Moussa v Camden Council (No.6) - [2025] NSWSC 174

Supreme Court

New South Wales

Medium Neutral Citation: Moussa v Camden Council (No.6) [2025] NSWSC 174
Hearing dates: 14 March 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction: Common Law
Before: Garling J
Decision:
See [70]

Catchwords:
CIVIL PROCEDURE – Discovery – Further discovery – Whether necessary for resolution of real issues in dispute – Whether a material change in circumstances has to be established to justify an order for further discovery in representative proceedings – Whether further discovery imposes on a defendant in representative proceedings a significant financial burden contrary to the overriding purpose of the Civil Procedure Act – Application for further discovery where no articulated reason and significant burden placed on other parties to proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW) pt 10, s 56
Uniform Civil Procedure Rules 2005 (NSW) r 21(2)(a), 21.3, 21.4

Cases Cited:
Bajramovic v Calubaquib [2015] NSWCA 139
Liu v The Age Company Limited [2016] NSWCA 115
Moussa v Camden Council (No 5) [2023] NSWSC 1135; (2023) 413 ALR 1

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: Danny Marielle Moussa (P)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (D2)
SMEC Testing Services Pty Ltd (In liq) (D3)
Representation:
Counsel:
D Priestley SC / B O’Connor (P)
S Glascott (D1)
M Windsor SC / M Hall (D2)
P Gaffney (D3)
Solicitors:
Mayweathers (P)
McCabes Lawyers (D1)
Hall & Wilcox Lawyers (D2)
Wotton + Kearney (D3)

File Number(s): 2020/359004
Publication restriction: Not Applicable

JUDGMENT

Background

These representative proceedings have been commenced pursuant to Part 10 of the Civil Procedure Act 2005 (the “CPA”). The plaintiff claims damages at common law, and pursuant to the Australian Consumer Law, for himself and for all group members.
The plaintiff and the group members own, or owned, land in a newly developed part of an area, now called Spring Farm, which is located to the southwest of Sydney, proximate to the Nepean River. The plaintiff alleges his home, built on land in Spring Farm, has subsided due to the soil being unsound for building a residential house. He alleges that the land in Spring Farm generally was unfit for building homes on.
The first defendant, Camden Council (“the Council”), owned some of the land in Spring Farm that was developed and sold to a class of peoples including the plaintiff and some of the group members. This smaller subset of land owned by the Council is known as the “Council Land” in these proceedings. The Council was the principal planning authority and principal certifying authority for Spring Farm.
The second defendant, Cornish Group Spring Farm Pty Ltd (“CGSF”), was the owner and the developer of some, but not all, of the land in Spring Farm. The land developed by CGSF is described as the “Cornish Masterplan Area”.
The third defendant, SMEC Testing Services Pty Ltd (in liquidation) (“SMEC”), undertook geotechnical investigation, advice and certification services with respect to individual lots within Spring Farm.
This judgment deals…

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: [2025] NSWSC 174
Decision Date: 14 March 2025

CaseChat Overview and Summary

The case of Moussa v Camden Council (No.6) involved an application for further discovery made by the respondent, Camden Council. The applicant, Moussa, had initiated proceedings seeking damages for alleged racial discrimination, harassment, and victimisation. The Council opposed the application for further discovery, arguing that no material change in circumstances had occurred since the initial discovery, and that the application imposed a significant financial burden on the parties, contrary to the overriding purpose of the Civil Procedure Act.

The legal issues before the court were whether a material change in circumstances was necessary to justify an order for further discovery in representative proceedings, and whether further discovery could impose a significant financial burden on a defendant in such proceedings. The court had to consider the principles governing discovery and the need for balance between the rights of the parties and the overriding purpose of the Civil Procedure Act to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

The court held that while a material change in circumstances was not necessarily required to justify an order for further discovery, the court must consider the need for further discovery in light of the overriding purpose of the Civil Procedure Act. The court must also assess whether the imposition of a significant financial burden on the defendant would undermine the just resolution of the real issues in the proceedings. The court found that the applicant had not provided a compelling reason for the need for further discovery, and that the application placed a significant financial burden on the other parties. The court denied the application for further discovery, noting that the balance of convenience and the overriding purpose of the Civil Procedure Act favoured denying the application.

No final orders were made in the text provided. However, the court's decision indicates that the application for further discovery was denied, and that the parties must proceed with the discovery already conducted. The court's emphasis on the overriding purpose of the Civil Procedure Act highlights the importance of balancing the rights of the parties with the need for an efficient and cost-effective resolution of the dispute.

Orders