Medium Neutral Citation: Hallinan and Ors v Transport for NSW [2022] NSWLEC 119

Hearing dates:14 September 2022

Date of orders: 16 September 2022

Decision date: 16 September 2022

Jurisdiction: Class 3

Before: Robson J

Decision: See orders at [48]

Catchwords: CIVIL PROCEDURE – Separate determination of question – Where appropriate – Class 3 application – Question of quantum of compensation payable – Whether applicants entitled to joint determination and award of compensation – Motion dismissed

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 56, 57, 66

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182

City of Swan v Lehman Bros Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86

Commonwealth Bank of Australia v Clune [2008] NSWSC 1125

Cruden v Sae-Ung [2021] NSWSC 1070

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215

Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464

Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50

Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36

Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697

Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130

TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109

Category: Procedural rulings

Parties: Patrick James Hallinan (First Applicant)
Leila Margaret Hallinan (Second Applicant)
Hi-Quality Building and Landscape Supplies Pty Limited (ABN 52 145 898 095) (Third Applicant)
Hi-Quality Civil and Environment Services Pty Limited (ABN 58 133 722 915) (Fourth Applicant)
Hallinan’s Pty Limited (ABN 76 060 618 055) (Sixth Applicant)
Tranteret Pty Limited (ABN 27 002 261 752) (Seventh Applicant)
Transport for NSW (ABN 18 804 239 602) (Respondent)

Representation: Counsel:
N Eastman with A Richards (Applicants)
M J Astill (Respondent)

Solicitors:
Beatty Hughes & Associates (Applicants)
Corrs Chambers Westgarth (Respondent)
File Number(s): 2022/00051043

Publication restriction: Nil

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Judgment

Introduction and outcome

1. By notice of motion filed on 4 August 2022 (and amended at hearing on 14 September 2022) Transport for NSW (‘TfNSW’), the respondent in Class 3 compensation proceedings, seeks leave pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that the following question be heard and determined before the hearing of the substantive proceedings:

“Whether the Court, in determining compensation pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991, (ss 59(1)(a) and (b) excluded) is empowered to determine and award compensation to all Applicants jointly, in the manner claimed at [46] to [51] of the Applicants’ Points of Claim (without determining any question of fact)?”

2. Seven applicants have commenced one set of proceedings pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (‘Just Terms Act’) objecting to the compensation offered to each applicant by TfNSW and seeking an order pursuant to the Just Terms Act that the total amount of compensation to which they are entitled for the acquisition of land at Kemps Creek be determined in the sum of $47,251,092.20. The first and second applicants held freehold interests in the acquired land and contend that they had granted leases over various parts of the land to the third to seventh applicants who are related corporate entities who each operated interdependent businesses on various parts of the land.
3. The applicants filed their points of claim on 19 April 2022 (‘Points of Claim’) pleading their entitlement to compensation and, relevantly for the present motion, compensation for market value and special value in a joint manner without distinguishing between each applicant’s individual interest in the land.
4. The hearing of the notice of motion proceeded before me on 14 September 2022.
5. For the reasons that follow, I have determined that it is not appropriate to grant leave pursuant to r 28.2 of the UCPR and that the motion should be dismissed.

Background

6. The proceedings were commenced on 21 February 2022 by Patrick James Hallinan and Leila Margaret Hallinan, the first and second applicants respectively, and five corporations that are in the ownership of, and control of, Mr Hallinan (being, Hi-Quality Building & Landscape Supplies Pty Limited; Hi-Quality Civil & Environmental Services Pty Limited; Hi-Quality Waste Management Pty Limited; Hallinan’s Pty Limited; and Tranteret Pty Limited), the third, fourth, fifth, sixth and seventh applicants, respectively.
7. The third to seventh applicants comprise part of the wider “Hi-Quality Group”, which operates in the waste, recycling, quarrying, transport, equipment hire, and building and landscape supplies industries.
8. The proceedings relate to TfNSW’s compulsory acquisition of Lots 25 and 26 in DP30265, known as 1297-1305 and 1307-1337 Elizabeth Drive, Kemps Creek (‘Land’), by notice published in the New South Wales Government Gazette, No 289, 30 June 2021.
9. Prior to the acquisition:

1. Lot 25 in DP30265 (‘Lot 25’) was owned by the first applicant;
2. Lot 26 in DP30265 (‘Lot 26’) was owned by the first and second applicants as joint tenants; and
3. the whole of the Land was occupied in various parts by each of the third to seventh applicants pursuant to seven unregistered leases each commencing on 1 July 2020 for a period of five years with one five-year option to renew.
4. In December 2021, the Office of the Valuer General NSW determined the compensation payable to each applicant as follows:

1. first applicant, as the registered proprietor of Lot 25, and National Australia Bank Ltd (‘NAB’), as the registered mortgagee: $8,179,513 comprising market value and disturbance loss;
2. first and second applicants, as the registered proprietors of Lot 26, and NAB, as the registered mortgagee: $6,997,513 comprising market value and disturbance loss;
3. third applicant, as the unregistered lessee of a part of Lot 25: $186,838 comprising disturbance loss;
4. fourth applicant, as the unregistered lessee of a part of each of Lots 25 and 26: $714,183 comprising disturbance loss;
5. fifth applicant, as the unregistered lessee of a part of Lot 25: $nil;
6. sixth applicant, as the unregistered lessee of a part of each of Lots 25 and 26: $303,060 comprising disturbance loss; and
7. seventh applicant, as the unregistered lessee of a part of Lot 26: $nil.
8. To understand the manner in which the applicants plead their case which, briefly stated, is that the third to seventh applicants used the Land for business purposes “interdependently”, and to provide context to the parties’ submissions, in particular the concern of TfNSW in relation to the suggested “joint” claim of the applicants, it is appropriate to record pars (30)-(31), (34), (46)-(51) and (52) of the applicants’ Points of Claim which provide:

30   The occupation and use of the Land by all of the Applicants are extensively interdependent for the operation of [the Hi-Quality Group] and the [third to seventh applicants’ businesses].

31   The [third to seventh applicants’ businesses] also overlap amongst themselves in their operation and use of the Land, in that:

(a)   while separate areas are leased by each [of the third to seventh applicants’ businesses] on the Land, plant, equipment, space and infrastructure on the Land are often shared;

(b)   the various functions and capabilities of the [third to seventh applicants’ businesses] can support and supplement one another in servicing customers;

(c)   while formally employed by one business, staff often move between the [third to seventh applicants’ businesses] as certain needs arise on site;

(d)   funds are transferred between the [third to seventh applicants’ businesses] in the form of loans depending on the relative financial positions and needs of the [third to seventh applicants’ businesses]; and,

(e)   the [third to seventh applicants’ businesses] work in a collaborative way in service of the larger business interests of the entire [Hi-Quality Group].

…

34   The overlapping, collaborative nature of the Applicants’ use and occupation of the Land has led to their intention, through Mr Hallinan personally and in his capacity as Director of the [third to seventh applicants’ businesses], to relocate their businesses and operations following the Acquisition to alternative land to continue to carry on those businesses as closely as possible (identically if otherwise possible) as was being carried out upon the Land at the date of acquisition.

…

46   The Applicants claim under s 55 of the Just Terms Act, as follows:

Head of Compensation	Amount claimed
Section 55(a) Market value	s. 56(3) on the basis of reinstatement	s. 56(1) not on the basis of s 56(3) reinstatement
	• Purchase of 20 Bernera Rd, Preston for permanent reinstatement $16,665,165.00• Purchase of 70 Range Road, Cecil Park for permanent reinstatement $8,300,000.00= $24,965,165.00 (A)• Costs to be reinstated temporarily on 37-53 Lee Holm Road, 9 Whyalla Place and 3 Holbeche Place, and permanently on 20 Bernera Road and70 Range Road= $19,622,654.54 (B)Total s 56(3) claim: is A + B= $44,587,819.54 (C)	For Lots 25 and 26 (42,480m²) @ $775/m²= $33,000,000 (D)
Section 55(b) Special value	$ (C-D)= $11,587,819.54 (E)
Section 55 (d) – Disturbance
Section 59(1)(a) Legal costs	• Legal invoices (solicitors and barristers) $670,573.21• Legal fees disbursements on other expert costs $256,760.45= $927,333.66 (F)
Section 59(1)(d) Valuation fees	= $104,016.00 (G)
Section 59(1)(d) Stamp Duty	For (A) = $1,623,923.00 (H)For (D) = $2,246,952.40 (I)
Section 59(1)(e) Mortgage discharge	= $8,000.00 (J)

