Maule v Liporoni
[2002] NSWLEC 197
•12/06/2001
Land and Environment Court
of New South Wales
CITATION: Maule v Liporoni & Anor [2002] NSWLEC 197 PARTIES: APPLICANT:
Susan Jane MauleFIRST RESPONDENT
SECOND RESPONDENT:
Marco Liporoni
Gosford City CouncilFILE NUMBER(S): 40018 of 2001 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- application to adduce late evidence and further amend the Further Amended Points of Claim - exercise of court's discretion
LEGISLATION CITED: Evidence Act 1995 s 135 CASES CITED: Cohen v Mc William & Anor (1995) 38 NSWLR 476; 128 FLR 263;
The State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146DATES OF HEARING: 06/12/2001 EX TEMPORE
JUDGMENT DATE :
12/06/2001LEGAL REPRESENTATIVES:
APPLICANT:
Mr C J Stevens QC and Mr J R Dupree (barrister)
SOLICITORS;
Muriniti & AssociatesFIRST RESPONDENT:
SECOND RESPONDENT:
Mr C M Harris (barrister)
SOLICITORS:
Tesoriero Henderson Cotter
Mr P C Tomasetti (barrister)
SOLICITORS:
P J Donnellan & Co
JUDGMENT:
7
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40018 of 2001
6 December 2001Lloyd J
- Applicant
- First Respondent
- Second Respondent
EXTEMPORE RULING
On application to adduce evidence of Mr J W Allen
and to further amend the Further Amended Points of Claim
1 HIS HONOUR: The applicant seeks leave to adduce evidence from an officer of the National Parks and Wildlife Service, Mr J W Allen. Mr Allen’s evidence is relevant, or said to be relevant because he was employed as Environment Officer at Gosford City Council from October 1994 to September 2000 and was responsible for a report on the development application in question in this case, which is dated 3 June 1999.
2 Although directions were made for the filing and service of affidavits in this case, no affidavit by Mr Allen was either obtained or filed. This is said to be because Mr Allen was unwilling to furnish an affidavit.
3 According to the applicant’s solicitors, they then caused a subpoena to give evidence to be served upon Mr Allen who has presented himself to the court in answer to the subpoena.
4 The applicant’s solicitors have been able to interview Mr Allen and obtain a proof of from him, which was given to the other parties on Tuesday, 4 December 2001 at about 3.30 pm, being the second day of this hearing.
5 The proof of evidence raises new allegations against the conduct of the council and in particular, the conduct of a certain officer of the council, which goes beyond the particulars of mala fides which are alleged in the applicant’s Further Amended Points of Claim.
6 As a consequence, the applicant also seeks leave to further amend the Further Amended Points of Claim to particularise a further allegation of mala fides, namely:
- Causing a report to be prepared by the Environmental Control Officer, Mr J W Allen, under pressure and/or intimidation and/or misrepresentation, such that a report was provided, being the report dated 3 June 1999, was not true and/or proper, and/or complete, and/or of all matters relevant, in terms of section 79C of the EP&A Act to the subject development.
7 The respondents oppose both the calling of evidence from Mr Allen and the further amendment to the Further Amended Points of Claim.
8 The applicant’s solicitor, Mr L C Muriniti, has furnished an affidavit setting out the terms of two conversations that he had with Mr Allen. The first conversation was in or about October or early November 2000 and related to a missing page of his report contained in the material which had been subpoenaed from the council.
9 The second conversation was on or about 18 June 2001 during which, according to Mr Muriniti, the following exchange occurred:
- I then said words to the following effect, ‘Would you be prepared to swear an affidavit setting out your position on the matter?’ Mr John Allen said words to the following effect, ‘Yes, I would be.’ I then said words to the following effect, ‘Would you be prepared to attend court to give evidence in due course?’ Mr John Allen said words to the following effect, ‘Yes, I would be, however, I am an employee of the National Parks and Wildlife Service at the present and I will need to confer with my superiors to ensure that I am not breaching any of the conditions of my employment with the National Parks and Wildlife Service.
