra Clay Target Society [2015] NSWSC 316. Mr King conceded that that was a contract case rather than a nuisance case, but submitted that it demonstrated that there is a duty upon the owner of a public highway to ensure freedom of passage and that that includes an obligation to remove lead and or contamination.
Mr King accepted that the plaintiff does not point to any evidence of actual contamination of the plaintiff's land in the APoC, but submitted that he will be providing an expert report in due course.
Mr King made the submission a number of times that the State's real complaints did not go to the pleadings, but were rather matters of evidence relevant to the final hearing of this matter. He submitted that the plaintiff's case should be clear if the APoC are viewed as a whole. He further submitted that, even if Mr Emmett were correct and there is a defence based on the limitation period, that does not mean the pleadings should be struck out.
Mr King relied upon the decisions of the High Court in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 and Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 in support of a submission that the Minister administering Crown roads has a duty to keep the roads to a particular standard.

Submissions on behalf of the State

In his written submissions, Mr Emmett submitted that the negligence claim based upon the permissive occupancy should be dismissed since that occupancy was terminated more than six years ago. The first alleged damage, being the asserted difficulty of access to the plaintiff's property, must have occurred more than six years ago.
As for the plaintiff's assertion of a duty of care to ensure that Medway Road provided the plaintiff with reasonable access and "to protect the interests of the plaintiff in respect of" that road, Mr Emmett pointed to the absence of any basis for such a duty being identified by the plaintiff. He relied upon the correspondence attached to the affidavits read by the State on this application to establish that further particulars have been sought on a number of occasions concerning this, but the plaintiff has declined to provide any further particulars beyond confirming that the plaintiff does not rely on any statutory duty.
Mr Emmett relied upon the fact that the plaintiff did not use the relevant part of Medway Road until November 2006 and that he has acknowledged in correspondence that there is another road to the north of his property that he does not use and does not seek to use. He further noted the evidence that the eastern part of Medway Road is clearly passable during dry weather.
Mr Emmett queried how a duty of care to ensure a particular standard of access across a particular Crown road on the part of the State could suddenly arise after November 2006. Such a duty must be clearly explained and the material facts that form the basis of it clearly set out. This has not been done. He submitted that, to the extent that the plaintiff's claim is to be taken as based upon the State having a positive duty to keep the Crown road clear, such a claim must fail. Mr Emmett submitted that, even if the plaintiff could establish some sort of continuing duty of care in relation to the waterway consent, there are no reasonable prospects of establishing the risk.
Mr Emmett noted that the fresh allegations of airborne pollution and pollution of the water table raised on 23 January 2017 had never before been raised, nor was there any explanation for the delay in raising these allegations. Further, Mr Emmett drew the Court's attention to the State's first request for particulars on 8 February 2016, following which the plaintiff's solicitor responded that, "The plaintiff does not assert that there is any contamination to any part of the plaintiff's land." He submitted that the first suggestion of any pollution was in the second APoC annexed to Mr King's written submissions of 23 January 2017.
In response to Mr King's suggestion for the first time that there is a risk of pollution to the plaintiff's land, Mr Emmett tendered a report confirming that there is no pollution from lead casings on the relevant area of Medway Road. That report was prepared for the plaintiff by Simon Gorham, consultant from a company described as "Airsafe". Airsafe tested samples from the site of the shooting range for lead content. The result was that the lead level at the site was five milligrams per kilogram. This result was explained in the report as follows: "Lead concentration is less than the Health-Based Investigation Level of 300mg/kg for HIL A - Low Density Residential [residential with garden/accessible soil (home grown produce <10% fruit and vegetable intake, no poultry), also includes children's daycare centres, preschools and primary schools] as stated in Schedule B1 - Guideline on Investigation Levels for Soil and Groundwater [National Environment Protection (Assessment of Site Contamination) Measure 1999]."
Thus the report obtained by the plaintiff confirms that the soil in the area in which the shooting range was located (which is 3 km from the gate to the plaintiff's property) does not contain unacceptable levels of lead.
Mr Emmett conceded that questions of limitation are matters for defence, but submitted that if the claim is unanswerable, as it appears to be here, then that ought to be the end of it. He submitted that the Court should not allow a speculative pleading just to see whether or not a limitation point is taken when the State has clearly indicated that it proposes to take such a point.
Mr Emmett referred to Mr King's reliance upon the decisions in Leichhardt Municipal Council v Montgomery and Brodie v Singleton Shire Council and noted that those were cases where there was a risk or a danger on the road, which risk eventuated. In the present case, the plaintiff has expressly disavowed that there is any particular risk that has materialised and caused harm.
Mr Emmett also relied upon ss 42, 44 and 45 of the Civil Liability Act 2002 (NSW) as well as s 34 of the Crown and Other Roads Act.

