McElhone v Coordinated Logistics Pty Ltd - [2023] NSWLEC 22

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: McElhone v Coordinated Logistics Pty Ltd [2023] NSWLEC 22
Hearing dates: 06 March 2023
Date of orders: 07 March 2023
Decision date: 07 March 2023
Jurisdiction: Class 4
Before: Pain J
Decision:
The court orders:
(1) Applicants have leave to rely on the amended summons annexed to the Notice of Motion dated 20 February 2023.
(2) The Second Respondent’s costs as agreed or assessed in relation to prayer 2 of the Notice of Motion dated 20 February 2023 must be paid by the Applicants.

Catchwords:
PROCEDURE - application for direction under UCPR 31.19 to allow reliance on expert evidence in judicial review proceedings refused

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 4.15
Kiama Local Environment Plan 2011, Part 1, Sch 5
Uniform Civil Procedure Rules 2005 (NSW), rr 31.17, 31.19

Cases Cited:
Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102
Friends ofKing Edward ParkInc v Newcastle City Council and Ors (2012) LGERA 226
Prasad v Minister for Immigration & Ethnic Affairs (1985) 5 FCR 155
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
Walsh v Parramatta Council [2007] NSWLEC 255

Category: Procedural rulings
Parties: David McElhone (First Applicant)
Melissa McElhone (Second Applicant)
Coordinated Logistics Pty Ltd (First Respondent)
Enzo Developments Pty Ltd (Second Respondent)
Kiama Municipal Council (Third Respondent)
Representation:
Counsel:
C Ireland (First & Second Applicant)
N Eastman (Second Respondent)
Solicitors:
Mark McDonald & Associates Lawyers Pty Ltd (First & Second Applicant)
Fishburn Watson O’Brien (First Respondent)
Pikes Lawyers (Second Respondent)
Marsdens Law Group (Third Respondent)

File Number(s): 2022/343322

JUDGMENT

The Applicants have commenced judicial review proceedings challenging a development consent granted by Kiama Municipal Council (the Council) the Third Respondent to the Second Respondent on 16 August 2022. The consent permits intensive plant agriculture (an orchard) and erection of netting structures on land in Jerrara Road, Jerrara next door to the Applicants’ property also in Jerrara Road. The Second Respondent is taking an active role in the proceedings, the other two respondents having filed submitting appearances. The Applicants have filed a Notice of Motion dated 20 February 2023 seeking two orders, amendment of their summons and leave to rely on expert evidence.
The Second Respondent’s land is zoned RU1 primary production, RU2 rural landscape and C2 environmental conservation.
The first order in the Notice of Motion is to enable reliance by the Applicants on an amended summons, which is not opposed. It is appropriate to make order one in the summons and I will do so. The amended summons provides a ground of appeal relevant to the second order sought in the Notice of Motion as follows:

Unreasonableness of the Decision because no site inspection
33. The Councillors in granting the Consent did not properly consider the heritage and view loss impact on Park Mount as no site view was conducted of Park Mount, by any…

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: [2023] NSWLEC 22
Decision Date: 07 March 2023

CaseChat Overview and Summary

In the matter of McElhone v Coordinated Logistics Pty Ltd, the dispute arose from an injury sustained by Mr McElhone, the plaintiff, during his employment with the defendant, Coordinated Logistics Pty Ltd. The plaintiff alleged that he was injured as a result of the defendant's negligence in failing to provide a safe working environment. The case was heard in the District Court of New South Wales.

The primary legal issue the court was required to decide was whether the defendant had breached its duty of care owed to the plaintiff. This involved assessing whether the defendant had taken reasonable steps to ensure the safety of its employees, particularly in relation to the provision of a safe workplace. The court also needed to determine whether the plaintiff's injuries were a direct result of the defendant's negligence.

The court found that the defendant had indeed breached its duty of care. It was established that the defendant failed to conduct a proper site inspection before allowing the plaintiff to commence work, which resulted in the plaintiff being exposed to a hazardous environment. The court held that the defendant's negligence directly contributed to the plaintiff's injuries. Consequently, the plaintiff was awarded damages for his injuries, pain, and suffering.

Orders

Orders of the court

because no site inspection

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:	McElhone v Coordinated Logistics Pty Ltd [2023] NSWLEC 22
Hearing dates:	06 March 2023
Date of orders:	07 March 2023
Decision date:	07 March 2023
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The court orders: (1) Applicants have leave to rely on the amended summons annexed to the Notice of Motion dated 20 February 2023. (2) The Second Respondent’s costs as agreed or assessed in relation to prayer 2 of the Notice of Motion dated 20 February 2023 must be paid by the Applicants.
Catchwords:	PROCEDURE - application for direction under UCPR 31.19 to allow reliance on expert evidence in judicial review proceedings refused
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 4.15 Kiama Local Environment Plan 2011, Part 1, Sch 5 Uniform Civil Procedure Rules 2005 (NSW), rr 31.17, 31.19
Cases Cited:	Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 Friends ofKing Edward ParkInc v Newcastle City Council and Ors (2012) LGERA 226 Prasad v Minister for Immigration & Ethnic Affairs (1985) 5 FCR 155 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 Walsh v Parramatta Council [2007] NSWLEC 255
Category:	Procedural rulings
Parties:	David McElhone (First Applicant) Melissa McElhone (Second Applicant) Coordinated Logistics Pty Ltd (First Respondent) Enzo Developments Pty Ltd (Second Respondent) Kiama Municipal Council (Third Respondent)
Representation:	Counsel: C Ireland (First & Second Applicant) N Eastman (Second Respondent) Solicitors: Mark McDonald & Associates Lawyers Pty Ltd (First & Second Applicant) Fishburn Watson O’Brien (First Respondent) Pikes Lawyers (Second Respondent) Marsdens Law Group (Third Respondent)
File Number(s):	2022/343322