Northern Park Pty Ltd v Goulburn Mulwaree Council

[2023] NSWSC 335

Supreme Court

New South Wales

Medium Neutral Citation:

Northern Park Pty Ltd v Goulburn Mulwaree Council [2023] NSWSC 335

Hearing dates:

4 April 2023

Date of orders:

4 April 2023

Decision date:

04 April 2023

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

(1)   The application to join a fourth plaintiff is rejected.

(2)   The plaintiffs have leave to file a further amended statement of claim, within 14 days, which pleading is to:

(a)   Identify with precision the parties involved in the Bridging Finance described in paragraphs 72K to 72O of the proposed pleading.

(b)   Include those paragraphs to which objection was not taken by the defendant.

(3)   The evidence in chief of the witnesses at the trial is to be given by affidavit.

(4)   The plaintiffs are to file and serve any further affidavit on which they wish to rely on any further expert reports on or before 30 June 2023.

(5)   The matter is listed before me for directions on 3 July 2023.

(6)   The plaintiffs are to pay the defendant’s costs occasioned by the amendments.

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — notice of motion seeking leave to file further amended statement of claim — where proceedings have been on foot since 2019 — where plaintiffs comprise a group which operates waste management facilities — where dispute regards use of property in Goulburn as waste disposal depot — whether to join proposed fourth plaintiff to proceedings — Civil Procedure Act 2005 (NSW), s 56 — leave denied

CIVIL PROCEDURE — Pleadings — Amendment — where current pleading does not identify parties to bridging finance — leave to amend granted

CIVIL PROCEDURE — where evidence filed is deficient and requires updating and extension — where plaintiffs propose timetable for service of evidence — plaintiff to meet timetable and matter to be listed for directions

COSTS — Party/Party — plaintiffs to pay defendant’s costs occasioned by amendments

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Fair Trading Act 1987 (NSW)

Trade Practices Act 1974 (Cth)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Category:

Procedural rulings

Parties:

Northern Park Pty Ltd (First Applicant)
Common Street Recycling Pty Ltd (Second Applicant)
Southern State Waste Recycling Pty Ltd (Third Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
Mr D Robens (Applicants)
Mr P Braham SC; Mr D Robertson (Respondent)

Solicitors:
Risk Resolution Services (First, Second and Third Applicants)
Mills Oakley (Respondent)

File Number(s):

2019/00088457

Publication restriction:

Nil

JUDGMENT

1. The first and second plaintiffs commenced proceedings against the defendant on 20 March 2019 by the filing of a statement of claim. On 12 July 2019 the defendant filed a defence.

2. On 16 April 2021 an amended statement of claim was filed which included a third plaintiff as a party to the proceedings.

3. On 25 January 2023 the three current plaintiffs filed a notice of motion seeking leave to file a further amended statement of claim which includes the addition of a fourth plaintiff and the inclusion of new heads of damages.

4. The motion is supported by two affidavits of Mr Paul Williams dated 25 January 2023 and 17 March 2023 respectively. The defendant has filed an affidavit of Ms Fiona McGinley dated 22 February 2023.

5. On 17 July 2022 consent orders were made permitting the plaintiff to file a further amended statement of claim by 31 October 2022. The date was extended by agreement between the parties to 17 November 2022. A copy of the proposed pleading was sent to the defendant’s solicitor on 16 November 2022.

6. There was a directions hearing on 17 November 2022. Consent orders allowed the defendant until 15 December 2022 to object to the filing of the new pleading. The defendant notified its objection on 23 December 2022. No point is taken that the objection was made out of time.

7. The three plaintiff companies and the proposed plaintiff company are part of a group in which they “share all finances and assets, including but not limited to common accounts, records, resources and operations” (CB 10). I understand the group to effectively be a family enterprise. They are collectively referred to as “Corporate Group”.

8. The background to the proceedings, in the briefest of terms, is as follows. In August 2001 the defendant, a local government council, approved a development application permitting the use of a property in Goulburn as a waste disposal depot. The approval was valid for five years. The property was formerly a brickworks which had been purchased by the first plaintiff.

9. The approval stipulated that the development was to conform with an Environmental Impact Statement dated 22 May 2000.

10. Prior to the consent lapsing certain construction works were carried out on the property. This had the effect of delaying the lapsing of the approval.

11. In order to facilitate the operation of the waste disposal operation the second plaintiff leased a property in Hume. The third plaintiff was involved in operations at the Hume site.

12. The purpose behind the enterprise was to dispose of waste in the Goulburn area, the waste having emanated from the Australian Capital Territory.

13. In 2015 the second plaintiff started to operate the waste disposal depot. In January 2018 the defendant wrote to the first plaintiff stating that the development consent had expired in 2013 and that the continued use of the property as a waste disposal depot was unlawful. The use of the property was to cease within three months. (CB 22).

14. In April 2018 the Environmental Protection Agency revoked an existing Environmental Protection Licence that had previously been issued in respect of the property. The revocation arose from the defendant’s assertion that the operation of the waste disposal depot was unlawful.

15. The revocation led to proceedings in the Land and Environment Court. That Court made orders on 12 February 2019 to the effect that “the only basis upon which the EPL was revoked was that the EPA had received advice from the Council that the continued use of the Property as a waste disposal depot was unlawful as the Development Consent ceased to have effect on or about 21 August 2013” (CB 23).

