Tick, tock, Strike out…Struck out… Switzerland, Trains and Fancy Watches


My interest piqued with a reference to Switzerland in today’s Supreme Court of New South Wales case reports: Watches of Switzerland Pty Ltd v Transport for NSW [2018] NSWSC 1256 (CASE LINK).

Swiss Watches Downunder

The plaintiff is Watches of Switzerland Pty Ltd.   It is Australia’s leading speciality watch store bringing the crème de la crème of Swiss watch making to local shores.  We are talking Rolex, Cartier, Panerai, IWC Schaffhausen, Jaeger Le-Coultre, Hublot, Breitling, Piaget, Ulysee Nardin, Dior, TAG Heuer, Baume and Mercier and SwissKubik.   You name it.

The business has retail stores in Sydney, Melbourne, Cairns and Perth.

The Sydney Store 

In Sydney, the business is located on the Ground Floor of the Four Seasons Hotel, on George Street, near Circular Quay.  One might say a wonderful location, save for certain (longer term) construction works in the vicinity…

The Light Rail Project

Unfortunately for Watches of Switzerland, its Sydney store is within close proximity of the Light Rail Construction area (Circular Quay to Kensington and Kingsford route).

Light Rail construction works commenced in about March 2016.   The works saw extensive barricades being constructed along George Street and other obstructions preventing or restricting pedestrian and vehicular traffic in a very substantial way.   Arguably, shopping for a new Swiss watch is best done without such impediments.

The Defendant is a statutory corporation constituted by s 3C of the Transport Administration Act 1988 (NSW).

Nuisance Claim

The Light Rail construction works form the basis of the Plaintiff’s claim founded in “nuisance” (both public and private), a tort that rarely gets an airing but for the end of year law school problem questions.  The public nuisance is alleged to result from the project’s interference with the passage along George Street.  The private nuisance is alleged in relation to the excessive noise and dust emitted by the construction works.

The Plaintiff claims losses and damages arising from a substantial reduction in its turnover and profitability.   Business should run like a Swiss watch.

Strike Out Application 

The judgment relates to the Plaintiff’s application to strike out (much of) the Defence, relying on the strike out power (UCPR r 14.28).

The Plaintiff submitted that the Defendant failed to plead necessary matters; This deficiency amounting to a General Steel embarrassment.

A major thrust of the Plaintiff’s argument was that the Defendant has the onus of proving that the particular type of light rail system which it has chosen to construct is “reasonably necessary” and that the work in which it has been engaged has been “properly performed in all respects”.


The Court averred to the following fundamental rules of pleading:

  • Rule 14.7:  A party’s pleading must contain only a summary of the material facts and not the evidence by which those facts are to be proved.
  • Rule 14.8: A pleading to be as brief as the nature of the case allows.
  • Rule 14.11:  If it is a condition precedent necessary for a party’s case in any pleading that a thing has been done, an event has happened or a state of affairs exists, a statement to the effect that the condition has been satisfied is taken to be implied in the party’s pleading.
  • Rule 14.14(2): In a defence a party must plead specifically any matter that if not pleaded specifically may take the opposite party by surprise, or that the party alleges makes any claim not maintainable, or that raises matters of fact not arising out of the preceding pleading.


It was time out for Swiss Watches;  the Court found against its application.  It considered that the criticism of the Defence was misconceived.

  • The Plaintiff appeared to have elided (merged) what was necessary for the Defendant to prove with what the Defendant is required to plead.  The Defendant did not need to demonstrate in its pleadings certain aspects of its Defence.   Rather, that was a matter for evidence.
  • The Defendant had pleaded material facts on which it relies to establish its Defences.   That was the essential question.
  •  The Defendant had answered the nuisance claim; the Statutory Authority had obtained approval for the works.  Accordingly, it claimed that no nuisance was committed (or was not actionable).    What is presumed to have been rightly and duly performed may be displaced by the contrary being shown; but the Plaintiff bears the onus to plead and give evidence of the ways in which the works have not been carried out in accordance with the statutory authority and approval.  Not the Defendant.

Take Home

  • Pleadings are the backbone of every case, for both sides to the litigation.
  • Drafting pleadings calls for careful attention to Chapter 14 requirements.
  • Do not confuse what should be stated in pleadings and particulars with what should be the domain of evidence.
  • An application to strike out is a high threshold;  unless the pleading is hopeless the action is unlikely to succeed.
  • Swiss Watches are the most beautiful in the world.

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