Street v Luna Park Sydney Pty Ltd - [2006] NSWSC 230

No judgment structure available for this case.

CITATION: Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230

HEARING DATE(S): 20 March 2006

JUDGMENT DATE :
6 April 2006

JUDGMENT OF: Brereton J

DECISION: Paragraphs 70 & 71.

CATCHWORDS: PROCEDURE – Amendment – to introduce new, statute-barred cause of action – issues which arise on application for leave to amend – whether power to permit amendment – whether amendment futile - relation back of amendments – whether amendment which introduces new cause of action relates back – held, it does. PROCEDURE – Particulars – particulars relating to causation. TRADE PRACTICES – Remedies – Injunctions – Injunctions which affect party in respect of obligations to a third party – Whether court has power to grant injunction which requires party bound to exercise powers as a company director in a particular way – held, it does. WORDS AND PHRASES – “proceedings may not be taken”. WORDS AND PHRASES – “with respect to”.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 64, 65
Crown Lands Act 1989 (NSW), s 114
Family Law Act 1975 (Cth), s 114(3)
Limitation Act 1969 (NSW)
Luna Park Site Amendment (Noise Control) Act 2005 (NSW)
Luna Park Site Amendment (Noise Control) Bill 2005 (NSW)
Luna Park Site Act 1990 (NSW), s 19A, Sch 2 Pt 3
Supreme Court Act 1970 (NSW), s 6
Supreme Court Rules 1970 (NSW)
Trade Practices Act 1974 (Cth), ss 52, 75B, 80, and 87
Uniform Civil Procedure Rules rr 6.24, 14.28(a), 15.10(1)(a)

CASES CITED: Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63
Agtrack (NT) Pty Ltd v Hatfield (2005) 218 ALR 677
Air Link Pty Ltd v Paterson (2005) 218 ALR 700
Application Des Gaz SA v Falks Veritas Ltd [1974] Ch 381
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18
Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197
Ascot Investments Pty Limited v Harper (1981) 148 CLR 337
Baldry v Jackson [1976] 2 NSWLR 415
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
Boyce v Paddington Borough Council [1903] 1 Ch 109
Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd and Others (1998) 157 ALR 135
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Gould v Vaggelas (1985) 157 CLR 215
Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 29 ALR 597
Hutchinson v Jauncey [1950] 1 KB 574
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Janssen Pharmaceutical Limited v Pfizer Pty Ltd (1986) ATPR 40-654; 6 IPR 227
Ketteman v Hansel Properties Ltd [1987] AC 189
Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223
Liff v Peasley [1980] 1 All ER 623 (CA); [1980] 1 WLR 781
McDowell v Baker (1979) 144 CLR 413
McGee v Yeomans [1977] 1 NSWLR 273
Maritime Services Board v Murray (1993) 52 IR 455; NSWCA, 22 December 1993
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69
Morgan v Banning (1999) 20 WAR 474
O D Transport Pty Ltd v Western Australian Government Railways Commission (1987) 13 FCR 500
Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; [2004] FCA 1394
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
R v Dovey; Ex parte Ross (1979) 141 CLR 526
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Thomson Publications (Australia) Pty Limited v Trade Practices Commission (1979) 27 ALR 551; (1979) 17 ALR 551
Tiley & Tiley (1980) 6 Fam LR 528
Walker v Noosa Shire Council [1985] 1 QdR 387
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Wenham v General Credits Ltd (NSWSC, McLelland J, 16 December 1988, unreported),
Wilson v Dagnall [1972] 1 QB 509

PARTIES: Joan Street (first plaintiff)
Ros Dwyer (second plaintiff)
Michael Hess (third plaintiff)
Glen Eight Pty Ltd (fourth plaintiff)
Susan Hesse (fifth plaintiff)
Robert Simkin (sixth plaintiff)
Glen Federick Billington (seventh plaintiff)
Fiona Jeanette Billington (eighth plaintiff)
Luna Park Sydney Pty Ltd (first defendant)
Metro Edgley Pty Ltd (second defendant)

FILE NUMBER(S): SC 2267/05

COUNSEL: T Alexis SC & P Sibtain (plaintiffs)
G Parker SC & M Baird (defendants)

SOLICITORS: Wise Legal (plaintiffs)
Clayton Utz Lawyers (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

6 April 2006

2267/05 Street & 7 ors v Luna Park Sydney Pty Limited & 1 or

JUDGMENT

1 HIS HONOUR: Originally, owners and occupiers of premises adjacent to Luna Park brought these proceedings against the first defendant, Luna Park Sydney Pty Limited (“LPS”), the operator of Luna Park, claiming injunctive relief and damages for nuisance, in respect of the emission of noise from certain thrill rides at Luna Park. The proceedings were set down for hearing to commence on 31 October last year. On 19 October 2005, the Luna Park Site Amendment (Noise Control) Act 2005 (NSW) (“the Noise Amendment Act”) commenced. It inserted in the Luna Park Site Act 1990 (NSW) provisions that have the effect that the emission of noise from the Luna Park site did not and does not constitute a public or private nuisance. The hearing was thereupon vacated, and the claim has since been reformulated to allege (1) contravention by LPS of the Crown Lands Act 1989 (NSW), s 114 (which requires that land to which it applies be used only in accordance with a plan of management under that section) (“the Crown Lands Claim”); (2) misleading and deceptive conduct and negligent misrepresentation, by the second defendant Metro Edgley Pty Limited (“MEPL”), which was the developer and is a 50% shareholder in LPS, in connection with development applications in respect of Luna Park (“the Misrepresentation Claim”); and (3) negligent infliction of economic loss by both LPS and MEPL on the owners of adjacent properties (“the Negligence Claim”).

2 The plaintiffs now seek to join two persons, the proposed third defendant Peter Hearne and the proposed fourth defendant Warwick Doughty, who were directors of MEPL and are directors of LPS, as additional defendants, and to file a Fourth Amended Statement of Claim, which alleges that they were “persons involved” in the alleged misleading and deceptive conduct of MEPL, and claims against them injunctive relief which would require them to exercise their powers as directors of LPS so as to prevent operation of the relevant thrill rides. The defendants, while not opposing the joinder of the additional defendants, submit that the amended pleading should not be allowed insofar as it would claim orders against Mr Hearne and Mr Doughty which would affect them in the performance of their duties as directors of LPS. Further, the defendants apply for orders that so much of the Third Amended Statement of Claim (which is replicated in the proposed Fourth Amended Statement of Claim) as pleads the Crown Lands Claim and the Negligence Claim be struck out, and an order that further particulars be provided of the Misrepresentation Claim.

Background

3 In about August 1999, the Luna Park Reserve Trust and MEPL entered into a Deed of Agreement for Lease, whereby the Trust agreed to grant MEPL a lease of Luna Park upon certain terms and conditions. In 2000 and 2002, MEPL lodged Development Applications and Statements of Environmental Effects in respect of Luna Park. In about December 2002, the Trust, MEPL and LPS entered into an amended Deed of Agreement for Lease whereby the Trust agreed to grant LPS a lease of Luna Park upon the same terms and conditions. LPS (and/or MEPL) commenced operation of Luna Park as an amusement park, including the thrill rides, on or about 1 April 2004.

4 The first plaintiff Joan Street, the second plaintiff Ros Dwyer, the third plaintiff Michael Hesse, and the fourth plaintiff Glen Eight Pty Limited instituted these proceedings by summons filed on 5 April 2005, claiming an order restraining LPS from operating certain thrill rides in the area north of Coney Island at Luna Park. Ms Street, Ms Dwyer and Mr Hesse were the registered proprietors and occupiers of home units adjacent to and overlooking Luna Park. Glen Eight was the proprietor of a property adjacent to Luna Park, formerly a 10 level commercial building known as “Yellow Pages House”, which since 2003 it has been refurbishing and converting into 75 residential strata units now known as “Azure”.

