Kennedy v Stockland Developments Pty Ltd (No 5) - [2012] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21
Hearing dates: 14 February 2012
Decision date: 14 February 2012
Jurisdiction: Class 4
Before: Pepper J
Decision:
Application to amend dismissed

Catchwords: PRACTICE AND PROCEDURE - late application to amend raising new factual and legal issues - no prejudice to the applicant if amendments not allowed - prejudice to the respondent if amendments allowed - no explanation for the delay - application dismissed
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 64
Environmental Planning and Assessment Act 1979, s 76A
Cases Cited: Aon Risk Services Ltd & Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144
Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249
Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3
Vilro Pty Ltd and Roads and Traffic Authority of NSW [2010] NSWLEC 141
Category: Procedural and other rulings
Parties: Mr Roy "Dootch" Kennedy (Applicant)
Stockland Developments Pty Ltd (Respondent)
Representation: Mr A Oshlack (Applicant)
Mr J E Robson SC with Mr H El-Hage (Respondent)
Herbert Geer (Respondent)

File Number(s): 40977 of 2011

Extempore Judgment

Late Application to Amend

This is an application by Mr Roy "Dootch" Kennedy, the applicant, on behalf of the Sandon Point Aboriginal Tent Embassy, to amend his points of claim and amended summons.

The proposed amendments were served on the respondent, Stockland Developments Pty Ltd ("Stockland"), late. Specifically, they were served on Stockland the night before this matter was due to commence a three-day hearing. The matter was commenced on 27 October 2011 and set down for hearing on 11 November 2011.

The amendments effectively seek to raise the following new claims in paragraph (1)(i) of the points of claim in the pleadings (with cognate changes to the amended summons), namely, that:

(a) Stockland has undertaken work to establish a temporary pathway without development consent under the Environmental Planning and Assessment Act 1979 ("the EPAA");

(b) Stockland has breached s 76A of the EPAA by establishing the temporary pathway;

(c) Stockland has undertaken works to establish the temporary pathway on a separate lot of land that has not previously been the subject of these proceedings as pleaded, namely, Lot 517 DP1156416 ("Lot 517") and that these works have been conducted without development consent. Lot 517 is owned by Wollongong City Council ("the council"), which is not a party to these proceedings; and

(d) that the works described in the points of claim have occurred on Lot 517, absent consent.

Background to the Application

The background to these proceedings has been set out in a number of recent judgments of this Court, but was summarised most recently by Sheahan J in the decision of Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 and by myself in Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249

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: [2012] NSWLEC 21
Decision Date: 14 February 2012

CaseChat Overview and Summary

The dispute in Kennedy v Stockland Developments Pty Ltd (No 5) was heard in the Supreme Court of Queensland. The applicant, Mr Kennedy, sought to amend his statement of claim to add further allegations against the respondent, Stockland Developments Pty Ltd, in relation to property development and construction activities. The court was asked to determine whether the amendment was permissible under the relevant rules and whether it was appropriate to allow the amendment at the stage of the proceedings. The legal issues revolved around the principles governing the amendment of pleadings, including the need for the amendment to be just and not to cause prejudice to the opposing party. The court also considered whether the amendment was an attempt to introduce new causes of action or to significantly alter the nature of the proceedings.

The court found that the amendment sought by Mr Kennedy was not justified under the circumstances. It concluded that the proposed changes would substantially alter the nature of the proceedings and potentially prejudice the respondent by introducing new claims at a late stage. The court emphasised the importance of maintaining the integrity of the pleading process and ensuring that amendments do not unfairly disadvantage the opposing party. Furthermore, the court noted that the amendment was being sought at a stage when the case was already well advanced, which further supported the decision to deny the application. Consequently, the court dismissed the application to amend the statement of claim.

The court's decision was based on a careful consideration of the principles governing amendments to pleadings. It concluded that the amendment was not just and would likely result in prejudice to the respondent. The court also highlighted the importance of maintaining the efficiency and fairness of the litigation process. Given these factors, the court dismissed the application to amend the statement of claim, and no further orders were made in relation to the amendment.

Orders

Orders of the court

Application to amend dismissed

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

Full text does not contain this section.

Medium Neutral Citation:	Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21
Hearing dates:	14 February 2012
Decision date:	14 February 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Application to amend dismissed
Catchwords:	PRACTICE AND PROCEDURE - late application to amend raising new factual and legal issues - no prejudice to the applicant if amendments not allowed - prejudice to the respondent if amendments allowed - no explanation for the delay - application dismissed
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58, 64 Environmental Planning and Assessment Act 1979, s 76A
Cases Cited:	Aon Risk Services Ltd & Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144 Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249 Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 Vilro Pty Ltd and Roads and Traffic Authority of NSW [2010] NSWLEC 141
Category:	Procedural and other rulings
Parties:	Mr Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent)
Representation:	Mr A Oshlack (Applicant) Mr J E Robson SC with Mr H El-Hage (Respondent) Herbert Geer (Respondent)
File Number(s):	40977 of 2011