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Van der Est v Queensland Rail Limited (No. 2)[2018] QLC 4

Van der Est v Queensland Rail Limited (No. 2)[2018] QLC 4

LAND COURT OF QUEENSLAND

CITATION:

Van der Est & Anor v Queensland Rail Limited (No. 2) [2018] QLC 4

PARTIES:

Gordon William Van der Est

and

Donella Maree Van der Est

(applicants)

v

Queensland Rail Limited ACN 132 181 090

(respondent)

FILE NO:

TIA1162-16

DIVISION:

General division

PROCEEDING:

Interlocutory application 

DELIVERED ON:

8 March 2018

DELIVERED AT:

Brisbane

HEARD ON:

2 February 2018

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

  1. 1.
    By 4pm on Thursday 5 April 2018, Mr & Mrs Van Der Est must file in the Land Court Registry and serve on Queensland Rail Limited the particulars requested in paragraphs 5(e), 6(a)(i), 6(a)(ii), 6(d)(i), 6(d)(ii), 6(e)(i), 6(e)(ii), 6(f)(i), 6(f)(ii), 8(a), 8(b), 8(c), 9(a), 9(b), 9(c), 10(a) 10(b), 10(c), 12(b)(i), 13, and 14 of the Request for Particulars dated 19 December 2017, but only to the extent that the request relates to the property owned by Mr and Mrs Van der Est.
  1. 2.
    Mr & Mrs Van der Est must pay the costs of the application for particulars, assessed on the standard basis, if not agreed.
  1. 3.
    Subject to order 4, Queensland Rail Limited must pay Mr & Mrs Van der Est’s costs of the application to strike out the claim, assessed on the standard basis, if not agreed.
  1. 4.
    Mr & Mrs Van der Est must pay Queensland Rail Limited’s costs of the application to re-open the hearing of Queensland Rail Limited’s application to strike out the claim, assessed on the standard basis, if not agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PRACTICE AND PROCEDURE – application for further and better particulars – where the respondent submits the response to their request for Further and Better Particulars is deficient – where some responses were found to be deficient

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the respondents applied to strike out the claim – where, after the application was heard, applicants applied to re-open the hearing – whether there should be a separate costs order for the application to re-open the hearing – whether costs should follow the event – where the Court’s discretion was exercised to make a separate costs order on the re-opening application

Uniform Civil Procedure Rules 1999  r 149 and r 157

American Flange and Manufacturing Co Inc v Rheem Australia Pty Limited [1963] NSWR 1121, applied

Bruce v Odhams Press Ltd [1936] 1 KB 697, applied

Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829, applied

MacArthur Central Shopping Centre Pty Ltd (as TTE) v Valuer General [2016] QLC 10, applied

Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, applied

Trade Practices Commissions v Total Australia (1975) 24 FLR 413, applied

Van der Est & Anor v Queensland Rail Limited [2017] QLC 55, considered

Wilson v Wilson (1952) 69 WN 358, applied

APPEARANCES:

P Hackett of Counsel, instructed by H. Drakos & Co Lawyers, for the applicants

Background

  1. [1]
    Mr & Mrs Van der Est have made a claim against Queensland Rail arising out of damage to their property when a rail line embankment failed and flood waters drained across it. Queensland Rail, the applicant in this interlocutory proceeding, was unsuccessful in applying to strike out the claim in its entirety. It now seeks further and better particulars of the Statement of Claim. This judgment deals with both the request for particulars and oral applications for costs orders arising out of the original strike out application by Queensland Rail.

