Elanor Investors Limited v Sydney Zoo Pty Limited

[2019] NSWLEC 80

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elanor Investors Limited v Sydney Zoo Pty Limited [2019] NSWLEC 80
Hearing dates:	4 June 2019
Date of orders:	12 June 2019
Decision date:	12 June 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [33] of judgment
Catchwords:	PRACTICE AND PROCEDURE – application for leave to rely on amended summons and amended points of claim – pleadings embarrassing as vague – essential facts necessary for claim to succeed not identified – leave to re-plead granted
Legislation Cited:	Civil Procedure Act 2005 s 56 Environmental Planning and Assessment Act 1979
Cases Cited:	Alexandria Landfill Pty Ltd Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 4) [2018] NSWLEC 31 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gunns Limited v Marr [2005] VSC 251 Hastie Group Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709 HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in Liq) (No 2) [2016] FCA 446 Knowles v Roberts (1888) 38 Ch D 263 at 270 McGuirk v University of New South Wales [2009] NSWSC 1424 Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170
Category:	Procedural and other rulings
Parties:	Elanor Investors Limited (Applicant) Sydney Zoo Pty Limited (Respondent)
Representation:	COUNSEL: N Eastman (Applicant) A Shearer (Respondent)   SOLICITORS: Gilbert & Tobin (Applicant) Addisons (Respondent)
File Number(s):	18/359630
Decision under appeal	Court or tribunal: Batemans Bay Local Court Jurisdiction: Criminal Date of Decision: 01 February 2019 Before: Magistrate D Dick File Number(s): 2018/292939

Judgment

1. The Applicant company Elanor Investors Ltd runs Featherdale Wildlife Park at Doonside. It has commenced Class 4 proceedings seeking declarations of breaches of the Environmental Planning and Assessment Act 1979 (EPA Act) and consequential orders restraining the use of certain marketing material by the Respondent Sydney Zoo Pty Ltd (Sydney Zoo). Sydney Zoo has development consent for a new zoo which is presently under development and has yet to open.

2. By notice of motion dated 30 April 2019 the Applicant seeks leave to rely on an amended summons and an amended points of claim (APOC). The Respondent opposes leave being granted.

3. In order to understand the parties’ arguments it is useful to set out in full the amendments sought.

Amended summons

4. The amended summons states (additions are underlined and deletions struck out):

RELIEF CLAIMED

1. A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by failing to comply with condition B2 of Schedule B of Development Consent (SSD 7228) granted by the Planning Assessment Commission of NSW, as delegate for the Minister for Planning, to the respondent dated 8 September 2017 (Development Consent).

Particulars

(a)   Condition B2 of Schedule B provides that the Respondent shall carry out the development in accordance with the EIS, the RTS, the Supplementary Information and the Additional Information (as defined in the Development Consent).

(b)   The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation to comply with section 6.14 of the EIS, which indicates that Sydney Zoo will have approximately 40 Australian species;

(c)   The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation to comply with section 6 and Attachment F of the RTS, which indicates that Sydney Zoo will display Australian animal species in a way that is “integrated with Aboriginal cultural experience” in an area less than 1.6 ha of the Sydney Zoo site;

(d)   The conduct of the Respondent amounts to a threatened or apprehended breach, or in the alternative a breach, of the obligation to comply with section 6.14 of the EIS, Attachment F of the RTS, and with that part of the Additional Information in the Respondent's letter dated 10 August 2017 under the heading “Facility Differentiation” and “Product Differentiation – Australian Animals” (together, Differentiation Obligations), which provide that:

(i)   the “product offering” of Sydney Zoo will be materially differentiated from Featherdale Wildlife Park;

(ii)   Sydney Zoo will provide for differing experiences for guests, compared to Featherdale Wildlife Park;

(iii)    Sydney Zoo will position itself and operate in a way that allows Featherdale Wildlife Park “to continue to occupy the niche of ‘getting close to the animals’”, including but not restricted to substantial limitations on interactions with koalas;

(iv)   Sydney Zoo will position itself and operate as a “full-service facility” and be priced comparatively with Taronga Zoo, such that the Sydney Zoo pricing strategy establishes a “critical differentiator” from Featherdale Wildlife Park and such that Featherdale Wildlife Park may have the “key competitive advantage of being lower in price” when compared to Sydney Zoo.