5 The matter proceeded on pleadings, and those plaintiffs filed a statement of claim on 17 June 2005, by which they alleged that the noise generated by and associated with the thrill rides constituted a nuisance to them. An amended statement of claim was filed on 1 July 2005, which added the fifth plaintiff Susan Hesse, a joint owner and occupier with Mr Hesse of his unit. A second amended statement of claim was filed on 15 September 2005; the amendments that it effected are immaterial for present purposes.

6 Thereafter, the Noise Amendment Act intervened and the hearing was vacated. Subsequently, on 14 December 2005, without opposition, and on the application of the plaintiffs, MEPL was joined as second defendant; the sixth plaintiff Robert Simpkins, and the seventh and eighth plaintiffs Glen and Fiona Billington, were joined as plaintiffs; and the plaintiffs were granted leave to file the Third Amended Statement of Claim, which reformulated their claim. Although it will be necessary to return to aspects of it later, the reformulated claim may, for present purposes, be sufficiently described as comprising:

· The Crown Lands Claim, being a claim by each Plaintiff for an injunction prohibiting LPS from operating amusement rides in the area north of Coney island, based on alleged contravention of the Crown Lands Act, s 114 [paragraphs 2.6 – 2.19 and 14.1 – 14.2];

· The Misrepresentation Claim, being a claim by each of the Second to Eighth Plaintiffs against MEPL for injunctive relief and damages in respect of alleged misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) and negligent misrepresentation [paragraphs 3.1 – 11.8 and 15.1 – 15.19]; and

· The Negligence Claim, being a claim by each of the First to Fifth Plaintiffs against LPS and MEPL for damages for negligent infliction of economic loss [paragraphs 12.1 – 13.1 and 16.1 – 16.3].

7 By 9 February 2006, the plaintiffs had signalled an intention to seek to join Mr Hearne and Mr Doughty as further defendants, and to further amend their claim, and the defendants had foreshadowed an application to have parts of the Third Amended Statement of Claim struck out. On that day, directions were made for the further conduct of the proceedings, including for discovery, and for the service of all further affidavits and expert reports by the plaintiffs by 6 April 2006, and by the defendants by 27 April. The matter was provisionally fixed for hearing for five days commencing 17 July 2006. A direction was made that, in the event that the defendants file a motion seeking to have struck out or dismissed the statement of claim or any part of it, or further and better particulars thereof, the operation of the foregoing be suspended until further order. Once it was confirmed that there was to be a strikeout application, the operation of the timetable was suspended. The Plaintiffs’ application was formalised by a Notice of Motion filed on 15 March 2006, whereby they seek leave to join Mr Hearne and Mr Doughty as defendants, and to further amend the statement of claim in terms of the draft Fourth Amended Statement of Claim.

8 In this judgment, references to paragraphs in the Statement of Claim, unless otherwise indicated, are to the draft Fourth Amended Statement of Claim, a copy of which is at Tab 10 of the Plaintiff’s Bundle.

The Plaintiffs’ further amendment application:

9 While the defendants do not oppose the grant of leave to join Mr Hearne and Mr Doughty as defendants, they oppose leave to file the proposed Fourth Amended Statement of Claim insofar as it claims orders against Mr Hearne and Mr Doughty which would affect them in the performance of their duties as directors of LPS.

10 The gravamen of the Misrepresentation Claim is an allegation that in connection with the Development Applications and Statements of Environmental Effects lodged in 2000 and 2002, MEPL represented that children’s rides (as distinct from thrill rides) would be operated in the area north of Coney Island, when in truth it intended that thrill rides would be operated in those areas. This is said to have been misleading and deceptive conduct, in contravention of Trade Practices Act, s 52.

11 The draft amended claim alleges that Mr Hearne and Mr Doughty were “persons involved”, within the meaning of Trade Practices Act, s 75B, in the contraventions alleged to have been committed by MEPL. MEPL holds 50%, and Metro on George Pty Ltd (“MoG”) holds 34%, of the shares in LPS. Mr Hearne and Mr Doughty are the sole directors and hold all the shares in MoG. Between 29 April 1998 and 29 November 2002 (when the alleged contravening conduct took place) they were directors of MEPL. They became directors of LPS upon its incorporation on 21 November 2002 and remain two of its four directors. Thus MEPL, Mr Doughty and Mr Hearne together hold 84% of LPS.

12 The defendants’ objection is not to the sufficiency of the pleading of material facts in this respect, but to the relief claimed, and in particular to the claims for injunctions restraining Mr Hearne and Mr Doughty from causing or permitting LPS to locate and operate the relevant thrill rides north of Coney Island, at all or outside certain hours [paragraphs 15.9, 15.10]. A similar objection is taken to claims for injunctions restraining MEPL from causing or permitting LPS to locate and operate the relevant rides north of Coney Island, at all or outside certain hours [paragraphs 15.7, 15.8].

13 The injunctions are claimed pursuant to Trade Practices Act, s 80, which relevantly provides as follows: -

80 Injunctions

14 The injunctions sought in the present case would not restrain the contravening conduct (which was constituted by the making of the alleged misrepresentations in the development applications), but would restrain conduct inconsistent with those representations. Although the context and content of s 80 suggest that its primary focus at least is the restraint of conduct which contravenes provisions of the Trade Practices Act – indeed, prior to the 1983 amendment to s 80, jurisdiction was limited to restraining conduct that constituted or would constitute a contravention of Part IV or Part V – since that amendment it empowers the court to grant injunctions on such terms as it determines to be appropriate, though the discretion to grant relief is confined by reference to the scope and purpose of the Act [O D Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500], so that the injunction must at least have a relationship with contravention of the Act [ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, 267 (Gummow J)], in that there must be a “sufficient nexus” between the contravention and the injunction granted [Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 (Merkel J)]. But s 80(5), when compared with s 80(4), makes clear that orders other than injunctions restraining contravening conduct are authorised. The wide view which has been taken of s 80 is illustrated by the circumstance that, prior to the insertion in 2001 of ss 86C and 86D, mandatory corrective publication orders were made under s 80 [Janssen Pharmaceutical Limited v Pfizer Pty Ltd (1986) ATPR ¶40-654; 6 IPR 227 (Burchett J); Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; [2004] FCA 1394; Australian Competition and Consumer Commssion v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18, (French J)].

15 The injunctions claimed here seek, in effect, to hold the relevant defendants to the representations made. Such injunctions are not unknown in equity, when injunctive relief may be granted in aid of an equitable estoppel. In any event, while drawing attention to some of the difficulties which the plaintiffs may encounter in obtaining injunctive relief, Mr Parker SC for the defendants did not submit that insofar as they sought to restrain conduct inconsistent with the alleged representation, the injunctions did not have a sufficient nexus with the alleged contravention to be within s 80. [Even if not within s 80, it is at least arguable that such an injunction would be authorised by s 87(1) or (1A) as an order preventing or reducing loss or damage].

16 Rather, the Defendants’ objection is that insofar as the amended claim would include claims for injunctions restraining MEPL, Mr Hearne and Mr Doughty from “causing or permitting” LPS to operate the thrill rides (in substitution for equivalent injunctions previously sought directly against LPS, which was not incorporated when the alleged contravening conduct took place), the amendments are futile and should not be permitted, because, so it is said, it could never be proper to grant an injunction which fettered the proper exercise by company directors of their powers and the proper performance of their duties in the interests of the company, and because such an injunction would make the parties bound liable for contempt in respect of matters beyond their control. Mr Parker submits that “it would never be proper for an injunction to be granted which fettered the proper exercise of their powers” as directors, which I take to be a submission that there is no jurisdiction to grant such an injunction, or alternatively that as a matter of discretion such an injunction must inevitably be refused.

