Riopar Pty Limited v Lane Cove Council

[2002] NSWLEC 230

Land and Environment Court

of New South Wales

CITATION:

Riopar Pty Limited v Lane Cove Council [2002] NSWLEC 230

PARTIES:

APPLICANT
Riopar Pty Limited

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

10308 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- application to raise extensive new issues subsequent to allocation of hearing date

LEGISLATION CITED:

CASES CITED:

Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 ;
The State of Queensland and Another v J L Holdings Pty Limited (1996-1997) 189 CLR 146;
Wilson v Bourke Shire Council & Anor [2000] NSWLEC 271

DATES OF HEARING:

25/10/2002

EX TEMPORE
JUDGMENT DATE :

10/25/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr R O'Gorman-Hughes (Solicitor)

SOLICITORS:
Deacons

RESPONDENT
Ms E Ranken (Solicitor)

SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10308 of 2002

COWDROY, J

25 October 2002

RIOPAR PTY LIMITED

Applicant
v

LANE COVE COUNCIL

Respondent

Judgment

1 By notice of motion filed on 21 October 2002 the respondent seeks leave to rely upon additional issues in proceedings which are set down for hearing and scheduled to commence on 13 November 2002. The application is opposed.

2 The original statement of issues was filed in June 2002 and the matter was set down for hearing on the basis of such issues. The matters now sought to be raised are far more extensive than those formulated at the date of the callover.

3 The Court is mindful of the inconvenience that will be caused to the applicant if leave is granted. Nevertheless the Court considers that it is bound by the decision of the High Court of Australia in The State of Queensland and Another v J L Holdings Pty Limited (1996-1997) 189 CLR 146. In that decision the High Court of Australia determined that case management directions should not prevent a party from litigating an issue which is fairly arguable. The High Court said at p. 155 (per Dawson, Gaudron, McHugh JJ):-

Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.

4 The decision in J L Holdings has already been referred to and followed by this Court in Wilson v Bourke Shire Council & Anor [2000] NSWLEC 271.

5 The Court is concerned that such extensive amendments are raised so late in the proceedings, and of the fact that they were not included when the original statement of issues was prepared. Because there is no explanation to show how they were omitted from the original statement of issues, the inference could be drawn that they are raised solely for the purpose of obstruction.

6 At this stage of the proceedings the Court is not in a position to make any finding in respect of the merit of such issues. However, in the event that the respondent is found to be unsuccessful in respect of any of them, the applicant should be at liberty to make an application for costs, despite these proceedings being class 1 proceedings.

7 Accordingly, the Court will grant the leave that is sought subject to the observation concerning costs. The respondent need not serve any evidence in respect of any of the amended issues until Wednesday 6 November 2002. The respondent will be required to comply with the practice direction requiring exchange of experts’ reports by 30 October 2002.

8 An application has been made for the costs of the motion today. These being class 1 proceedings the Court does not usually make an order for costs unless there are exceptional circumstances. Although this rule has been the subject of debate in Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 the Court has repeatedly stated that it is to be used as a guide for the orders which it should make. As the hearing of a notice of motion in class 1 proceedings to add new issues is not exceptional the Court will make no order for the costs of this motion.

Orders

9 The orders of the Court are therefore as follows:-

1. Leave is granted to the respondent to amend the statement of issues as set out in annexure A to the notice of motion.

2. Direct that in the event that the respondent fails on any of the issues which are new the applicant be at liberty to make an application for the costs of those issues.

3. Direct that the applicant serve any evidence upon which it wishes to rely in relation to the new issues by on or before Wednesday 6 November 2002.