Hardie Holdings Pty Limited v The State of New South Wales
[2016] NSWSC 58
•26 February 2016
Supreme Court
New South Wales
Medium Neutral Citation: Hardie Holdings Pty Limited v The State of New South Wales [2016] NSWSC 58 Hearing dates: 11 February 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Common Law Before: RS Hulme AJ Decision: 1.Refuse prayers 1 and 4 in the Plaintiffs’ Amended Notice of Motion dated 9 February 2016.
2.Order that:
(a)The Seventh Plaintiff, Hardie Sanctuary Pty Limited;
(b)The Eighth Plaintiff, Biodiversity Land Pty Limited (formerly Eco Trades Pty Limited);
(c)The Ninth Plaintiff, Dalbell Pty Limited; and
(d)The Tenth Plaintiff, Nersu Pty Limited be removed as Plaintiffs in proceedings 2011/67050.
3.Grant leave to the Plaintiffs to amend the Statement of Claim in proceedings 2011/67050 in accordance with the draft “Further Amended Statement of Claim” initialled by me and dated today.
4.Order that proceeding 2011/67050 and 2015/252895 be heard together and that evidence in one be evidence in the other.
5.Order that the Plaintiffs pay the costs thrown away by the amendments to the Statement of Claim.
6.Order that the Plaintiffs pay 75% of the costs of the Defendant of and incidental to the Notice of Motion filed on 28 August 2015 and the Amended Notice of Motion dated 9 February 2016.Catchwords: Practice and procedure – joint hearing – preferable to consolidation “Crown” includes Ministers Legislation Cited: Crown Proceedings Act 1988 (NSW) Cases Cited: Sneddon v NSW [2012] NSWCA 351 Category: Procedural and other rulings Parties: Hardie Holdings Pty Limited & Ors (Plaintiffs)
The State of New South Wales (Defendants)Representation: Counsel:
Solicitors:
JK Kirk SC: SH Hartford Davis (Plaintiffs)
GP Craddock SC: T Stevens (Defendants)
Squire Patton Boggs (Plaintiffs)
IV Knight Crown Solicitor’s Office (Defendants)
File Number(s): 2015/252895: 2011/67050 Publication restriction: No
Judgment
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HIS HONOUR: In proceedings 2011/67050 commenced by Statement of Claim, Hardie Holdings Pty Ltd (hereinafter referred to as “Hardie”) and others sue the State of New South Wales for damages said to arise in consequence of the breach or failure of an Environmental Land Offset Scheme. An incident of the Scheme was an agreement entered into between The Minister for Planning and the Minister for the Environment (referred to in the Agreement as “the Government”) and Hardie.
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By an Amended Notice of Motion dated 9 February 2016, Hardie seeks to:-
add the Ministers named as Defendants,
have a number of Plaintiffs removed from the proceedings,
further amend what is already an amended Statement of Claim,
have the proceedings consolidated with proceedings 2015/252895, and
have some ancillary relief.
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On 28 August 2015 Hardie also commenced proceedings 2015/252895 against the two Ministers. The proceedings were commenced with a view to minimising the possibility that the Plaintiffs would, in the 2011 proceedings, fail upon the ground that the State of New South Wales was not the, or an, appropriate Defendant and the passing of time would bar any proceeding commenced appreciably later.
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Since the filing of the Notice of Motion there have been discussions between the parties and many of the issues raised by the Notice of Motion resolved. However the application for joinder of the Ministers remains as does the application for consolidation.
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In opposing the application for joinder, counsel for the Defendants submitted that it was unnecessary, observing that in the 5 years since the commencement of the proceedings the Defendant has never asserted that it was not liable upon the ground that the parties to the Agreement referred to were the Ministers. I was also referred to the Crown Proceedings Act 1988 (NSW). Inter alia the Act provides:-
3. In this Act
…
Crown means the Crown in right of New South Wales, and includes:
(a) The Government of New South Wales, and
(b) A minister of the Crown in right of New South Wales, and
(c) …
5(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title “State of New South Wales” in any competent court.
