Collex Waste Management Services Pty Ltd v Corporation of the City of Enfield (No 2)

COLLEX WASTE MANAGEMENT SERVICES PTY LTD v CORPORATION OF THE CITY OF ENFIELD (NO 2)
[2000] SASC 140

Full Court: Doyle CJ, Lander and Bleby JJ

DOYLE CJ. I agree with the reasons given by Bleby J for the order made by the Court, during the hearing of this appeal, refusing the application by the appellant for leave to tender fresh evidence. There is nothing that I wish to add to those reasons.
LANDER J. I also agree.
BLEBY J. This matter has a long history. The Development Assessment Commission (“DAC”) granted development consent to a development, namely a liquid waste treatment plant (the plant), within the municipality of the present respondent (“the City of Enfield”). It was the present appellants (“Collex”) who made the application. The City of Enfield, however, submitted that the development was for a “special industry” as defined in Schedule 1 of the Development Regulations 1993 (SA); that under the relevant development plan it was therefore a “non‑complying” development; and that the development consent was invalid because it did not have the consent of the City of Enfield: s 35(3), Development Act 1993.
In proceedings before Debelle J, the City of Enfield sought a declaration that the development was for a special industry, and an injunction restraining Collex from acting upon the provisional development consent. Debelle J made orders in terms of the relief sought: Enfield City v Development Assessment Commission (1996) 91 LGERA 277. This Full Court allowed an appeal and set aside the orders: Corporation of the City of Enfield v Development Assessment Commission (1997) 69 SASR 99. The High Court of Australia subsequently upheld an appeal from the decision of this Court: Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400; [2000] HCA 5.
The High Court held that this Court had erred in holding that the trial Judge was obliged to determine the action before him, not by application of the law to the evidence led before him, but from a standpoint that whilst the Court should reserve the right to inquire into and decide, as a jurisdictional fact, whether the proposed development was a special industry, it would defer “in grey areas of uncertainty to the practical judgment of the planning authority” (69 SASR 99 at 119). The High Court held that it was necessary for the trial Judge to determine the jurisdictional fact (whether the development was a special industry) upon the evidence before him. See [2000] HCA 5 at [38]. However, Collex’s appeal to this Court also challenged the finding of Debelle J that, on the evidence before him, the development was a special industry. In the circumstances it was not necessary for this Court to decide that question. However, in the light of the High Court’s decision that question is now a live issue, and the matter was remitted by the High Court to this Court to decide the question.
For reasons which it gave at the time, this Court held that Debelle J had erred in reaching a conclusion that the development was a special industry without having regard to the conditions which the DAC was required by the Environment Protection Authority to impose. That conclusion was not disturbed by the High Court. However, Debelle J had also concluded that if those conditions were properly to be taken into account, the development would still properly be described as a special industry. The resumption of the appeal must therefore be conducted upon the footing that the conditions imposed by the Environment Protection Authority and adopted by the DAC properly form part of the proposal.
Upon the resumption of the appeal before this Court, Collex made an application for certain fresh evidence to be admitted. At the hearing, we indicated that we would not admit the evidence. These are my reasons for joining in that order.
In order to explain the purpose of the fresh evidence evidence in the context of this appeal, it is necessary to refer briefly to some more details of the history of the matter. The relevant applications to the DAC for development consent were made during 1995. It was July 1997 by the time this Court discharged the injunction which had restrained Collex from acting upon the consent it held from the DAC to establish the plant. Following that decision, and notwithstanding that an appeal to the High Court by the City of Enfield was pending in the matter, Collex went ahead with the construction of the plant. The plant is now operating commercially, and has been for some time.

The Fresh Evidence

The fresh evidence sought to be led by Collex consists of the following:
An affidavit exhibiting a recent report of Mr Leslie Gray, an environmental consultant called at the trial as an expert witness for the City of Enfield; and
An affidavit of Mr Dudley Williams, the manager of the plant and an employee of Collex.