47   The Applicants’ Primary Claim for market value calculated under s 56(3) market value and for disturbance is calculated by reference to the Table at [46] above and is: $47,251,092.20 (C + F + G + H + J).

48   The Applicants’ First Alternative Claim for is for special value, s 56(1) market value and disturbance including relocation and is calculated by reference to the Table at [46] above and is: $33,873,746.74 (B + E + F + G + H + J).

49   The Applicants’ Second Alternative Claim for s 56(1) market value and disturbance including relocation is calculated by reference to the Table at [46] above and is: $55,908,956.60 (B + D + F + G + I + J).

50   The Applicants’ Third Alternative Claim is made separately as follows:

(a)   for the First Applicant and Second Applicants, 2/7^ths of the Primary Claim or First Alternative Claim;

(b)   for the Third Applicant, 1/7^th of the Primary Claim or First Alternative Claim;

(c)   for the Fourth Applicant, 1/7^th of the Primary Claim or First Alternative Claim;

(d)   for the Fifth Applicant, 1/7^th of the Primary Claim or First Alternative Claim;

(e)   for the Sixth Applicant, 1/7^th of the Primary Claim or First Alternative Claim;

(f)    for the Seventh Applicant, 1/7^th of the Primary Claim or First Alternative Claim.

51   The Applicants’ Fourth Alternative Claim is made separately as follows:

(a)   for the First Applicant and Second Applicants, by reference to the Table in [46] above: $35,549,623.74 (D + 2/7^ths of F + 2/7^ths of G + I + J).

(b)   for the Third Applicant by reference to the Table in [46] above: $4,071,866.58 (1/5^th of B + 1/7^th of F + 1/7^th of G).

(c)   for the Fourth Applicant by reference to the Table in [46] above: $4,071,866.58 (1/5^th of B + 1/7^th of F + 1/7^th of G);

(d)   for the Fifth Applicant by reference to the Table in [46] above: $4,071,866.58 (1/5^th of B + 1/7^th of F + 1/7^th of G);

(e)   for the Sixth Applicant by reference to the Table in [46] above: $4,071,866.58 (1/5^th of B + 1/7^th of F + 1/7^th of G);

(f)    for the Seventh Applicant by reference to the Table in [46] above: $4,071,866.58 (1/5^th of B + 1/7^th of F + 1/7^th of G).

52   In the event the Respondent contends, and the Court accepts, that any apportionment of compensation between the First and Second Applicants and the [third to seventh applicants] cannot be as set out in [50] and [51] above, as a Fifth Alternative Claim, the Applicants’ make the claims identified in [50] and [51] above, but will provide an individual breakup of costs for reinstatement and/or relocation, as between each entity, when it provides its quantity surveying and other evidence (although the Applicants’ accept that this is an exercise in artificiality that will not reflect how the costs will actually be incurred, which will be in the manner described in the Table in [46] above, and may inflate costs when the synergies between the works being carried out once, and across all of the entities, will actually reflect the costs which will be incurred).”