2   A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the EP&A Act by failing to comply with condition B6 of Schedule B of the Development Consent.

Particulars

(a)   The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation contained in condition B6 which requires the display of Australian native animals:

(i)   to comprise less than 1.6 hectares of the overall exhibited animal collection in accordance with the area designated for Australian animals presented within the Site Plan at Appendix A to the Development Consent; and

(ii)   to be part of an Aboriginal Cultural Experience.

3   A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the EP&A Act by failing to comply with condition B7 of Schedule B of the Development Consent.

Particulars

(a)   The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation contained in condition B7 which requires the Respondent to have for display to the public at least two-thirds of the exotic species nominated in the Additional Information for the commencement of opening to the public of the Development (as defined in the Development Consent).

4   A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the EP&A Act by failing to comply with condition B8 of Schedule B of the Development Consent.

Particulars

(a)   The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation contained in condition B8 which prohibits the Respondent from having Interactive Programs (as defined in the Development Consent) that involve touching a koala except as part of demonstrations in the educational amphitheatre or provided in the context of education of school groups for the first three years after opening to the public.

25 A declaration that the Respondent has threatened to breach section 4.2(1)(b) of the EP&A Act by failing to comply with the hours of operation contained in Condition B10 of the Development Consent (Hours of Operation).

36   An order that the Respondent must, by itself, its servants or agents, immediately cease distributing the marketing material attached at Annexure A to these Orders (Marketing Material), in breach of conditions B2, B6, B7, B8 or B10 of the Development Consent including:

(a)   distributing the marketing material attached at Annexure A and B to these Orders;

and

(b)   distributing any further marketing material identified at trial (together the Marketing Material).

4 7   An order that the Respondent must, by itself, its servants or agents, not distribute any document or information, that does not comply with the Differentiation Obligations conditions B2, B6, B7, B8 or B10 of the Development Consent or Hours of Operation obligations imposed by the Development Consent.

5 8   An order that the Respondent must within 7 days of the date of these orders, cause a notice, in a form to be agreed by the Court, to be served on all persons who were issued with the Marketing Material.

6 9   Within 28 days of the date of these orders, the Respondent must provide to the Applicant information demonstrating compliance with Order 5 8 above.

7 10   The Respondent is to pay the Applicant's costs of the proceedings.

8 11   Such further or other order as to the Court seems fit.

Amended points of claim

5. The APOC state (additions are underlined and deletions struck out):

The Parties

1.   The applicant, Elanor Investors Limited:

a.   Owns Elanor Funds Management Limited - which is the registered proprietor of Lot 258 in DP 752051 known as 217-229 Kildare Road, Doonside (the Site); and

b.   Owns and operates the Featherdale Wildlife Park (Featherdale) business located at the Site.

2.   Featherdale:

a.   Was established in 1972;

b.   Is the largest exhibitor of Australian fauna in the world and exhibits 1700 birds and animals, with more than 280 different species;

c.   Employs 58 fulltime staff, 3 part time staff, 50 casual staff and 49 volunteer staff;

d.   Facilitates $75 million of investment in employment, social, educational and conservation programs;

e.   Has conservation programs of local, regional, state and national significance; and

f.   Has recently been awarded the Excellence in Export at the 2018 NSW Business Awards, and the Silver Medal at the 2018 NSW Tourism Awards.

3.   The respondent, Sydney Zoo Pty Ltd;

a.   Is the proponent for the State Significant Development Application (SSD 15_7228) (DA); and

b.   Proposed in the DA to operate a zoological facility (New Zoo) on the land owned by Western Sydney Parklands Trust being Lot 101 in DP 1195067.

