Ray Fitzpatrick Pty Ltd v Minister for Planning (No.3)

[2008] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION:	Ray Fitzpatrick Pty Ltd v Minister for Planning (No.3) [2008] NSWLEC 117
PARTIES:	APPLICANT Ray Fitzpatrick Pty Ltd (in members voluntary liquidation) RESPONDENT Minister administering the Environmental Planning & Assessment Act 1979
FILE NUMBER(S):	30627 of 2006
CORAM:	Sheahan J
KEY ISSUES:	Practice and Procedure :- leave to rely on Amended Points of Defence
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991, s.56(1)(a)
CASES CITED:	Ray Fitzpatrick Pty Ltd v Minister for Planning [2007] NSWLEC 791 Ray Fitzpatrick Pty Ltd (In Members Voluntary Liquidation) v Minister for Planning [2007] NSWLEC 833 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (No.2) (2006) 151 LGERA 186 The State of Queensland & Another v J L Holdings Pty Limited (1997) 189 CLR 146 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5
DATES OF HEARING:	14 March 2008
DATE OF JUDGMENT:	17 March 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr B Coles QC with Mr R Beasley SOLICITORS Minter Ellison RESPONDENT Mr J Webster SC with Mr M Seymour SOLICITORS Hunt & Hunt

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

17 March 2008

30627 of 2006 Ray Fitzpatrick Pty Ltd v Minister for Planning (No.3)

JUDGMENT

1 His Honour : This matter is now set down for hearing over fourteen days, commencing Monday 21 April 2008. I have been nominated as the trial judge, and I will be assisted by Acting Commissioner Miller.

2 The matter has been the subject of extensive case management and at least two published judgments of other Judges of the Court – Lloyd J in [2007] NSWLEC 833 on 20 November 2007 and Jagot J in [2007] NSWLEC 791 on 29 November 2007.

3 The preparation for the hearing has proceeded along the lines of comprehensive directions made by Jagot J on 30 November 2007, and varied by her on 5 February 2008. Subsequent to that latter directions hearing, the hearing dates were fixed by the Registrar. At that time the issues for trial were defined by the Applicant’s Points of Claim dated 13 October 2006 and the Respondent’s Further Amended Points of Defence dated 6 July 2007.

4 On 11 March 2008 the Respondent filed a document entitled “Second Further Amended Points of Defence”, which appears on its face to make some quite substantial amendments to the Respondent’s defence.

5 On Friday 14 March, the matter came before me by way of Pre Trial Mention, and the Respondent sought, by Notice of Motion, the Court’s leave to make and rely upon these amendments to its Defence.

6 Yet another version of the amended defence, dated 13 March, was attached to Mr Holland’s affidavit (at pp 22-27), but has not yet been filed as a pleading. That revised version adds 29 additional “comparable sales” to the five listed in the 11 March version, but is otherwise identical to that version.

7 The parties also discussed with the Court on 14 March some refinement of the directions, and their timetable for compliance. While those procedural matters are not entirely free of complexity and may inconvenience some witnesses, they are not really contentious between the parties.

8 However, the Applicant strongly opposed the further amendment of the Respondent’s defence.

9 In summary, the Respondent contends that the amendments sought are necessitated by the High Court’s 27 February 2008 decision in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5 (“Walker”), and especially those elements of that decision that exhibit, in Mr Webster’s submission, some variance from the decision of the Court of Appeal in the same case, reported at (2006) 151 LGERA 186, and lay down what the Respondent contends is “the proper approach to the construction” of relevant provisions in s.56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991, “a relevant principle in the current proceedings”. The Respondent’s valuation approach, following upon the High Court’s decision in Walker, was filed in Court in support of its Notice of Motion.

10 In resisting the amendment, Senior Counsel for the Applicant pointed to the many interlocutory “events” which have occurred in these proceedings, many but not all of them instigated by the Respondent, and to the clear concern of the Court, expressed by Jagot J, to have the matter set down and determined as early as possible.

11 Mr Coles QC submitted that many of the proposed amendments to the defence are based on “a misinterpretation or misunderstanding of the High Court’s recent decision in Walker and/or the facts germane to these proceedings”. He sees no relevant differences between the law as stated by the High Court and that underlying the Court of Appeal decision, meaning that the amendment is offensively “late”, in that it was not sought soon after the Court of Appeal judgment was delivered. He also submitted the amendment is also “futile” in view of his reading of Walker. In addition, he asserted prejudice to the Applicant as new expert evidence will be required; and he claimed that allowing the amendment would be contrary to the interests of justice.

12 Mr Coles’ written submissions deal at length with the history of the Walker litigation before this Court, the Court of Appeal and the High Court, and, despite what he says in par 34, I believe the case is a significant decision for this Court to consider in deciding the present proceedings.

13 Seeking the amendment within two weeks of the High Court’s decision can hardly be described as “late”, given that Mr Webster strongly argues that the High Court’s decision changes the law as it was interpreted and applied by the Court of Appeal, and as it may otherwise have applied to this matter.

14 That question, namely the possible applicability of Walker to the determination of this matter, would seem to me to be a genuine issue to be tried in the actual hearing of this case and, whether the Respondent’s argument succeeds in the end, or not, the Respondent should not be denied the opportunity to litigate it, by having its proposed amendment struck out before the hearing. While some of the same arguments I heard briefly on Friday will probably be repeated at the hearing, there is utility in the issue going forward to be argued properly and fully.

15 Raising it is, therefore, not “futile”; it serves the “interests of justice”, and the explained lateness of the application to amend, in terms of case management, should not preclude it. See The State of Queensland & Another v J L Holdings Pty Limited (1997) 189 CLR 146 at 154-5.

16 In so far as there may in due course be shown to be some prejudice to the Applicant in my granting the leave sought, I am confident it could be addressed by an order for payment of any costs truly “thrown away”.

17 The commencement of the hearing on Monday 21 April will not need to be deferred, given that the timetable for joint reports, etc. is still in process, and the parties have five weeks in which to deal with the issues.

18 As no submission made by the Applicant was based on any differences between the 11 March and 13 March versions of the Second Further Amended Points of Defence, leave is granted to the Respondent to file and serve its preferred version, but no other version, by close of business today, and for the Respondent to reply upon that defence at the hearing commencing 21 April.

19 The costs of the Notice of Motion are formally reserved.