Request for particulars

  1. [2]
    Queensland Rail applied for an order that Mr & Mrs Van der Est provide the particulars requested in paragraphs 5(b)(d) and (e); 6(a)(d)(e) and (f); 8 to 10; 12(a) and (b); and 13 to 14 of its request for particulars filed on 19 December 2017.
  1. [3]
    I have applied the following principles in determining that application.
  1. [4]
    The purpose of pleadings is to define the issues for, and prevent surprise at, the trial and to enable the other party to plead their case in response.[1] There should be sufficient details in the particulars to put the other party on their guard about the case they must meet and to enable them to prepare for trial.[2] In that way, proper particulars of a claim promotes a fair and efficient court process.[3]
  1. [5]
    A pleading must contain a statement of all material facts on which the party relies.[4] A material fact is a fact that a party must prove to succeed in their claim for relief on a cause of action.[5] There is a distinction between particulars and evidence,[6] but sometimes proper particulars will reveal aspects of the evidence that a party will call to prove the case.[7]
  1. [6]
    The degree of particularity required will depend upon the nature of the case.[8] The role that case management directions and expert reports may play in refining the issues is relevant in determining how detailed the particulars need be.[9]
  1. [7]
    To understand the dispute about particulars in this case, it is necessary to canvass the nature of the claim.
  1. [8]
    Mr & Mrs Van der Est claim the following relief:
  1. A mandatory injunction requiring Queensland Rail to construct and maintain sufficient works to ensure Mr & Mrs Van der Est’s property’s drainage is as good, or nearly as good as it was before the Rail Line was constructed; and
  2. Damages (with interest) for breach of statutory duty or nuisance.
  1. [9]
    The case involves the Toowoomba to Brisbane railway line, which passes along an embankment to the west of Mr & Mrs Van der Est’s property. Although the circumstances of its construction are not pleaded, it has been common ground during argument on this and earlier applications that the Rail Line was constructed in the 1860’s.
  1. [10]
    The claim refers to events of flooding in 1959 and 1974 and the failure of the embankment and subsequent flooding of Mr & Mrs Van der Est’s property in 2011 and 2013. However, the damages claim is confined to the events of the 2011 and 2013 failures of the embankment.
  1. [11]
    The statutory obligation on which Mr & Mrs Van der Est rely is contained in s 260 of the Transport Infrastructure Act 1994 (TIA). Relevantly, it provides:

“260works for existing railways

  1. (1)
    This section applies—
  1. (a)
    while a railway existing at the commencement (the existing railway) continues to be operated as a railway; and
  1. (b)
    to the owners and occupiers of land next to the existing railway (the neighbouring land).
  1. (2)
    The relevant railway manager must, within a reasonable time, construct and maintain—…
  1. (c)
    sufficient works to ensure the neighbouring land’s drainage is as good, or nearly as good, as it was before the existing railway was constructed.

…

  1. (3)
    The Land Court must decide any dispute about the adequacy of works or maintenance under this section.

…

relevant railway manager means the railway manager for the existing railway.”

  1. [12]
    There is no dispute that Queensland Rail is the current railway manager. It is also uncontroversial that Queensland Rail did not come into existence until the mid-2000’s.
  1. [13]
    Ms Brien submitted that the Statement of Claim is seriously and significantly deficient and that both the respondent and the Court would be taken by surprise on the current state of the pleading. The disputed requests for particulars raise a number of topics and there is some overlap in the requests, which follow the order of the Statement of Claim. In addressing the requests, I have ordered them into topic headings which seem logical to me, given the way in which the claims are formulated.

What was the pre-construction drainage of Mr & Mrs Van der Est’s land and other neighbouring land? (Request at (5)(b))

  1. [14]
    Mr & Mrs Van der Est’s response is that the relevant drainage to the land is that before the construction of the Rail Line and Embankment as depicted on survey maps circa 1860. Ms Brien says this is not sufficiently particular.
  1. [15]
    In so far as the request seeks details of the pre-construction drainage of neighbouring land, it is not a proper request for particulars. The claim relates to the pre-drainage circumstances of Mr & Mrs Van der Est’s land. To the extent that this or any other request seeks particulars regarding the pre-construction circumstances of neighbouring land other than their property, Mr & Mrs Van der Est are not required to provide a further response.
  1. [16]
    As for the drainage circumstances for the Van der Est’s property, the requests seek material facts. The response identifies one aspect of the historical record that would be used as a basis for establishing the pre-construction drainage for the Van der Est property; that is by reference to the original Rail Line survey maps circa 1860. Expert evidence will be necessary to interpret that and other relevant historical records so as to identify, prior to construction of the Rail Line, the frequency of breakouts from Sandy Creek, the direction of water flow, and the expected velocity of that flow.
  1. [17]
    At this stage of the proceedings, and given the expert witness procedures that will follow, it is not necessary to provide the level of detail sought by way of particulars. The issues raised by the requests should form part of the brief to the expert witnesses. The joint report of the experts should clarify the material facts (or assumptions) about the pre-construction drainage and the extent to which those facts (assumptions) are in dispute. If it does not, it may be necessary to revisit this request.
  1. [18]
    Mr & Mrs Van der Est are not required to provide the particulars requested by 5(b).

The identity of the authority that constructed the works (Request at 6(d)(i), 6(e)(i), 6(f)(i), 8(c), 9(c) and 10(c))

  1. [19]
    These requests ask for the identity of the constructing authority of various works referred to in the pleadings. If Queensland Rail is alleged to have constructed the works, the requests ask for the identity of the person on Queensland Rail’s behalf who caused or allowed the construction of the works. Whatever the works and whether the claim is a breach of statutory duty or in nuisance, the requests seek to elicit material facts, which should be pleaded.
  1. [20]
    Mr & Mrs Van der Est must provide the particulars requested in 6(d)(i), 6(e)(i), 6(f)(i), 8(c), 9(c) & 10(c) of the Request.