Submissions in reply

In reply, Mr King denied that the report referred to above at [116] concluded that there was no pollution on the land. He submitted that the State cannot draw any comfort from that report, which does not go directly to the issues in the case in support of its strike out application.

Consideration in respect of the amended summons and points of claim

There were two APoC documents before the Court in different terms that the plaintiff sought leave to file. I propose to consider the latest in time of the two APoC documents for the purpose of this motion. I accept that the State only received that document a few weeks before the hearing and had not had the opportunity to consider it in the same detail as the APoC annexed to the amended notice of motion. Despite this, it would not be consistent with the case management principles in the CPA to consider only the first of these two documents and require the plaintiff to make separate application to file the latter. I can see no prejudice that would flow to the State by proceeding in this way.
The court's power to grant leave to amend a court document is to be found in s 64 of the CPA. That power is to be exercised subject to the overriding purpose of civil litigation in New South Wales to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56 of the CPA. Subject to this overriding purpose, and the other case management principles in ss 57 and 58 of the CPA, an application for leave pursuant to s 64 would normally be granted if the application is made in a timely manner and for a proper purpose: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [89].
Nonetheless, there are limits to the general discretion to amend, including that the proposed amendment must comply with the UCPR and the CPA, disclose a reasonable cause of action, and not be liable to be struck out. The State's position is that leave should not be granted because both the FAS and the APoC remain embarrassing, unclear and insufficiently particularised.
The focus of whether leave should be granted is directed to the form of the pleading rather than to the merits of the case, or lack thereof. The relevant principles in relation to the requirement for proper pleadings are well established and were summarised by Garling J in Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [36] - [42] as follows: "36. The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664. 37. Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J. 38. As Hodgson JA (with whom Mason P and Handley JA agreed) said in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at 142-143: "The requirement for a pleading to state material facts which is to be found in the Rules includes the cause or causes of action which are relied upon. Materiality of facts means how those facts are material to a cause of action." 39. Bongiorno J said in Gunns Ltd v Marr [2005] VSC 251 at 57, in a passage with which, if I may say with respect, I entirely agree: "Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly." 40. As his Honour went on to say, "A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general." 41. In Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], Tamberlin J dealt with the concept of embarrassment, with respect to a pleading, in this way: "Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense..." 42. As Bryson J recognised, a pleading may be embarrassing if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, unreported)."
Having regard to these principles, I am not satisfied that the plaintiff should be given leave to file either the FAS or the second APoC. The second APoC is confusing and deficient in a number of respects. Moreover, the alleged negligent acts, the scope and nature of the duty of care and the question of causation are conflated. I am satisfied that, in its current form, the APoC does not enable the State to put on a defence.
The negligence claims are based on two separate factual matters; namely, the grant of the permissive occupancy in 1986, which ended in 2009, and the grant of the waterway consent in 1993. The second APoC does not always separately deal with those two events.
First, the plaintiff has not particularised how it is that the Minister owed a duty of care to the plaintiff to keep the Crown road in a particular state of repair, beyond expressly disavowing any statutory duty. The APoC merely states that a duty of care was owed "to ensure that at all relevant times, Medway Road provided the plaintiff with reasonable access to Giano and to protect the interests of the plaintiff in respect of Medway Road." There are no particulars provided as to how this duty is said to arise. That such a duty needs to be established by the plaintiff is common to both the claim arising out of the permissive occupancy and the claim arising out of the waterway consent.