17 I do not accept this submission. For the reasons which follow, the circumstance that an injunction binding a person who is a company director or shareholder restrains him or her in that capacity from exercising his or her voting power in a particular way, though it may have a practical impact on the company, and even if it indirectly affects the rights of the company, is not beyond power, though those circumstances are relevant to the exercise of discretion to grant the injunction. And once it is accepted that there is power to grant the injunction, it cannot be said at this stage that that discretion could only reasonably be exercised by declining to grant an injunction.

18 In R v Dovey; Ex parte Ross (1979) 141 CLR 526, Gibbs J (as he then was) said, of the broad statutory power in the Family Law Act 1975 (Cth), s 114(3), to grant an injunction “in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate”, (at 533):

Sanders v Sanders

Antonarkis v Delly

Matrimonial Causes Act

Walker v Wimborne

19 In Tiley & Tiley (1980) 6 Fam LR 528, the Full Court of the Family Court (Evatt CJ, Emery SJ and Treyvaud J) said (at 535):

Re Dovey; Ex parte Ross

Suli v Suli

The power to make orders which affect the assets or interests in a company must be used with caution. …

20 Although, in Ascot Investments Pty Limited v Harper (1981) 148 CLR 337, the High Court identified constraints on the ability of the Family Court to make orders which increased the obligations or reduced the rights of third parties, it did not overrule Dovey. The Court held that, although in some circumstances the court had power to make an order or injunction directed to a third party, third parties may not – except in the case of shams or alter egos - be ordered, either directly or indirectly, to do what they are not legally bound to do, so that a company and its directors (not parties to the marriage) could not be ordered to do something in relation to the shareholding which the husband, by dint of his shareholding, could not compel them to do. But the court did not depart from the position adopted in Dovey that it was permissible to order a party to a marriage to do whatever was within his power to comply with an order of the court, even if what he was required to do may have some effect on the position of third parties. Thus a party to a marriage may be ordered to do whatever is within his or her power to cause a third party (including a company) to do or refrain from doing something, and to exercise his or her voting power to that end, even though to do so may have some effect on the position of the third party. It is true that in Ascot, Gibbs J said that the concluding sentence of the first paragraph cited above from Dovey was unnecessary for the purposes of the decision of that case, “since it does not appear that the rights of the company were in any way affected by the order made against the husband”, and that the use of the word “rights” in that sentence, taken from the two earlier cases, was not strictly accurate. But while this might suggest that an injunction could not even indirectly impinge on the rights of a third party, it is notable that his Honour expressed no reservation about any part of the second paragraph from Dovey cited above. Moreover, as the order in Dovey did constrain how the husband could exercise his voting power as a director, it must follow that his Honour did not regard such a constraint as impermissibly infringing the legal rights of the company. This is unsurprising. In the context of the duties of company directors, while a director is bound to act with reasonable care and diligence, and bona fide in the best interests of the company for a proper purpose, that does not mean that the company has a legal right to have the director vote in any particular way on any proposal. No legal right of the company is infringed by an injunction which requires the director to exercise his vote in a particular manner.

21 These are not quaint idiosyncrasies of the family law, but reflect a general principle, namely that where there is a wide power to grant injunctive relief, and the conditions for its exercise are attracted, then although the circumstance that an injunction may affect the party bound in the performance of other duties and obligations is relevant to the question of how the discretion to grant or withhold relief should be exercised, it is no basis for holding that jurisdiction does not exist.

22 This approach is consistent with that which was taken to Trade Practices Act, s 80 in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, in which the High Court said that it was no objection to the grant of an injunction or the acceptance of an undertaking that damage would be occasioned by it to a third party, so long as that damage does not constitute an infringement of that third party’s legal rights. Gibbs CJ, Stephen, Mason and Wilson JJ said (at 164):

Nevertheless we should make some comment on the suggestion that, if the Federal Court had power to make the orders, it should have taken into account as a reason for declining to make an order the damage which would be occasioned to the appellant’s business. The appellant is bound to accept any damage to its business which is consequential upon the enforcement by the Commission against the defendants of the provisions of the Trade Practices Act so long as that damage does not constitute an infringement of the appellant’s legal rights, if any. As it has not been suggested that the appellant possesses any relevant legal rights against the defendants it is necessarily bound to sustain such damage as may be caused to it by any agreement made between the Commission and the defendants whereby the defendants agree not to accept the appellant’s Liquor Guide. There is no legal basis on which the appellant can prevent the defendants from exercising their freedom of action in such a way as will entail business loss of the kind in question to the appellant.

23 In the proceedings in the Federal Court [Thomson Publications (Australia) Pty Limited v Trade Practices Commission (1979) 27 ALR 551; (1979) 40 FLR 257], Deane and Fisher JJ explained that the circumstance that injunctive relief granted in favour of one party against the other in adversary proceedings might result in damage (short of an unlawful injury) to a third party was not a bar to the granting of the injunction. Their Honours said (at ALR 565-566):

Injunctive relief granted in favour of one party against the other in adversary proceedings will not infrequently result in damage to the legitimate commercial interests of a third party. An undertaking given by one party in favour of the other party in such proceedings may have the like result. In circumstances where compliance with the injunction or the undertaking does not involve any unlawful injury to the third party, such resulting injury to the interests of a third party does not constitute a bar to the granting of the injunction or the acceptance of the undertaking. … In the absence of consequential illegality or infringement of legal rights, the fact that some third party might suffer financial damage if the injunction is granted … does not constitute a valid reason for the court to refuse the injunction or to decline to accept the undertaking.

24 These passages, like the qualification by Gibbs J in Ascot of his Honour’s remarks in Dovey, leave open what is the position if the injunction would require the party bound to act inconsistently with obligations owed by it to a third party, although the unqualified passage in Dovey suggests that that is not an absolute objection to the grant of such an injunction. It is not unknown for injunctive relief to be granted in equity which requires the infringement of legal rights of a third party, or which may put the party bound in breach of obligations to a third party. One common illustration of this is an injunction restraining a breach of a covenant in restraint of trade, compliance with which often requires that the party bound breach an employment contract already entered into with a new employer, and could expose him or her to liability for breach of contract to that new employer. Mareva injunctions may result in the party bound being forced into default of obligations that it owes to third parties. That the party bound may effectively be required to default in obligations to a third party does not deny jurisdiction to grant such an injunction, though it is a significant discretionary consideration. Parties may, voluntarily or otherwise, assume or incur obligations to different obligees which, in the events that happen, cannot both be performed. That performance of one will result in default in respect of the other is not an absolute objection to specific enforcement of the first.

25 There is no reason why in this respect the broad powers to grant statutory injunctions should be any more confined. As a matter of discretion, a court would not likely grant an injunction compliance with which would place a party bound in contravention of the criminal law, and the prospect of any civil liability which a party bound might incur as a consequence of compliance with an injunction would almost always be an important discretionary consideration. But that does not deny power to grant the injunction, nor mandate that as a matter of discretion it must be refused. In any event, for reasons already advanced and on the authority of Dovey, it is not a relevant infringement of the legal rights of a company to require a director to exercise his or her vote in a particular way.

26 Accordingly, the circumstance that the relief claimed against Mr Hearne and Mr Doughty might constrain them in the performance of their functions as directors of LPS, while relevant to the court’s discretion to grant such an injunction, is not an absolute objection to such an injunction. Given the extent of the interest and control which MEPL and Mr Doughty and Mr Hearne together have in and over LPS, and that it appears arguable that LPS is the operating vehicle for implementation of the original design of MEPL (formed while Mr Hearne and Mr Doughty were directors of MEPL), it cannot at this stage be said that the only reasonable exercise of the Court’s discretion would be to decline such an injunction. I do not accept that the pleading is liable to be struck out on that basis.

