Gibbs v Ballina Shire Council

[2020] NSWLEC 72

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gibbs v Ballina Shire Council [2020] NSWLEC 72
Hearing dates:	16 June 2020
Date of orders:	17 June 2020
Decision date:	16 June 2020
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See [11] and Annexure A
Catchwords:	APPEARANCE – Second Respondent files submitting appearance – Second Respondent seeks to withdraw submitting appearance and take active part in proceedings – change of mind notified the day after filing the submitting appearance – Second Respondent wishes to defend development consent granted to it – First and Second Respondents propose joint Statement of Facts and Contentions in Reply – First and Second Respondents propose only a single expert witness in any discipline – appropriate to grant leave to withdraw submitting appearance – also appropriate to order that First and Second Respondents be limited to a single expert in any discipline unless leave granted to permit otherwise
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 6.11(2)
Category:	Procedural and other rulings
Parties:	Jeffrey Gibbs (Applicant) Ballina Shire Council (First Respondent) North Coast Recycling Pty Ltd (Second Respondent)
Representation:	Counsel: Mr M Astill, barrister (Applicant) Ms C Huegill, solicitor (First Respondent) Mr M Young, solicitor (Second Respondent)   Solicitors: Bick & Steele (Applicant) Parker & Kissane (First Respondent) McCartney Young Lawyers (Second Respondent)
File Number(s):	399422 of 2019
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: These Class 1 proceedings were commenced on 19 December 2019. They were commenced by Mr Gibbs who is a third-party objector to development consent granted to North Coast Recycling Pty Ltd for a waste transfer and recycling plant to be located within the boundaries of Ballina Shire. When Mr Gibbs commenced the proceedings, only Ballina Shire Council (the Council) was nominated as a Respondent.

2. It was clearly necessary, as was subsequently identified and accepted by Mr Gibbs when he became legally represented, that it was appropriate that the holder of the development consent be joined as the Second Respondent to the proceedings. That joinder happened in February of this year.

3. On 27 February 2020, some 10 days or so after that occurred, the Second Respondent filed a submitting appearance in the proceedings. As I understand things, as shown in the evidence of Ms Nadj, the solicitor on the record for Mr Gibbs, the following day she received an e‑mail from Mr Marquet, the solicitor on the record for the Second Respondent, indicating that the Second Respondent wished to change its appearance from a submitting one to an active one. In the evidence that I have, there is no explanation or detail as to why that change of mind occurred.

4. I am satisfied, under the circumstances, it is unnecessary for me to know that, given that the change of heart was one that was communicated promptly within a 24-hour-or-so period to the Applicant in the Class 1 proceedings.

5. What is now sought is leave pursuant to the relevant provision of the Uniform Civil Procedure Rules 2005, that is r 6.11(2), that Mr Young's client, the holder of the development consent, be permitted to withdraw its submitting appearance and to substitute, in lieu thereof, a conventional appearance enabling it to be represented in, and take every necessary part in, these Class 1 proceedings.

6. Mr Astill, on behalf of the Applicant in the Class 1 proceedings, opposes that course being permitted on the basis that it is conventionally the position when such circumstances arise that the Council becomes a submitting party and the proponent of the development acts as the active contradictor to the person objecting to the development consent. In these circumstances, the Council has not chosen to take that course.

7. I return later to the proposition advanced by Mr Astill that I should make Mr Young's client's active participation conditional on the Council filing a submitting appearance in substitution for its active appearance as it has been described in the submissions.

8. I have been informed, through the evidentiary process, that here have been ongoing discussions (as Mr Marquet discloses) between the legal representatives of the two Respondents seeking to ensure that there is a single Statement of Facts and Contentions in Reply filed to the Applicant's Statement of Facts and Contentions (which was filed on 15 April).

9. The Statement of Facts and Contentions in Reply is currently required to be filed and served by 6 July 2020, with further directions before the Registrar listed for 13 July 2020. It is, as I understand it, expected - but certainly at the very least hoped - that that will be a common document if Mr Young's client is permitted to participate on an active basis.

10. The concerns that are expressed by Mr Astill on behalf of his client are that permitting there to be two active Respondents is contrary to the objectives set out in s 56 of the Civil Procedure Act 2005 designed to ensure that there is the just, quick and cheap resolution of all the issues genuinely in dispute between the parties - his client's concern being that such an approach as is now proposed may neither be cheap nor necessarily quick.

11. If I am to permit Mr Young's client to take an active part, Mr Astill submits that there should be conditions attached to that. The primary one of them, in his submissions as put to me in writing, is that Ms Huegill's client, the Council, should be requested to file a submitting appearance and that Mr Young's client’s appearance should not be permitted to be active unless that occurs.

12. I confess, absent authority for that proposition, I have concern as to the validity of any order I might make of that nature, even if I was attracted to that proposition (which I am not, for reasons I propose to outline).

13. However, the alternative regime proposed by Mr Astill is that only one of the Respondents might file evidence on an issue or cross‑examine the Applicant's witnesses on any particular nominated issue. I canvassed with the parties the proposition that there only be one expert on behalf of the Respondents on any matter that is put in contention unless leave of the Court is obtained for some different regime to apply.

14. I am satisfied, on balance, that it is appropriate that Mr Young's client be permitted to take an active part. There are several reasons for that.

15. The first, as I have earlier outlined, is that the change of heart on behalf of his client was not one which has involved significant delay in it being informed to the Applicant in the substantive proceedings. There can be no prejudice arising in the context of that 24-hour period.

16. Second, and of some significance, is that Mr Young's client is currently the beneficiary of a development consent for its proposed development, a development consent which in itself constitutes a valuable right and to which the Second Respondent should have the opportunity of mounting a defence in order to preserve its right.

17. Although it is unusual for there to be two active respondents in circumstances such as these, in my 18 years’ experience with the Court it is not an entirely exceptional position that this has occurred.

18. There is nothing that would constitute, in my expectation, any inappropriate precedent being caused if I grant, as I propose to, Mr Young's client leave pursuant to r 6.11(2) of the UCPR to withdraw its submitting an appearance and to substitute a formal appearance that permits it to take an active role.

19. However, as I foreshadowed to the parties, I am satisfied that for me to permit that in a fashion where it is anticipated, but by no means guaranteed, that there will be a common, single Statement of Facts and Contentions in Reply and, if that be the case, the likelihood (but no certainty) of there being a single witness on behalf of the Respondents on any matters requiring the giving of expert evidence concerning any of the contentions pressed in reply, it is appropriate to limit the Respondents collectively to a single witness on any contention raised by them in a joint Statement of Facts and Contentions in Reply.

20. However, that limitation is to be subject of a right to apply for leave to the Court for dispensation of that with respect to any particular area of expert discipline if the Respondents can demonstrate some good reason why it would be appropriate for there to be separate expert witnesses in that regard.

21. I do not propose to impose any limitation on the right of the legal representatives of both Respondents to cross‑examine the Applicant's witnesses or, indeed if necessary, to take any other part in the oral evidentiary process in the proceedings. That is a matter which can be, if necessary, dealt with on some future case management occasion.

22. As a consequence, I order Mr Young to provide to my Associate, after checking with the legal representatives of the other two parties, Short Minutes of Order to give effect to my decision this afternoon. The matter is adjourned to the hearing before the Registrar on 13 July 2020.

NOTE: Orders were subsequently provided and made. They are reproduced in Annexure A.

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Annexure A - 399422 of 2019 - Gibbs v Ballina Shire Council - O - 17 Jun 20 (155315, pdf)

Decision last updated: 19 June 2020