The Consent

…

6.   On 8 September 2017, the PAC as delegate for the NSW Minister for Planning, granted Development Consent (SSD 15_7228) to the respondent for a zoological facility within the Western Sydney Parklands (Development Consent).

7.   The Development Consent was subsequently modified on 8 May 2018 and 20 September 2018.

8.   The conditions of the Development Consent include:

a.   Condition B2 of Schedule B of the Development Consent which provides that the respondent shall carry out the development in accordance with the EIS, the RTS, the Supplementary Information and the Additional Information (as defined in the Development Consent);

b.   Condition B6 of Schedule B which provides that the display of Australian native animals shall comprise less than 1.6 hectares of the overall exhibited animal collection and be in accordance with the area designated for Australian animals presented within the Site Plan at Appendix A of the Development Consent. The Australian native animals must be displayed as part of an Aboriginal Cultural Experience as detailed at Condition C21 of Schedule C;

c.   Condition B7 of Schedule B which provides that the respondent must have at least two-thirds of the exotic species nominated in the Additional Information, on display for the commencement of opening to the public of the Development;

d.   Condition B8 of Schedule B which provides that for the first three years after opening to the public, the respondent is prohibited from having Interactive Programs that involve touching a koala except as part of demonstrations in the educational amphitheatre or provided in the context of education of school groups; and

e.   Condition B10 of Schedule B which provides that the hours of operation for the Development are restricted, on any day, to 9am – 10pm (December and January) and 9am – 6pm (February to November).

9.   Incorporated into the Development Consent are:

a.   by way of condition B2 of Schedule B:

a(i)   “Environmental Impact Statement titled ‘Sydney Zoo SSD 7228 – Environmental Impact Statement’, prepared by JBA, dated December 2015”;

b(ii)   “Response to Submissions titled ‘Sydney Zoo SSD 7228 - Response to Submissions’ prepared by JBA, dated May 2016”;

c(iii)   “Supplementary Information submitted by JBA, dated 22 August 2016”; and

d(iv)   “Response to the Planning Assessment Commission's request for further information” prepared by Sydney Zoo and dated April 2017, “Social Impact Assessment” prepared by the University of Technology Sydney (undated), and letter titled “The Sydney Zoo – D440/16 – amendment of proposal” signed by Jake Burgess and dated 10 August 2017; and

b.   by way of condition B6 of Schedule B the Site Plan attached at Appendix A of the Development Consent

The Differentiation Obligations

10.   As a consequence of the conditions of the Development Consent pleaded at [8](a) – (d) and [9] above, the following differentiation obligations are incorporated into the Development Consent:

a.   Type of Facility;

b.   Pricing;

c.   Type of Australian Animal Encounters;

d.   Amount of Australian Species;

e.   Two Thirds Exotic Species At Opening

f.   Koala Interaction; and

g   Development of Regional Tourism

g.   Size of Australian Native Animals Display

                                                                     Particulars

See Schedule 1 annexed to this pleading.

10A.   As a consequence of the condition of the Development Consent pleaded at [8](e), the following operational obligations are incorporated into the Development Consent:

a.   Hours of Operation

Marketing Actions in Breach of the Differentiation Obligations

11   The respondent has caused or permitted the marketing of the New Zoo in breach of the differentiation obligations referred to in [10](a)-(c), (f) and (g) and the operational obligation in [10A](a).

a   Sydney Zoo Marketing Brochure

Particulars

i its employees, agents or representatives to create the marketing brochure entitled “Sydney Zoo Bungarribee Wildlife Park at Sydney Zoo”(Sydney Zoo Marketing Brochure) which advertises, among other matters

(A) “Bungarribee Wildlife Park” at Sydney Zoo opening in 2019,

(B) Experiences including that all displays will allow visitors to get up close to Koalas, Echidnas, Wombats, Tasmanian Devils and a range of other unique species, and

(C) An adult nett rate for registered travel operators of $12 00.

ii.   Its employees, agents or representatives to distribute the Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents prior to the Australian Tourism Exchange that was held in Adelaide in April 2018 as part of a deliberate strategy, based on advice from its consultant Australian Attractions Pty Ltd, to market the zoo as a wildlife park because it was more attractive to international tourists than a zoo;

iii.   Its employees, agents or representatives to distribute the Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents including to, among other operators, groups and agents:

(A)   To Diamond Tours in March 2018 by email from its representative Australian Attractions Pty Ltd; and

(B)   To Oz Travel Consulting Services.

