Kurvest Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 96

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kurvest Pty Ltd v Sutherland Shire Council [2020] NSWLEC 96

Hearing dates:

03 July 2020

Date of orders:

03 July 2020

Decision date:

03 July 2020

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [15]

Catchwords:

CIVIL PROCEDURE — Hearings — Application to vacate hearing dates

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 66

Cases Cited:

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Texts Cited:

Land and Environment Court COVID-19 Pandemic Arrangements Policy

Category:

Procedural and other rulings

Parties:

Kurvest Pty Ltd (ACN 605571631) (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Perkins, solicitor (Applicant)
J Amy, solicitor (Respondent)

Solicitors:
Project Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/00330495

Publication restriction:

Nil

Ex Tempore Judgment (REVISED)

1. HIS HONOUR: Before the Court is a notice of motion filed 1 July 2020 seeking the vacation of hearing dates.

2. Class 4 proceedings were commenced on 22 October 2019 by Kurvest Pty Ltd (‘Kurvest’) seeking declaratory relief against Sutherland Shire Council (‘Council’). By way of background, Kurvest seeks a declaration that a development consent granted by Council on or about 7 August 2012 for the subdivision of land, Lot 6 DP 226818, at 260B Captain Cook Drive, Kurnell, has not lapsed, as well as a further discrete declaration that the development approved the subject of the consent was “physically commenced”.

3. Hearing dates of 22 and 23 July 2020 were allocated by her Honour Justice Duggan by way of short minutes of order made on 24 April 2020 (‘Short Minutes’). Council now seeks orders that the hearing dates be vacated, and the parties be granted leave to approach the Registrar to obtain further hearing dates.

4. Council reads the affidavit of Janelle Maree Amy sworn 1 July 2020. Ms Amy sets out the background of the matter which shows a sorry history of conduct by Kurvest in its prosecution of these Class 4 proceedings. I make no further comment in relation to that conduct except to note that the basis of Council’s application to vacate the hearing dates is that Council on 24 June 2020 received Kurvest’s primary evidence (including an expert report and a bundle of documents) which according to the Short Minutes was to be provided before 5 June 2020. As a result, Council received Kurvest’s evidence three weeks after the prescribed date and four weeks before the commencement of the hearing.

5. According to the unchallenged evidence of Ms Amy, because the material has been provided three weeks late, Council is now not only unable to meet the timetable which had been agreed in the Short Minutes made 24 April 2020 (which was the seventh time the matter had been before the Court), but also has insufficient time to otherwise prepare for the hearing on 22 and 23 July 2020.

6. Although the affidavit of Ms Amy does not provide precise detail of actual prejudice which I would otherwise have expected it to include, the fact that it is read without objection or response indicates that Ms Amy’s evidence is accepted by Kurvest. Ms Amy deposes that Council’s town planning expert does not have sufficient time to review Council’s file and retain expert evidence and states:

“…

34   Council needs an opportunity to consider the Applicant’s evidence, file a defence, evidence, and supplement their bundle of documents if Council considers there are more relevant documents in Council’s files. There are also requirements for Evidence in Reply, written submissions and cross examination bundles, due to the virtual nature of the hearing, which requires time to consider and put together.

35   I am instructed that Council’s Town Planning expert, Beth Morris, does not have sufficient time to review Council’s files and prepare her expert evidence in response to the Applicant’s evidence served on Council on 24 June 2020.

…”

7. The statutory scheme constituted by the Civil Procedure Act 2005 (NSW) (‘CP Act’) relevant to the vacation of hearing dates is contained in ss 55 – 60 and s 66. They include provisions relating expressly to delay and s 56 relates to the well-known overriding purpose of the CP Act, which is to facilitate the just, quick and cheap resolution of the real issues in proceedings.

8. The provisions of s 57 of the CP Act are matters which predominately relate to the efficient management of the Court’s business and are set out below:

57   Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a)   the just determination of the proceedings,

(b)   the efficient disposal of the business of the court,

(c)   the efficient use of available judicial and administrative resources,

(d)   the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2)   This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

9. Section 66 of the CP Act, which concerns the adjournment of proceedings, grants the Court power to vacate hearings. This discretion is not unfettered given the express mandatory consideration of the dictates of justice contained within s 58 of the CP Act.

10. The principles that apply to motions to vacate or to adjourn hearings were summarised by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13] in a manner that I respectfully adopt and apply. They have been quoted in this Court on numerous occasions. They are:

“The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.”

11. I also refer generally to the matters stated by the High Court regarding the approach to interlocutory proceedings in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [51]-[57], in particular that courts should adopt a robust and proactive approach toward fulfilling the overriding purpose noted above.

12. Although Kurvest does not object to the vacation of the hearing dates, that is not a matter that is necessarily determinative in any event. Indeed, it would be surprising if Kurvest, being in breach of the timetable in a matter that has been on foot for some period of time, would object to an application to vacate which has been caused by its own dilatory conduct. I note that no evidence or reasonable excuse is proffered in relation to why Kurvest has not attended to various obligations it has agreed to on a number of occasions, as set out in the affidavit of Ms Amy.

13. Given the nature of the substantive proceedings and the extent of the evidence that is to be relied upon at hearing, Council’s application is understandable in the circumstances and I consider that it is appropriate for the hearing dates to be vacated. However, applications such as this are required to be determined in accordance with the dictates of justice and not at large, and are not to be exercised according to a judge’s individualistic idea of what is fair in a given circumstance. The Court is always conscious that the vacation of hearing dates has a significant effect on the conduct of the Court’s procedures, practices, the allocation of resources and other litigants. When matters are set down for hearing, courtrooms are allocated, and other hearings are necessarily delayed. This is particularly so in the present circumstances where matters are allocated for hearing pursuant to the Court’s “COVID-19 Pandemic Arrangements Policy”.

14. With some reluctance given the obvious interference with the orderly running of the Court, I make the following orders:

Orders

15. The orders of the Court are:

1. The hearing dates on 22 and 23 July 2020 are vacated.

2. The parties are granted leave to approach the Registrar to obtain a hearing date for the appeal.

3. Kurvest Pty Ltd is to pay Sutherland Shire Council’s costs of the Notice of Motion filed 1 July 2020.

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Decision last updated: 21 July 2020