12. In circumstances where the applicants, with the possible exception of par (52) of the Points of Claim, have pleaded their claim effectively as a “joint” claim without apparently separating (and therefore distinguishing between) each individual applicant’s separate interests (which is contrary to the manner in which the Valuer General determined the discrete claims), TfNSW seeks to have its position that, on a proper construction of the Just Terms Act, compensation for market value of each applicant’s interest must be assessed separately from the other applicants, clarified by the determination of the separate question.
13. By way of further background, prior to the motion presently before the Court, on 6 June 2022, TfNSW filed a notice of motion seeking pars (46)-(52) (inclusive) of the Points of Claim be struck out and an order that the applicants file and serve amended points of claim identifying separately the claims made by each applicant. That motion proceeded to hearing before Pepper J on 21 July 2022 and after certain orders were made that the applicants provide further particulars as to the legal basis on which a “joint” claim is permissible under s 56(3) of the Just Terms Act, and noting an agreement that TfNSW would pursue leave for the separate determination of that question pursuant to r 28.2 of the UCPR, the motion was ultimately dismissed on 28 July 2022.

Evidence

14. In support of the present motion, TfNSW read the affidavit of Max Alexander Somervaille Newman, solicitor, affirmed 4 August 2022. Mr Newman deposed to various historical intercourse between the solicitors for each of the parties and gave details of the litigious history referred to in the background above including the conduct of the notice of motion filed 6 June 2022.
15. Mr Newman stated that TfNSW’s points of defence would plead, first, that the first and second applicants, not being in occupation of the Land at the date of compulsory acquisition, would not be entitled to any compensation for relocation or reinstatement; and second, that the other applicants may be entitled to compensation (in relation to the relocation or reinstatement) but any such claims would be limited to items that each owned on the acquired Land. He also stated that there was a “fundamental” difference in approach between the parties and that the expert witnesses would be required to address two “possible approaches”.
16. In opposition to the orders sought in the motion, the applicants read the affidavit of Patrick James Hallinan, the first applicant, affirmed 29 August 2022. Mr Hallinan deposed that he was concerned (as were the other applicants) that if the Court granted leave for the determination of a separate question, the hearing set down in March 2023 for three weeks may be delayed, and any such delay would exacerbate certain personal and business-related stress caused to his family as a result of the acquisition. The applicants also relied upon a letter dated 11 March 2022 from their solicitors to TfNSW’s solicitors which detailed the applicants’ opposition to the determination of a separate question.

Submissions

17. TfNSW provided written and oral submissions in support of the motion. The applicants made oral submissions and relied upon the matters in the letter dated 11 March 2022 from their solicitors to TfNSW’s solicitors, referred to at [16] above. In addition, each party provided a summary of the submissions that would be intended to be made if the Court ordered the determination of a separate question (and I assume the nature of the arguments in relation to the manner the applicants put their claim, particularly in relation to pars (46)-(52) of the Points of Claim, that would be before the Court at the substantive hearing if leave was not granted).