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The Plaintiff contended that as under the Agreement the Ministers had obligations to exercise statutory powers conferred on them, and not on the State, it might well be that the provisions quoted were not sufficient to render the State liable for all of their actions or failures. Reference was made to Sneddon v NSW [2012] NSWCA 351 at [47] where Basten JA suggested that the Act effected only a titular change.
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However it seems to me that the doubt relied on is unjustified. The Act is to my mind clear and there is no need to add the Ministers as Defendants. In those circumstances the part of the Notice of Motion that seeks their joinder will be refused.
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Nor does it seem to me appropriate to order the consolidation of the two sets of proceedings. While normally two actions raising virtually the same issues would be an abuse of process, where a second has the effect, or may well have the effect of avoiding the very substantial impact that the passing of a Limitation Period is calculated to have, there is some clear advantage in leaving both on foot. Given what I am informed is the similarity of issues and parties in, or which it is envisaged will be in, both of the proceedings it seems to me that there will be no significant disadvantage of doing so, particularly in circumstances where, as I will, I order that they be heard together and that evidence in one be evidence in the other.
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I may perhaps add that the course outlined avoids any issues as to the operation of the provisions dealing with the time from which amendments to pleadings are taken to operate.
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Two paragraphs above I used the expression. “envisaged will be in”. The Plaintiffs have foreshadowed some amendments to the pleadings in the 2011 proceedings to accord with allegations in the 2015 proceedings, amendments to which the Defendant indicated it has no objection.
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Another issue that arose concerned the form of the Statements of Claim. Given the messy nature of the Statement of Claim once all the amendments made and desired are incorporated, it has been suggested that the Plaintiffs file an Amended Statement of Claim which omits indications of amendment. Counsel for the Defendant was content for that to occur so I propose to make an order which will have this effect.
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There remains the question of costs. Counsel for the Plaintiffs accepted that they should pay the costs thrown away by the amendments. He however sought the costs of the motion, relying particularly on delay by the Defendants, extending to 29 January 2016, in indicating their attitude to the Plaintiffs’ Notice of Motion filed on 27 August 2015.
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There was correspondence and steps in the meantime that I think it unnecessary to set out but in the result I am of the view that the Defendants were unnecessarily slow, resulting in those on the Plaintiffs’ side having to do more work, at presumably more cost than should have been necessary.
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That said, the Plaintiffs have not succeeded on most contested aspects of their motion. It was filed to overcome problems perceived in the formulation of the claims. The “fault” on both sides can be most appropriately dealt with by ordering the Plaintiffs to pay most, but not all of the Defendant’s costs.
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Accordingly the appropriate orders seem to me to be:
Refuse prayers 1 and 4 in the Plaintiffs’ Amended Notice of Motion dated 9 February 2016.
Order that:
The Seventh Plaintiff, Hardie Sanctuary Pty Limited;
The Eighth Plaintiff, Biodiversity Land Pty Limited (formerly Eco Trades Pty Limited);
The Ninth Plaintiff, Dalbell Pty Limited; and
The Tenth Plaintiff, Nersu Pty Limited
be removed as Plaintiffs in proceedings 2011/67050.
Grant leave to the Plaintiffs to amend the Statement of Claim in proceedings 2011/67050 in accordance with the draft “Further Amended Statement of Claim” initialled by me and dated today.
Order that proceeding 2011/67050 and 2015/252895 be heard together and that evidence in one be evidence in the other.
Order that the Plaintiffs pay the costs thrown away by the amendments to the Statement of Claim.
Order that the Plaintiffs pay 75% of the costs of the Defendant of and incidental to the Notice of Motion filed on 28 August 2015 and the Amended Notice of Motion dated 9 February 2016.
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Decision last updated: 26 February 2016
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