B   Korean Marketing Stall

Particulars

i. Its employees, representatives or agents to exhibit an advertising stall at the HanaTour Exhibition in Korea during the period 7 to 10 June 2018 (Korean Marketing Stall) which advertises “Bungarribee Wildlife Park” at Sydney Zoo opening in early 2019 e Hong Kong Marketing Brochure.

Particulars

i.   Its employees, agents or representatives to create a marketing brochure entitled ‘[CHINESE CHARACTERS]’ (Hong Kong Marketing Brochure) which contains the following advertisement:

“At the end of 2018, you can enjoy a close up ‘live fed’ wildlife experience in Sydney West The Sydney Zoo, built at $36 million, raises 30 species of animals, and visitors can see Australian and other special animals on the boardwalk. The zoo also features a well-known Australian non-cage safari area that allows visitors to get close to nature in the wild.”

Ii   Its employees, agents or representatives to distribute the Hong Kong Marketing Brochure to inbound tour operators and travel agents including to an inbound tour operator in Hong Kong called Morning Star in about September 2018.

d.   $12 Trade Rate

Particulars

i.   Its employees, agents or representatives to offer day tour operators, inbound tour operators, international travel groups and/or travel agents a $12 adult trade rate for the New Zoo including to, among other operators, groups or agents:

(A)   Diamond Tours in March 2018;

(A)   Oz Travel Consulting Services in May 2018; and

(B)   Orient Express Tours and Travel in November 2018.

Particulars

a.   Type of Facility: The respondent is marketing itself as both a zoological facility and wildlife park (known as the “Bungarribee Wildlife Park at Sydney Zoo”) and a wildlife experience (known as the “Bungarribee Wildlife Experience”);

b.   Pricing: The respondent is marketing trade rates lower than that of Featherdale and the advertised retail rate is comparable to that of Featherdale and significantly lower than Taronga Zoo;

c.   Type of Australian Animal Encounters: The respondent is marketing itself as an opportunity for visitors to get up close to Koalas and a range of other unique species. The marketing contains no reference, or no adequate reference, to that experience being part of an integrated Aboriginal cultural experience;

d.   Koala Interaction: The respondent is marketing that all displays will allow visitors to get up close to Koalas and a range of other unique species. There is nothing in the marketing which limits the proposed interaction to to [sic] being part of demonstrations in the educational amphitheatre or in the context of education of school groups.

e.   Size of Australian Native Animals Display: The respondent is marketing an area for the Australian native animal display which is larger than 1.6 hectares, and exceeds the area designated for that native animal display in the Site Plan at Appendix A of the Development Consent.

f.   Hours of Operation: The respondent is marketing operating hours for the New Zoo as being 9am to 5pm daily with negotiable early access.

11A   The respondent has caused or permitted conduct in breach of the differentiation obligations referred to in [10](d) and (e).

Particulars

a.   Amount of Australian Species: The respondent has applied on the Zoological Information Management Software (ZIMS) list for 80 native animal species;

b.   Two Thirds Exotic Species at Opening: The respondent has applied on the ZIMS list for 24 species of exotic animals, being less than the number of exotic species to achieve the mandatory two-thirds target for the commencement of the opening to the public (and/or there is no realistic prospect that Sydney Zoo will obtain many of those exotic species within the required timeframe).

Breach of s 9.45 of the Environmental Planning and Assessment Act 1979

12.   As a consequence of the matters pleaded in [10], [10A], [11] and [11A] above, the respondent is in breach of s 4.2 of the Environmental Planning and Assessment Act 1979.

