Maddock v Penrith City Council

1. [1]

   HER HONOUR: This matter involves a Notice of Motion filed 6 April 2021 seeking to strike out the claim as against the first defendant.

2. [2]

   The first defendant, by way of Notice of Motion filed 6 April 2021, relevantly seeks orders that:

3. [3]

   The plaintiff is Mr Dean Maddock. The first defendant is the Penrith City Council (“Penrith Council”). The second defendant is Transport for New South Wales (“TfNSW”). Mr Sheldon SC appeared for the plaintiff. Mr Hutchings appeared for Penrith Council. The parties relied on a court book (“CB”).

Background

1. [4]

   On 17 May 2017, the plaintiff was riding his motorcycle in a generally northerly direction on Mulgoa Road in the vicinity of its intersection with Roscrea Drive. At the intersection there was an additional lane to the left which would permit a vehicle to pass another northbound vehicle waiting to turn or turning into Roscrea Drive. The left lane, however, ended abruptly in a right-hand corner without warning, the effect of which was to create a sudden, very tight righthand corner for a north travelling vehicle utilising the left lane.

2. [5]

   The plaintiff sues both Penrith Council and TfNSW, the first as the road authority within the meaning of the Roads Act 1993 (NSW) (“Roads Act”) and the second as having assumed the role of a roads authority with respect to some aspects of the road’s operation.

3. [6]

   Both defendants deny liability.

   1. (1)

      The plaintiff, by Amended Statement of Claim filed 24 June 2021 (“ASC”), pleads the following:

The defence of the first defendant

1. [7]

   In its defence filed 18 March 2021 (“D1 Defence”), Penrith Council pleads that as at 7 May 2017, Mulgoa Road was classified as a “main road” falling within the definition of a “classified road” under s 64(1) of the Roads Act which placed it under the control of TfNSW, formerly the Roads and Traffic Authority NSW (“RTA”): D1 Defence at [19](a).

2. [8]

   Penrith Council denies it had care, control and maintenance of Mulgoa Road, including that part of the road at the intersection between Mulgoa Road and Roscrea Drive: D1 Defence at [19](g).

The defence of the second defendant

1. [9]

   In its defence filed 11 September 2020 (“D2 Defence”), TfNSW denies it was the roads authority for Mulgoa Road, saying that at all material times, pursuant to s 7 of the Roads Act, Penrith Council was the owner and the roads authority for Mulgoa Road: D2 Defence at [2](b). Pursuant to the Schedule of Roads classified under the Roads Act, Mulgoa Road was a main road - known as MR155 - and administratively classified as a 'State Road': D2 Defence at [2](d).

2. [10]

   TfNSW argues that it exercised road authority functions to the extent necessary for the functioning of Mulgoa road as a State Road pursuant to the Roads Act: D2 Defence at [2](d). Further it says it was permitted to carry out traffic control work on the road, on the basis that s 87 of the Roads Act provided the powers to "carry out traffic control work', and to carry out "traffic control work" includes activities in connection with the installation of traffic control facilities. It says that pursuant to s 45E of Part 6 of the Transport Administration Act 1988 (NSW) "traffic control work" is defined to include any "sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn advise or inform drivers of vehicles of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards”: D2 Defence at [2](e). It should be noted that s 45E of Part 6 has been repealed as of 1 December 2019 and an identical definition now appears at Schedule 1 Part 2A of the Transport Administration Act 1988 (NSW).

3. [11]

   To extent it exercised the functions of the roads authority, TfNSW argues that by virtue of s 65 of the Roads Act it is entitled to the immunities of a roads authority.

The law – Strike out

1. [12]

   Penrith Council relies upon r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) which relevantly reads:

2. [13]

   Recently in Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq at [44] stated:

3. [14]

   UCPR 14.28 enunciates grounds, upon which a defective pleading may be struck out. Whereas UCPR 13.4 focuses on the weakness of a party’s case rather than defects of pleading: see Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.

4. [15]

   In Shaw v State of New South Wales [2012] NSWCA 102 at [129]-[133] Barrett JA held:

5. [16]

   In Penrith Council’s submission, the central issue raised by its Notice of Motion is whether it should be called upon to meet the plaintiff’s claim considering:

6. [17]

   Penrith Council submitted that it is evident that at the time of pleading the ASC the plaintiff was uncertain as to which defendant was responsible for the road upon which the plaintiff is said to have had the alleged accident.