27 It may be that an injunction in the precise form presently framed is excessive, insofar as it goes beyond requiring Mr Hearne and Mr Doughty, or MEPL, to use their best endeavours and their voting power in a particular way, and compels them to achieve a particular outcome - so that there would be a contempt if, despite their best endeavours, LPS continued to operate the thrill rides. The evidence may show that it is not within the power of Mr Hearne and Mr Doughty, or MEPL, to prevent LPS from operating the relevant amusement rides; though it is also conceivable that the evidence will reveal the contrary. But it does not follow that an injunction restraining them from voting otherwise than against any decision to operate the rides would be impossible of performance or compliance. If, in principle, an injunction may be granted against Mr Hearne or Mr Doughty that would govern their conduct as directors of LPS, it would not be appropriate to strike out the claims for injunctive relief against them based on their precise form at this stage. On an application of this type, it is inappropriate to take too rigid a view of the form of the claims for injunctive relief, the precise formulation of which will often have to be refined during or at the conclusion of the trial, in the light of the evidence that emerges.

28 Accordingly, I do not accept the defendants’ submission that the claim for injunctive relief against MEPL and Mr Hearne and Mr Doughty is doomed to failure. I would, therefore, subject to what I conclude on the strikeout applications, make orders joining Mr Hearne and Mr Doughty as third and fourth defendants, and granting leave to file the proposed fourth amended statement of claim.

The Defendants’ strikeout application

29 The defendants apply for orders that so much of the Third Amended Statement of Claim (which is relevantly repeated in the draft amended Claim) as pleads the Injunction Claim and the Negligence Claim be struck out, on the basis that they cannot be maintained by reason of Luna Park Site Act, s 19A, which was introduced by the Noise Amendment Act, and bars the taking of proceedings with respect to the emission of noise from Luna Park. The Plaintiffs respond that the Injunction Claim is not “with respect to the emission of noise”. They accept that the Negligence Claim is one with respect to the emission of noise, but submit that, because that claim is brought only by the First to Fifth Plaintiffs – who, unlike the Sixth, Seventh and Eighth Plaintiffs, who were added by order made on 14 December 2005, have been Plaintiffs since the proceedings were commenced on 5 April 2005 - and as the amendment does not add a new party, it relates back to the date of commencement of the proceedings, and is not caught by the bar imposed by s 19A. Nor, say the plaintiffs, is it a nuisance claim so as to be caught by the Transitional Provisions in Schedule 2, Part 3 of the Act, which were also inserted by the Noise Amendment Act.

30 Section 19A(1) relevantly provides as follows: -

19A Legal proceedings and other noise abatement action
(1) No criminal proceedings, no civil proceedings (whether at law or in equity) and no noise abatement action may be taken against any person with respect to the emission of noise from the Luna Park site.

(2) The emission of noise from the Luna Park site does not constitute a public or private nuisance.

(3) This section does not apply to or in respect of noise that exceeds the maximum permissible noise level at the closest residential facade.

(4) This section does not limit or otherwise affect the operation of the Environmental Planning and Assessment Act 1979 (other than section 121B) or any instrument under that Act in its application to land comprising any part of the Luna Park site.
…

31 Subsection (5) contains definitions of closest residential façade, maximum permissible noise level, and noise abatement action.

32 Section 19A(1) provides that no proceedings of the relevant type “may be taken”. Mr Alexis submits that that is a prospective bar on the commencement of proceedings, but not on the continuation of proceedings already commenced; Mr Parker submits that proceedings are “taken” not only by commencing them but also by their continuation, and refers to dictionary definitions of “take” - which include “undertake” and “conduct”, albeit not in the context of “proceedings”.

33 The construction of s 19A is informed, to some extent, by the Transitional Provisions in Schedule 2, Part 3, which were inserted at the same time and in conjunction with s 19A. They provide, relevantly, as follows:

3 Past noise emissions from use of land within Luna Park site
(1) Any use of land within the Luna Park site that was an authorised use or dedicated use at any time during the relevant period is taken to have been such a use:
(a) regardless of the noise arising from the use, or the combined noise arising from all or any such uses, at that time, and
(b) regardless of any maximum noise level to which the use was subject, pursuant to the conditions of any development consent, at that time.

(2) The emission of noise from the Luna Park site at any time during the relevant period is not to be taken to have constituted a public or private nuisance.

(3) Without limiting their operation apart from this subclause, subclauses (1) and (2) have effect for the purposes of:
(a) any legal proceedings commenced during or after the relevant period, and
(b) any noise abatement action (within the meaning of section 19A) commenced during or after the relevant period,
with respect to noise emitted from the Luna Park site during that period.

(4) This clause does not affect any final determination that, before the commencement of this clause, had been made by a court or tribunal in relation to legal proceedings with respect to noise emitted from the Luna Park site during the relevant period.

(5) Despite subclause (4), any such final determination is not to be construed as limiting or restricting the use of land within the Luna Park site after the commencement of this clause.

(6) Subclause (5) does not permit noise emitted from the Luna Park site to exceed the maximum permissible noise level at the closest residential facade (within the meaning of section 19A).
(7) In this clause:
development consent has the same meaning as it has in the Environmental Planning and Assessment Act 1979.

the relevant period means the period beginning on 30 March 2004 and ending on the commencement of section 19A.

34 Thus clause 3(a) and (b) of the Transitional Provisions contemplate that there may be pending and future proceedings with respect to the emission of noise during the “relevant period”, and it is fundamentally (though not exclusively: see the opening words of clause 3) to such proceedings that the Transitional Provisions are directed. They do not bar such proceedings, but provide that in them, the emission of noise during the “relevant period” is not to be taken to have been a nuisance. This indicates that s 19A(1) was not intended to prevent the continuation of proceedings with respect to the emission of noise during (as opposed to after) the relevant period which were pending upon its commencement (which coincides with the termination of the “relevant period”), or even to prevent the institution of fresh proceedings with respect to the emission of noise during the relevant period; such emissions were covered, instead, by the Transitional Provisions. Consistently with this, s 19A(2) speaks from the date of its commencement. Whereas past emission of noise – during the “relevant period” is covered by the Transitional Provisions, future emission of noise is covered by s 19A(2). That is part of the context in which s 19A(1) is to be seen.

35 The construction of s 19A is also informed by the Explanatory Note in relation to the Luna Park Site Amendment (Noise Control) Bill 2005 (NSW), which explains that the proposed s 19A would protect future noise emissions from legal proceedings and other noise abatement action, and that Part 3 of Schedule 2 would protect past noise emissions from legal proceedings and other noise abatement action by providing that any such emission is not a nuisance, adding that this would not affect any existing final determination of a court or tribunal.

36 Illuminated by these aids, it appears that the temporal focus of s 19A(1) is not the “proceedings” referred to in it, but “the emission of noise”. Its intent is that the emission of noise from Luna Park after the commencement of s 19A should give rise to no remedy, and should not be made the subject of any proceedings, pending or future. Its purport is to provide that no remedy of any type shall be available in respect of noise emissions that take place after the commencement of s 19A. It uses the phrase “no … proceedings … may be taken” in the sense that “no remedy – civil, criminal or abatement – may be claimed” in respect of any emission of noise that takes place after the commencement date of s 19A.

“With respect to the emission of noise”

37 The phrase “with respect to” is one of “the widest possible connection”’ having “the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer” [Maritime Services Board v Murray (1993) 52 IR 455; (1993) NSWCA, 22 December 1993, p15 (Kirby P), BC9302365; Walker v Noosa Shire Council [1985] 1 QdR 387, 393; Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 29 ALR 597, 610 (Franki J); McDowell v Baker (1979) 144 CLR 413, 419].

38 In the Injunction Claim, the plaintiffs seek to enforce Crown Lands Act, s 14, which relevantly provides as follows: -

114 Adoption of plan of management
(1) The Minister may adopt a plan of management for a reserve without alteration or with such alterations as the Minister thinks fit.