TfNSW’s submissions

18. TfNSW submits that, although there are certain “factual prerequisites” to be satisfied before the assessment of market value on a reinstatement basis (pursuant to s 56(3) of the Just Terms Act), the determination of the separate question could proceed with specific evidence and would not require any inquiry to be made into those prerequisites in circumstances where that evidence would be a matter for the substantive hearing. As such, the intent of the separate question is to determine whether (if the prerequisites are met) the Just Terms Act would lawfully permit the market value to be assessed “in the manner claimed at [46] to [51] of the Applicants’ Points of Claim” jointly for all seven applicants irrespective of whether the claim, or claims, are made pursuant to either s 56(3) or s 56(1) of the Just Terms Act.
19. TfNSW submits that although it has not filed its points of defence (and notes that it has not been directed to do so), it proposes to structure its points of defence quite differently to the Points of Claim. Specifically, TfNSW would distinguish the various interests of each applicant in the Land and assess any entitlement to compensation for each applicant separately. TfNSW would maintain that the first and second applicants, not being in occupation of the Land, are not entitled to any compensation based upon either relocation or reinstatement (as appears to be the manner adopted in the Points of Claim), and that the third to seventh applicants may be entitled to compensation for relocation or reinstatement.
20. TfNSW submits that because each of the parties intends to, and has been granted leave to, adduce evidence from up to five experts, because there is a fundamental difference in approach, “the evidence that will be produced by the parties will be substantial but to leave the issues raised by the Separate [Question] to trial must result in a significant increase in its volume and complexity”.
21. TfNSW further submits that it has retained its experts based upon the manner in which it intends to put its case (that is, based upon what it submits is a proper construction of s 56(1), s 56(3) and s 57 of the Just Terms Act); that this is a central issue in relation to each of the applicants’ claims; and that because the parties are contending for very different overall approaches to the assessment of any compensation, this results in a “very different overall outcome in terms of both total compensation and the entitlement of each individual applicant”.
22. Although TfNSW has not yet received advice from its advisers to qualify its assessment of compensation (for the substantive hearing), it anticipates that the assessments of compensation are “likely to be closer” to the assessments undertaken by the Valuer General than the applicants’ pleaded claim and that this is because the approach taken by the Valuer General is similar to that which TfNSW proposes to take.
23. In the circumstances, TfNSW submits that the determination of the separate question may prevent each of the parties preparing evidence to substantiate and qualify their (to be) separately pleaded cases. Otherwise, the parties, acting “prudently”, would adduce evidence to meet their opponent’s case in the event that their interpretation of the correct approach (and therefore that which is sought to be encapsulated in the separate question) went against them.
24. TfNSW submits that the determination of the separate question provides advantages including the fact that the evidence would be prepared only in regard to the correct approach to ascertaining the quantum of compensation payable as determined by the Court and, as such, the substantive hearing would likely be shorter; and that the determination of the separate question may well assist the prospects of resolving the proceedings by way of agreement at a s 34 conciliation conference.

Applicants’ submissions

25. In oral submissions, the applicants’ counsel confirmed that although the applicants now maintain their opposition to the separate question (for reasons which will follow), they would not have maintained that opposition if, first, the wording of the separate question was able to be reworded so that it provided some further utility; and second, that the hearing of any separate question (as amended) was able to be accommodated by the Court on 14 September 2022, the day the hearing of the motion for leave was listed.
26. In the circumstances where these factors were not met, the applicants maintained their opposition to the separate question primarily on the basis that the proposed question lacks utility because, if TfNSW was correct in relation to the separate question (as presently articulated), it would be dispositive of “almost nothing” in the proceedings (because it would only dispose of the question whether the ultimate compensation sum claimed in pars (47), (48) and (49) of the Points of Claim can be determined by reference to a lump sum covering the “joint” claims of all applicants or whether it must be divided in the manner claimed in pars (50)-(52) of the Points of Claim) and it would not dispose of the need for any evidence.
27. Alternatively, if the applicants were correct on the separate question, it would only be dispositive of the need to provide separate quantity surveying evidence in the manner proposed by par (52) of the Points of Claim (which incorporates an approach to determination of compensation that apparently is not contested by TfNSW) and this would only be a “fraction” of the evidence that would otherwise be required to be prepared for the substantive hearing.
28. In this regard, the applicants submit that, irrespective of the separate question, the evidence marshalled in the proceedings would still need to deal with – first, the entitlement of the applicants to compensation based on market value determined on the reinstatement basis provided for in s 56(3) of the Just Terms Act, and/or the “traditional” market value pursuant to s 56(1) (or special value pursuant to s 57); and second, evidence of the purchase prices of permanent replacement properties, the costs of temporary reinstatement to temporary relocation properties, and evidence in relation to the rate per square metre assessment of the Land (apart from the quantum of legal and valuation fees claimed as disturbance). In the circumstances, none of these matters would be resolved by the determination of the separate question either way.
29. The applicants further submit that they accept that each of the applicants must prove that they have a legitimate claim (in passing, I note this submission was said by counsel for TfNSW to be a concession that is not made, or more particularly “articulated”, in the Points of Claim).

Applicable principles

30. The power to order a question to be determined separately is contained in r 28.2 of the UCPR, which provides that:

28.2   Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

31. A number of recent cases have summarised the considerations that apply in approaching the exercise of the discretion conferred by r 28.2 of the UCPR: Cruden v Sae-Ung [2021] NSWSC 1070 (‘Cruden’) at [41] (Hallen J); 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 (‘820 Cawdor’) at [10] (Biscoe J); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[97] (Ward JA). For the purposes of the present motion the following propositions noted in Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 at [14]-[15] are of relevance.