10 Mr P J Donnellan, the council’s solicitor has furnished an affidavit deposing to a conversation he had on 4 December 2001 with a senior legal officer of the National Parks and Wildlife Service, Mr John Gibbons, in which Mr Gibbons said:
- There is no policy restricting the giving of evidence or swearing of affidavits if it relates to matters outside of the person’s employment with the service. The service would be concerned if the person was purporting to give evidence in his capacity as an NPWS officer, in which case he would have to consult with his superior for clearance. That would also be the case if he were not doing it in the officer’s own time.
11 Mr Allen has told the Court that he was sent copies of experts’ reports in the present case in July or September this year and was asked to review them and to prepare a statement. I can infer that the reports were sent by the applicant’s solicitors and the request was made by them. Mr Allen says that he spoke to his employer and was told to ask for a subpoena. He says that he telephoned the applicant’s solicitors and said that he had been told to ask for a subpoena.
12 At the same time, he was again asked by the applicant’s solicitors to review the documents and prepare a statement. Mr Allen said that he prepared a statement and sent a draft copy of it to the applicant’s solicitors about two weeks ago. I am now informed, from the bar table, that the applicant’s solicitors received this statement on 30 November this year.
13 Mr Allen has acknowledged that there is no reason on the basis of his present employment why he could not furnish an affidavit. He said in evidence yesterday and I quote, “[t]here is no reason by means of my employment why I should not provide an affidavit.”
14 Mr Allen also said, however, that he was concerned about the content of his statement, particularly the allegations he makes in it about the senior management within the council. He said that the material he sent to the applicant’s solicitors was done so on the understanding that it would not to be given to anyone else. It was only at about 1.30 pm on Tuesday this week, the second day of the hearing, that he authorised the applicant’s solicitors to show his proof of evidence, now Exhibit E, to any other person.
15 I must say that I am far from impressed with Mr Allen as a witness. The concerns that he had about senior management within the council and the conduct to which he refers in his proof of evidence existed when he had his initial conversations with Mr Muriniti in October or November 2000 and again in June 2001.
16 Mr Allen had adopted the practise of keeping copies of reports prepared by him and has done so since about 1995. He continued to do so until he left the council in September 2000. He says that he adopted this practice because of the very conduct which caused him to be reticent about furnishing an affidavit. Yet, in the light of such conduct and despite his practice of retaining copies of reports prepared by him, he indicated to Mr Muriniti in June this year that he would be prepared to swear an affidavit subject to obtaining a clearance from his employer. There is no doubt that such clearance would have been forthcoming. It seems to me that nothing has changed between the situation which existed in June this year, and this week. Nothing has changed to alter Mr Allen’s position.
17 The applicant’s solicitors have been aware of the allegations to be made against the conduct of officers of the council since 30 November 2001 when Mr Allen sent his draft statement to Mr Muriniti. It is only on the second day of the hearing that the applicant sought leave to amend the particulars of mala fides that it had previously furnished.
18 The respondents rightly claim that they are surprised by these fresh allegations. It would be necessary for the council’s solicitor to interview the particular person implicated in Mr Allen’s statement and obtain that person’s version of the events and, if advised, to prepare an affidavit to be sworn by such a person for use in the hearing.
19 The respondents also complain about consequent delay and cost. I should say that I have also received evidence from Mr Donnellan that it would take about two hours to interview and obtain the necessary affidavit from the officer implicated by Mr Allen in his statement.
20 Any delay would of course have particular consequences for the first respondent. The first respondent made a development application for the erection of a dwelling on his land on 9 March 1999. It was not determined by the council until 30 July 1999. The development consent was publicly notified in accordance with s 101 of the Environment Planning and Assessment Act 1979 on 12 August 1999. On 20 May 2000, the first respondent entered into a contract with the builder. Thereafter, building work commenced on the land. On 14 July 2000, the applicant commenced proceeding in the Supreme Court against the first respondent, seeking orders restraining the first respondent from building his house. In that proceeding twelve affidavits and sixteen experts’ reports were served and several motions were heard.
