Hornsby Shire Council v Valuer General of New South Wales (No 2)

[2013] NSWSC 510

Supreme Court

New South Wales

Case Title:	Hornsby Shire Council v Valuer General of New South Wales (No 2)
Medium Neutral Citation:	[2013] NSWSC 510
Hearing Date(s):	18/04/2013
Decision Date:	18 April 2013
Jurisdiction:	Common Law
Before:	Garling J
Decision:	1. The plaintiff have leave to file the Third Amended Statement of Claim in the form circulated to the other parties on 20 March 2013 except for: (a) the deletion of the words "it was obvious to anyone walking on the Quarry Land that" in paragraphs 47(a) (1) and 56 (a) (1); (b) paragraph 67; and (c) the addition of the word "materially" before the word "inaccurate" in paragraph 66F. 2. The plaintiff to pay the costs of the defendants thrown away by reason of the amendments in the Third Amended Statement of Claim. 3. I order the plaintiff to pay the State interest's costs of the motion.
Catchwords:	PROCEDURE - motion to amend statement of claim - many previous amendments- late amendment sought -- no justification for additional amendments to statement of claim provided -- exercise of judicial discretion to allow or disallow amendments - parties must address issues in proceedings comprehensively and in a timely manner - overriding purpose of the Civil Procedure Act 2005 is not attained -no point of general principle
Legislation Cited:	Civil Procedure Act 2005 Fair Trading Act 1987 Judiciary Act 1903 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules
Cases Cited:	AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Category:	Procedural and other rulings
Parties:	Hornsby Shire Council (P) Valuer General of New South Wales (D1) The State of New South Wales (D2) Brian Rushton Nicholson (D3) Alcorn Corbin Nicholson Pty Ltd (D4) CSR Limited (D5) Peter Charles Cunningham (D6)
Representation
- Counsel:	Counsel: J Lazarus (P) P Menzies SC / B Nolan (D1, D2 & D6) C Gleeson (D3 & D4) B C Beasley SC (D5)
- Solicitors:	Solicitors: Storey & Gough (P) NSW Crown Solicitors Office (D1, D2 & D6) Norton Rose Australia (D3 & D4) Minter Ellison (D5)
File Number(s):	2009/297428

EX TEMPORE JUDGMENT

1. The plaintiff, Hornsby Shire Council, once again applies for leave to amend its Statement of Claim. Only one part of the amendments, namely the addition of paragraph 67, is opposed by the first, second and sixth defendants to which it will be convenient to refer in this judgment as "the State interests". All other amendments are not opposed, whether by the State interests or any of the other parties.

2. Paragraph 67 of the proposed pleading is in these terms:

   "The Valuer-General, or alternatively Cunningham, was a person involved in the contravention by CSR of section 52 of the Trade Practices Act and section 42 of the Fair Trading Act pleaded at paragraph 62 in that he:

   (a) aided, abetted counselled and/or procured the contravention; and/or

   (b) was knowingly concerned in and/or a party to the contravention

   by acceding to CSR's demand not to disclose the CSR reports to the council".

3. Particulars are then provided which make it plain that the Council seeks to rely on s 75B of the Trade Practices Act 1974 and s 61 of the Fair Trading Act 1987.

4. This paragraph is an entirely new cause of action against the first and sixth defendants based upon s 82 of the Trade Practices Act and on a cause of action for accessorial liability pursuant to s 75B of that Act.

5. In short, it is alleged for the first time that the first and sixth defendants were knowingly concerned in a breach by CSR, another defendant, of s 52 of the Trade Practices Act or, s 42 of the Fair Trading Act which is the State equivalent.

6. Prior to this proposed amendment, the only claim for damages made against the State interests were those based upon common law causes of action.

7. The proceedings arise out of a determination made by the Valuer-General on 21 February 2003 with respect to quarry land which was to be compulsorily acquired by the Council.

8. The facts relied upon in the proceedings relate, speaking generally, to the preparation of a valuation which underlay the determination and the accuracy of the determination itself. These proceedings were first commenced on 9 February 2009. A final hearing has been fixed for 26 August 2013. The proceedings are presently estimated to take many weeks.

