Legal Research
Cases
Gilbank v Bloore

Gilbank v Bloore

Case [2012] NSWLEC 172 24 July 2012

Expert Evidence

Discovery & Disclosure

Interlocutory Orders

Costs

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Land and Environment Court

New South Wales

Medium Neutral Citation: Gilbank v Bloore [2012] NSWLEC 172
Hearing dates: 24 July 2012
Decision date: 24 July 2012
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Direct that expert evidence may be adduced by the applicants from Michael Bridgman directed to the following matters:
(i) the existence and application of any Australian standard pertaining to driveways and vehicular manoeuvrability within them as relevant to the consideration of the development application determined by the Council on 12 December 2011 in respect of premises known as 48 Kite Street, Orange, and
(ii) the practice of a local authority applying the identified standard when determining vehicular access to a garage on a residential property of the kind intended by the development application considered by the Council for the site at 48 Kite Street, Orange on 12 December 2011.
2. Direct that the applicants notify the respondents by 4.00pm on Friday 29 July 2012 as to whether they intend to file any further affidavit by Michael Bridgman providing evidence in accordance with the leave given by Order 1.
3. Direct that the applicants file and serve any amended Summons and Points of Claim so as to give effect to the foreshadowed amendment to paragraph 1 of the Summons and paragraphs 31 and 32 of the Points of Claim presently filed.
4. Vacate the directions hearing fixed for Friday 29 July 2012.
5. Stand over the proceedings for further directions to Friday 3 August 2012.
6. Costs of the applicants' notice of motion are to be costs in the proceedings.
7. Exhibit D tendered on the motion hearing may be returned.

Catchwords: EVIDENCE: - expert evidence - application to adduce expert evidence in judicial review proceedings - whether leave should be granted pursuant to Pt 31 r 31.19 of the Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - leave granted
Legislation Cited: Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005
Cases Cited: Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102
DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156
Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113
Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342
Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1985) 6 FCR 155
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Category: Procedural and other rulings
Parties: Scott Peter Gilbank (First applicant)
Margaret Audley (Second Applicant)
Robert Graham Bloore (First respondent)
Pamela Joyce Bloore (Second respondent)
Orange City Council (Third respondent)
Representation: C R Ireland (Applicants)
F J Berglund (First and Second respondents)
D J Baird (Solicitor) (Third respondent)
McPhee Kelshaw Solicitors (Applicants)
Campbell Paton & Taylor Solicitors (First and Second respondent)
Marsdens Law Group (Third respondent)

File Number(s): 40343 of 2012

EX TEMPORE Judgment

The applicants seek judicial review of a development consent granted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gilbank v Bloore

Details

AGLC: Gilbank v Bloore [2012] NSWLEC 172
Case: [2012] NSWLEC 172
Decision Date: 24 July 2012

CaseChat Overview and Summary

The applicants, Gilbank, sought leave to amend their Summons and Points of Claim, and to adduce expert evidence from Michael Bridgman regarding the application of Australian standards for driveways and vehicular access in residential developments. The matter was before the court on an application for directions. The respondents, Bloore, opposed the application on the basis that the proposed amendments were an attempt to raise new causes of action. The court was required to determine whether the applicants were entitled to amend their pleadings and adduce expert evidence on the specified matters.

The court found that the proposed amendments to the Summons and Points of Claim were not substantive changes, but rather clarifications that did not introduce new causes of action. The court noted that the applicants had acted promptly in seeking leave to amend and that there was no evidence of any delay or prejudice to the respondents. Regarding the expert evidence, the court found that the proposed evidence was relevant to the issues in the case and would assist in the determination of the matter. The court also noted that the expert evidence could be obtained without significant cost or delay.

Accordingly, the court granted the applicants' application, allowing them to amend their Summons and Points of Claim and to adduce expert evidence from Michael Bridgman on the specified matters. The court also made orders regarding the notification of further affidavits, the vacating of the directions hearing, and the standing over of the proceedings for further directions. The costs of the notice of motion were to be costs in the proceedings, and the exhibit tendered on the motion hearing could be returned.