When Queensland Rail constructed the works and by what actions (Request at 8(a),(b), 9(a),(b) and 10(a),(b))

  1. [21]
    In pursuit of their claim for breach of statutory duty, Mr & Mrs Van der Est allege Queensland Rail constructed or allowed the construction of the Rail Line, the Embankment, and the twin culverts under the Embankment.
  1. [22]
    When and by what actions they alleged Queensland Rail constructed those works are material facts. Mr & Mrs Van der Est must provide the particulars requested by paragraphs 8(a) and (b), 9(a) and (b), and 10(a) and (b) of the Request.

What acts of the relevant railway manager failed to ensure equivalent post-construction drainage (Request at 6(a)(i), 6(d)(ii), 6(e)(ii) and 6(f)(ii))

  1. [23]
    These requests seek material facts relevant to the claim for damages for breach of statutory duty. The Statement of Claim does not identify the acts or omissions of Queensland Rail, or any other railway manager, that constitute its failure to ensure equivalent post-construction drainage.
  1. [24]
    Mr & Mrs Van der Est must provide the particulars requested in 6(a)(i), 6(d)(ii), 6(e)(ii), and 6(f)(ii) of the Request.

What works were needed to ensure equivalent post-construction drainage (Request at 5(d), 6(d)(iii), 6(e)(iii), and 6(f)(iii))

  1. [25]
    To the extent that the request in 5(d) seeks a response in relation to neighbouring land other than the Van der Est property, no response is required for the reason already canvassed above.
  1. [26]
    Otherwise, these requests seek material facts relevant to the claim for damages for breach of statutory duty.
  1. [27]
    In response to the request in relation to their property, Mr & Mrs Van der Est rely on Section 6 of the Giles Report. It identifies the following works: further or larger culverts or structural reinforcement of the Embankment so as to ensure the culverts are sufficient to convey a 10 year ARI event flow and for the Embankment to not fail in such a flow.
  1. [28]
    As I understand the submissions, Queensland Rail’s difficulty with that response is time-based. Is the sufficiency of the works to be judged according to the drainage circumstances for the property when the works were constructed, in the 1860s, or at the time of the 2011 and 2013 failures of the Embankment? That is an important issue and raises a legal question about the scope and content of Queensland Rail’s statutory liability.
  1. [29]
    However, it seems clear enough Mr & Mrs Van der Est claim that, if the works cannot now contain the flow from a 10 year ARI event, then Queensland Rail has breached its statutory obligation. If that is not their case, they should re-plead it. If I have correctly understood their case, Mr & Mrs Van der Est are not required to provide the particulars requested in 5(d), 6(d)(iii), 6(e)(iii), and 6(f)(iii) of the Request.

Failure to construct reinforcing in the Embankment (Request at 12(a) and (b))

  1. [30]
    The request seeks particulars relating to the claim for damages for breach of statutory duty. To the extent the request asks for the provision of s 260 TIA which imposes the obligation, it is not necessary for Mr & Mrs Van der Est to respond further. The alleged source of statutory liability is sufficiently clear.
  1. [31]
    When, where, and how Queensland Rail should have reinforced the Embankment are material facts. I expect the expert reports will provide details of the locations and type of reinforcing which would be needed to convey a 10 year ARI event flow. I am not persuaded it is necessary to provide further detail by way of particulars given the expert evidence procedures that will follow.
  1. [32]
    However, these requests also raise an important temporal issue; that is, when Mr & Mrs Van der Est allege Queensland Rail should have reinforced the Embankment.
  1. [33]
    Mr & Mrs Van der Est must provide the particulars requested by paragraph 12(b)(i) of the Request. Otherwise, Mr & Mrs Van der Est are not required to provide the particulars requested by paragraph 12(a) and (b) of the Request.

Maintenance of works (Request at 5(e) and 6(a)(ii))

  1. [34]
    Mr & Mrs Van der Est have pleaded Queensland Rail has an obligation to construct and maintain adequate works. The Statement of Claim should identify whether they allege Queensland Rail failed to construct adequate works, failed to maintain works as constructed, or both. If they rely on any failure to maintain works, particulars of the works Queensland Rail was required to maintain and the acts or omissions by which Queensland Rail failed to maintain them must be provided.
  1. [35]
    Mr and Mrs Van der Est must provide the particulars referred to in paragraphs 5(e) and 6(a)(ii) of the request, in relation to the Van der Est property, not any other neighbouring property.