7. [18]

   In this regard Penrith Council noted that the plaintiff, in the ASC stated at [2]:

8. [19]

   Penrith Council noted that in answer to this paragraph it pleaded at [3] of D1 Defence:

9. [20]

   Penrith Council noted that annexed to the Affidavit of Chris Wood filed 6 April 2021 (“Aff Chris Wood 6/4/21”) is a letter dated 13 October 2020 (“the 13 October letter”) addressed to the plaintiff’s solicitors from Mr Greg Carruthers Smith, Partner, Wotton and Kearney, the solicitors for TfNSW (CB 66).

10. [21]

    Penrith Council noted that the letter identified that TfNSW sent the letter:

11. [22]

    Penrith Council noted that the 13 October 2020 letter included the following representations:

12. [23]

    Penrith Council further noted that annexed to Aff Chris Wood 6/4/21 is another letter dated 4 March 2021 (CB 92) (“the 4 March 2021 letter”) and submitted that the effect of this second letter is to confirm that there can be no fact in issue in the proceedings as to the identity of the responsible roads authority, and therefore, the correct defendant to answer the plaintiff’s claim. Penrith Council noted the following passage from the second letter:

13. [24]

    Penrith Council submitted that therefore, the facts in issue are defined.

14. [25]

    In Penrith Council’s submission TfNSW’s position appears tolerably clear and is plainly one that it could not resile from (even if it should ever want to) without dire consequence, noting that both Penrith Council and TfNSW are required to act as model litigants.

15. [26]

    Further, Penrith Council submitted that the overriding purpose of the Civil Procedure Act 2005 (NSW) requires (at the very least) the striking out of the claim against it as pleaded in the ASC as it has the effect of hindering the efficient progress of the litigation.

16. [27]

    The plaintiff submitted that for the most part, the legal character of a public road is defined by the Roads Act.

17. [28]

    The plaintiff noted that s 7 of the Roads Act reads:

18. [29]

    Penrith Council is therefore, in the plaintiff’s submission, the road authority within the meaning of the Roads Act, for Mulgoa Road.

19. [30]

    The plaintiff noted that s 64 of the Roads Act provides:

20. [31]

    The plaintiff submitted that TfNSW is empowered to exercise the functions of a road authority, but it does not become the roads authority under this provision.

21. [32]

    The plaintiff submitted that the roads authority does not cease to be the roads authority for a road which is classified, but its role is circumscribed such that it cannot exercise its power as a roads authority in a manner which is inconsistent with the manner in which the function is being exercised by TfNSW. The plaintiff stated that the use of the present continuing tense in relation to TfNSW’s exercise of powers is to be noted.

22. [33]

    The plaintiff noted that s 71 of the Roads Act is in the following terms:

23. [34]

    In the plaintiff’s submission, Penrith Council’s application is premature. The plaintiff submitted that he is still in the process of identifying a primary fact, namely the date on which the offending “slip lane” was added, by whom and in what context. The plaintiff noted he has served an expert report and submitted a Draft Further Amended Statement of Claim for the consent of both defendants, which picks up the essence of the expert’s opinion, to which Penrith Council has provided a non-committal response regarding consent.

24. [35]

    The plaintiff submitted that given the evidence gathering process continues, including seeking from Penrith Council its file in relation to the subdivision which led to the creation of Roscrea Drive, the application should be dismissed on that basis alone.

25. [36]

    The plaintiff noted that Penrith Council relies on an argument that the concessions made by TfNSW mean it can have no liability to the plaintiff, not because Penrith Council could not be liable in the way the case has been pleaded, but because TfNSW concedes certain matters. In the plaintiff’s submission this renders the present motion an application for summary dismissal not an application to strike out pleadings. However, the plaintiff submitted that either way Penrith Council’s approach does not allow for important qualifications in TfNSW’s statement of its position which leave a clear, arguable pathway to Penrith Council’s liability.

26. [37]

    In the plaintiff’s submission the starting point of Penrith Council’s application is the assertion that TfNSW “accepts responsibility for the road” contained in Penrith Council’s submissions at [7](b).