Mr Gray has visited the plant since it has commenced operation, has conducted interviews with senior staff of Collex and has made an assessment of the validity of complaints by members of the public of which he has been made aware, which complaints relate to the alleged escape of odours from the plant. The report which Collex has sought to introduce has been prepared on the basis of that material. The major significance of the report is that Mr Gray has come to quite different conclusions from those he gave in his evidence at the trial. Of course, at the trial Mr Gray only had the benefit of the documents comprising the application and the proposed conditions, in order to assess the plant’s likely environmental effects. It is understandable that an expert in such matters might reach a different view upon seeing the plant in its completed state, rather than upon reviewing plans and other material.

At the trial, Mr Gray’s evidence was to the effect that residents and other businesses in the areas around the plant would be likely to experience offensive odours emanating from the plant on several occasions on each year. Mr Gray attributed these odours to “fugitive emissions” which could be produced through such factors as spillages, leaky valves or pumps, open tanks, and odours produced when doors were opened, or sludges were received at the plant, and odours produced by trucks. Mr Gray also referred to the effect which meteorological conditions might have on the odours thus created. His evidence was generally that the worst odours would usually be produced when several of the factors he identified occurred in combination. He estimated that this would most likely occur on several occasions each year.
Debelle J relied upon the evidence of Mr Gray to a substantial degree in assessing the likelihood of offensive odours from the plant. In any event, he said that the differences in the opinions of the experts on this matter were slight: Enfield City v Development Assessment Commission (1996) 91 LGERA 277 at 299. His findings regarding fugitive emissions were, in turn, critical to his determination that the plant fell within the definition of “special industry”.
The report from Mr Gray which Collex now seeks to tender deals directly with the question of fugitive emissions. Mr Gray’s inspections of the plant, now in operation, have led him to conclude that the odour control systems which Collex has installed at the plant are of a very high standard, indeed beyond usual expectations for a plant of this kind. Mr Gray now expresses the opinion that these apparently highly efficient odour control systems will render the plant unlikely to produce conditions which are, or which may become, offensive or repugnant to the existing residential and industrial occupiers in the locality of the Collex plant.
Collex now submits that the effect of Mr Gray’s report is to falsify the assumptions upon which Debelle J’s decision was made, and to reveal that his Honour placed too great an emphasis on the supposed inadequacy of the proposed odour control measures. It says that both the assumptions which Debelle J made at the trial on the evidence were flawed, and that subsequent events have confirmed the error.
Mr Williams’ affidavit deposes to the present state of affairs regarding the plant, its construction and its operations. It also contains hearsay evidence of conclusions, after investigation, that all complaints of odours allegedly escaping from the plant have been proved to be unfounded. Mr Hayes QC, for Collex, properly conceded that the latter was inadmissible.
Mr Hayes submitted that the affidavits should be received as fresh evidence, being evidence only becoming available after the trial, in order to show the different situation which now prevails. He also submitted that it was relevant to the exercise of the Court’s discretion against granting declaratory and injunctive relief which, if granted, would force the closure of an operating plant performing, in environmental terms, better than was ever anticipated, and which would require Collex to commence its application to the DAC again.

Admission of Fresh Evidence

The application for admission of fresh evidence is brought under r 95.12 and r 95.16 of the Supreme Court Rules 1987. The relevant test for the reception by the Full Court of fresh evidence on appeal in similar circumstances was considered in Chakravarti v Advertiser Newspapers Ltd (1998) 199 LSJS 363. That was a defamation case which, as here, had been the subject of an appeal to the High Court before being remitted to this Court, in that case for assessment of damages. The plaintiff sought to adduce further evidence of his unsuccessful efforts to gain employment since the trial judge had given judgment. (He claimed that the defamatory statements had had the effect of making it difficult for him to obtain employment for which he was suited.) The plaintiff also sought to introduce articles published by the defendant newspaper about the result of the trial and the High Court decision, which articles were allegedly unfair, in order to show the plaintiff’s reputation had not been vindicated by those decisions.
It was held in Chakravarti that this Court has a wide discretion to receive further evidence on the hearing of an appeal, pursuant to r 95.15(b) of the Supreme Court Rules. Doyle CJ and Perry J, in a joint judgment, set out the relevant principles governing admissibility at 374:
“The essence of that approach is that usually fresh evidence will not be admitted if it bears on an area of uncertainty in which the trial judge has made an estimate; but that usually fresh evidence will be admitted if a basic assumption underlying the trial judge’s approach has been falsified [Peterhaensel v Woodman [1971] SASR 333, at 336-337 per Bray CJ]. However, we emphasise that what is involved is the exercise of a broad discretion.
In our opinion it is not enough to say that matters relevant to the assessment of damages may have changed since trial, or that further evidence will enable a confident finding of fact to be made about a matter that otherwise would be the subject of inferences, or even worse of speculation. More than that must be shown to justify the reception of further evidence. The need for a more restrictive approach than that arises from the public interest in there being an end to litigation, and from the need, as a matter of practical justice, to put an end to the process of factual enquiry.”

