Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 3)
[2018] NSWLEC 148
•20 June 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 3) [2018] NSWLEC 148 Hearing dates: 20 June 2018 Date of orders: 20 June 2018 Decision date: 20 June 2018 Jurisdiction: Class 4 Before: Moore J Decision: At [12]
Catchwords: AMENDMENT APPLICATION - further application to amend pleadings - although in different form proposed amended pleadings to same effect as earlier rejected amendment - leave to amend refused Legislation Cited: Environmental Planning and Assessment Act 1979, s 35 Cases Cited: Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Category: Procedural and other rulings Parties: Help Save Mt Gilead Inc (Applicant)
Mount Gilead Pty Limited (First Respondent)
Stefan & Anna Dzwonnik (Second Respondents)
The Greater Sydney Commission (Third Respondent)
The Minister for Planning (Fourth Respondent)
Campbelltown City Council (Fifth Respondent)
Lendlease Communities (Mt Gilead) Pty Limited (Sixth Respondent)Representation: Counsel:
Solicitors:
Mr T Robertson SC/Ms J Walker, barrister (Applicant)
Ms Z Heger, barrister (First Respondent)
Submitting appearance (Second Respondents)
Ms I King, barrister (Third and Fourth Respondents)
Submitting appearance (Fifth Respondent)
Mr N Williams SC/Mr A Shearer, barrister (Sixth Respondent)
Connor & Co (Applicant)
Addisons Lawyers (First Respondent)
Carter Ferguson Solicitors (Second Respondents)
Department of Planning (Third and Fourth Respondents)
Marsdens Law Group (Fifth Respondent)
Addisons Lawyers (Sixth Respondent)
File Number(s): 370175 of 2017 Publication restriction: No
EXTEMPORE Judgment
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HIS HONOUR: On 5 June 2018, Molesworth AJ heard an application made by the Applicant in these proceedings to seek to amend its Summons in order to rely on a Further Amended Summons. That Further Amended Summons sought to introduce extensive additional pleadings with respect, amongst other things, to misleading information in the air quality review as described in those proposed pleadings.
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His Honour rejected the proposal to permit that pleading in a written judgment delivered promptly on 7 June 2018 (see Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88). His Honour did permit the filing of an affidavit, in a redacted form, by a Mr Stephenson, that affidavit in redacted form being before me on this application for leave to amend, being an application for leave to amend by constricting the written form of the pleadings currently before the Court but in a fashion which in fact expands the scope of the written form of the pleadings.
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His Honour said, in [41] of his judgment, amongst other things:
The Stephenson Report has the capacity to lead to a quicker and cheaper analysis of relevant material in an orderly fashion easier for the Court to assimilate.
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That was a statement of significantly misplaced anticipation. I have earlier today indicated why, on the basis of the present pleadings, I rejected Mr Stephenson’s affidavit and three statutory documents prepared by the Environment Protection Authority dealing with air quality (in the years 2012, 2013 and 2014).
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The amendment that is proposed by the application for leave to amend would narrow the terms of the present pleadings, in a fashion narrowing - in a textual sense only - by deleting reliance on a specific document which had been pleaded in [18] of the pleadings that are currently before me, that document being a peer review of air quality assessment commissioned for the Council, for the proposed power plant at Leafs Gully, by Mr David Henry and dated 20 April 2009. As I indicated in my decision earlier today, that necessarily implied reliance on data available prior to the preparation of that report and not data which post-dated it.
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The deletion of the second half of [17] of the present pleadings and deletion of the entirety of [18] and [19] would put the matter very much at large when complaint was made that, if I were to permit the amendment then, there would be insufficient particularisation available.
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Mr Robertson, senior counsel for the Applicant, in support of the application for leave to amend took me to pages 7 and 8 of the Applicant’s written submissions of 8 June 2018, filed on 14 June 2018. Paragraphs 19, 20, 21 and 22, Mr Robertson informed me, constituted (in effect, although not in a properly pleaded form) sufficient information to enable the Respondents in the proceedings to understand the nature of that which was proposed if formal particularisation was required.
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The Respondents have raised a number of matters that are put as reasons why I ought not permit the amendment to be allowed.
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There are several of them that I can deal with comparative brevity. The first was the question of whether or not the fact that the proceedings that are currently before me were commenced on the last available day in the limitation period permitted by what was s 35 of the Environmental Planning and Assessment Act 1979 (now renumbered as a consequence of the changes made on 1 March this year).
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I am satisfied that, although his Honour dealt with it in the context of costs, in [45] of his Honour’s judgment, he dealt with reasons why there had been difficulties for the Applicant in these proceedings to obtain necessary information and I see no reason to, and have no information which would cause me to, question his Honour’s conclusions and I am not satisfied that anything arises from what is put as the limitation point.
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The significant difficulty that, it seems to me, stands as the insurmountable impediment for the Applicant in seeking leave to make these further amendments is that, although paragraphs 19, 20, 21 and 22 of the Applicant’s submissions are not in precisely the same form as the particulars that were proposed to be inserted, in what would have become (17) of the Second Further Amended Summons which was rejected by Molesworth AJ, they are, nonetheless, in substance, effectively the same.
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The application for further amendment, in effect, acts as a canvassing of his Honour’s ruling. I do not see any basis why I should permit it and the application for leave to amend further is rejected.
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Decision last updated: 21 September 2018
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