                                                                     Particulars

a.   Type of Facility: The respondent is obliged to offer a different type of facility, being a zoological facility, with Featherdale playing the role of a “wildlife park”. However, the respondent is marketing itself as both a zoological facility and wildlife park (known as the “Bungarribee Wildlife Park at Sydney Zoo”) and a wildlife experience (known as the “Bungarribee Wildlife Experience”);

b.   Pricing: The respondent is obliged to price its offering at rates that are more expensive than Featherdale, and comparative with Taronga Zoo. However, the marketing material indicates that the trade rates (as distributed to tour operators) are lower than that of Featherdale and the advertised retail rate is comparable to that of Featherdale and significantly lower than Taronga Zoo;

c.   Type of Australian Animal Encounters: The respondent is obliged to offer encounters with Australian Animals primarily occurring as part of an integrated Aboriginal cultural experience, with Featherdale being allowed to focus on petting/up close experiences and to continue to occupy the marketing niche of “getting close to the animals”. However, the marketing material primarily markets the Bungarribee Wildlife Park Experience and Bungarribee Wildlife Experience as an opportunity for visitors to “get up close to Koalas .... and a range of other unique species.” There is no reference, or no adequate reference, to that experience being part of an integrated Aboriginal cultural experience;

d.   Amount of Australian Species: The respondent is obliged to have only approximately 40 species of native animals at the New Zoo. However, as at 17 December 2018 the Zoological Information Management Software (ZIMS) list provides that the respondent has applied for 80 native animal species;

e.   Two Thirds Exotic Species at Opening: The respondent is obliged to have at least two-thirds of the exotic species nominated in the Additional Information on display at opening. The ZIMS list indicates that as at 17 December 2018 the respondent has applied for 24 species of exotic animals, being less than the which is not a sufficient number of exotic species to achieve the mandatory two-thirds target for the commencement of the opening to the public which is scheduled for 1 April 2019 (and/or there is no realistic prospect that Sydney Zoo will obtain many of those exotic species within the at required timeframe); and

f.   Koala Interaction: For the first three years after opening to the public, the respondent is prohibited from having Interactive Programs that involve touching a koala except as part of demonstrations in the educational amphitheatre or provided in the context of education of school groups. However, the marketing material provides that “All displays will allow visitors to get up close to Koalas .... and a range of other unique species”. There is nothing in the marketing material which limits the proposed “Interactive Program” set out above to being part of demonstrations in the educational amphitheatre or in the context of education of school groups.;

g.   Size of Australian Native Animals Display: The respondent is obliged to display Australian native animals in an area that shall comprise less than 1.6 hectares of the overall exhibited animal collection and be in accordance with the area designated for Australian animals presented within the Site Plan at Appendix A of the Development Consent. The respondent is marketing an area for the Australian native animal display which is larger than 1.6 hectares, and exceeds the area designated for that native animal display in the Site Plan at Appendix A of the Development Consent; and

h.   Hours of Operation: The respondent is obliged to operate the New Zoo in compliance with the hours of operation which are restricted, on any day, to 9am - 10pm (December and January) and 9am - 6pm (February to November). The respondent is marketing operating hours for the New Zoo as being 9am to 5pm daily with negotiable early access.

Discretionary factors under s 9.45 of the Environmental Planning and Assessment Act1979

13. The breaches identified in [12] above ought be remedied or restrained under s 9.46 of the Environmental Planning and Assessment Act 1979 because:

a.   There is either real or prospective harm to Featherdale's operations described in [2] above;

b. A contributing reason as to why the PAC approved the New Zoo was because of the differentiation obligations incorporated into the Development Consent pleaded at [10] above; and

c.   Planning law ought not be undermined by non-compliance.

Evidence

6. Ms Lindeman-Jones solicitor for the Respondent affirmed an affidavit dated 20 May 2019. “Exhibit AKL-1” to this affidavit (which became exhibit 1) contains various documents which describe the procedural history of this matter. The Respondent also tendered development consent SSD 7228 dated 8 September 2017 for the construction and operation of the proposed zoo and a modification application to that consent dated 4 December 2018 (both of which became exhibit 2). The modification application to change the hours of operation of the development is undetermined.