Their Honours continued, at 376:

“Nor do considerations of commonsense and fairness, to our minds, require the admission of the evidence: see Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 297 per Gleeson CJ. In an ideal world it is always better to act on fact rather than speculation or inferences from facts. But there is a real public interest in the finality of litigation, and in a limit to the scope of the inquiry undertaken as part of the judicial process. The admission of the evidence would require, as a matter of fairness, at the least that the defendant have the opportunity to cross-examine the plaintiff on the evidence. It might also require that the defendant be at liberty to adduce any evidence that it might wish to lead in relation to the plaintiff’s further attempts to obtain employment. Nor is this a case in which our own sense of justice is offended by not admitting the evidence.”

In this case there are three possible reasons why Mr Gray may have changed his mind:
That he misunderstood the proposal before the trial Judge, and that in the light of his better and more complete understanding of the proposal (which has remained the same), he has changed his mind;
That he did not misunderstand the proposal or the evidence led, but has changed his opinion based on that same evidence, and now thinks that the plant as designed will not produce the emissions that he forecast;
That the plant as built is different from the plant that he was asked to consider in giving his evidence. In other words, there have been modifications which were not in the original proposal or which were not covered by the conditions imposed by the DAC.
There is no suggestion in Mr Gray’s report that the second alternative applies, so that can be set to one side. It is not entirely clear on the face of the report which of the other two alternatives operated to cause Mr Gray to change his opinion. There is, however, a suggestion in several parts of his report that Collex may have taken additional protective measures not referred to in the application. These changes appear to be both by way of design of the plant and by way of changed management practices, which have possibly had an effect on the release of fugitive emissions. These are measures which appear not to have formed part of his understanding of the proposal at the time he gave evidence.
The reasons for those observations in Mr Gray’s report becomes a little clearer upon closer analysis of his previous evidence and in the light of other evidence which we received in opposition to the application for leave to introduce the fresh evidence.
In his evidence before the trial Judge Mr Gray made it quite clear that he was aware of all the conditions which had been imposed by the DAC, whether of its own volition or by the requirement of the Environmental Protection Authority. His conclusions were reached upon the assumption that those conditions would apply. In his evidence he identified some shortcomings and vagueness in the conditions which contributed to the opinion he then expressed. He considered that the conditions did not go far enough to ensure the limitation of fugitive emissions. In cross‑examination he had put to him various possible additional improvements to the plant and was asked whether they would make a difference to his opinion. Some of them, he said, would, but they were not contained in the proposal or covered by the conditions. He also said in evidence that he had revised his opinion from time to time as proposals for the plant evolved, and as conditions were imposed by the DAC. His opinion was formed on the assumption that the best possible management practices would be carried out. Nevertheless, his view was that with the then current design, it was impossible to eliminate fugitive emissions.
In short, there appeared at the time to be no misunderstanding on the part of Mr Gray as to the precise nature of the proposal or of the impact that the conditions would have upon it. That would suggest that the first alternative I mentioned was unlikely. However, he did also concede the possibility of some improvements.
At the trial Mr Stubbins, the intended plant manager, also gave evidence as part of the case for the Collex, Mr Gray having been called for the City of Enfield (the plaintiff). His evidence included reference to the fact that changes to the design of the plant had been incorporated a matter of only days before his giving evidence, being changes which were not reflected in the proposal or in the material otherwise before Mr Gray. He also gave evidence as to changes of a number of operating procedures which had been discussed in an earlier document, again being changes which had not been brought to the attention of Mr Gray. Such continued evolution was perhaps not surprising, as the evidence before the trial Judge showed that there had been quite considerable changes made to the proposal since the application was originally lodged with the DAC.