The common law governs the existence, nature and content of this duty of care. Mr King was not able to point to any authority in which the common law has recognised such a duty. As Allsop P (with whom Simpson J (as her Honour then was) agreed) observed in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 at [102] - [105], where a plaintiff pleads a novel proposed duty of care, a multi-factorial approach is required in order to assess whether a duty of care can be imputed. This requires a close analysis of the facts bearing upon the relationship between the plaintiff and, in this case, the Minister, by reference to factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. This requires an assessment not only of foreseeability but also factors such as "control, vulnerability, assumption of responsibility and nearness or proximity" (at [100]). Given the novel nature of the duty of care upon which the plaintiff relies in this matter, some elucidation of how that duty is said to arise is required.
The plaintiff expressly disavows any reliance upon the duty of care being a statutory duty. Nonetheless, any duty must be viewed in the statutory context. Section 34(1) of the Crown and Other Roads Act expressly preserves the public right of passing or re-passing on Crown roads. In circumstances where the public's right to pass is protected by s 34(1), it is difficult to see why there is any requirement for some common law duty of care in relation to a person's access to Crown roads.
Moreover, it is difficult to see how the Minister could owe a positive duty to ensure a particular standard of access across every Crown road throughout New South Wales. Such duty would be indeterminate. Furthermore, the plaintiff has not addressed how the duty is to be assessed in circumstances where there are alternative routes for the plaintiff to access his property in any event. The plaintiff has independent access to his property from the Newell Highway and also by a road at the rear of his property, but chooses not to travel those routes. This is despite the fact that he must have used alternate routes before the gate was erected on Medway Road on 18 November 2006, which provided access to Medway Road for the first time.
In this regard it is to be noted that s 42 of the Civil Liability Act provides that, in determining whether a public authority has a duty of care, the functions required to be exercised by the authority are limited by the financial and other resources reasonably available.
Overall, I am satisfied that the plaintiff has not particularised how any duty of care exists and nor could he. Even if I were wrong in that regard, there are further difficulties with the claims in negligence.
The plaintiff has failed to particularise how there has been a breach of any duty. Section 5B of the Civil Liability Act provides that the plaintiff must identify the "risk of harm" against which it is alleged the State would be negligent for failing to take precautions. The plaintiff has expressly disavowed that there is any particular risk that has materialised and caused harm.
In this regard, it is to be noted that s 44 of the Civil Liability Act provides that a public authority is not liable in proceedings for civil liability by failing to exercise a function of the authority to prohibit or regulate an activity unless the authority could have been required to exercise the function in proceedings instituted by the plaintiff. The plaintiff has not articulated how it would have been able to bring proceedings that could have required the Minister or the State to provide better or any particular standard of access to that portion of Medway Road that is Crown road. I am satisfied that none exist.
Similarly, s 45 of the Civil Liability Act provides that a roads authority is not liable in proceedings for harm arising from a failure to carry out road work unless the authority had actual knowledge of the particular risk the materialisation of which resulted in harm. As stated above, the plaintiff has confirmed in correspondence that it is not alleged that there was a particular risk in relation to the relevant part of Medway Road that materialised and caused harm to the plaintiff.
Nor is there any identification of the specific act said to have been negligent. The APoC at [22] states that the duty of care was breached by "wrongfully causing difficulties of access for the plaintiff to Giano and airborne pollution to Giano and pollution of the water table under Giano." A number of different causes of action are rolled up together (see above at [34]), including an allegation that there was a refusal by the State to review its files in relation to the permissive occupancy and waterway consent when requested by the plaintiff to do so. No material facts are pleaded referable to that allegation.
Not only is there a lack of any identification of the negligent act or acts, the particulars conflate matters arising from two separate decisions, being the grant of the permissive occupancy, which ceased in 2009, and the waterway consent, which is ongoing. Although contamination is said to have been caused by the permissive occupancy, no similar claim appears to be made in relation to the waterway consent. It is unclear whether the alleged pollution to the water level is solely said to have been caused by the permissive occupancy, or whether the waterway somehow contributed to that pollution as well.