In conclusion, the court found in favour of the applicants and granted their application for leave to amend and adduce expert evidence. The court's decision was based on the applicants' prompt action, the lack of prejudice to the respondents, and the relevance of the proposed evidence to the issues in the case. The matter was stood over for further directions, and the parties were required to notify the court of any further affidavits and amended pleadings.

Orders

Orders of the court

1. Direct that expert evidence may be adduced by the applicants from Michael Bridgman directed to the following matters:

(i) the existence and application of any Australian standard pertaining to driveways and vehicular manoeuvrability within them as relevant to the consideration of the development application determined by the Council on 12 December 2011 in respect of premises known as 48 Kite Street, Orange, and

(ii) the practice of a local authority applying the identified standard when determining vehicular access to a garage on a residential property of the kind intended by the development application considered by the Council for the site at 48 Kite Street, Orange on 12 December 2011.

2. Direct that the applicants notify the respondents by 4.00pm on Friday 29 July 2012 as to whether they intend to file any further affidavit by Michael Bridgman providing evidence in accordance with the leave given by Order 1.

3. Direct that the applicants file and serve any amended Summons and Points of Claim so as to give effect to the foreshadowed amendment to paragraph 1 of the Summons and paragraphs 31 and 32 of the Points of Claim presently filed.

4. Vacate the directions hearing fixed for Friday 29 July 2012.

5. Stand over the proceedings for further directions to Friday 3 August 2012.

6. Costs of the applicants' notice of motion are to be costs in the proceedings.

7. Exhibit D tendered on the motion hearing may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Gilbank v Bloore [2012] NSWLEC 172

Most Recent Citation

Gilbank v Bloore (No 2) [2012] NSWLEC 273

Cases citing this decision · 6 of 6 shown

Greenland Resources Pty Ltd v Contaminated Sites Committee
[2022] WASC 280 Para 3

…idence was relevant and admissible. The applicant must also show that it is reasonably required to resolve the proceedings.[13] [13] Gilbank v Bloore [2012] NSWLEC 172. A decision on a statutory regime quite different from that applicable in this case.…
Ross v Lane
[2021] NSWLEC 61 Para 16

…(2011) 189 LGERA 348; Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 at [66]-[83]; Gilbank v Bloore [2012] NSWLEC 172 at [7]-[12]; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [119]-[139]; Botany Bay City Council v Minister…
Bay Simmer Investments Pty Ltd v State of New South Wales
[2016] NSWLEC 23 Para 18

…Applicant relied on Caldera, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“ SZIAI ”) and Gilbank v Bloore [2012] NSWLEC 172 (“Gilbank v Bloore”). SZIAI is a general authority for the proposition that the information about which inquiries were not made must be “easily ascertain…
Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 3)
[2014] NSWLEC 133 Para 1

…(2012) 190 LGERA 262; Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 at [66]-[83]; Gilbank v Bloore [2012] NSWLEC 172 at [7]-[12]; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [119]-[139]; Botany Bay City Council v Minister…
Botany Bay City Council v Minister for Planning and Infrastructure
[2014] NSWLEC 14 Para 1

…In Gilbank v Bloore (' Gilbank ') [2012] NSWLEC 172, Craig J surveyed authorities from Caldera through to King Edward Park . His Honour noted (at [14]) that decisions such as these must be made "on the basis of the pleaded facts", or else "a trial of fact would be required in advance of the final hearing", and that…
Gilbank v Bloore (No 2)
[2012] NSWLEC 273 Para 1

…d Park Inc v Newcastle City Council [2012] NSWLEC 113 , Rossi v Living Choice Australia Ltd (t/as Living Choice) [2012] NSWLEC 112 , Gilbank v Bloore [2012] NSWLEC 172. None of those judgments deal finally with the question of whether expert evidence not before the decision-maker is permissible in proceedings of thi…

