RD Miller Pty Ltd v Roads and Maritime Services NSW

Amendment sought

1. The controversial elements of the amendment sought by the Applicant relate to the insertion of the paragraphs which seek to raise issues in the following terms: 34 The restriction and/or denial of access in the physical sense on or before December 2013 as pleaded in the preceding paragraph was subsequently reflected in the terms of the Deposited Plan. 35A The declaration made by the 2017 Order pleaded in paragraph 35 was a result of and the manifestation of a. the physical Works pleaded in paragraph 18; and b. the terms of the Deposited Plan pleaded in paragraph 24 being mutually inclusive events necessary for the road to become a controlled access road in accordance with section 68 of the act. 37 Pursuant to s 69 of the Act, the Applicant makes a claim for compensation as follows: a. (1) for the purposes of s 69 of the Act, in the circumstances pleaded above, the right of access between the Land and the Road was restricted and/or denied by the course of conduct of the Road becoming a controlled access road comprising: i. the works as pleaded in paragraph 18; ii. the registration, and the terms, of the Deposited Plan in so far as it related to Lot 11 in DP 1201729, as pleaded in paragraph 24; iii. the making of the Order by the publication in the Gazette, as pleaded in paragraph 29. (2) the Applicant claims compensation for the difference between the market value of the land immediate before the right of access was restricted and/or denied as particularised in paragraph 37(a)91) above and immediately after the right of access was restricted or denied as particularised in paragraph 379a)(1) above. b. In the alternative to paragraph 37(a) above: (1) for the purposes of s 69 of the Act, in the circumstances pleaded above, the right of access between the Land and the Road was restricted and/or denied by the course of conduct of the Road becoming a controlled access road comprising: i. the registration, and the terms, of the Deposited Plan in so far as it related to Lot 11 in DP 1201729, as pleaded in paragraph 24; ii. the making of the Order by the publication in the Gazette as pleaded in paragraph 29. (2) the Applicant claims compensation for the difference between the market value of the land immediately before the right of access was restricted and/or denied as particularised in paragraph 37(b)(1) above and immediately after the right of access was restricted and/or denied as particularised in paragraph 37(b)(1) above.

Relevant considerations on application to amend

1. The parties were generally agreed that in the determination of the Notice of Motion the relevant principles and matters for consideration are those outlined below.
2. Section 64 of the Civil Procedure Act 2005 (CP Act) confers upon the Court a broad discretion to permit, with leave, a party to amend any document. Such discretion would include an amendment to Points of Claim. Section 64 relevantly provides: 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the Court may Order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
3. In addition to the discretion conferred by s 34, the overriding purpose as set out in s 56 of the CP Act together with the objects of case management and the requirement for the Court to have consideration to the dictates of justice in ss 57 and 58 of the CP Act are relevant considerations in the exercise of the discretion: Kelly v Mina [2014] NSWCA 9 at [47]-[48].
4. The Applicant accepts that it has no entitlement to amend its Points of Claim (AS [14]) and, properly, noted the decision of the High Court in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [111]-[112] where it was observed (footnotes omitted): 111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the Court and other litigants. Such statements should not be applied in the future. 112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
5. In Monti v Roads and Maritime Services (No. 2) [2018] NSWLEC 178 at [31]-[33] Pepper J summarised the relevant factors that the Court should have regard to in the exercise of the discretion to amend pleadings as follows: 31 The factors that a Court will have regard to in determining whether or not to exercise its discretion to allow the amendment include: (a) the nature and importance of the amendment to the party applying for it (Aon at [102]); (b) the extent of the delay and the costs associated with amendment (Aon at [102]); (c) the explanation for the delay (Aon at [108]); (d) the prejudice to the parties (Aon at [5], [93]-[95], [100]-[102] and [114]); (e) the parties' choices to date in the litigation and the consequences of those choices (Aon at [112]); (f) the strength of the proposed amendment in the sense of whether or not it is futile; and (g) the potential loss of public confidence in the legal system which can arise where a Court is seen to have acceded to applications made absent sufficient justification or explanation (Aon at [5], [24] and [30]). 32 The onus is on the party seeking leave to amend to persuade the Court that such leave should be granted. 33 And, the weight to be given to the factors identified in Aon and the outcome of that balancing exercise will vary with the circumstances of each case.
6. The Applicant contended (AS [16]) that in considering the "strength of the proposed amendment" as referred to by Pepper J in [31(f)] the Court should approach that determination by applying analogous considerations to an application to strike out the paragraph of the proposed amendment. In identifying such principles the Applicant cited Pepper J in F Hannan (Properties) Pty Limited v Council of the City of Sydney [2011] NSWLEC 44 at [24] where her Honour observed in connection with a strike out application: 24 At common law the power to strike out pleadings because they disclose no reasonable cause of action should be exercised only in plain and obvious cases. Various formulations of the test have been enunciated by the Courts. A review of the cases reveals the following pertinent principles in relation to the striking out of pleadings for failing to disclose a reasonable cause of action: (a) the power to strike out pleadings should only be exercised in plain and obvious cases. That is where the case proposed is "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129); (b) the mere fact that an applicant's prospects of success might be characterised as slim would not be enough to strike out a pleading (Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) [1997] HCA 8; (1997) 188 CLR 241 at 271); (c) great caution is required where factual questions are involved because it may be difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. By contrast, where the application turns on questions of law, while caution ought nevertheless be the touchstone of the exercise of the Court's discretion, unless there is no reasonable prospect that the deficiencies in what is pleaded are able to be cured by amendment, opportunities for strike out claims will arise more frequently (Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75]); and (d) the Court is not precluded from hearing argument "even of an extensive kind" in determining whether or not the plaintiff's case is untenable (General Steel Industries at 130).