The plaintiff's claim for loss and damage is particularised as including the loss of the value of his land, the cost of removing obstructions and contamination of Medway Road, loss of income from employment in the mining industry, loss of business income, emotional stress, the cost of investigating the underlying facts, and the cost of obtaining legal and expert advice. Section 5D of the Civil Liability Act provides that, in determining whether negligence has caused particular harm, it is necessary to identify the particular harm that the plaintiff claims to have suffered and then to determine whether it is caused by the offending negligence. That is, the plaintiff must establish that the negligence was a necessary condition of the occurrence of the harm. It has not been made clear how causation could be established in this case.
A further difficulty with the APoC is the limitation question. With respect to the claim for negligence arising out of the permissive occupancy, it is to be noted at the outset that the permissive occupancy was terminated in 2009, more than six years ago. That action is statute barred under s 14(1)(b) of the Limitation Act 1969 (NSW).
Although it is to be accepted that the claim in relation to pollution may have come to light only recently, the first alleged damage to the plaintiff's property asserted in the APoC is the difficulty of access to his property, which occurred in 2006. As Mason P observed in Winnote Pty Ltd v Page [2006] NSWCA 287 (Tobias JA agreeing) at [40], a plaintiff cannot sue for damages in negligence until the cause of action accrues, but, once it accrues, time commences to run. His Honour observed at [66] that (citations omitted): "Merely because a substantial loss occurs (ex hypothesi) at a later point of time does not establish that there was no damage stemming from the same breach occurring at an earlier date being damage that occurred outside of the limitation period, thereby barring the whole claim."
The same principle applies in cases of pure economic loss as in personal injury; namely, time commences to run from the first measurable occurrence of damage. The limitation difficulty is patent in this matter and Mr King made no real attempt to address it by before me at the hearing of this matter.
I am not satisfied that the plaintiff has particularised how the Minister's permitting a shooting range to be conducted on 20 metres of the 40-metre wide Crown road almost three kilometres from the plaintiff's gate between 1986 and 2009 gives rise to any action in negligence. Similarly, I am not satisfied that the plaintiff has particularised how the Minister's permitting a waterway consent in 1996, which led to the creation of contour banks, gives rise to any action in negligence.
Turning to the claim for "nuisance," that claim is described as being one of "public nuisance" in the first APoC and one of "nuisance" in the second APoC. Private nuisance is not specifically pleaded in either the first or second APoC. It was not until Mr King's oral submissions that it became clear that the plaintiff was relying upon both public and private nuisance. He accepted during oral submissions that the liability of highway authorities should now be treated as covered by the modern law of negligence, into which public nuisance has been absorbed: Leichhardt v Montgomery; Brodie v Singleton Shire Council. Thus, in circumstances where public nuisance in respect of highways has been subsumed into negligence, the plaintiff must establish negligence in accordance with the requirements in the Civil Liability Act.
In order to succeed in an action for private nuisance, the plaintiff must show that the defendant has unreasonably interfered with the use and enjoyment of his land: Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56 (at 62) per Windeyer J. The plaintiff's action is based upon a claim that the condition of the road caused by the waterway consent and/or the permissive occupancy, both some distance from the plaintiff's property, interferes with the use and enjoyment of his land.
Private nuisance ordinarily concerns emanations onto the plaintiff's property from the property of another, although that is not invariably the case. As Price J observed at [148] in Onus v Telstra Corporation Limited [2011] NSWSC 33 (a case in which his Honour was asked to grant a quia timet injunction to restrain the construction of a telephone tower near property used as an airfield): "It is rarely the case that the use of land by a defendant which does not cause something to emanate from it, although its use interferes in some way with the use and enjoyment of the plaintiff's land, will amount to a private nuisance: Hunter v Canary Wharf at 685-686, Robson v Leischke at 118."