1. It is ordinarily appropriate that all issues in proceedings should be disposed of at one time: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 (‘Clune’) at [5] (Johnson J); Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (‘Tallglen’) at 141-142 (Giles CJ in Comm Div); Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5] (Brereton J).
2. The exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of care or caution, as “[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid”: Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] (Callinan J); Tallglen at 141-142.
3. Since the passage of the Civil Procedure Act 2005 (NSW) (‘CP Act), it has also been observed that “the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously”: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6] (Brereton J); Clune at [6].
4. An order is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings, so as to give effect to s 56 of the CP Act: 820 Cawdor at [10(c)]; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] (Einstein J).
5. It is for the party seeking the order to show to the Court that a separate decision of a question is appropriate: 820 Cawdor at [10(b)].
6. The factors that have previously been found to support the making of an order for the resolution of a separate question include where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and cost by narrowing the issues in dispute; and third, the potential settlement of the litigation.
7. By contrast, an order for determination of a separate question is unlikely to be appropriate in circumstances where first, there are intertwined issues of fact or law, and the separate question is likely to result in fragmentation of the proceedings; second, there is likely to be significant overlap between the evidence adduced on the separate question and any residual questions; and third, the determination of a separate question is likely to involve issues as to the credibility of witnesses, whose evidence is likely to be material to the remaining issues in dispute.
8. One instance where it may be appropriate to determine a separate question even if it will not resolve all the issues in dispute is where there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Bros Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] (Rares J).
9. While the decision to order separate questions is ultimately one for the Court, the attitudes of the parties are relevant to the exercise of the discretion to make an order: Cruden at [41(p)]; TVW Enterprises Ltd v Duffy, M.J. [1985] FCA 109 at [8] (Toohey J).