7. Ms Lindeman-Jones’ affidavit contains a chronology of the proceedings which is summarised below:

22 November 2018	The proceedings were commenced.
14 December 2018	At the first directions hearing the Applicant requested that the proceedings be listed for hearing and proposed directions. The Court did not make an order listing the proceedings for trial.
21 December 2018	The Applicant filed points of claim, a notice to produce and a subpoena to produce.
21 January 2019	The Respondent filed a notice of motion seeking to set aside the notice to produce and the subpoena.
22 February 2019	The notice of motion was heard by the Registrar.
17 April 2019	Judgment was delivered by the Registrar dismissing the Respondent’s notice of motion.
24 April 2019	A further notice of motion was filed by the Respondent seeking a review of the Registrar’s decision dated 17 April 2019. The hearing date of that notice of motion is yet to be allocated.
1 May 2019	The Applicant filed the notice of motion the subject of this judgment seeking to amend its summons and points of claim.

8. Mr Fuller solicitor for the Applicant affirmed an affidavit dated 30 April 2019. “Exhibit BF-1” to this affidavit (which became exhibit A) contains documents that were before the Registrar at the hearing of the Respondent’s notice of motion dated 21 January 2019 to set aside the Applicant’s notice to produce. An email dated 8 April 2019 from Mr Chiefari general manager of Featherdale Wildlife Park attaching Sydney Zoo’s latest marketing material was annexed to the affidavit. The Registrar’s judgment dated 17 April 2019 dismissing the Respondent’s motion to set aside was also annexed.

9. Cross-examination of Mr Fuller solicitor was allowed, reluctantly, as the Respondent alleged that there was no arguable basis in fact for some of the amendments. Its counsel sought to obtain admissions to that effect from Mr Fuller.

10. Mr Fuller agreed that he did not know when Sydney Zoo will open, was aware that it needed an occupation certificate before opening, had no reason to think it would not obtain such a certificate before opening and had no basis not to believe a private certifier would comply with the relevant law in issuing an occupation certificate. Mr Fuller agreed that there was no identification of the marketing conduct alleged to give rise to breaches and that the APOC were open-ended in that regard.

11. Regarding pars 11A(b) and 12(e) of the APOC (which concern the Respondent’s obligation to have at least two thirds of the exotic species nominated at opening), Mr Fuller agreed that condition B7 of the development consent applies on the opening of the new zoo, agreed that that has yet to occur and that it is possible for the operators of the new zoo to comply with the condition at any time until it opens.

12. Regarding pars 11A(a) and 12(d) of the APOC (which concern the amount of Australian species the Respondent has applied for), Mr Fuller agreed that just because an application is made to the Zoological Information Management Software (ZIMS) list for certain species an applicant does not have a positive obligation to get them. He stated that the affidavit evidence of the Applicant was that an application to ZIMS is a strong indicator of what species are intended to be acquired.

13. Regarding pars 11(c), 12(c), and 12(f) of the APOC (which concern the types of Australian animal, including koala, encounters the Respondent intends to offer) Mr Fuller agreed that just because a person can get up close to a koala does not mean it can be touched and agreed that any interaction depends on how an animal display is presented, about which he can have no idea at present. Mr Fuller agreed that the sole basis for the allegation of a breach was the statement in marketing material that visitors could get close to a koala.

14. Regarding pars 11(f) and 12(h) of the APOC (which concern the hours of operation the Respondent has marketed), Mr Fuller agreed he had no basis to think the Respondent would not abide by the conditions of development consent if the modification application was refused.

Applicant’s submissions

15. The amendments are intended to clarify the scope of the case, take into account new information so that a declaration in relation to a breach of condition B6 (which regulates the area of display of Australian animals) has been added, and address the mismatch identified by the Respondent between the summons and the points of claim. Unless a pleading is so obviously untenable or manifestly groundless it should not be struck out: Alexandria Landfill Pty Ltd Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 4) [2018] NSWLEC 31 at [66] citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130. All the amendments raise issues which should be the subject of contested evidence.