…

(2) If a plan of management is adopted:
(a) the reserve trust shall carry out and give effect to it, and
(b) no operations may be undertaken on or in relation to the reserve unless they are in accordance with the plan.
…

39 The Plaintiffs allege that on 12 March 1998, the relevant Minister adopted the Luna Park Plan of Management (“the Plan”) pursuant to Crown Lands Act, s 114(1), that the Plan did not permit the location and operation of amusement rides in the area to the north of Coney Island, that the location and operation of the relevant rides in that area is in contravention of the Plan and thereby of s 114(2), and that in the premises LPS is liable to be restrained from locating and operating the relevant rides in that area. [The Defendants pointed out that the injunction claimed was to restrain them only from “operating”, and not from “locating”, the thrill rides north of Coney Island; in the course of the hearing, the Plaintiffs orally made a further application for leave to amend, by inserting “locating” in the claims for injunctive relief. The body of the pleading, as distinct from the claims for relief, already included that terminology, which had apparently been omitted by oversight from the claim for relief. The injunctions claimed in respect of the Misrepresentation Claim include one which would restrain “locating” as well as “operating”. I proceed on the basis that the claim for relief in respect of the Crown Lands Claim will also be so framed].

40 The emanation of noise from the thrill rides forms no part of that cause of action, which depends not upon noise, but upon contravention of the Plan as to the use of the Luna Park site. The Plaintiffs’ argument, if correct, applies with equal force, whether the rides are noisy or generate no noise at all.

41 The Defendants submit, however, that the standing of the plaintiffs to claim this injunctive relief depends upon the exposure of their properties to noise emissions, and that on that basis proceedings on the Injunction Claim are “with respect to the emission of noise”. In order to have standing to prosecute a claim for an injunction to restrain an alleged breach of a statute of general application, a private plaintiff must have a “special interest” in the grant of the relief [Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 267]. While traditionally such a “special interest” has involved demonstrating that the conduct also infringed a private right of the plaintiff, or that the plaintiff suffers special damage [Boyce v Paddington Borough Council [1903] 1 Ch 109], all that is required is that the plaintiff have a sufficient special interest, greater than that of members of the public generally, in the subject matter of the action, and the rule is a flexible one [Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552, 558; Bateman’s Bay, 265, 267].

42 The Plaintiffs have particularised the basis on which they claim standing as the “loss of amenity” occasioned to their properties by the contravention of the Plan. The Defendants argue that any such loss of amenity must be exposure to noise. The plaintiffs respond that the loss of amenity is not only exposure to noise, but visual, since the area north of Coney Island should, according to the Plan, be open space.

43 In my opinion, the plaintiffs’ standing to claim the injunction that they seek does not depend on noise emission. Their properties are adjacent to and overlook Luna Park. That circumstance gives them a sufficient special interest, when compared to other members of the public, to allow them standing, because contravention of the Plan is liable to affect the amenity of their properties, whether or not it generates noise. Their interest in the regulation of activity on Luna Park in accordance with the Plan depends not merely upon the exposure of their properties to noise, but upon proximity and overview, and would subsist regardless of whether or not their properties were exposed to noise from Luna Park. While part of the inconvenience to them might be exposure to noise, that is neither essential to their standing, nor a material fact forming part of their cause of action for an injunction. It follows that the Injunction Claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1).

44 The Negligence Claim asserts that the Defendants owed the owners and occupiers of the properties neighbouring Luna Park, including the First to Fifth Plaintiffs, a duty to take reasonable care to avoid foreseeable risk of economic loss with respect to their properties. On this application, the Defendants do not submit that that contention is not sufficiently arguable to go to trial, although it would no doubt be in issue at trial. The Plaintiffs allege that by reason of breach of that duty they “have suffered and will continue to suffer economic loss and damage, unless the Defendants are restrained from operating” the thrill rides in their present location, that loss being particularised as a loss in the market value of their properties. The damage claimed is the loss of value occasioned, inter alia, by the ongoing exposure of the plaintiff’s properties to noise. Accordingly, at least part of the damage the subject of the Negligence Claim is in respect of the exposure of the plaintiffs’ properties to noise emanating from the relevant amusement rides at Luna Park. Moreover, the existence of such damage – which is, of course, essential to a cause of action in negligence – depends upon the continuation in the future of the operation of the relevant rides, and therefore upon noise emissions after the “relevant period”. Mr Alexis SC’s concession, that the Negligence Claim is one with respect to the emission of noise from the Luna Park site, was therefore rightly made. And s 19A(1) has the result that no proceedings lie with respect to such emissions, and that there is no remedy available in respect of them.

The relation-back doctrine

45 Mr Alexis submits that the Negligence Claim is nonetheless not barred by s 19A, because, by operation of the “relation-back” doctrine, it is taken to have been commenced on 5 April (when the proceedings were commenced) before the commencement of s 19A, which is said to operate only prospectively, to bar the commencement of new proceedings.

46 It is true that ordinarily “an amendment, duly made, takes effect, not from the date the amendment is made, but from the date of the original document which it amends” [Baldry v Jackson [1976] 2 NSWLR 415, 419 (Samuels JA)]. Since Baldry v Jackson, there has been considerable judicial discussion of this “relation-back” doctrine, in the context of limitation periods [Liff v Peasley [1980] 1 All ER 623, 641-643 (CA); [1980] 1 WLR 781, 802-804; Ketteman v Hansel Properties Ltd [1987] AC 189 (HL); Wenham v General Credits Ltd (NSWSC, McLelland J, 16 December 1988, unreported); Fernance v Nominal Defendant (1989) 17 NSWLR 710 (NSWSC); Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 559-562 (HCA); Morgan v Banning (1999) 20 WAR 474 (WASC, FC); Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63 (VCA); Agtrack (NT) Pty Ltd v Hatfield (2005) 218 ALR 677 (HCA)]. Generally, these cases have dealt with the relation-back doctrine in the context of two categories of amendments: those which would add a new defendant after the applicable limitation period against that defendant had expired, and those which would introduce a new cause of action after the limitation period for its commencement had expired.

47 As to the first, it is clear that the relation-back principle does not apply to an amendment which adds a party: where a party is added, proceedings against it are commenced only at the date of its joinder, so that the relation-back doctrine does not deprive a party joined after expiry of a limitation period of its limitation defence [Liff v Peasley; Ketteman v Hansel Properties; Wenham v General Credits; Fernance v Nominal Defendant].

48 It is in the second category that controversy has emerged. Some cases have suggested that the relation-back doctrine does not apply to an amendment which adds a new cause of action, so as retrospectively to deprive a defendant of a limitation defence in respect of the new cause of action [Liff v Peasley; Morgan v Banning; Agtrack v Hatfield (VCA)]. And in Agtrack v Hatfield, Ormiston JA suggested that relation-back was not a principle of law at all, but a matter or convenient practice applicable only for some purposes. His Honour said (at 85-86): -

[39] Undoubtedly, the consequence that amendment, once effected, relates back to the issue or filing of process is well accepted: see esp per Phillips JA, with whom Brooking and Charles JJA concurred, in Anglo Irish Beef Processors International v Federated Stevedores Geelong [[1997] 2 VR 676 at 680–1] and the authorities therein cited [see also, in the High Court, Wigan v Edwards (1973) 1 ALR 497; 47 ALJR 586]. But what does that statement mean? To my way of thinking it means no more than this: amendment [conventionally (ie by virtue of the terms of most relevant rules) the court does not itself amend a pleading, but merely gives leave to a party to effect the amendment, so the necessary step is taken by the party itself . Ordinarily a court effects an amendment through a court officer only when the document to be amended is an order or some other document brought into existence, by the court. See esp r 36.03. Compare J Leavey & Co Ltd v George H Hirst & Co Ltd [1944] KB 24; Loutfi v C Czarnikow Ltd [1952] 2 All ER 823] involves making an alteration to an existing document and that document will have come into existence at some time in the past; whoever amends such a document is not normally creating an entirely different document, but is merely effecting a change or changes to that which is already in existence, which itself has a known date upon which it came into effect. One could “substitute” a new document of the relevant kind and that might connote the creation of a document taking effect only at a later date. In fact, as a matter of practice, where some special problem has arisen, occasionally judges have directed that certain amendments to pleadings only take effect as at the date of the making of the amendment, but that ordinarily comes about by a specific order [in fact in New South Wales, in cases where amendments add new causes of action, when not dependent upon the same or substantially the same facts, an order may be made “to add or substitute” a claim, but the new cause of action shall be treated as commencing on the date on which the amendment is made: see Pt 20 r 1(3A): cf Pt 20 r 4. In this State, though there is no similar rule, similar orders have been made from time to time. But cf Nesnah Nominees Pty Ltd v Blackwell [1998] VSC 130, though I would not, with respect, necessarily subscribe to the conclusion there reached].

