Sydney Water Corporation v Jeffman Pty Ltd

[2010] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:

Sydney Water Corporation v Jeffman Pty Ltd [2010] NSWLEC 132

PARTIES:

FIRST APPLICANT:
Sydney Water Corporation

SECOND APPLICANT:
Peter David Porter Lewis

THIRD APPLICANT:
Douglas Leslie Hutchinson

FOURTH APPLICANT:
Hilary Catherine Hutchinson

FIRST RESPONDENT:
Jeffman Pty Ltd

SECOND RESPONDENT:
Lawrence Dry Cleaners Pty Ltd

FILE NUMBER(S):

40820 of 2009; 40266 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- stay of proceedings.

LEGISLATION CITED:

Protection of the Environment Operations Act 1997

DATES OF HEARING:

25 June 2010

EX TEMPORE JUDGMENT DATE:

25 June 2010

LEGAL REPRESENTATIVES:

FIRST APPLICANT:
Mr S Finch SC with Mr C Withers
SOLICITORS:
Clayton Utz

SECOND APPLICANT:
Mr A Batterby (solicitor)
SOLICITORS:
Adrian Batterby

THIRD & FOURTH APPLICANTS:
Mr T Howard (barrister)
SOLICITORS:
Philip Goldman & Co

RESPONDENTS:
Mr P Tomasetti SC
SOLICITORS:
Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

25 June 2010

40820 of 2009

SYDNEY WATER CORPORATION & ANOR v JEFFMAN PTY LIMITED & ANOR

40266 of 2010

SYDNEY WATER CORPORATION & ANOR v JEFFMAN PTY LIMITED & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: On the applicants’ motion, the parties seek consent orders that proceedings 40266 of 2010 (“the common law proceedings”) and proceedings 40820 of 2009 (“the Class 4 proceedings”) be stayed pending determination of proceedings 10446 of 2010 commenced on 16 June 2010 (“the Class 1 proceedings”).

2 In 2009 the common law proceedings were commenced in the Supreme Court and the Class 4 proceedings were commenced in this Court by the same applicants against the same respondents. The common law proceedings were transferred to this Court earlier this year.

3 In the common law proceedings the applicants claim damages and injunctive relief for nuisance arising from the escape of contaminants from premises owned by the first respondent and occupied and conducted by the second respondent as a dry cleaning business. The applicants own neighbouring land.

4 The Class 4 proceedings arise from the same factual background and seek declarations that the respondents have contravened the Protection of the Environment Operations Act 1997 and that the contraventions have caused damage to the applicants’ land, injunctions restraining the respondents from continuing to contravene the Act and requiring them to remediate the contamination, and damages.

5 A notice of motion by the respondents to strike out the Class 4 proceedings is listed for hearing on 6 July 2010.

6 The recently commenced Class 1 proceedings are brought by the respondents in the other two proceedings against the Environment Protection Authority, and seek a modification of a management order issued by the Authority on 3 June 2010 requiring them to take certain action in relation to the contamination. The issue in the Class 1 proceedings is whether the method required by the Authority is appropriate for remediation or whether some other method is more appropriate. If this Court were to grant the modification sought in the Class 1 proceedings, it appears (and this seems to be common ground) that would have a large impact upon the other two proceedings and be capable of resolving them, if not in whole then in substantial part.

7 That conclusion is assisted by admissions made by the respondents in the common law and Class 4 proceedings in the context of the parties’ agreement that there should be a stay, as recorded in the parties’ proposed short minutes of order. They record that the applicants in the common law and Class 4 proceedings be joined as parties to the Class 1 proceedings, that the Class 1 proceedings be prosecuted expeditiously, and that in the common law and Class 4 proceedings the respondents admit that ground water contaminated with certain ingredients has migrated from the land owned by the first respondent and occupied by the second respondent to land occupied or owned by the applicants.

8 In the circumstances, I consider that it is appropriate to stay the common law proceedings and the Class 4 proceedings pending determination of, and judgment in, the Class 1 proceedings; and consequently to vacate the hearing of the strike out motion in the Class 4 proceedings.

9 By consent, I make orders in accordance with the short minutes of order which I will date 25 June 2010, initial and place with the papers.