Consideration

32. Adopting the principles above, having read the material to which I have been directed and having considered the evidence and the submissions, I am of the view that the motion should be dismissed primarily because I am not satisfied that the determination of the separate question as presently articulated will have the effect and benefit TfNSW contends.
33. I note that while my view has been formed by my consideration of the material before me and on a general acceptance of the submissions made by the applicants, I am not determining whether the applicants are entitled to articulate and determine their claim(s) in the manner presently pleaded. Before providing further reasons for dismissing the motion, I make a number of general background comments.
34. First, I am conscious of the fact, as informed by the parties, first, that the substantive hearing is set down for three weeks commencing 13 March 2023; second, that points of defence have not been filed by TfNSW, although I accept, to the extent necessary, that TfNSW will present evidence and defend the claim generally in accordance with the evidence of Mr Newman (and the submissions made by its counsel); and third, that there has been no expert evidence filed in the proceedings in circumstances where each of the parties has retained five experts.
35. Second, I am also conscious that the motion filed on 6 June 2022 by TfNSW seeking to strike out pars (46)-(52) of the Points of Claim was, ultimately, dismissed (with an intention that TfNSW would seek to pursue its concerns via a separate question); and that the motion before me is for leave to have the separate question determined, and not the determination of the question itself.
36. Third, I accept that TfNSW maintains that the applicants’ approach in the Points of Claim is wrong because of the applicants’ attempt to plead their entitlements jointly (without particularisation of each applicant’s discrete claim apart from the general pleadings in pars (30), (31) and (34) of the Points of Claim (noted at [11] above)) when each applicant likely has a different interest, particularly where the first and second applicants held freehold interests (and allegedly had no apparent actual use of the Land) and the remaining applicants had (at most) leasehold interests.
37. I also understand (and accept) TfNSW’s concern in relation to the “manner” in which the applicants frame their suggested “joint” claim(s) at least at (46)-(51) of the Points of Claim. However, more relevantly, there does not appear to be a concern (apart from a possible lack of particularity) in the manner in which the “fifth alternative claim” is detailed in par (52) of the Points of Claim (and noting the concession made by the applicants’ counsel that each applicant will need to prove a legitimate claim). In these circumstances, I consider that evidence is at least likely to be marshalled in a form to address that claim and, as such, the essential issue to be determined at the substantive hearing remains the manner in which the Court will determine each applicant’s (discrete) entitlement.
38. With the above comments in mind, my reasons for not granting leave to have the separate question determined pursuant to r 28.2 of the UCPR may be shortly stated.
39. First, I consider that all the issues in these proceedings, which involve an overlap between each applicant’s individual entitlement and, therefore, the manner of determination of that entitlement, should be disposed of at one time based upon the evidence that will be marshalled.
40. Second, I have a concern, that the separate question as presently articulated itself may not be dispositive because, as submitted by the applicants, such determination is not likely to reduce materially the extent of evidence otherwise required to be called by either party. As such, I am not satisfied that there will be any significant saving of time and costs in relation to the preparation of evidence as suggested by TfNSW. This is because, as far as I understand the applicants’ claim(s), as I have noted above, even considering the five bases and permutations of the “joint” approach (as provided for in pars (46)-(51) of the Points of Claim), the applicants will likely marshal evidence in relation to the “joint” approach as well as the “individual breakup” approach that the applicants plead in par (52) of the Points of Claim. In these circumstances, TfNSW will have to make forensic decisions (of some nicety) which are not uncommon in any contested litigation in relation to evidence to support its approach.
41. Apart from the above, until there is evidence as to precisely what the nature of the “interdependence” between the third to seventh applicants is in relation to their use of the Land (leaving aside the discrete claims of the first and second applicants), the relevance of any evidence (be it, for example, quantity surveying and/or valuation), and the manner any such evidence is received (and considered) by the Court, is more appropriately decided at the substantive hearing.
42. For example, and without wishing to enter into the interstices of likely argument, there clearly may be some overlap in evidence that relates to reinstatement or relocation between one or more of the third to seventh applicants. The need or requirement for evidence of this nature would not be determined by the separate question as presently articulated on my understanding of the manner in which the applicants’ counsel put their case.
43. I also note my concern, expressed at the hearing, that the determination of any discrete entitlement of an applicant to compensation by way of simple accumulation and then division into seven (or five) separate claims (as provided for in pars (50) and (51) of the Points of Claim) is also, with respect, novel. I also have a concern, based upon the matters presently before me, in relation to the separation between the interests of the first and second applicants (given their freehold interests) and the interests of the third to seventh applicants. I consider that these are not matters appropriate for determination as presently articulated in relation to the separate question.
44. While I am also conscious of the concern of the first applicant that the hearing of a separate question (and determination thereof) may in some way delay the substantial hearing, I do not consider this persuasive and certainly not determinative on the motion.
45. Moreover, I do not see how the determination of the separate question would facilitate the quicker and cheaper resolution of the proceedings because I do not consider that the separate question is ripe for determination (even accepting that it will remain a significant issue between the parties) nor that the resolution of the question would substantially narrow the field of controversy.
46. Finally, I am uncomfortable with TfNSW’s suggestion that the separate question should proceed on the assumption of certain “factual prerequisites” that would otherwise be required to be satisfied before any assessment of market value on a reinstatement basis pursuant to s 56(3) of the Just Terms Act, and that evidence of such prerequisites would be a matter for the substantive hearing. While I accept TfNSW’s submission that the intent of the separate question is to determine whether, if the prerequisites are met, the Just Terms Act would permit the market value to be assessed jointly for all seven applicants, I am uncomfortable that such assumptions should be made absent evidence.
47. Although I accept (and with respect understand) the concerns of TfNSW that the consequence of my decision may mean that the concerns behind the separate question will need to be grappled with at the substantive hearing, for the reasons above, I am not satisfied that it is appropriate for leave to be granted for the determination of the separate question pursuant to r 28.2 of the UCPR.

Orders

48. The Court makes the following orders:

1. The notice of motion filed 4 August 2022 is dismissed.
2. Costs are reserved.