How the January 2011 and January 2013 failures were acts of nuisance by Queensland Rail (Request at 13)

  1. [36]
    The Statement of Claim does not plead the elements of a nuisance claim. Reference to flooding events does not identify the material facts for liability in nuisance. The requests relate to Queensland Rail’s knowledge (actual or constructive) of facts constituting a nuisance, which Mr & Mrs Van der Est allege Queensland Rail failed to take reasonable steps to bring to an end. Queensland Rail also seeks particulars of its unauthorised acts that constitute a substantial and unreasonable interference with Mr & Mrs Van der Est’s enjoyment of the property. They also seek particulars of the flooding and damage, if any, that would have been caused by the 2011 and 2013 flood events if the Rail Line and Embankment had never been built.
  1. [37]
    Reference to the flooding events in an abstract way and reliance on a valuation report does not provide the level of particularity required for Queensland Rail to be able to respond to the claim in nuisance.
  1. [38]
    Mr & Mrs Van der Est must provide the particulars requested by paragraph 13 of the Request.

How Queensland Rail unreasonably caused the 2011 and 2013 failures of the Embankment (Request at 14)

  1. [39]
    The Statement of Claim, at paragraph 14 alleges the actions of Queensland Rail in causing the 2011 and 2013 failures were unreasonable. Mr and Mrs Van der Est have not pleaded what acts by Queensland Rail are alleged to have caused the failures, how those acts caused the failures, and how those acts were unreasonable. Those particulars must be provided.
  1. [40]
    Mr & Mrs Van der Est must provide the particulars requested by paragraph 14 of the Request.

Timing of particulars requested

  1. [41]
    I will allow Mr & Mrs Van der Est 28 days within which to provide the particulars required by this decision.

Costs

  1. [42]
    Queensland Rail’s application to strike out Mr & Mrs Van der Est’s claim was unsuccessful. Subject to one reservation, Queensland Rail does not oppose a costs order in favour of Mr & Mrs Van der Est.
  1. [43]
    The reservation relates to Mr & Mrs Van der Est’s application to reopen the hearing. Mr Hackett argued there should not be a separate costs order for the application to re-open the hearing. Ms Brien, for Queensland Rail, argued there was no reason costs should not follow the event.
  1. [44]
    The reason initially advanced to re-open the application was new evidence about the status of Hall Road, which lies between the Rail Line and Mr & Mr Van Der Est’s property. On one interpretation of s 260, the status of that road might have determined the outcome of Queensland Rail’s application.
  1. [45]
    On its application, Queensland Rail relied on a certificate by the Chief Executive Officer of the Lockyer Valley Council to the effect that Hall Road is a dedicated road. That certificate provided evidence of its status, but was not conclusive. The accuracy of the certificate was the reason given, initially, for the application to re-open.
  1. [46]
    A brief chronology puts the costs argument in context:

26 May 2017

Certificate of CEO that Hall Rd a dedicated road was filed

20 July 2017

Queensland Rail’s application was heard

29 August 2017

Parties advised the decision on Queensland Rail’s application would be handed down on 30 Aug 17

30 August 2017

CEO writes letter which casts doubt on the accuracy of his certificate; Van der Est gave Queensland Rail notice it would apply to re-open; Queensland Rail did not oppose Van der Est having the opportunity to apply to re-open, but reserved the right to oppose the re-opening

31 August 2017

Van der Est applied to re-open the hearing

17 October 2017

Affidavit of CEO filed in which he withdrew the statement in the letter and confirmed his certificate

15 November 2017

Application to reopen heard

20 November 2017

Application to reopen refused

20 November 2017

Decision on application to strike out delivered

  1. [47]
    Almost a month before the re-opening hearing, the CEO had confirmed the certificate. The parties filed competing evidence from surveyors about the history of the relevant parcels and what conclusions the Court could draw from the public record.
  1. [48]
    When I enquired at the re-opening hearing about that conflict, Mr Hackett said I did not need to resolve it. He conceded Hall Road is ‘arguably’ a road as defined in Schedule 6 of the TIA. He argued the application to re-open on the basis of only very limited information, which showed a gap in the tenure underlying the Rail Line at the point that it intersected with Hall Road.[10] Although there was no contest about that evidence, Queensland Rail disputed its significance and the conclusion that Mr Hackett said the Court should draw from it.
  1. [49]
    I will not repeat my reasons for refusing the application to re-open. However, an important consideration was whether the very limited information Mr Hackett proposed to lead could affect the outcome of Queensland Rail’s application. I was not satisfied it would.[11]
  1. [50]
    Well before the hearing, the CEO’s attitude to the certificate had been resolved. The limited information would not most probably have affected the outcome of Queensland Rail’s application. The information was apparently available for use during the initial hearing.[12]
  1. [51]
    In those circumstances, I exercise the Court’s discretion to make a separate costs order on the re-opening application in Queensland Rail’s favour.