His Honour distinguished that case from unsuccessful claims of private nuisance based on the erection of structures that interfered with the flow of light or air or the view available to the plaintiff's property based on the risk that the "mere presence" of the telephone tower presented to the operations of the airfield. He found, at [153], that the tower, of the proposed height and in such proximity to the airfield, unduly interfered with the plaintiff's enjoyment of his land.
The plaintiff's claim in private nuisance is not straightforward, and, it seems to me, will be difficult to make out in circumstances where there is no evidence before me of any emanation from the Crown road onto Giano. On the plaintiff's case, there is some obstruction of one means of vehicular access to Giano.
There is nothing in any of the correspondence or in either the first or second APoC that articulates any allegation as to how the plaintiff's use or enjoyment of his land (where he does not currently reside) has been interfered with, except for the recent allegation of a risk of contamination on his land, airborne pollution and contamination of the water table. It is informative to have regard to the history of the allegation of any contamination or pollution.
In a letter to the State in February 2016, the plaintiff expressly stated that it was not part of the plaintiff's case that there was any contamination to any part of his land. There was no allegation of any contamination in the points of claim struck out by Harrison AsJ. There was again no allegation of contamination of the plaintiff's property in the first APoC, which was served in October 2016. Nor was there any mention of any contamination of Giano in the plaintiff's affidavit filed in support of this motion. Up until 23 January 2017, the plaintiff's claim was based solely on the alleged poor state of the Crown road, which was said to impede the plaintiff's access to Giano.
The first allegation of any contamination was made in the second APoC filed on 23 January 2017. That part of the claim is extracted above at [36]. Although it is alleged therein that the land to the south of the permissive occupancy is "contaminated with lead and lead oxides", it is not pleaded that there is any other contamination of Giano. Rather, it is pleaded that there is a "risk" of contamination to Giano and that there has been "contamination of the water table". It is not particularised whether the allegation of contamination of the water table is referable to Medway Road or Giano. At [22] of the second ApoC, it is alleged that the State unreasonably failed to ensure that Medway Road provides the plaintiff with reasonable access to Giano and use of Giano "undisturbed by the pollution complained of". Again, it is unclear whether the pollution referred to is on the plaintiff's land or the road. There is no reference to any material facts that would form the basis for the claim of contamination.
The timing of these fresh allegations of airborne pollution and pollution of the water table arising from the permissive occupancy is of some concern. Not only is the allegation made without reference to any material facts, no adequate reason for the delay in raising these allegations was provided at the hearing of this application. I accept the submission of Mr Emmett that the plaintiff should not be permitted to amend his pleading to rely upon private nuisance based upon contamination without any explanation for the delay.
During the hearing, Mr King accepted that he currently has no evidence to serve in relation to the pollution claim, although he suggested that he could call his client as a witness on the motion to give evidence about it. The only material before me on this application dealing with the question of possible contamination is an expert report obtained by the plaintiff indicating that there is no lead contamination at the site of the former shooting range. If this report is accepted, it is difficult to see how any lead could have encroached onto the plaintiff's property, which is nearly three kilometres away, by way of airborne pollution. Similarly, the evidence before me shows that the water runs from Mr Williams property to the contours banks and then away from the plaintiff's property. That is, the water flows south-east towards Mogriguy Road, whereas Giano is situated to the north-west of the contour banks. On this basis, it is difficult to see how there could be any pollution of the water table on the plaintiff's property caused by either the permissive occupancy or the waterway consent. No material facts have been pleaded in this regard.
Overall, I do not propose to grant leave to file the second APoC for the reasons stated above. The claim in negligence is insufficiently particularised and the claim in private nuisance is not pleaded at all. Nor do I propose to grant leave to file the FAS. It is in similar terms to the summons struck out by Harrison AsJ and, on its own unaccompanied by any points of claim, it is inadequate as a pleading.

