The Warehouse Pty Ltd atf Warehouse Invest Trust v Valuer General

[2022] NSWLEC 84

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Warehouse Pty Ltd atf Warehouse Invest Trust v Valuer General [2022] NSWLEC 84
Hearing dates:	24 June 2022
Date of orders:	24 June 2022
Decision date:	24 June 2022
Jurisdiction:	Class 3
Before:	Duggan J
Decision:	See paragraphs 13 to 15
Catchwords:	PRACTICE AND PROCEDURE — application to vacate hearing dates by consent — case management directions not complied with — parties did not relist when slippage occurred — hearing dates vacated
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	The Warehouse Pty Ltd atf Warehouse Invest Trust (Applicant) Valuer General (Respondent)
Representation:	Counsel: L Waterson (Applicant) R White (Respondent) Solicitors: King & Wood Mallesons (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2021/67972, 2021/68066 and 2021/68103
Publication restriction:	No

EX TEMPORE Judgment

1. HER HONOUR: In this matter a hearing has been listed for five days commencing on 4 July 2022.  I fixed the matter for pre‑trial mention on 24 June 2022 to discuss with the parties the conduct of the hearing listed to commence on that day.  At no time prior to the listing by the Court for pre‑trial mention had either of the parties contacted the Court for the express purpose of advising the Court of any difficulty in relation to the matter proceeding to hearing, or any slippage in the timetable.

2. At the pre‑trial mention both parties indicated to the Court that it was their joint position that the matter was not ready for the hearing due to commence on the date allocated, and they jointly sought that the hearing date be vacated, and that further directions be made in relation to the filing of evidence and the preparation of the matter for hearing.  No Notice of Motion was filed, and I directed that the Applicant file such motion by 4pm today.  Notwithstanding the lack of the motion, I was prepared to proceed to hear the application, on the understanding that the motion would be filed.

3. An affidavit of Sasha Jane Lowes sworn 23 June 2022, being the solicitor with the day‑to‑day carriage of the matter for the Respondent, swore an affidavit outlining the progress of the matter towards hearing.  The affidavit was read.  In relation to the affidavit, what it discloses is that each of the directions that were made for the filing of evidence by short minutes of order made by consent on 7 April 2022; none of the directions have been complied with. 

4. The Court directed on 7 April 2022 that the planning experts were to provide their joint report by 11 March 2022.  They did not do so.  The joint report was served on 21 March 2022. Those short minutes provided that the Applicant was to serve its contamination report by 18 March 2022; it did not do so.  The Applicant's contamination report was served on 22 April 2022.  The short minutes directed that the Respondent was to serve his contamination report by 8 April 2022; he did not do so.  His contamination report was served on 17 May 2022. The short minutes also directed that the experts were to provide their joint report by 22 April 2022; they did not do so.  The contamination experts provided their joint report on 7 June 2022.

5. Subsequent to the filing of the contamination expert report, the Applicant served a further supplementary contamination report, which I am advised by the representative for the Applicant, is in effect evidence in reply that should have been included in the joint report.  The Applicant will seek to rely upon that joint report, and it now necessitates that the contamination experts further jointly confer, such that the material in the supplementary report can be included in their joint conferencing.

6. The short minutes of order also provided that individual valuation reports were to be served by 13 May 2022, and joint reports by 13 June 2022.  Neither of these directions have been complied with.

7. The state of non‑compliance with the directions in isolation, with the failure to re‑list, is a poor reflection on the litigants in this matter.  It is particularly poor when one considers the history of this matter.  The Court originally made directions for the filing and service of evidence on 12 November 2021.  None of those directions were met, and the parties moved, by consent, for those directions to be varied, which resulted in the short minutes of order of 8 March 2022 which were also not met and further short minutes made by this Court on 7 April 2022.  The presentation of this matter, as I said, reflects poorly on the representatives and the litigants in this matter.

8. The Land and Environment Court judges' list is at present listing matters for hearing with limited dates in 2022, but largely hearing dates being available in the later months of the first half of 2023.  This blow out in the listing, in my opinion, is due in part to the failure of parties to ensure that their experts comply with the directions for the filing of reports, with the consequence that matters, when the hearing dates arise, are not ready to be heard, and the hearing must be vacated.  If the parties do not – as they are obliged to under the practice direction – re‑list the matter to advise the Court of these slippages, the slippages are unable to be managed, either by rectification or by early vacation, such that the hearing dates can be allocated to other persons whose matters are ready for hearing.  As a consequence of late vacation of hearing dates, the dates are not able to be made available to others who would be grateful to take them.

9. It is unfortunate, as I observed, that neither party considered it appropriate in the circumstances of this case to re‑list the matter or raise with the Court the slippage in the preparation of this matter, until the Court of its own motion listed the matter for pre‑trial mention.  That being said, the Court is left with no alternative but to vacate the hearing date, in circumstances where both parties agree that the matter is not ready for hearing.  The only other alternative is for me to require the parties to utilise the hearing dates without the evidence, which would not be in the interests of justice in the circumstances of the case.

10. Accordingly, I find myself with no alternative but to accede to the extremely late request of the parties to vacate the five‑day hearing date listed to commence on 4 July 2022, and I so order.

11. It is also necessary for me to vary the short minutes of order that were made by this Court on 7 April 2022, as I observed, being the replacement directions that had originally been made on 12 November 2021; 8 March 2022; and 7 April 2022.  I have given the parties a more generous period than they requested, in light of the fact that they now find themselves at the back of the list for the purposes of obtaining a hearing date, and therefore there is a little more time for their experts to prepare for a hearing.

12. There is also sufficient time for the parties to engage in further formal discussions by way of a further s 34 conference with the Commissioner of this Court, and I will also direct, with the parties' consent, that the matter be listed for a s 34 conference.

13. The directions that I make are:

1. The contamination experts are to further jointly confer upon the Applicant's supplementary joint contamination report, and to provide a further joint report by 8 July 2022;

2. Vacate direction 6 and 7 of the short minutes of order of 7 April 2022, and in lieu thereof I direct that by 5 August 2022 the individual expert valuation reports are to be served;

3. Direct that by 2 September 2022 the expert valuers are to confer in accordance with the requirements of div 2 of pt 31 of the Uniform Civil Procedure Rules 2005 (NSW) and the expert witness code of conduct in sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) and are to file and serve their joint report;

4. Direct that the matter be listed for a s 34 conference before a Commissioner of this Court on a date not before 30 September 2022;

5. Direct the parties to approach the registrar by online communication on or before 30 June 2022, to obtain such date; and

6. Direct that the matter be listed for mention seven days after the conclusion of such s 34 conference.

14. I remind the parties that this is, once again, directions made by the Court.  The experts should be reminded that they have an obligation to use their best endeavours to comply with the directions made by the Court, and that the representatives of the parties have an obligation in the event of slippage to re‑list the matter as soon as possible, to bring such slippage to the Court's attention.

15. In light of the history of this matter, I am also going to note on the Court's file that this matter should not be allocated a hearing date unless and until all of the directions that I have made today have been complied with.

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Decision last updated: 08 July 2022