View all 6 citing cases →

Cases cited in this decision · 6 of 6 shown

Friends of King Edward Park Inc v Newcastle City Council
[2012] NSWLEC 113 Para 1

…judicial review proceeding is limited indeed. That limitation was reiterated by Biscoe J in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 at [74].…
Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division)
[2011] NSWLEC 191 Para 1

…ew are manifest unreasonableness ( Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342). Evidence is also admissible, in limited circumstances, of an enquiry that a statutory decision maker could have made, but fai…
DEXUS Funds Management Ltd v Blacktown City Council
[2011] NSWLEC 156 Para 1

…As I observed in DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156, the scope for adducing expert evidence in judicial review proceeding is limited indeed. That limitation was reiterated by Biscoe J in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 at [74].…
Shellharbour City Council v Minister for Planning
[2011] NSWCA 195 Para 1

…Application of UCPR r 31.19 has recently been considered by the Court of Appeal in Shellharbour City Council v Minister for Planning [2011] NSWCA 195. The decision of the Court was unanimous. In his concurring judgment, Giles JA said (at [35]):…
Prasad v Minister for Immigration and Ethnic Affairs
[1998] FCA 47 Para 1

…to make, revealing information readily available and relevant to the determination to be made ( Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1988) 6 FCR 155). Further, this Court has also determined that in judicial review proceedings evidence may be admissible in order to establish the…
Prasad v Minister for Immigration and Ethnic Affairs
[1985] FCA 46

…nd Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342 Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1985) 6 FCR 155 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Category: Procedural and other rulings Parties: Scott Peter Gilbank (First applica…

Legislation cited in this decision · 2

Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Gilbank v Bloore [2012] NSWLEC 172
Hearing dates:	24 July 2012
Decision date:	24 July 2012
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Direct that expert evidence may be adduced by the applicants from Michael Bridgman directed to the following matters: (i) the existence and application of any Australian standard pertaining to driveways and vehicular manoeuvrability within them as relevant to the consideration of the development application determined by the Council on 12 December 2011 in respect of premises known as 48 Kite Street, Orange, and (ii) the practice of a local authority applying the identified standard when determining vehicular access to a garage on a residential property of the kind intended by the development application considered by the Council for the site at 48 Kite Street, Orange on 12 December 2011. 2. Direct that the applicants notify the respondents by 4.00pm on Friday 29 July 2012 as to whether they intend to file any further affidavit by Michael Bridgman providing evidence in accordance with the leave given by Order 1. 3. Direct that the applicants file and serve any amended Summons and Points of Claim so as to give effect to the foreshadowed amendment to paragraph 1 of the Summons and paragraphs 31 and 32 of the Points of Claim presently filed. 4. Vacate the directions hearing fixed for Friday 29 July 2012. 5. Stand over the proceedings for further directions to Friday 3 August 2012. 6. Costs of the applicants' notice of motion are to be costs in the proceedings. 7. Exhibit D tendered on the motion hearing may be returned.
Catchwords:	EVIDENCE: - expert evidence - application to adduce expert evidence in judicial review proceedings - whether leave should be granted pursuant to Pt 31 r 31.19 of the Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - leave granted
Legislation Cited:	Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342 Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1985) 6 FCR 155 Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Category:	Procedural and other rulings
Parties:	Scott Peter Gilbank (First applicant) Margaret Audley (Second Applicant) Robert Graham Bloore (First respondent) Pamela Joyce Bloore (Second respondent) Orange City Council (Third respondent)
Representation:	C R Ireland (Applicants) F J Berglund (First and Second respondents) D J Baird (Solicitor) (Third respondent) McPhee Kelshaw Solicitors (Applicants) Campbell Paton & Taylor Solicitors (First and Second respondent) Marsdens Law Group (Third respondent)
File Number(s):	40343 of 2012