In opposition to the application we also received affidavits deposing to some quite significant changes which had been made to the design of the plant since the trial. It is not possible for us to reach any conclusion as to the environmental effect of those changes, but some of them, one would have to say, raise the distinct possibility of limiting emissions from the plant.
The evidence of Mr Stubbins and of the other changes to which I have referred suggests that the additional protective measures referred to by Mr Gray in his report, which differ from his understanding of the plant as at the time when he gave his evidence, relate not to any misunderstanding of the proposals on Mr Gray’s part, but rather to material changes to the plant and its management which were not in evidence before the trial Judge, and that it is largely those factors which have brought about Mr Gray’s change of opinion.
To the extent that the fresh evidence is brought about by or relates to material changes in the design and construction or in the management of the plant, that was evidence which Collex could have led at the trial, both as to its intention to make the changes and as to the likely effect that those changes would have had in preventing fugitive emissions. One of the first principles on which an appellate court will act in deciding whether to allow the calling of fresh evidence is that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: Ladd v Marshall [1954] 1 WLR 1489 at 1491; Orchard v Orchard (1972) 3 SASR 89; Ventura v Sustek (1976) 14 SASR 395 at 399, 406.
Whilst there is clearly a discretion to admit the fresh evidence, as the Court said in Chakravarti, there is a public interest in the finality of litigation. Particularly in litigation such as this, the Court should not allow a party to patch up its case as it wends its way through the judicial system. Collex has offered no explanation why the complete picture of its proposal was not presented in evidence before Debelle J or put to Mr Gray for his comment. It is inappropriate to allow further evidence of that nature to be introduced at the appeal stage by a party whose diligence and proper application could have made it available at the trial.
Furthermore, fairness requires that the City of Enfield should be entitled to cross‑examine Mr Gray on his views. To the extent that they are influenced by what is said to be the lack of substance in complaints which have been made by members of the public, there will be a need for further discovery and production of documents relating to those complaints and to other material pertinent to the validity of the complaints. The evidence could be quite extensive and may require the City of Enfield itself to apply to lead further evidence. In that regard the principles applied in Chakravarti must also require that the tender of the fresh evidence be rejected.
The fact that the inability of Collex now to lead the evidence may result in Collex losing its appeal and having to close its plant pending a further application does not alter my opinion. The solution to the problem has been, at all times, largely in Collex’s hands. If the appeal proceeds and if Collex loses, it will be a matter to be decided at that time whether there should be a temporary suspension of any injunction pending the making of a further application to the DAC.
If the evidence is as cogent as Collex would have us believe, it is plainly material which the City of Enfield will have to consider and as to which it will need to form an attitude. It is possible that it might even change its attitude to the proposal, although I am not suggesting that it should. There are two possible fora in which that could take place - in this Court on the admission of the fresh evidence and further hearing of the appeal, or on the making of a fresh application by Collex for the development consent for the plant as it now stands. Given the latter alternative, it is preferable that any new issues should be developed and explored in that forum.

Having disallowed the admission of the fresh evidence, we were conscious that, if the City of Enfield were to succeed on the appeal, such success in practical terms might possibly be short‑lived, thus possibly also lending an air of futility to this appeal. We therefore allowed both parties to seek further instructions. It was then agreed that the further hearing of the appeal should be adjourned sine die, upon Mr Hayes QC giving an undertaking, on behalf of Collex, which was forthcoming, that a fresh application for development consent would be made to the DAC. When that occurs, it will be for the DAC to reach its own conclusion on whether the development is a special industry in the form in which it is now built and operated, and in the light of all the evidence which may properly be placed before it.

[2000] SASC 140

2 June 2000