[40] The relation back of amendments is, therefore, hardly to be called a principle or rule, for it is merely the commonsense characterisation of what is in fact sought and done. Moreover, if one were to analyse the process more fully, there ought to come a point at which amendment goes beyond merely affecting something already brought into existence or carried out in the past. If the amendment is sufficiently extensive, so as to change the character of the original document, as it were, then it might no longer be merely an amendment of an existing document but the creation of a new and substituted document. That substituted pleading or other document could, if the circumstances were appropriate, take effect at some other date, most obviously the date at which it was substituted, but that might well have other consequences. One would then have to take account of what has been done in the meantime and whether the new document might bring into operation rights and liabilities which differ because of the later date. The problem has most frequently occurred when amending and varying various orders, especially sentencing orders. However, when a civil judgment or order is not merely confirmed or formally varied on appeal, any substituted order (or order “in lieu”) ordinarily takes effect on the date it is pronounced: see Nicol v Allyacht Spars Pty Ltd (No 2) [(1988) 165 CLR 306] and Official Receiver in Bankruptcy v Schultz [(1990) 170 CLR 306 at 317–19].
[41] Enough has been said, I believe, to show that the question of relation back is not a matter of high principle, but one of practice, depending on a practical analysis of what is sought to be achieved. Nothing in the authorities to which counsel were pressed to take the court provides any further explanation of what is ordinarily treated as occurring, let alone any exposition of fundamental theory as to the reasoning behind the courts’ oft-stated references to it. No explanation of principle can be found in the cases cited by Phillips JA in Anglo Irish Beef Processors [at 680–1], nor in the other cases cited to this court which included Proctor [[1984] 1 NSWLR 166 at 174–5] and the earlier cases of Sneade v Wotherton Barytes & Lead Mining Co Ltd [[1904] 1 KB 295 at 297], Warner v [[1959] 1 QB 297] and Baldry v Jackson [[1976] 2 NSWLR 415 at 419].

49 But in my opinion that is not the law, at least in New South Wales, where since 1970 the view has consistently been adopted that it is permissible to allow amendments which introduce a time-barred cause of action, and that an amendment which adds such a cause of action is not futile, because the amendment relates back to the date of the original pleading [McGee v Yeomans [1977] 1 NSWLR 273; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Fernance v Nominal Defendant].

50 There are two elements in considering whether a pleading may be amended to add a statute-barred cause of action. The first is one of power. The relation-back doctrine is not relevant to this element. As Toohey J, with whom Deane J agreed, explained in Wardley Australia Ltd v Western Australia (at 559–562), a court, when considering an amendment to introduce a new cause of action, has no power to ignore any statutory limitation period governing the bringing of that cause of action [see also Morgan v Banning, 483E-F]. But as Wheeler J recognised in Morgan v Banning (at 483G), in New South Wales amendments adding new causes of action after the limitation period had expired were permitted, because there was statutory authority to do so. As Moffitt P explained in Proctor v Jetway (at 170-173), it was basic to McGee that by the operation of Supreme Court Act 1970 (NSW), s 6, Supreme Court Rules 1970 (NSW) Pt 20 r 4 (see now Civil Procedure Act 2005 (NSW), s 65) had the effect of a statute later in time than the Limitation Act 1969 (NSW). That is no less the case now that the authority for amendments is contained, not in Rules of Court, but in the Civil Procedure Act, ss 64 and 65. In other words, because the statutory authority to permit amendments notwithstanding the Limitation Act is sourced in an Act later in time than the Limitation Act, it prevails. The High Court has recently, in Air Link Pty Ltd v Paterson (2005) 218 ALR 700, [17] - an appeal heard concurrently with Agtrack v Hatfield, in both of which it was held that the relation-back doctrine could not validate an amendment pursuant to Victorian State rules of court adding a cause of action which had been extinguished by a limitation provision contained in a Commonwealth statute - recognised that the basis of Proctor v Jetway was that the amendments in it were authorised by state legislation which supervened the earlier state limitation legislation, and did not suggest that in this respect Proctor v Jetway was other than correct. Thus in New South Wales - where formerly the Supreme Court Rules, which contained the authority for amendments introducing new causes of action despite the Limitation Act, were given statutory effect superseding prior enactments (which included the Limitation Act), and now the Civil Procedure Act contains similar authority - there is power to permit such an amendment.

51 The second element, and the one to which relation-back is relevant, is whether amendment to add the new cause of action would, despite power to permit it, be futile, because a limitation period could be pleaded in answer to the new cause of action. In Proctor v Jetway, Moffitt P (at 174-175) explained that such an amendment was not futile, because of the relation-back doctrine. In Fernance, Clarke JA explained that, notwithstanding the contrary suggestion of Brandon LJ in Liff v Peasley, there was a distinction, in the application of the relation-back doctrine, between amendments which added a party and those which added causes of action, in that it did not apply to the former, but it did to the latter. His Honour said: -

Baldry

Liff v Peasley

Ketteman v Hansel Properties Ltd

52 With great respect to Ormiston JA, I do not think that the “relation-back” principle can be dismissed as a mere “rule of practice reflecting a commonsense characterisation of what was in fact sought and done” as distinct from a rule or principle of law, as his Honour has suggested in Agtrack. The explanation of the principle, or the fundamental theory for which his Honour searched the authorities in vain, is that the relation-back doctrine is a manifestation of the general principle that, except insofar as the nature of the proceedings or the relief claimed requires attention to be given to the actual position of the parties at the time of judgment (such as, for example, the assessment of damages, and discretionary equitable remedies including injunctions), the rights and liabilities of parties are determined as at the date of the commencement of the proceedings, unless a statute changing the law expresses a clear contrary intention [Hutchinson v Jauncey [1950] 1 KB 574; Wilson v Dagnall [1972] 1 QB 509; Application Des Gaz SA v Falks Veritas Ltd [1974] Ch 381, 392, 399]. Relation-back recognises that a pleading speaks from the date it bears, and that an amendment speaks from the date of the original pleading that it amends, so as to state a claim for relief to which the party is entitled as at the date at which the rights and liabilities of the parties will be judged. This has important consequences: since a pleading must disclose a cause of action entitling the plaintiff to relief upon the date on which it is filed, amendments cannot add causes of action which accrue after only the date of the original pleading [Baldry v Jackson], absent statutory provision to the contrary [as to which see now Civil Procedure Act, s 64(3)].

53 But this does not avail the Plaintiffs here. First, attention has to be given to the relevant statute, which here is not the Limitation Act, but Luna Park Site Act, s 19A. As I have endeavoured to explain, unlike the Limitation Act, the operation of s 19A does not depend upon when proceedings were instituted, but on the emission of noise after its commencement, which it deprives of any remedy in civil, criminal or abatement proceedings. Secondly, even if that be wrong, and properly construed s 19A bars the institution of proceedings after, but not before, its commencement, it is a statute of specific application, and later in time than the Civil Procedure Act. The very basis for McGee and Proctor v Jetway – that the authority to permit amendment conferred by the later Act supervened the bar imposed by the earlier act – is absent in this case. Accordingly, even if the Negligence Claim “relates back” to the commencement of the proceedings, it is nonetheless a claim with respect to the emission of noise after the commencement of s 19A, for which there is no civil, criminal or other remedy and in respect of which proceedings may not be taken, and relation-back does not remove that characterisation from it.