9. There have been at least three earlier versions of the Statement of Claim. This seems to be the fourth, or else perhaps even the fifth set of proposed amendments to the Council's Statement of Claim.

10. The State interests oppose the amendment essentially on three bases.

11. First, they submit the Trade Practices Act cannot apply to any of the first, second and sixth defendants, and hence the amendments sought would be futile. The second defendant's position is relevant because it is said to be vicariously liable for the conduct of the first and sixth defendants.

12. Secondly, they submit that the cause of action is clearly time-barred, time having expired on 22 February 2009, and the provisions of the Civil Procedure Act 2005 do not permit the addition of a statute-barred cause of action which is based upon, or arises from, a Commonwealth statute.

13. Thirdly, they submit that, as a matter of discretion, the Court ought not permit this amendment.

14. As there is not an abundance of time before further essential evidentiary steps are to be taken in the proceedings, it is necessary that I give this decision promptly. It follows that these reasons are not as detailed, nor as felicitously expressed, as they otherwise might be.

15. I am not satisfied that the State interests have persuaded me that the issue of whether the Trade Practices Act can or cannot apply to the first and sixth defendants is so clear that I would, on this motion, prevent the amendment being made.

16. The question of whether or not, by use of s 65 of the Civil Procedure Act, this Court can grant leave to amend a pleading so as to add a time-barred Commonwealth statute-based cause of action, is one of some complexity. It seems to me that, if I was to proceed to a final determination of that question, it is likely that a question under s 109 of the Constitution would arise and, accordingly, appropriate notices would need to be issued under s 78B of the Judiciary Act 1903 and the proceedings would be delayed.

17. The State interests accept that it is not in their interests to delay these proceedings any further than is absolutely necessary. In those circumstances, of their invitation, I propose to refrain from making a final determination on this, otherwise complex, question.

18. However, I can say that I had reached a view that the question was not one easy of resolution. On the limited material before me I have not been persuaded that the answer was so clear that the court would rule against the amendments sought.

19. However, it's unnecessary for me to explain at any length my reasons for that conclusion because I have decided that, in the exercise of my discretion, I will not permit the amendments to be made because the plaintiff has not persuaded me that it is in the interests of justice that leave to further amend the statement of claim ought be granted to it, by the addition of the proposed paragraph 67.

20. I have carefully considered all of the matters put on this issue by both parties and I have weighed them all up. However, the following are matters upon which I place particular weight in considering the exercise of my discretion.

21. The first is that no explanation is offered in evidence as to why the amendments are being sought at this late stage. The proceedings have been the subject of case management for some years. In the last nine months or so they have been before me on eight days or parts of days for various orders to be made, including orders permitting amendments to the Statement of Claim and, as well, orders permitting the joinder of the sixth defendant.

22. All that can be said by counsel for the plaintiff by way of explanation is that the idea of amending the Statement of Claim to include this new statutory cause of action only arose recently in the course of discussion between senior counsel retained in the matter and himself. There is no suggestion that senior counsel was only recently briefed. Whether the issue of the amendment had previously arisen and been discounted is unclear.

23. In the absence of any explanation provided in evidence, I would infer that, with sufficient attention and diligence to the matter, there is no reason why the matter ought not to have arisen some considerable time ago and careful consideration should have been given to whether or not a cause of action of this kind ought to have been included in a much earlier amendment to the pleading.

24. Secondly, the count is one of accessorial liability. Before the claim can succeed against the first and sixth defendants, the Council must first prove a contravention of s 52 of the Trades Practices Act by CSR. There is no evidence, nor any suggestion, that CSR as a principal, would be unable to meet any judgment for damages arising from any such breach, if it were ultimately established.

25. As well, the fact that the third and fourth defendants are also sued as being accessorily liable, when combined with the capacity of CSR to meet any award of damages, suggests strongly that there can be no possible prejudice to the Council from not having the first and sixth defendants as judgment debtors in the event that it succeeded on its claims for a breach by CSR of the Trade Practices Act.

26. In short, there is no doubt on the material before me that the Council will be able to collect any award of damages to which it may be entitled by reason of the breach of s 52 of the Trades Practices Act for which it wishes to sue the first and sixth defendants.