16. As a result of the revocation of the licence the waste disposal depot ceased operation. The intent of the proceedings is to reclaim the losses that the plaintiffs say have been caused by the Council’s decision concerning the development consent.

17. The involvement of the proposed fourth plaintiff arises from this plaintiff purchasing a quarry in Collector (a town in New South Wales situated between Goulburn and Canberra). The plaintiffs allege that the fourth plaintiff was required to sell half of its interest in the quarry to compensate for the losses suffered by the other three plaintiffs as a result of their dealings with the defendant.

18. The plaintiffs allege that the defendant was negligent and guilty, arising from representations that it had made, of misleading and deceptive conduct. Damages are sought under the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW). There is also a claim for equitable damages at common law.

19. As mentioned above, the defendant does not oppose all of the amendments sought. In summary the defendant opposes the inclusion of the proposed fourth plaintiff, it opposes a number of paragraphs falling under the heading of Bridging Finance and it opposes the extension of the plaintiffs’ case to the inclusion of new heads of damage.

20. It is important at this stage to note that these proceedings were commenced in 2019 so that a good deal of time has elapsed. Without attributing blame for the delay to any particular party, I think that the proceedings must be brought to finality as soon as is reasonably possible.

21. Mr Robens, who appeared for the plaintiffs accepted that the proposed fourth plaintiff’s complaints could ‘stand alone’ as a separate action. He made the valid point that if the fourth defendant were to commence separate proceedings there would inevitably be an application for a joinder with the current proceedings, a process which would involve yet more time and costs. He pointed out that because the fourth plaintiff’s action arose from the losses suffered by the other plaintiffs, that there was an intermingling which required a cumulative resolution.

22. The defendant responded that far too much time had elapsed since the commencement of the proceedings and although the proposed fourth plaintiff’s losses may only have arisen after 2019, there was nevertheless no reason why the proceedings by the proposed fourth plaintiff could not have been commenced earlier (either separately or by application for amendment of the current proceedings).

23. The defendant further submitted that the current proceedings should proceed with expedition and if any separate proceedings, by the proposed fourth plaintiff, were swiftly prepared then a joinder application might be appropriate. In the meantime however, there should be no interruption to the current proceedings coming to hearing.

24. I agree with the defendant. In my view the proposed fourth plaintiff’s action should be treated as a separate suit which should not interfere with the already much delayed proceedings. Further, I have some difficulty in understanding how the fourth plaintiff’s alleged losses are not already encompassed within the losses asserted by the current plaintiffs. I stress that this is only a preliminary view.

25. Accordingly, I do not propose to allow the amendment to include the fourth plaintiff.

26. The next area of contention arises from the allegations about bridging finance (proposed paragraphs 72K to 72O of the proposed Further Amended Statement of Claim). The defendant submitted that pleading that bridging finance had been obtained by the “Corporate Group” did not allow for identification of precisely who the parties to the bridging finance had been. The corporate group is a reference to all four plaintiffs. I agree with the criticism. Presumably the bridging finance was obtained by specific agreements involving specific parties. These parties should be identified. I will therefore give leave to the plaintiffs to amend the Bridging Finance paragraphs to identify the parties to the loans.

27. The next series of objections relates to the extension of the heads of damages beyond those that currently exist. The plaintiffs said that the evidence filed to date was in any event deficient and needed updating and extension. The defendant said that it would be both costly and time-consuming to allow the plaintiffs to put on further evidence which would require evidence in response.

28. I think it important that the whole of the dispute between the parties be litigated. I appreciate that since Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, case management plays a significant part in dealing with amendments. Simply allowing amendments with an attendant cost order is not appropriate. However, the plaintiffs have said that they can put on the whole of the new evidence by 19 June 2023. This seems to me to be somewhat ambitious, but nevertheless if they are capable of doing so then the time wasted would be limited.

29. The plaintiffs proposed a timetable which, for example, would have the defendants put on their evidence in reply by 31 July 2023. If the plaintiffs’ new evidence was substantial, and in particular included new expert evidence, this task would probably be impossible.

30. I think, as suggested by the defendant, the better course would be to make the order requiring the plaintiff’s evidence to be served by 19 June 2023, but then listing the matter for directions shortly thereafter with a view to examining what evidence had been put on and what requirements the defendant would have to meet that evidence.

31. In relation to costs the plaintiff has suggested an order that it “pay the defendants costs thrown away occasioned by the amendment.” In my view the order should go a little further, to include the costs of meeting the new evidence that will arise from any evidence put on by the plaintiffs prior to 19 June 2023.

32. The order that I will make will be that the plaintiffs pay the defendant’s costs occasioned by the amendments. In case of any doubt these costs include the costs thrown away by the amendment and the costs associated with the notice of motion filed on 25 January 2023.

33. I make the following orders:

1. The application to join a fourth plaintiff is rejected.

2. The plaintiffs have leave to file a further amended statement of claim, within 14 days, which pleading is to:

1. Identify with precision the parties involved in the Bridging Finance described in paragraphs 72K to 72O of the proposed pleading.

2. Include those paragraphs to which objection was not taken by the defendant.

3. The evidence in chief of the witnesses at the trial is to be given by affidavit.

4. The plaintiffs are to file and serve any further affidavit on which they wish to rely and any further expert reports on or before 30 June 2023.

5. The matter is listed before me for directions on 3 July 2023.

6. The plaintiffs are to pay the defendant’s costs occasioned by the amendments.

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Decision last updated: 04 April 2023