Homemaker Hub Pty Ltd v Strathfield Council - [2009] NSWLEC 74

Land and Environment Court

of New South Wales

CITATION: Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74

PARTIES: APPLICANT
Homemaker Hub Pty Ltd
RESPONDENT
Strathfield Council

FILE NUMBER(S): 11199 of 2008

CORAM: Pain J

KEY ISSUES:
PRACTICE AND PROCEDURE :- notice of motion enforcing pre-trial order of court limiting expert evidence to be relied upon at hearing - whether additional expert evidence ought to be relied on
Practice and Procedure :- whether order for joinder of additional party ought be made

LEGISLATION CITED: Civil Procedure Act 2005 s 56, 62(3)
Land and Environment Court Act 1979 s 39A
Uniform Civil Procedure Rules 2005 r 31.19

DATES OF HEARING: 11 May 2009
12 May 2009

DATE OF JUDGMENT:
14 May 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr C McEwen SC
SOLICITORS
Gilbert and Tobin
APPLICANT ON NOTICE OF MOTION FOR JOINDER
Mr C Birch SC
SOLICITORS
Speed and Stracey Lawyers
RESPONDENT
Mr T Hale SC
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 May 2009

11199 of 2008 Homemaker Hub Pty Ltd v Strathfield Council
JUDGMENT

1 Her Honour: These are Class 1 proceedings with a hearing date in about one month. The Applicant has filed a Notice of Motion dated 7 May 2009 seeking orders that:

1. Pursuant to s 62(3)(b) of the Civil Procedure Act 2005 (NSW) the Respondent is limited to bringing evidence from one expert in each field of expertise being planning, economics and traffic.

…

2 The relevant order which the Applicant’s motion essentially seeks to enforce was made by the Registrar on 24 April 2009, being prayer 2 of the short minutes of order, as follows:

The Applicant’s town planning expert, Julie Bindon of JBA Planning, the Respondent’s town planning expert and a Council officer are to file and serve their statements of evidence on the town planning contentions by 1 May 2009 and are to confer and file a joint report by 15 May 2009.

3 Westfield Management Ltd (Westfield) has filed a Notice of Motion dated 11 May 2009 seeking joinder as a party under s 39A of the Land and Environment Court Act 1979 (the Court Act). It relies on an affidavit of Mr Speed sworn 11 May 2009 which sets out the numerous interactions between the Council and Westfield which resulted in the provision by Westfield of the expert reports of Mr Rumbold (economist), Mr Jarrett (architect) and Mr Ingham (town planner) to the Council. Whether it needs to press that motion depends on how I determine the Applicant’s Notice of Motion as that will determine whether the three additional reports which the Council had provided to it by Westfield and that it now presses in its case can be relied on. If these are allowed in, Westfield will not press its motion for joinder.

4 While the Applicant’s motion refers to planning, economic and traffic evidence, I note that it is agreed between the parties that the report of Mr…

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.

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Details

Case: [2009] NSWLEC 74
Decision Date: 14 May 2009

CaseChat Overview and Summary

In this case, Homemaker Hub Pty Ltd (the Applicant) has brought proceedings against Strathfield Council (the Respondent) in the Land and Environment Court of New South Wales. The Applicant has filed a Notice of Motion seeking to enforce a pre-trial order of the court limiting the expert evidence to be relied upon at the hearing. The Applicant argues that additional expert evidence should not be relied on. The Respondent has also filed a Notice of Motion seeking to join Westfield Management Ltd as an additional party to the proceedings. The key issues before the court are whether the additional expert evidence should be admitted and whether Westfield should be joined as a party.

The court found that the additional expert evidence provided by the Respondent should not be relied upon. The court found that the evidence was not necessary and was not covered by the court's orders. The court also found that the issue raised by the evidence was already considered in other evidence before the court. The court found that the Respondent had not applied under the Uniform Civil Procedure Rules 2005 for orders to enable it to rely on the additional evidence. The court held that the overriding purpose of the Civil Procedure Act 2005 is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The court found that the admission of the additional expert evidence would not serve this purpose.

The court also found that Westfield should not be joined as a party to the proceedings. The court found that there was no necessity or public interest in joining Westfield as a party. The court found that Westfield could participate as an objector in the usual course of the hearing. The court held that the decision to join a party is a discretionary decision for the court to be determined in each case before it.

In conclusion, the court dismissed the Respondent's Notice of Motion seeking to rely on additional expert evidence and the joinder application of Westfield. The court's decision was based on the overriding purpose of the Civil Procedure Act 2005 and the appropriate management of litigation in Class 1 proceedings in the Land and Environment Court of New South Wales.

Orders