Evidence

1. The Applicant and the Respondent both read affidavits setting out the history of the matter and the circumstances surrounding the filing of the present Notice of Motion. I have had regard to those affidavits and whilst the matters are relevant to the exercise of my discretion it is not necessary for me to recite the evidence in any detail in these reasons.

Applicant's Submissions

1. The Applicant submitted that: 1. The proposed amendment differed in substance from that to which the RD Miller (No. 1) related and therefore this application could not be said to be a re-litigation of the matters for consideration in that matter: AS [44]-[55]; 2. The determination in RD Miller (No. 1) was based on a different pleading. Submissions in that matter were put by the Applicant on a specific form of words in the draft pleading and not on the construction of the Roads Act as a whole: AS [55]; 3. The amendments now proposed are directly referrable to the statutory language and on that basis are clearly arguable: AS [21]-[43].
2. Further the Applicant states that the delay in bringing the motion to amend was explained and was not exceptional. The nature and the importance of the amendment to the Applicant was also emphasised.

Respondent's Submissions The Respondent's primary submission was that the amendment proposed was so untenable as: 1. The proposed amendments are inconsistent with and seek to re-litigate Justice Robson's judgment in RD Miller (No. 1) Respondent's Submission (RS) at [5], [36]-[37]; and 2. If the application to amend was allowed to proceed, notwithstanding the submission in (a), the Court would find that the amendment proposed to raise a construction of the Roads Act that was not reasonably arguable at law: RS at [18], [24]-35].