27. [38]

    The plaintiff submitted that this submission does not address the 3 facets of the plaintiff’s case, namely:

    1. (1)

       the ongoing care control and maintenance of the road;

    2. (2)

       the fact both defendants remain empowered to perform work on the road; and

    3. (3)

       responsibility for construction of an additional lane, to the left of the main trafficable lane, which ended (without warning) in the middle of a right-hand bend: see ASC at [8], [10] and [16]. The construction of the road is alleged to have been undertaken negligently: ASC at [18](c) and (f). Further, the 2nd proposed further amended statement of claim adds an allegation that one or other defendant constructed the additional lane.

28. [39]

    The plaintiff noted that Penrith Council denied the allegation of care, control and maintenance at [3] of D1 Defence, suggesting that at the date of accident the position with respect to the road was such as to place it under the care control and management of TfNSW.

29. [40]

    In response the plaintiff submitted that axiomatically, the potential basis of liability is not confined to the day of accident: it is not, and could never have been understood to be, the plaintiff’s case there was some dereliction of duty occurring specifically on the day of the accident. Rather, the day of the accident is merely the day on which the tort of negligence became complete when, as the result of a breach occurring earlier, the plaintiff suffered damage.

30. [41]

    The plaintiff further noted that in response to [18] of the ASC, Penrith Council cited s 64(1) of the Roads Act and said the section establishes TfNSW was “empowered” to “override any rights powers (sic) the First Defendant may have had”: D1 Defence at [19](a). The plaintiff submitted that this is not the effect of the section.

31. [42]

    The plaintiff submitted that s 64 of the Roads Act envisages the road authority proper and TfNSW having concurrent powers. Penrith Council is only precluded from exercising its powers if (a) TfNSW has exercised its powers (more correctly, if those powers are being exercised), and (b) if the proposed manner of exercise by the council is inconsistent with TfNSW’s exercise of its powers. The plaintiff submitted that this is the position adopted by TfNSW in it’s the 4 March 2021 letter at [3.4].

32. [43]

    In the plaintiff’s submission, s 64 of the Roads Act is permissive not mandatory and this bears on the meaning and practical implications of the word “manner” and the use of the continuing present tense (“is being”) in subsection (2).

33. [44]

    The plaintiff noted that the foregoing means it does not follow from TfNSW’s involvement in Mulgoa Road that Penrith Council had no power and/or no involvement. The asserted inability of the council to undertake activity on the road, in the plaintiff’s submission, would depend on there being evidence as to what TfNSW did and whether the council activity in question was inconsistent with TfNSW’s exercise of its powers. The plaintiff submitted that is obviously a factual question the answer to which depends on evidence, and which would and should be determined at a final hearing after all the evidence has been gathered.

34. [45]

    The plaintiff submitted that it is therefore wrong to suggest Penrith Council was stripped of all power and capacity to do anything about Mulgoa Road. Whether it did anything and whether it should have done anything are matters to be determined on all the evidence once adduced at a final hearing.

35. [46]

    The plaintiff then submitted that similarly, D1 Defence at [19](b) and (c) ignores the actual words of s 64 of the Roads Act and misstates the combined effect of ss 71 and 64 of the Roads Act.

36. [47]

    The plaintiff submitted that s 71 of the Roads Act permits the road authority to carry out road works, and the effect of s 64 of the Roads Act is not to remove that power, but rather to prevent it from being exercised in a manner which is inconsistent with TfNSW’s exercise of its powers under s 64 of the Roads Act. In the plaintiff’s submission it follows Penrith Council could carry out road work provided it did so in a manner not inconsistent with TfNSW exercise of its powers. The plaintiff noted that this construction is supported by the 4 March 2021 letter at [3.4].

37. [48]

    The plaintiff noted that TfNSW only accepts responsibility for “inspection, maintenance and/or design construction” since 1993: the 13 October 2020 letter at [15]. The plaintiff submitted that the current evidentiary position is that neither defendant knows when the additional lane was added and noted that its own investigations to determine that fact are continuing.

38. [49]

    In the plaintiff’s submission, in those circumstances it cannot be said Penrith Council is other than an entirely proper defendant because:

    1. (1)

       the concession by TfNSW as to care etc. dates only from 1993 and it is distinctly possible the lane was added prior to that time;

    2. (2)

       the lane may have been added as part of or in connection with development consent to the subdivision on Roscrea Drive; and

    3. (3)

       Differing considerations apply to Penrith Council and TfNSW: the latter may accept the road with the slip lane and do nothing about it, hiding behind s 45 of the Civil Liability Act 2002 (NSW) whereas if Penrith Council designed and/or built the road there is no question of a failure to carry out road work by it.