27. Thirdly, the Council could not convincingly point to any other prejudice of any kind if the amendment was not allowed.

28. Fourthly, any amendment at this late stage of the proceedings must, in my assessment, cause prejudice to the State interests. In the relatively limited time available, the addition of a new cause of action will result in the State interests having to investigate for the first time an issue, namely a breach of s 52 by CSR, which is one which they have not previously had to consider. Necessarily, their proper preparation of the proceedings would be distracted by the attention required to be given to this new cause of action. The orderly preparation of their case as presently framed against them will be disrupted.

29. Given the complex environment of this case and the intense pre-trial preparations which are required between now and when the hearing commences, it is my assessment that this is a significant matter of prejudice.

30. Finally, as the High Court of Australia has pointed out in AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, there is a real need to maintain public confidence in the judicial system by, amongst other things, requiring parties to address issues in proceedings comprehensively and in a timely manner. The overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules under which I deal with this application, is the just, quick and cheap resolution of the real issues in the dispute. This application does nothing to advance the overriding purpose set out in the Civil Procedure Act: s 56.

31. In all of those circumstances, I am not persuaded that I should exercise my discretion and grant leave to the Council to file the amended Statement of Claim insofar as it includes the existing paragraph 67.

32. To that extent, I dismiss the Notice of Motion filed on 5 April 2013. It is necessary to proceed to make a series of orders.

33. I make the following orders:

    1. The plaintiff have leave to file the Third Amended Statement of Claim in the form circulated to the other parties on 20 March 2013 except for

    (a) the deletion of the words "it was obvious to anyone walking on the Quarry Land that" in paragraphs 47(a) (1) and 56 (a) (1);
    (b) paragraph 67; and
    (c) the addition of the word "materially" before the word "inaccurate" in paragraph 66F.

    2. The plaintiff to pay the costs of the defendants thrown away by reason of the amendments in the Third Amended Statement of Claim.
    3. The time within which the plaintiff is to serve evidence in reply is extended to 3 May 2013, noting that the plaintiff will serve its individual expert reports as and when they are finalised.
    4. The defendants to file and serve their defences to the Third Amended Statement of Claim by 10 May 2013.
    5. The defendants to file and serve any cross-claims for contribution from other defendants by 10 May 2013.
    6. The defendants to file and serve any evidence referable only to the mattes raised in the amendments in the Third Amended Statement of Claim on or before 17 May 2013.
    7. The plaintiff to file and serve any replies by 24 May 2013.
    8. Defences to cross-claims in accordance with Order 5 above are to be filed and served by 31 May 2013.
    9. The time within which the parties' respective experts are to confer and produce joint reports is amended as follows:

    - Geotechnical experts (Pells, Walker, McQueen and Kofoed): 6 May to 17 May 2013.
    - Traffic experts (Nettle, Mclaren) by 6 May 17 to May 2013.
    - Mining engineers (Wyche, Reed): 6 May to 17 May 2013.
    - Town planning experts: Residential (Smith, Ingham, George): 20 May to 31 May 2013.
    - Valuation experts, Peer Review (Sheehan, Watt, Dempsey): 3 June to 14 June 2013.
    - Valuation experts, Landfill (Glitsos, Wood): 17 June to 28 June 2013.

    10. On or before 4pm on 23 April 2013, the plaintiff is to serve on all other parties and provide a copy to my Chambers, the following expert documents:
    (1) a list of issues which the plaintiff regards as appropriate to be considered by the experts in each conclave;
    (2) a list of the expert reports and other documents which the plaintiff regards as appropriate to be put before the experts at each conclave;

    11. I direct that the defendants respond to the experts documents served by the plaintiff by indicating their agreement or disagreement and where appropriate, any additional documents which they contend ought be provided to the experts by 10am on 29 April 2013.
    12. I direct the parties to confer in an attempt to reach agreement on the expert documents.
    13. I list, for further directions, at 9.30 on 30 April 2013 for the purpose of resolving any outstanding disputes about the contents of the expert documents.
    14. All parties have liberty to restore on 48 hours notice.
    15. I order the plaintiff to pay the State interest's costs of the motion.

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