Orders

  1. 1.
    By 4pm on Thursday 5 April 2018, Mr & Mrs Van Der Est must file in the Land Court Registry and serve on Queensland Rail the particulars requested in paragraphs 5(e), 6(a)(i), 6(a)(ii), 6(d)(i), 6(d)(ii), 6(e)(i), 6(e)(ii), 6(f)(i), 6(f)(ii), 8(a), 8(b), 8(c), 9(a), 9(b), 9(c), 10(a) 10(b), 10(c), 12(b)(i), 13, and 14 of the Request for Particulars dated 19 December 2017, but only to the extent that the request relates to the property owned by Mr and Mrs Van der Est.
  1. 2.
    Mr & Mrs Van der Est must pay the costs of the application for particulars, assessed on the standard basis, if not agreed.
  1. 3.
    Subject to order 4, Queensland Rail must pay Mr & Mrs Van der Est’s costs of the application to strike out the claim, assessed on the standard basis, if not agreed.
  1. 4.
    Mr & Mrs Van der Est must pay Queensland Rail’s costs of the application to re-open the hearing of Queensland Rail’s application to strike out the claim, assessed on the standard basis, if not agreed.

FY KINGHAM

PRESIDENT OF THE LAND COURT

Footnotes

[1]Uniform Civil Procedure Rules 1999 r 157.

[2]Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713 applied in Goldsmith v Sandilands (2002) 190 ALR 370 at 371.

[3]Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 at [8].

[4]Uniform Civil Procedure Rules 1999  r 149(1)(b).

[5]Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211 at [64].

[6]Trade Practices Commissions v Total Australia (1975) 24 FLR 413 at 417.

[7]Wilson v Wilson (1952) 69 WN 358 applied in Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 at [3].

[8]American Flange and Manufacturing Co Inc v Rheem Australia Pty Limited [1963] NSWR 1121 at 1126.

[9]MacArthur Central Shopping Centre Pty Ltd (as TTE) v Vauler General [2016] QLC 10 at [17].

[10]Van der Est & Anor v Queensland Rail Limited [2017] QLC 55 at [36].

[11]  Ibid at [43] to [47].

[12]  Ibid at [40].

Close

Editorial Notes

  • Published Case Name:

    Van der Est & Anor v Queensland Rail Limited (No. 2)

  • Shortened Case Name:

    Van der Est v Queensland Rail Limited (No. 2)

  • MNC:

    [2018] QLC 4

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    08 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
American Flange and Manufacturing Co Inc v Rheem Australia Pty Limited [1963] NSWR 1121
2 citations
Jump To
Cite 1 - [1963] NSWR 1121
Cite 2 - [1963] NSWR 1121
Bruce v Odhams Press Ltd (1936) 1 KB 697
2 citations
Jump To
Cite 1 - (1936) 1 KB 697
Cite 2 - (1936) 1 KB 697
Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829
3 citations
Jump To
Cite 1 - [2001] NSWSC 829
Cite 2 - [2001] NSWSC 829
Cite 3 - [2001] NSWSC 829
Goldsmith v Sandilands (2002) 190 ALR 370
1 citation
Jump To
Cite 1 - (2002) 190 ALR 370
Macarthur Central Shopping Centre Pty Ltd v Valuer-General [2016] QLC 10
2 citations
Jump To
Cite 1 - [2016] QLC 10
Cite 2 - [2016] QLC 10
Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211
2 citations
Jump To
Cite 1 - [2013] QSC 211
Cite 2 - [2013] QSC 211
Trade Practices Commission v Total Australia Limited (1975) 24 FLR 413
2 citations
Jump To
Cite 1 - (1975) 24 FLR 413
Cite 2 - (1975) 24 FLR 413
Van der Est v Queensland Rail Limited [2017] QLC 55
4 citations
Jump To
Cite 1 - [2017] QLC 55
Cite 2 - [2017] QLC 55
Cite 3 - [2017] QLC 55
Cite 4 - [2017] QLC 55
Wilson v Wilson (1952) 69 WN 358
2 citations
Jump To
Cite 1 - (1952) 69 WN 358
Cite 2 - (1952) 69 WN 358

Cases Citing

Case NameFull CitationFrequency
McPherson v Logan City Council [2021] QLC 332 citations
Shaw v Idemitsu Australia Resources Pty Ltd [2020] QLC 402 citations
1

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