54 Accordingly, I would hold that the Negligence Claim is not maintainable, by reason of s 19A(1), and therefore does not disclose a reasonable cause of action and ought to be struck out.

The Defendants’ particulars application

55 The defendants apply for an order that further particulars be provided of one aspect of the Misrepresentation Claim brought by the Fourth Plaintiff. The Fourth Plaintiff pleads that it has since January 2000 been the proprietor of 8 Glen Street, formerly a commercial building known as Yellow Pages House, which it has since completely refurbished into the Azure comprising 75 residential units and car parking spaces, of which it sold 35 between 6 June and 28 November 2002 for a total of $35,289,000, and a further 7 during 2003 for a total of $6,170,000. It alleges that it completed its refurbishment in October 2005, and has since been endeavouring (presumably unsuccessfully) to sell the remaining units [par 1.4].

56 The Fourth Plaintiff says [par 7.9] that it relied upon the misrepresentations said to be contained in the 2001 DA and Statement of Environmental Effect – to the effect that the area north of Coney Island would be used for children’s (as distinct from thrill) rides – by (a) proceeding with the commercial to residential conversion of its property; (b) marketing the apartments “off the plan”; (c) exchanging contracts for sale of apartments; and: -

(d) losing the opportunity to consider the impact on the saleability of apartments in the “Azure” that overlook Luna Park, with the operation of the “Ranger” and the “Spider” and other thrill rides in the area to the north of Coney Island and during the approved operating hours of Luna Park and determining whether to:

(i) seek amendments to the said development consent to accommodate and ameliorate these impacts to ensure residential amenity to and the saleability of these apartments; and/or

(ii) abandon the residential development and either seek amendments to the said development consent to refurbish “Yellow Pages House” as a commercial development or alternatively seek a fresh development consent for such a refurbishment; and/or
(iii) retain existing tenants and carry out no development works on “Yellow Pages House”.

57 The Fourth Plaintiff claims [par 7.10] that as a result of such reliance, it has suffered loss and damage and will continue to do so unless the defendants are restrained from operating the thrill rides north of Coney Island. The Fourth Plaintiff makes substantially similar claims in respect of the misrepresentations said to be contained in the 2002 DA and Statement of Environmental Effects [pars 9.1, 9.2, 10.6 and 10.7]. While what follows addresses the request for particulars of the allegations in 7.9 and 7.10, it applies equally to those in respect of 10.6 and 10.7].

58 By letter dated 23 December 2005, the defendants sought particulars of these allegations, and in particular

· the amendments referred to in 7.9(d)(i) which allegedly could or would have been made;

· the amendments and the fresh development consent referred to in 7.9(d)(ii) which allegedly could have been made;

· the existing tenancies referred to in 7.9(d)(iii) which allegedly could have been retained; and

· the loss and damage referred to in 7.10.

59 The Plaintiffs’ answer, in their solicitors’ letter of 8 February 2006 was, in substance, that the particulars requested of par 7.9 were matters for evidence, and that details of the loss and damage would be provided in due course. The Defendants’ solicitors responded, by letter dated 14 February 2006, acknowledging that they were not entitled to specification of the details of how each head of damage was calculated, but pressing for particularisation of the heads of damage claimed and the material facts supporting an award under each head; and pressing for an answer to the request for particulars in respect of par 7.9(d). On 21 February 2006, the Plaintiffs’ solicitors replied that the request was for “particulars of evidence”, which was said to be inappropriate, particularly when the Court had already made directions for the service of evidence.

60 The Defendants submit that the allegations in par 7.9 (and 10.8) remain inadequately particularised. They contend that they are entitled to particulars of the material facts which will enable them to understand what the Fourth Plaintiff says it could have done but was deprived of the opportunity of doing. The Plaintiffs respond that the general nature of their reliance is sufficiently identified, and the rest will emerge in the evidence, which the parties have been directed to serve.

61 The Fourth Plaintiff pleads reliance on the alleged misrepresentations, and asserts that by reason of that reliance, it has suffered (and will, unless the Defendants are restrained, continue to suffer) damage as a result. In a case under Trade Practices Act, ss 52, 82 and 87, a causal connection between the contravening conduct and the damage is fundamental [Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, [38]; [1998] HCA 69; (McHugh, Hayne and Callinan JJ); Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, 222 (French J); Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd and Others (1998) 157 ALR 135, 141 (Drummond J); Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223, [11] – [13] (Branson J)].

62 In many such cases, the causal connection between the conduct and the damage will be manifest and require little if any particularisation: for example, it will be readily apparent that reliance upon representations that the subject matter of a sale has characteristics or benefits which it does not in fact have will result in the purchaser paying more than it would otherwise have paid, and more than the true value of the subject matter [cf Gould v Vaggelas (1985) 157 CLR 215, 250-251 (Brennan J), 236, 238-239 (Wilson J). But the connection is not always so clearly apparent, and where the pleading fails sufficiently to disclose such a connection, it is liable to be struck out [see, for example, Kirela, [11] – [17] (Branson J)], or at the least further particulars may be ordered.

63 This is a case in which the connection is not immediately apparent. The Fourth Plaintiff does not allege that the apartments that were sold “off the plan” could have been sold for more, had the true facts been known. Apparently, though in a way which is not clearly articulated in the pleading, it contends that nonetheless, it might have been better off overall had it (1) redesigned the Azure refurbishment in a way which would minimise the impact of the thrill rides on the apartments, and/or (2) refurbished Yellow Pages House for commercial purposes, and/or (3) left Yellow Pages House as it was with existing tenancies. But to demonstrate a causal connection with damage would require significantly more than those bare allegations, since it does not follow from their establishment, let alone from their mere assertion, that any of them would in fact have resulted in a superior return to the Fourth Plaintiff than that which it will derive in the events that have happened. To particularise a case that the Fourth Plaintiff has suffered damage on this basis would require identification of how each of those alternative courses could have produced potential financial benefits greater than those that have flowed from the course which has in fact been adopted. Proof of such damage, ultimately, would require evidence – presumably from architects, quantity surveyors, property valuers, real estate agents and accountants - of the merits, feasibility, costs and prospective returns of the various options. The factual basis for that expert evidence will depend upon what amendments could or would have been made to the existing DA, what refurbishment for commercial purposes could or would have been undertaken, and the rent and terms of the existing tenancies.

64 The case so far particularised does not sufficiently disclose how damage is said to have been caused by the alleged contravening conduct. Nor should the Defendants reasonably be expected to be able to meet that case without being informed, at least in general terms, of the manner in and extent to which the Azure refurbishment might have been amended, the manner in and extent to which Yellow Pages House might have been refurbished for commercial use, and the rents and terms of the existing tenancies which might have been retained. Otherwise, the defendants are left to speculate what courses the Fourth Plaintiff might have adopted, and to prepare their case and instruct their experts without knowing what it is that they have to meet. It is not sufficient that the answer might emerge, in due course, in the Plaintiffs’ evidence; one of the functions of particulars is to define and confine the scope of relevant evidence. Moreover, in the relatively short timeframe available for preparation of this case for trial, and given the extent of expert evidence which it may be anticipated will be required on this issue, it is quite unsatisfactory that the Defendants be left in the dark as to the case they have to meet in this respect until the Plaintiffs’ evidence is served. It is not apparent that there is any reason why the Plaintiffs should not be able to identify those matters, at least in general terms, before their evidence is complete.

65 It follows that, in my opinion, the Plaintiffs should be required to provide the further particulars which have been sought of pars 7.9(d) and 10.6.