Should the plaintiff be given leave to re-plead his case?

The conduct of these proceedings on behalf of the plaintiff thus far has been somewhat unsatisfactory. Not only is the procedural history troubled, the correspondence attached to the affidavits before me shows that the State has repeatedly raised concerns as to the paucity of particulars in this matter and received unsatisfactory responses to its requests.
Turning first to the claims in negligence, I am not only satisfied that no cause of action is properly particularised, but also that it would be futile to grant the plaintiff leave to re-plead those claims. Three attempts have already been made by the plaintiff to particularise his claims in negligence. None of them have set out his case with sufficient particularity to enable the State to file a defence. Those three attempts are: the initial points of claim struck out by Harrison AsJ, the points of claim annexed to the motion which, after correspondence with the State's solicitor, were not pressed, and the APoC that form the basis of this application. The plaintiff has thus been unable to particularise his case in negligence after three attempts. The reason for not pleading the action in a statement of claim, as required by r 6.3(b) of the UCPR, was never properly addressed.
In addition to all of the difficulties that I have set out, there are significant issues regarding the relevant limitation periods. I do not accept the submission of Mr King that the limitation periods are irrelevant because he is also seeking an injunction. The injunctive relief sought is not separable from the proceedings in tort and he must be able to properly particularise some ongoing damage.
That leaves the question of whether the plaintiff should be given the opportunity to plead a case in private nuisance. The second APoC served on 23 January 2017 does not expressly plead private nuisance, but during the hearing of this motion Mr King submitted that that is how the case is brought. Mr Emmett conceded during the hearing of the application that it is technically possible that something on the Crown road could cause a private nuisance, but that such nuisance would have to affect the plaintiff's use or enjoyment of his land. Mr Emmett submitted that, hypothetically, if there was some pollution on the Crown Road that had in fact leached onto Giano, that may possibly be a pleadable case, but that is not what has been pleaded in the present case.
In considering whether the plaintiff should be given a further opportunity to re-plead his case in (private) nuisance, I have weighed the competing positions of each party and considered what the dictates of justice require. On the one hand, that cause of action is not currently pleaded, there is no evidence explaining the delay in bringing the claim for private nuisance, reliance upon any contamination had been expressly disavowed in earlier correspondence, and the evidence before me is that there is no pollution at the relevant site. On the other hand, the proceedings are at a relatively early stage and it could not be said that there is no cause of action, if it were properly pleaded and the material facts upon which the claim is brought set out. Mr King asserted during the hearing that he did have evidence of pollution relevant to the claim of nuisance.
I have come to the conclusion that the plaintiff should be given one more opportunity to plead a case in private nuisance.
Before turning to consider the appropriate orders, I note one final matter. As stated above at [27], when the State's solicitor wrote to the plaintiff's solicitor on 15 December 2016 she gave notice that an application would be made at the hearing of this motion to have the pleading struck out pursuant to r 13.4 of the UCPR. The plaintiff was invited to make formal objection to such an application proceeding to hearing without any notice of motion, but no such objection was ever made. Thus, before me and being heard at the same time as the plaintiff's motion was an application by the State that the FAS be "struck out" pursuant to r 13.4 of the UCPR.
At the commencement of the hearing, I indicated that I would consider the State's application to dismiss the matter summarily (for which r 13.4 provides, rather than a "striking out" of the pleadings) after considering the other aspects of the motion. During Mr King's submissions in reply, he indicated that he had come to court to meet an application for striking out pleadings, not an application for summary dismissal. He submitted that there is a considerable difference between striking out proceedings under r 14.8 of the UCPR and summarily dismissing proceedings under r 13.4. He had understood the application to be the former, not the latter.
In circumstances where I propose to allow the plaintiff the opportunity to plead a case in private nuisance, it is not necessary for me to determine whether the plaintiff fully apprehended that the State sought summary dismissal of this matter at the same time as the hearing of the plaintiff's motion. As the authorities make clear, the power to dismiss proceedings summarily because the pleadings disclose no reasonable cause of action should only be exercised in plain and obvious cases: General Steel Industries v Commission for Railways (1964) 112 CLR 125; [1964] HCA 69; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27.
Although I propose to permit the plaintiff a further opportunity to attempt to plead his case in nuisance, I am not prepared to give him leave to do so. Rather, the plaintiff is to send a statement of claim pleading private nuisance to the State within six weeks in order to give it the opportunity to determine whether leave to file the statement of claim is opposed. The plaintiff will need to produce a pleading that is in a form that allows the State to understand the nature of the case against it in nuisance, including the act or acts creating the nuisance and a summary of the material facts upon which the plaintiff relies. Needless to say, neither Mr Williams or his wife nor the Minister need be added as a party in circumstances where I have refused an extension of time to bring the proceedings for judicial review.
The State is required to provide a response to the plaintiff no later than three weeks after the statement of claim is served. Should the State not consent to the filing of that document and leave be required to file it, the plaintiff should be prepared to put evidence before the Court as to why the claim based upon contamination has been brought so late. If the State seeks summary dismissal of the proceedings at any time, such application should be by way of notice of motion so that the State's position is made clear to the plaintiff.

Orders

I make the following orders: 1. The plaintiff is refused an extension of time under r 59.10(2) of the UCPR to bring the proceedings for judicial review. 2. The plaintiff is refused leave to file a further amended summons and points of claim in the form attached to his written submissions dated 23 January 2017. 3. The plaintiff is to serve on the first defendant a statement of claim on which he proposes to rely pleading his case in nuisance on or before 30 June 2017 in order for the first defendant to consider whether it opposes the filing of it. 4. The first defendant is to respond to the plaintiff no later than 21 July 2017. 5. The plaintiff is to pay the first defendant's costs of the motion as agreed or assessed.

Amendments 19 May 2017 - Typographical error in paragraph [8]. 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: 19 May 2017

Crown and Other Roads Act 1990(NSW)

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