Findings

1. No party has submitted to me that the decision in RD Miller (No. 1) is wrong, in the sense that I would not, for reasons of judicial comity (or otherwise) follow it: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820. The Applicant did submit, in essence, that the amendment sought in the Notice of Motion, was sufficiently different than the pleading considered by Robson J and, as a consequence, that RD Miller (No. 1) should be distinguished and not applied.
2. Having considered the reasoning of his Honour in RD Miller (No. 1), I do not consider his findings to be wrong such that I would not follow his determination. I further note that if it was necessary that I decide the matter afresh as if the decision in RD Miller (No. 1) had not been made, I would make the same findings as were made in that matter for the reasons identified at paragraphs [56]-[91] and to the extent necessary I adopt those findings for the purposes of the determination of this Notice of Motion. However, I do not consider it necessary to re-determine the matter afresh and for the reasons outlined below I determine this matter on the basis that it is not distinguishable from the determination in RD Miller (No. 1) and that the same principles apply to the determination of the proposed amendments referred to in the Notice of Motion with the same consequence as that in the strike out application before Robson J.
3. The decision in RD Miller (No. 1) related to the fundamental dispute between the parties, as summarised by Robson J at [69] that: 69 As noted above, the essential difference between the parties is that RDM contends (adopting the Spencer or Compensation Act disregard approach detailed above) that the time at which the "right of access was restricted or denied" refers to the time at which physical access was restricted and that the time "immediately before" the right of access was restricted or denied could be some years prior to the making of the Order when physical access was denied. Conversely, RMS contends that the time at which the "right of access was restricted or denied" refers to the time at which the restriction effected by the Order (under s 67(1)) came into effect.
4. In resolving this conflict his Honour found, inter alia, at [78]-[82]: 78 Considering the judicial consideration above and the parties' submissions, and looking at both the text and context of the Roads Act, I consider that the relevant sections of the Roads Act are determinative and the text of the provisions at issue readily yields to the construction favoured by RMS primarily for the reasons proffered by RMS summarised above. 79 I find that Div 4 of the Roads Act provides for a complete scheme for the entitlement to compensation in circumstances where access across a boundary has been restricted or denied as a result of a road becoming a controlled access road, triggering the roads authority to pay compensation for loss or damage arising from the loss of access (per s 68(1)). I also note that compensation is payable under Div 4 at a time (within 12 months) after the land concerned has been "declared" to be a controlled access road. In those circumstances, it is clear that s 69 then provides for the amount of compensation which is determined "immediately before the right of access was restricted or denied". 80 Consideration of compensation to be paid for the loss or damage resulting from the denial or loss of access as per s 68(1) must begin and end with consideration of the relevant statutory provisions and reference to the common law is useful only if it assists in construing the applicable statutory provisions. In this case, I consider that the common law does not assist. 81 Accordingly, contrary to the position propounded by RDM, I am of the view that s 69(1) of the Roads Act must be construed in the context of its surrounding provisions. I do not consider that s 67, given its context in Div 4 of the Act and adopting what RMS submits is a "textual thread running through ss 67, 68 and 69", can be read as referring to a physical restriction on access. It is a restriction in law and is directed to restrictions on the right of access. 82 The expression "step in the process" (or anything similar) as per par (37)(a)(i) of RDM's POC is not found in the Roads Act, the terms of which I consider to be both clear and determinative. As stated in Walker at [47] (as considered and noted below), it is the terms of the legislation that are determinative and it is not to be assumed that they reproduce or attempt to reproduce an understanding of "principles" derived by way of a gloss upon earlier legislation.
5. I accept the Respondent's submission that the amendment now proposed, albeit with different wording, is seeking to re-agitate the essential question before Robson J as to whether the legislative scheme permits a claim for compensation under the Roads Act relating to a restriction on access (either physical or by some other means) that arises earlier in time than the date of the Order restricting or denying access to the Road as a controlled access road: s 67 Roads Act. As a consequence, the proposed amendments should not be distinguished and the findings in RD Miller (No. 1) are applicable to those amendments as proposed.
6. Proposed amendment paragraph 37(a), in terms, seeks to re-litigate the finding of Robson J that it is the Order restricting or denying access to the controlled access road that it the point in time when the Roads Act anticipates access is denied. The proposed amendment by the use of the phrase "...the right of access between the Land and the Road was restricted and/or denied by the course of conduct of the Road becoming a controlled access road.." (underlined emphasis added) relies, in terms, upon conduct earlier in time than the making of the Order. The particulars to this paragraph also rely upon earlier physical works and the registration of a Deposited Plan, which is said to have restricted legal access to the Road. Each of these particularised actions relate to an earlier period of time than the making of the Order and are matters which are not related in the legislative scheme of the Roads Act to the Order restricting access to a controlled access road, and therefore are not within the contemplation of that legislative scheme as a relevant denial of access to which the entitlement to compensation pursuant to s 68 relates. Further, for the reasons identified in RD Miller (No. 1) at [79] these particularised matters cannot be said to relate to the period "immediately before" the right of access was restricted as is required by s 69(1) of the Roads Act.
7. Proposed amendment paragraph 37(b) adopts the same phrase, its particulars, however, do not refer to the physical works. For the same reasons as outlined in connection with proposed paragraph 37(a) I find that such proposed pleading does not give rise to an entitlement to compensation as anticipated in the legislative scheme.
8. To the extent that the Applicant submits that the reference to the Deposited Plan is a reference to a "restriction at law" as referred to by his Honour at [81] and therefore within his Honour's determination of an entitlement to compensation, I do not accept this submission. It is plain that the reasons outlined in [81] were referring only to the legal restriction provided for in s 68 of the Roads Act being the restriction with which his Honour was dealing, and not ANY legal restriction.
9. Further, to the extent that it is contended by the Applicant that the use of the word "becoming" in the proposed amendment is the adoption of the statutory language and therefore arguable (AS [37]-[43]), I do not accept this submission. The word, where used in s 68(1) of the Roads Act, must be read in its context. The reference to the "road becoming a… controlled access road" is, having regard to the statutory language, a reference to the event prescribed by the Roads Act itself - it is not a reference to any action beyond the bounds of the legislative scheme. There is no indicia, either in the objects of the Act, the text or context of the provision that would support an alternative construction.
10. In addition, the submission that the 'right of access' in s 69 is not limited to a right in the legal sense (AS [33]-[36]), must also be rejected. The 'right to access' is the right of access identified in s 6 of the Roads Act. The text, context and object of the Roads Act make it plain that it is only intended to relate to the rights conferred and subsequently affected by the provision of the Roads Act, and not some other regime. This position is reinforced by s 3(b) of the Roads Act, which includes as a stated object of that Act: (b) to set out the rights of persons who own land adjoining a public road to have access to the public road This object makes it plain that the rights to which s 69 refers, is the right 'set out' in the Roads Act and not otherwise.
11. Having made the findings above, I do not consider that any of the other discretionary factors raised by the Applicant, even if fully accepted, would operate to produce a different conclusion than the one reached, that the proposed amendment to the contested paragraphs should be refused.
12. Accordingly, applying the construction of the Roads Act as determined in RD Miller (No. 1), and applying the "extreme caution" that is required in making such a finding, I find that the Applicant's amendments disclose no reasonable cause of action such that the proposed contested paragraphs 37(a) and (b) of the amendment is manifestly untenable.

Orders and directions

1. The Orders of the Court are: 1. The Applicant is granted leave to amend its Points of Claim in the form of Annexure "A" to the Affidavit of Shamiso Tsingano sworn on 26 September 2019 except the leave does not extend to the amendment of paragraphs 34, 35A, 37(a) and 37(b), for which leave to amend is refused; 2. The costs of the Notice of Motion are reserved for determination in the substantive proceedings; 3. The exhibits are returned.
2. The Court directs that the matters be listed before the list judge for mention on Friday, 29 November 2019 for further directions and (if appropriate) to obtain hearing dates.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2019