Conclusion and orders

66 On the Plaintiffs’ further amendment application, I do not accept the defendants’ submission that the injunctive relief to be claimed against Mr Hearne and Mr Doughty is doomed to failure. I would, therefore, make orders joining them as defendants, and granting leave to file the proposed fourth amended statement of claim, subject to variations to accommodate my conclusions on the strikeout application, and the insertion of “locating” in the injunction claimed in the Crown Lands Claim.

67 On the Defendants’ strikeout application, the Crown Lands Claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1). However, the Negligence Claim is not maintainable by reason of s 19A, and ought to be struck out.

68 On the Defendants’ particulars application, the Plaintiffs should be required to provide the further particulars which have been sought of pars 7.9(d) and 10.6 of the Claim.

69 As to costs, on these applications both sides have had some success and some failure, approximately equally. There should be no order as to costs.

70 My orders are:

1. Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28(a), that pars 12.1 – 13.1 and 16.1 – 16.3 of the Third Amended Statement of Claim be struck out.

2. Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 6.24, that Peter Hearne and Warwick Doughty be joined as Third and Fourth Defendants respectively.

3. Order that leave be granted to the Plaintiffs to further amend the Statement of Claim by filing, by 13 April 2006, a Fourth Amended Statement of Claim in the form of the draft Fourth Amended Statement of Claim, a copy of which is at Tab 10 of the Plaintiff’s Bundle, subject to: -

(a) the insertion in par 1 of the Relief Claimed, and in par 14.1, before the word “operating”, of the words “locating or”;

(b) the deletion of pars 12.1 – 13.1 and 16.1 – 16.3.
4. Order, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 15.10(1)(a), that by 13 April 2006 the Plaintiffs file particulars of the following matters stated in pars 7.9 and 10.6 of the Fourth Amended Statement of Claim: -

4.1 the amendments referred to in 7.9(d)(i) which it is alleged could or would have been made;

4.2 the amendments and the fresh development consent referred to in 7.9(d)(ii) which it is alleged could have been made;

4.3 the existing tenancies referred to in 7.9(d)(iii) which it is alleged could have been retained;
4.4 the opportunity referred to in 10.6(c), including what it is alleged the Fourth Plaintiff could or would have done had it had that opportunity.

5. No order as to costs, to the intent that each party bear its own costs of and incidental to the motion filed on 15 March 2006 and the proceedings on 20 March 2006.

71 Subject to any submissions which the parties may wish to make, I will make the following further directions: -

1. Direct that the Defendants file and serve their Defences to the Fourth Amended Statement of Claim by 27 April 2006.

2.1 by 4 May 2006, each party (Party A) give to the other (Party B) notice of those classes of documents relevant to facts in issue in the proceedings of which Party A seeks discovery;

3. Direct that the Plaintiffs may not at the hearing, without the leave of the Court, read any affidavit or tender any expert report which has not been served by 1 June 2006, other than any affidavit or expert report strictly in reply which has been served by 22 June 06.

4. Direct that the Defendants may not at the hearing, without the leave of the Court, read any affidavit or tender any expert report which has not been served by 15 June 2006.

5. Direct that by 22 June 2006, each party serve on the other and lodge with my associate a document listing the pleadings and affidavits to be relied upon by that party at the hearing, together with an indexed bundle of copies of such pleadings and affidavits.

6. Direct that by 29 June 2006, the parties lodge with my associate an agreed bundle of documents, indexed and paginated and arranged either chronologically or in some other logical manner, or to the extent that agreement cannot be reached, separate bundles of the documents proposed to be tendered by each party.

7. Direct that by 6 July 2006, each party serve on the other and lodge with my associate a case outline document which incorporates (1) a chronology, including the essential facts for which that party contends, referenced to the affidavit evidence; (2) a skeleton argument; (3) a list of authorities; and (4) notice of objections proposed to be taken to any affidavit to be relied upon by any other party, and any document proposed to be tendered by the other, stating the ground of each objection.

8. Note that no party objects to the trial judge reading the affidavit evidence in advance of the hearing, subject to notified objections to be ruled on at the hearing.

9. Confirm the fixture for five days commencing 17 July 2006.

10. Reserve liberty to all parties to apply by arrangement with my associate.

**********

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Citations

Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230

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CITATION:	Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230
HEARING DATE(S):	20 March 2006
JUDGMENT DATE :	6 April 2006
JUDGMENT OF:	Brereton J
DECISION:	Paragraphs 70 & 71.
CATCHWORDS:	PROCEDURE – Amendment – to introduce new, statute-barred cause of action – issues which arise on application for leave to amend – whether power to permit amendment – whether amendment futile - relation back of amendments – whether amendment which introduces new cause of action relates back – held, it does. PROCEDURE – Particulars – particulars relating to causation. TRADE PRACTICES – Remedies – Injunctions – Injunctions which affect party in respect of obligations to a third party – Whether court has power to grant injunction which requires party bound to exercise powers as a company director in a particular way – held, it does. WORDS AND PHRASES – “proceedings may not be taken”. WORDS AND PHRASES – “with respect to”.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 64, 65 Crown Lands Act 1989 (NSW), s 114 Family Law Act 1975 (Cth), s 114(3) Limitation Act 1969 (NSW) Luna Park Site Amendment (Noise Control) Act 2005 (NSW) Luna Park Site Amendment (Noise Control) Bill 2005 (NSW) Luna Park Site Act 1990 (NSW), s 19A, Sch 2 Pt 3 Supreme Court Act 1970 (NSW), s 6 Supreme Court Rules 1970 (NSW) Trade Practices Act 1974 (Cth), ss 52, 75B, 80, and 87 Uniform Civil Procedure Rules rr 6.24, 14.28(a), 15.10(1)(a)
CASES CITED:	Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63 Agtrack (NT) Pty Ltd v Hatfield (2005) 218 ALR 677 Air Link Pty Ltd v Paterson (2005) 218 ALR 700 Application Des Gaz SA v Falks Veritas Ltd [1974] Ch 381 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18 Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Ascot Investments Pty Limited v Harper (1981) 148 CLR 337 Baldry v Jackson [1976] 2 NSWLR 415 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 Boyce v Paddington Borough Council [1903] 1 Ch 109 Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd and Others (1998) 157 ALR 135 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Gould v Vaggelas (1985) 157 CLR 215 Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 29 ALR 597 Hutchinson v Jauncey [1950] 1 KB 574 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Janssen Pharmaceutical Limited v Pfizer Pty Ltd (1986) ATPR 40-654; 6 IPR 227 Ketteman v Hansel Properties Ltd [1987] AC 189 Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 Liff v Peasley [1980] 1 All ER 623 (CA); [1980] 1 WLR 781 McDowell v Baker (1979) 144 CLR 413 McGee v Yeomans [1977] 1 NSWLR 273 Maritime Services Board v Murray (1993) 52 IR 455; NSWCA, 22 December 1993 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 Morgan v Banning (1999) 20 WAR 474 O D Transport Pty Ltd v Western Australian Government Railways Commission (1987) 13 FCR 500 Osgaig Pty Ltd v Ajisen (Melbourne) Pty Ltd (2004) 213 ALR 153; [2004] FCA 1394 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 R v Dovey; Ex parte Ross (1979) 141 CLR 526 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Thomson Publications (Australia) Pty Limited v Trade Practices Commission (1979) 27 ALR 551; (1979) 17 ALR 551 Tiley & Tiley (1980) 6 Fam LR 528 Walker v Noosa Shire Council [1985] 1 QdR 387 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Wenham v General Credits Ltd (NSWSC, McLelland J, 16 December 1988, unreported), Wilson v Dagnall [1972] 1 QB 509
PARTIES:	Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hess (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) Robert Simkin (sixth plaintiff) Glen Federick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant)
FILE NUMBER(S):	SC 2267/05
COUNSEL:	T Alexis SC & P Sibtain (plaintiffs) G Parker SC & M Baird (defendants)
SOLICITORS:	Wise Legal (plaintiffs) Clayton Utz Lawyers (defendants)