39. [50]

    The plaintiff submitted that the 13 October 2020 letter does not do what [15](b) of Penrith Council’s submissions contend. Rather in that letter TfNSW accepts responsibility for management of the road at [3] (apparently since 1993 at [9]) and funding, priorities and outcomes at [10]. It then says it may do certain things at [11], but not that is has done any or all of those things. At [15] it, again, limits its concession to “from 1993”, in circumstances where neither defendant can say when the additional lane was constructed.

40. [51]

    The plaintiff submitted that Penrith Council is the only road authority, and under none of the provisions discussed does TfNSW become the road authority. The plaintiff submitted that if what Penrith Council intended to submit is TfNSW accepted responsibility at the time of accident, the qualifications to that assertion have been identified: it only accepts any responsibility from 1993 and acknowledges as correct the view Penrith Council retained its power. There is no concession to the effect that when the additional lane was designed and installed TfNSW had any relevant power over the road.

Resolution

1. [52]

   There are over 300 pages of material produced on Subpoena by Penrith Council. This material was exhibited as Ex 1D2. I was taken to numerous documents by the plaintiff’s Counsel. It is only necessary to refer to a number of them that principally relate to the subdivision at Mulgoa and Mulgoa Road itself.

2. [53]

   On 29 March 2001, in an exchange between the RTA and Penrith Council, the RTA proffers six comments for consideration by Penrith Council (Ex 1D2 p144):

3. [54]

   In the margin, in red handwriting are comments made in relation to all of these 6 points. The writer did not agree with point 1. Points 2-6 were marked ‘okay’. Next to point 4 was the notation “can be imposed on a condition”.

4. [55]

   On 14 May 2001, the RTA wrote to Penrith Council stating (Ex 1D2 101):

5. [56]

   In a letter dated 29 August 2001, J. Wyndam Prince Pty Ltd wrote to Penrith Council as follows (Ex 1D2 73-4):

6. [57]

   A handwritten file note dated 10 September 2001 refers to an inspection of the site and records the issue with the RTA in relation to the traffic access to Mulgoa Road (Ex 1D2 72).

7. [58]

   By letter dated 19 September 2001, Gordon Williams, for the Environmental Planning Manager wrote to J. Wyndham Prince Pty Ltd, Engineers (Ex 1D2 71):

8. [59]

   The plans for the subdivision into 10 lots of Malgoa Road, Malgoa commenced in around 15 February 2002. Penrith Council draws a delineation its role, and TfNSW (the then RTA), on the basis that Penrith Council was responsible solely for the subdivision and TfNSW was responsible for the construction of Mulgoa road, a main road. However, this analysis is not a clear cut one. There were various conditions of consent in relation to the Development Applications. Under the heading ‘Construction’ it stated:

9. [60]

   On 26 September 2002, Matthew Freeburn, registered surveyor, notifed Gordon Williams at Penrith Council that (Ex 1D2 498):

10. [61]

    There is a memorandum by the traffic engineer, Stephen Barnes, to the Environmental Planner, Gordon Williams dated 6 November 2003. It identifies the subject as (Ex 1D2441):

11. [62]

    It is my view that the plaintiff’s allegations that Penrith Council had care control and maintenance of Mulgoa Road, Mulgoa particularly in relation to the design and construction of the roadway during the period 2001-2002 which created the risk of harm, is arguable and is properly pleaded. These allegations made in the ASC rely on the evidence I have set out above. Penrith Council knows the case it has to meet. It may be that TfNSW has accepted the responsibility from 1993 onwards and the accident occurred on 17 May 2017. However, the construction and design of Mulgoa Road which took place in 2002-2002 is alleged to have been overseen by Penrith Council. The result is that the first defendant’s notice of motion filed 6 April 2021 is dismissed.

    1. (1)

       The first defendant’s notice of motion filed 6 April 2021 is dismissed.

    2. (2)

       Costs are reserved.

    3. (3)

       The proceedings listed before the Registrar for directions on 4 April 2022 at 9am.