Respondent’s submissions

16. Leave to amend should not be allowed if the amendment would be liable to be struck out had it appeared in the original pleading: HastieGroup Ltd (in liq) v Bourne; Hastie Group Ltd (in liq) v Moore [2017] NSWSC 709 at [236]. Firstly, the allegations in pars 11 and 11A of the APOC are too vague and the Respondent does not know what is alleged against it.

17. Secondly, the allegations have no basis in fact and should not be allowed: HFPS Pty Limited (Trustee) v Tamaya Resources Limited (in Liq) (No 2) [2016] FCA 446 at [56].

18. Pleadings which are embarrassing should not be allowed: McGuirk v University of New South Wales [2009] NSWSC 1424 (McGuirk) at [33]-[34]. A pleading may be embarrassing even if it contains allegations of material facts sufficient to constitute a cause of action if the material facts leave doubts about what is alleged: McGuirk at [32]. Pleadings that are too general are also embarrassing: McGuirk at [33].

19. Thirdly, the amendments are not in accordance with s 56 of the Civil Procedure Act 2005 as they facilitate a wasteful exercise. The pending notice of motion seeking to review the Registrar’s decision to uphold the Applicant’s notice to produce is also partly concerned with this issue.

20. The APOC do not specify the conduct complained of in the amended summons. In particular par 11 does not specify any actions by the Respondent. The reference to marketing is vague and provides no essential facts which inform the Respondent of the case it must meet.

21. Concerning par 11A of the APOC, the new zoo has not yet opened. The development consent granted in September 2017 requires certain matters to be satisfied before it can open. Mr Fuller accepted that an occupation certificate would be needed before the opening of the new zoo and that would require compliance with conditions of consent before it can be issued. The Applicant has not alleged an apprehended breach of that obligation by a certifier. Nor does the Applicant allege an intention by the Respondent to breach the conditions of consent identified. In the absence of such allegations there is no link between the matters referred to in par 11A and any apprehended breach. Overall the claims lack key factual bases.

Consideration

22. While this is not a court of strict pleading, it is important that a party’s claim is clear and properly founded in a summons and points of claim as a matter of fairness and efficiency. Authorities which have considered the adequacy of pleadings are helpful. As referred to by the Respondent, in Gunns Limited v Marr [2005] VSC 251 Bongiorno J observed at [57]:

… Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative…

23. As identified by the parties, the Respondent bears the onus of establishing that the Applicant’s claim as articulated in the amended summons and points of claim ought be struck out, a high hurdle, or alternatively that leave to re-plead should not be granted, a lesser hurdle. Such an order should be made only in plain and obvious cases without consideration of the merits of a claim. No evidence to be relied on by the Applicant has been considered. The Court is not to undertake a task of redrafting: Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170 at 186 citing Knowles v Roberts (1888) 38 Ch D 263 at 270, and McGuirk at [35].

24. The APOC refers to the “required timeframe” and Mr Fuller accepted that meant the opening of the new zoo, a date unknown to the public. The advertising material attached to the summons refers to a mid-2019 opening date. This has not and will not occur in mid-2019 according to the Respondent’s counsel (I note that it is already June 2019). “Required timeframe” is referred to expressly in pars 11A(b) and 12(e). While only appearing on two occasions it is a timeframe which is highly relevant to much of the Applicant’s claim given that it relies on breaches of development consent for a project that is yet to commence operating.

25. The amended summons continues to seek a declaration that conduct of the Respondent amounts to a breach or apprehended breach of conditions B2 (prayer 1) and B10 (now prayer 5). The term “conduct” as referred to in prayers 1-4 is not defined in the summons. Additional declarations of breach of conditions B6, B7 and B8 are now sought (see prayers 2-4). Reference to condition B6 is new according to the Applicant. Conditions B7 and B8 are included to match up the summons with the points of claim according to the Applicant. The key consequential relief sought in prayer 6(a) is the cessation of distribution of marketing material attached to the summons in breach of conditions B2, B6, B7, B8 and B10. A catch-all for additional marketing material is contained in prayer 6(b).

