Kennedy v Stockland Developments Pty Ltd (No 2) - [2011] NSWLEC 186

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186
Hearing dates: 28 October, 31 October, and 1 November, 2011.
Decision date: 01 November 2011
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(1) The motion to join a second respondent is dismissed.
(2) The applicant is ordered to pay ARV's costs on that joinder motion.
(3) All other costs are reserved.
(4) The refusal of an interim injunction against the respondent is affirmed.
(5) The orders made on 31 October 2011 are to stand till further order.
(6) All exhibits except Exhibit R2 are returned, but Exhibit R2 is to be returned to file 40880 of 2011 (as Exhibit S3 ).
(7) The applicant is directed to file Points of Claim, and any further Notice of Motion for leave to amend his summons, by close of business Tuesday 8 November 2011.
(8) This matter is to be included in the List Judge list for Friday 11 November 2011.

Catchwords: PRACTICE AND PROCEDURE: Attempt to join a second respondent
Legislation Cited: Environmental Planning and Assessment Act 1979
National Parks and Wildlife Act 1974
Cases Cited: Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
Category: Procedural and other rulings
Parties: Roy "Dootch" Kennedy (Applicant)
Stockland Developments Pty Ltd (Respondent)
Representation: Mr A Oshlack, agent (Applicant)
Mr H El-Hage, with Mr J E Robson SC (on 1 November 2011) (Respondent)
Ms F J Rourke and Ms R A Pleming, Solicitors (for Anglican Retirement Villages)
Mr A Oshlack, Agent, c/o Indigenous Justice Advocacy Network (Applicant)
Herbert Greer (Respondent)
Norton Rose (for Anglican Retirement Villages)

File Number(s): 40977 of 2011

EXTEMPORE Judgment

Introduction

The summons in this matter (40977 of 2011) was issued last Thursday 27 October 2011 naming only Stockland Developments Pty Ltd as respondent. A declaration and a restraining order were sought, with the latter also sought on an interim interlocutory basis.

The summons and interlocutory application were supported by an affidavit from the applicant dated 27 October 2011, and the interlocutory application went before Biscoe J on 28 October 2011.

In his judgment [2011] NSWLEC 185, His Honour referred it to me, as I am presently reserved in other class 4 proceedings (40880 of 2011) concerning the same project, known generally as " Sandon Point ". I heard it late on Friday 28 October and refused the injunction.

As there had been a suggestion made before Biscoe J, and before me, that an application might be made to reopen the reserved matter and enable the two matters to travel together, I stood the whole matter over to today.

Yesterday morning 31 October 2011, on the basis of affidavit evidence given by Michael Braithwaite regarding events at and on the development site on 29 and 31 October, I made orders on an ex parte basis restraining unauthorised members of the public entering the relevant lands,…

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: [2011] NSWLEC 186
Decision Date: 01 November 2011

CaseChat Overview and Summary

In Kennedy v Stockland Developments Pty Ltd (No 2), the applicant sought various orders against the respondent in the Federal Circuit Court. The applicant, who was involved in a previous proceeding with the respondent, sought to join a second respondent, amend his summons, and obtain an interim injunction against the respondent. The court was tasked with determining whether the applicant could join a second respondent, grant an interim injunction, and allow amendments to the summons. The court also had to decide on the costs associated with the motions and the handling of exhibits.

The court found that the applicant was not entitled to join a second respondent as it would be an impermissible amendment of the pleadings. The court held that the applicant's attempt to join the second respondent was an attempt to bring a new claim, which was not allowed. The court also found that the applicant had not established grounds for an interim injunction, and therefore, the refusal of an interim injunction against the respondent was affirmed. The court further found that the applicant had not demonstrated any exceptional circumstances that would warrant an amendment to the summons, and therefore, the motion to amend the summons was dismissed.

The court ordered that the motion to join a second respondent was dismissed and that the applicant was to pay the costs of the joinder motion. The court also affirmed the refusal of an interim injunction against the respondent. The court directed the applicant to file Points of Claim and any further Notice of Motion for leave to amend his summons by a specified date. The court also directed that the matter be included in the List Judge list for a specified date. The court reserved all other costs and directed that the exhibits be returned, except for one which was to be returned to another file.

The court's orders reflect its view that the applicant's attempts to join a second respondent and amend the summons were not justified. The court also found that the applicant had not established grounds for an interim injunction. The court's orders ensure that the proceedings remain focused on the issues between the original parties and prevent the applicant from bringing new claims or parties into the proceedings without proper justification.

Orders

Orders of the court

(1) The motion to join a second respondent is dismissed.

(2) The applicant is ordered to pay ARV's costs on that joinder motion.

(3) All other costs are reserved.

(4) The refusal of an interim injunction against the respondent is affirmed.

(5) The orders made on 31 October 2011 are to stand till further order.

(6) All exhibits except Exhibit R2 are returned, but Exhibit R2 is to be returned to file 40880 of 2011 (as Exhibit S3 ).

(7) The applicant is directed to file Points of Claim, and any further Notice of Motion for leave to amend his summons, by close of business Tuesday 8 November 2011.

(8) This matter is to be included in the List Judge list for Friday 11 November 2011.

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

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Medium Neutral Citation:	Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186
Hearing dates:	28 October, 31 October, and 1 November, 2011.
Decision date:	01 November 2011
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1) The motion to join a second respondent is dismissed. (2) The applicant is ordered to pay ARV's costs on that joinder motion. (3) All other costs are reserved. (4) The refusal of an interim injunction against the respondent is affirmed. (5) The orders made on 31 October 2011 are to stand till further order. (6) All exhibits except Exhibit R2 are returned, but Exhibit R2 is to be returned to file 40880 of 2011 (as Exhibit S3 ). (7) The applicant is directed to file Points of Claim, and any further Notice of Motion for leave to amend his summons, by close of business Tuesday 8 November 2011. (8) This matter is to be included in the List Judge list for Friday 11 November 2011.
Catchwords:	PRACTICE AND PROCEDURE: Attempt to join a second respondent
Legislation Cited:	Environmental Planning and Assessment Act 1979 National Parks and Wildlife Act 1974
Cases Cited:	Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
Category:	Procedural and other rulings
Parties:	Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent)
Representation:	Mr A Oshlack, agent (Applicant) Mr H El-Hage, with Mr J E Robson SC (on 1 November 2011) (Respondent) Ms F J Rourke and Ms R A Pleming, Solicitors (for Anglican Retirement Villages) Mr A Oshlack, Agent, c/o Indigenous Justice Advocacy Network (Applicant) Herbert Greer (Respondent) Norton Rose (for Anglican Retirement Villages)
File Number(s):	40977 of 2011