Tweed Shire Council v Reysson Pty Ltd

[2017] NSWLEC 157

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tweed Shire Council v Reysson Pty Ltd [2017] NSWLEC 157
Hearing dates:	17 November 2017
Date of orders:	17 November 2017
Decision date:	17 November 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	Some amendments to Points of Defence permitted
Catchwords:	AMENDMENT APPLICATION - application to amend defence after hearing commences - proposed amendments recast basis of defence - most of the proposed amendments responsive to opening of case by Applicant - no prejudice to the Applicant if responsive amendments permitted and adjournment and costs awarded - responsive amendments allowed - additional amendment seeking to raise matters not within scope of present pleadings rejected - additional amendment seeking to raise common law matter rejected
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58 and 64 Noxious Weeds Act 1993
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Queensland v JL Holdings (1997) 189CLR 146
Category:	Procedural and other rulings
Parties:	Tweed Shire Council (Applicant) Reysson Pty Ltd (Respondent/Applicant to Amend)
Representation:	Counsel: Mr J Lazarus and Ms J Walker, barristers (Applicant) Mr T Robertson QC/Mr C Norton, barrister (Respondent/Applicant to Amend)   Solicitors: Maddocks (Applicant) Woolf & Associates (Respondent/Applicant to Amend)
File Number(s):	235173 of 2016
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: Today is the eighth day of this scheduled eight-day hearing. Apart from the evidence given informally during the course of the site inspection on the second day of the hearing and one witness interposed (for less than one hour) to give telephone evidence from a remote location, there has been no expert or lay evidence yet given.

2. On day six of the hearing, Reysson Pty Ltd (the Company), through Mr Robertson SC, its counsel, foreshadowed an application to seek to rely on a Third Further Amended Points of Defence. A copy of that proposed document (in a perhaps somewhat informal and unformatted layout) was provided to me and to Mr Lazarus, counsel for the Council, at a time shortly before lunch on the sixth day of the hearing.

3. The argument about the question of whether or not I should grant leave to amend was concluded at approximately 3.30 on the afternoon of the seventh day. It now comes to me to determine whether, and if so, to what extent, leave to amend should be granted to the Company.

4. It is appropriate, briefly, to outline the nature of the proceedings. They concern land at Soorley Street, Tweed Heads South and comprise parcels of land that lie side by side (but separated by a drainage reserve) - comprising Lots 2 and 4 (but in different Deposited Plans).

5. Questions that arise for determination in the proceedings as presently pleaded are, at a very superficial level, simple questions concerning land clearing on Lot 2 in recent years. However, underlying this comparatively simple proposition are, in my assessment and on the state of the material as put to me in opening by counsel for the Council and for the Company, complex planning issues arising from the interaction of several local environmental plans applying to the land; characterisation of uses of the land; and the nature, purpose and extent of clearing.

6. There are potentially questions concerning the drainage structures built by the Council, partially (but not entirely) on drainage reserves and partially on the Company's land, and expert issues on the nature and extent of the vegetation typology.

7. Assessing the question of whether or not leave to amend should be granted requires me to weigh a number of matters:

1. The lateness of the application to amend (in the overall sense of the timing since the commencement of the proceedings); and

2. More specifically, the progress of the hearing;

3. The provisions of the Civil Procedure Act 2005 (the Act);

4. Questions of efficiency of the Court's time, including the fact, if I am to grant leave to amend in any substantiative fashion (because there are also a number of what one can only describe as minor tidying-up amendments which are not opposed and will be permitted), that the case is not likely to resume before the middle of April 2018; and

5. Finally, that the Council may need to recast its case significantly and seek and proof further additional expert and/or lay evidence.

8. On the other hand, against the proposition that leave should be refused, there is a matter arising out of the model litigant provisions (which I accept that are provisions that do not expressly bind the Applicant but are nonetheless ones to which it is commonly considered that local government authorities should have regard to and accept an obligation) - namely, the attention that is drawn in those provisions to obligations under s 56 of the Act to address all the issues genuinely in dispute between the parties.

9. Second, there is no prejudice to the Applicant, as a statutory entity, if the adjournment was to be permitted to allow the amended pleadings to be addressed. Despite the fact that the land is zoned, in the bushfire mapping, as being bushfire-prone land, and that it carries a significant ground fuel load at the present time (as could be observed during the course of the site inspection), the parties accept that there is no bushfire risk that is not able to be managed cooperatively by the parties.

10. On the documents to which I have been taken by Mr Robertson, some aspects, if permitted to be amended, are not obviously hopelessly unarguable. Finally, the Company's position is that there is no reason why an adjournment and costs could not be the appropriate cure, despite the lateness of the application.

