Neighbourhood Association DP 285249 and Ors v Watons and Anor

[2007] NSWLEC 457

Land and Environment Court

of New South Wales

CITATION:

Neighbourhood Association DP 285249 and Ors v Watons and Anor [2007] NSWLEC 457

PARTIES:

FIRST APPLICANT
Neighbourhood Association DP285249

SECOND APPLICANT
Neighbourhood Association DP 285433

THIRD APPLICANT
Neighbourhood Association DP 285486

FOURTH APPLICANT
David Timothy O'Brien

FIFTH APPLICANT
Angela Christina O'Brien

FIRST RESPONDENT
Anthony Watson

SECOND RESPONDENT
Sammy One Pty Limited

FILE NUMBER(S):

41094 of 2006

CORAM:

Preston CJ

KEY ISSUES:

Practice and Procedure :- proceedings in both Land and Environment Court and Supreme Court - benefits if both proceedings were to be heard by judge with commission in each court

DATES OF HEARING:

20 July 2007

EX TEMPORE JUDGMENT DATE:

20 July 2007

LEGAL REPRESENTATIVES:

FIRST, SECOND, THIRD FOURTH and FIFTH APPLICANTS
Mr N Eastman (barrister)
SOLICITORS
Cosgriff Orchard Lawyers

FIRST and SECOND RESPONDENTS
Mr C Leggat SC with Mr J Young
SOLICITORS
Andreones Pty. Limited

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

20 JULY 2007

41094 OF 2006

NEIGHBOURHOOD ASSOCIATION DP285249 and ORS V ANTHONY RUPERT WATSON and ANOR

JUDGMENT

1 HIS HONOUR: The applicants in these proceedings, by notice of motion filed 21 June 2007, have sought orders that the proceedings be listed for hearing in November 2007 before a judge with appointments in both the Land and Environment Court and the Supreme Court; that evidence in these proceedings be heard at the same time as proceedings in the Supreme Court subject to a similar order being made by the Supreme Court; and that evidence taken in the Supreme Court be evidence in the proceedings in this Court.

2 The background to the motion is that there are proceedings in both this Court and the Supreme Court which concern the same land on the Murray River and the same legal arrangements flowing from the grant of a development consent and development contracts in relation to the land. The nature of the issues in the proceedings in the Land and Environment Court and the Supreme Court are different, although they spring from the same land and legal arrangements.

3 In this Court, the applicants’ case is that essentially the respondents are in breach of a development contract made subject to a development consent. That development contract provides for the developer to carry out certain works and to provide certain services. For example, one clause requires the developer to provide electricity services and another clause requires the developer to provide sealed access ways or driveways.

4 The applicants’ allegation is that the developer, for whom the respondents are responsible, has failed to comply in certain respects with these obligations to construct these works and provide these services. The applicants seek rectification of these breaches and compensation by way of damages.

5 The Supreme Court proceedings are of a different nature. They seek a variation of the community scheme based on the alleged impracticality of the current scheme.

6 The applicants submit that there will be some overlap in the factual matrix and the evidence establishing that factual matrix in the two proceedings. The dealings between the applicants and respondents have extended from at least 1990 to date, so naturally a good deal of documents have been generated over time.

7 The applicants submit that there will need to be a consideration of these documents in each of the Land and Environment Court proceedings and the Supreme Court proceedings.

8 It is common knowledge that certain of the Land and Environment Court judges have, in the last few years, also served as acting judges in the Supreme Court. This year the judge who will serve as an Acting Judge in the Supreme Court in November 2007 is Justice Biscoe.

9 The applicants considered that there would be some economies of scale if both the Land and Environment Court proceedings and the Supreme Court proceedings were able to be allocated to Justice Biscoe. This might occur because evidence that was tendered and explained in one set of proceedings, when tendered in the second set of proceedings, could be dealt with in a briefer fashion because the explanation would have already been provided in the first set of proceedings.

10 There does seem to be some economies of scale if the one judge could hear both sets of proceedings. However, the proposed means set out in the notice of motion is not one which either can be achieved or in my opinion ought to be achieved. As I have indicated, the arrangement proposed in the notice of motion was that there be one hearing by the judge who has appointments in both the Land and Environment Court and Supreme Court of both sets of proceedings, that is to say, the proceedings would be heard simultaneously and evidence tendered in one would be tendered in the other.

11 Having regard to the careful demarcation of jurisdiction in the Land and Environment Court Act 1979, particularly s 71, and also the fact that a judge of the Land and Environment Court cannot make directions as to how proceedings in the Supreme Court should be heard or determined, I am of the opinion that I cannot make the orders in paragraphs 1, 2 and 3 of the notice of motion.

12 However, as I have said, I think there is some advantage if one judge could hear both matters. That means, from the Land and Environment Court’s perspective, I can as Chief Judge, allocate the hearing of the Land and Environment Court proceedings to the only judge whom I know for 2007 has an appointment as an Acting Judge in the Supreme Court, namely Justice Biscoe. I am also aware that Justice Biscoe will take up the appointment as an Acting Judge of the Supreme Court in November 2007.

13 Accordingly, I can facilitate achieving economies of scale by now allocating the matter to Justice Biscoe and also directing that the matter be prepared for a hearing prior to November 2007, namely in October 2007. This would mean that the Land and Environment Court proceedings can be heard prior to the matter being dealt with in the Supreme Court. It would be entirely a matter for the Supreme Court to determine whether to allocate the Supreme Court proceedings to Justice Biscoe. However, if the Supreme Court were to so decide, then it might be convenient for the proceedings to be allocated to him for hearing whilst he is sitting in that Court in November 2007.

14 For these reasons I will make directions and orders as I have earlier indicated would be appropriate. Having regard to the fact that the alternate arrangement is a different arrangement to that which was proposed in the notice of motion, it is appropriate that I dismiss the notice of motion.

15 In relation to costs, however, it was beneficial to both parties that the matter be brought before the Court now and for there to have been directions for the preparation of the matter and the allocation of the matter to Justice Biscoe at this stage. Because there will be benefit to both parties, I consider that neither party has succeeded on the notice of motion and the appropriate order is that the costs of the notice of motion be costs in the cause.

Orders

16 Accordingly, the Court makes the following orders:

1 The respondents are to file and serve all affidavits of lay witnesses in chief by 27 July 2007.

2 The respondents are to file and serve all affidavits of experts in chief by 10 August 2007.

3 The matter be listed for case management before Biscoe J at 9.00 am on 14 August 2007.

4 The parties are to approach the Registrar forthwith to fix the matter for hearing before Biscoe J, preferably in October 2007, with an estimate of 10 days.

5 Notice of motion filed 21 June 2007 be dismissed.

6 Costs of the motion filed 21 June 2007 be costs in the cause.

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