21 The first respondent incurred substantial costs in engaging solicitors, counsel and experts in defending the Supreme Court proceeding. The plaintiff discontinued the proceeding on the morning of the first day of the hearing.
22 According to the first respondent, the plaintiff was ordered to pay his costs of the Supreme Court proceeding, but he has informed the Court that the amount of costs that the plaintiff will be required to pay will not compensate him for all of his costs. The first respondent says this was the first time he had been involved in a court case and it had caused him and his wife a great deal of anxiety and stress.
23 It was not until 14 February 2001 that the present proceeding was commenced, being some eighteen months after the publication of the notice pursuant to s 101 of the Environmental Planning and Assessment Act. I am concerned that any further delay will not be compensated by any additional order for costs which might be made if I allow what is now sought. I am satisfied, however, that any additional delay would be minimal and would only marginally add to the length of the case.
24 The principal argument in favour of allowing Mr Allen’s evidence and the further amendment to the applicant’s Further Amended Points of Claim is that Mr Allen was outside the applicant’s control and outside the control of the applicant’s solicitors. It is said that the evidence is relevant and probative and that, in the light of the marginal delay that would be caused, no real prejudice would be suffered by the respondents.
25 On the other hand, the respondents submit that the evidence shows that there would be no difference to the decision that was made by the council in the granting of the development consent and no utility would be afforded in allowing Mr Allen’s evidence and the further amendment.
26 In this respect, it is useful to refer to the evidence of Mr Allen which he gave on the application for leave, and I quote: “The report, [that is, his report of 3 June 1999], reflects my professional judgment. It represents the views I honestly held at the time.”
27 It seems from the evidence given by Mr Allen yesterday on the application for leave that the statements in the report do truly represent his opinion and that there was no suggestion that in producing the statements in the report dated 3 June 1999 he was intimidated or pressured into making statements with which he did not agree.
28 It is submitted by counsel for the second respondent, the council, that under these circumstances the provisions of s 135 of the Evidence Act 1995 ought to apply. This gives the court the discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
29 The guiding principle in applications such as this are explained by the judgment of the majority of the High Court in The State of Queensland& Anor v J L Holdings Pty Ltd (1997) 189 CLR 146, and in particular the passage from the judgment of the majority, as follows (at 155):
- Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion .
30 At first I thought the arguments were nicely balanced. On the one hand, the fresh allegations may be relevant. On the other hand, in the light of what has already been said by Mr Allen, the fresh allegations and, in particular, the evidence in support, were unlikely to be probative. There is some attraction in the respondents’ arguments that I should apply s 135 of the Evidence Act 1995.
31 In deciding whether to admit the evidence and allow the amendment, I am drawn to the evidence given yesterday by Mr Allen himself, and again I repeat: “The report reflects my professional judgment. It represents the views I honestly held at the time.” My clear recollection of Mr Allen’s evidence is that he was not, in the course of writing the report, intimidated or pressured into making a report with which he did not agree.
32 The proposed amendment to the Further Amended Points of Claim seems to contradict what Mr Allen himself said in his evidence. That is, the evidence which is said by the applicant to support or provide the foundation for the fresh allegations now sought to be raised is simply not there. Mr Allen does not support it. It would cause or result in undue waste of time within the meaning of s 135(c) of the Evidence Act to allow the fresh allegations and to adduce the evidence now. It would clearly be unfairly prejudicial to the respondents within the meaning of s 135(a) of the Evidence Act. Moreover, the evidence, if any, which may be said to support the fresh allegations was discoverable and available to the applicant well before the commencement of the hearing.
33 Therefore, in the exercise of my discretion, I decline to allow the further amendment to the applicant’s Amended Points of Claim and Mr Allen’s evidence which is sought to be adduced and which may be said to support the further amendment.
AssociateI hereby certify that the preceding 33 paragraphs are a true copy of the reasons for ruling herein of the Honourable Mr Justice Lloyd.
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