26. The APOC have substantial changes. The breaches of the EPA Act alleged in par 12 have been expanded to include the size of the Australian native animals display and hours of operation (pars 12(g) and (h) respectively). The breaches are said to arise from the matters in pars 10 and 10A (essentially factual statements of what is contained in the development consent conditions) and par 11 (marketing in breach of conditions) and 11A (Respondent’s conduct in breach of conditions). No specific complaint is made about pars 10 and 10A and I do not need to further consider them.

27. The hours of operation issue is that the marketing material includes a statement that earlier opening hours can be negotiated which, I was informed, is not presently in accordance with the relevant conditions of consent. I was informed by the Respondent’s counsel that a modification application had been made (part of exhibit 2) which would allow for earlier opening hours for certain activities if approved. I note that the marketing material concerning the extension of opening hours appears to be premature given that the modification application has yet to be determined.

28. Paragraph 11 is headed “actions in breach of the obligations”. Three specified instances of distribution of marketing material said to be in breach of various consent conditions are now deleted as particulars. The matter as now pleaded is a broad claim of marketing in breach of obligations in conditions B2, B6, B7, B8 and B10 in relation to the type of facility, pricing, type of Australian animal encounter, amount of Australian species, the requirement that two thirds of the nominated exotic species be displayed upon opening, koala interaction and size of Australian native animals display. The Respondent submitted that it does not know the case it has to meet by this generalised pleading. I agree. The Applicant has to specify what marketing conduct it seeks to restrain. The Applicant’s counsel referred to the specific relief in prayer 6 of the amended summons as tied to par 11. That has to be better linked to the APOC at a minimum. A clearer pleading might be retaining the original particulars and adding a catch-all claim linked to the relief sought in prayer 6(a) and (b).

29. Paragraph 11A of the APOC is new and alleges conduct which is described as being in breach of conditions of consent concerning the number of Australian species and the requirement that two thirds of the nominated exotic species be displayed upon the opening of the new zoo. The factual circumstance cited is that applications have been made to the ZIMS list for Australian and exotic animals in the numbers specified. An opinion about the consequence for the operation of the new zoo based on the number of animals applied for is stated. There is no direct link between the facts alleged, leaving aside the opinion expressed, and a breach of any conditions. For example, it is not a breach of a specified condition of consent to apply to the ZIMS list, or to do so for any particular number of Australian and exotic animals. The particulars do not state that the ZIMS list is the only source of animals available to the Respondent. That certain orders for Australian and exotic animals have been made through the ZIMS list is a matter of fact but the Applicant’s view that this means there is no realistic prospect of obtaining sufficient species within a required timeframe (meaning the opening of the new zoo) is a matter of opinion alone.

30. As the Respondent submitted the pleading does not allege an intention on the Respondent’s part to breach the conditions of consent when the new zoo opens, the key date for compliance. The Court should assume that the conditions of development consent as presently framed will be complied with at the relevant date, the opening of the zoo. I consider par 11A is embarrassing as the Respondent cannot discern the nature of the case against it from the paragraph as presently drafted. It cannot stand applying McGuirk at [32]-[34]. This has consequences for any reference to condition B7 in the amended summons and elsewhere in the APOC such as pars 12(d) and (e).

31. The Applicant is not permitted to rely on the amended summons and APOC. It can avail itself of the opportunity to re-plead, mindful of the observations in this judgment. The Applicant has 14 days to do so.

32. The usual order in Class 4 proceedings is that costs follow the event. As the Applicant has been unsuccessful it should pay the Respondent’s costs of the notice of motion.

Order

33. The Court orders as follows:

1. The Applicant’s notice of motion dated 30 April 2019 is refused and leave to re-plead within 14 days is granted.

2. The Applicant is to pay the Respondent’s costs of the notice of motion dated 30 April 2019.

3. The exhibits are returned.

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Decision last updated: 13 June 2019