11. I turn first to matters arising from the Act. First, there is no doubt that s 64 of the Act permits me to grant leave to amend in the fashion sought, whether in whole or in part, even at this stage in the proceedings.

12. Second, s 58 of the Act, when dealing with the question of any order for amendment and any adjournment that might flow from that amendment, I must seek, amongst other things, to act in accordance with the dictates of justice. In that respect, the overriding purpose of the Act in dealing with civil proceedings is set out in s 56(1), that is, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings.

13. In dealing with that, I am also required to have regard, pursuant to s 57 of the Act, to a number of matters, they being in s 57(1):

• First, the just determination of the proceedings;

• Second, the efficient disposal of the business of the Court;

• Third, the efficient use of available judicial and administrative resources; and

• Finally, the timely disposal of the proceedings at a cost affordable by the respective parties.

14. In these circumstances, it seems to me that there is an element of tension arising out of the proposed amendments as to the just determination of the proceedings and the efficient disposal of the business of the Court and the other objectives attendant upon that. That arises because the nature of the matters that are now sought to be pleaded by the Company, at least in large measure, arise on my assessment out of the somewhat tortured way the pleadings in these proceedings have evolved since the proceedings were commenced.

15. I do not need to traverse a great deal of those proceedings but it is fair to say that both parties' positions have evolved considerably since the Summons commencing the proceedings was first filed. I need return in my judicial Tardis merely to 27 July 2017 when there was a Notice to Produce to the Court (which is Exhibit A on the application to amend), which was filed on behalf of the Council. It sought production of a number of documents and, it is my understanding, that those documents were, with reasonable, if not perfect, expedition, produced and made available to the Council and its legal advisers.

16. On the first day of the hearing, Mr Lazarus sought to tender a supplementary bundle of material. It contained a significant number of tabs and a large number of documents. Objection was taken to the tender and it was not at that time admitted and it was deferred for ruling as to whether all or any of it should be admitted as evidence. The bundle was marked MFI-A.

17. At page 22 of the transcript, line 45 to page 23, line 9, I raised with Mr Lazarus the question of why the material was being provided late, and he said:

That is a fair question. The answer is simply that it is only during the course of last week when I was reviewing the material that this question arose and I would have to be frank with the Court in explaining that there's no why this material couldn't have been brought forward in accordance with the court orders some two weeks earlier.

18. Later in the hearing, when dealing with MFI-A, at page 132, lines 18 to 32 of the transcript, Mr Lazarus returned, in his Tardis, to 2015 to deal with matters that related to, "The works the Respondent claims were weed control works carried out between November 2015 and about October 2016." Mr Lazarus said that it was not accepted by the Applicant that the programme of works, effectively implementing the clearing processes that are the subject of the litigation, was not for the purposes of weed control.

19. During the course of the site visit on the second day, I indicated to the parties, it having seemed to me that there was some possibility that either or both of them might seek to propose amendments to the pleadings, that that should be done expeditiously.

20. On the following day, 10 November 2017, at page 88 of the transcript at lines 10 to 22, I reminded the parties, on the record, that, "If either of you is proposing to seek to amend pleadings, the sooner that's done the better," and both Mr Robertson and Mr Lazarus indicated that they understood that.

21. When Mr Lazarus indicated he would consider whether that is necessary or not, I indicated that if there was to be any argument by either of the parties about the other party's proposed amendments to the pleas, the sooner that was dealt with, the better.

22. On 14 November 2017, at page 186, I made further observations indicating that amendments, if to be proposed, should be done with a degree of celerity. I repeated those observations at page 229 of the transcript.

23. One of the complaints that is made by Mr Lazarus about the possibility of me permitting amendment is that the Council has made - or its legal advisers have made - a series of forensic decisions in reliance on the pleadings as they presently stand, that being observed by him on pages - amongst other places - 317, 328 and 331 of the transcript.

24. The fact that forensic decisions have been made on the state of the pleadings, as they presently stand, does not seem to me to provide a bar, provided the “therapeutic salve of time” is applied to permit those to be addressed.

25. More substantively, it seems to me, that the matter that arises as a first and major hurdle to permitting leave to amend is the question of delay. Mr Lazarus addressed that on day seven, that is yesterday, at page 319 of the transcript, lines 8 to 11, where he said:

The delay in this case, your Honour, in only bringing an amendment application on day 6 or 7 of a trial is entirely due to the respondent. My friend did not even proffer a single work explaining the delay. There is no affidavit. There is nothing even by way of evidence from my friend at the bar table.

26. At page 341 of the transcript, Mr Robertson, commencing at line 22 on that page to page 342 at line 5, addressed that proposition. I do not propose to read the entirety of what he said. I think it may well be summarised, both colloquially and functionally, by saying that it is in response to, at least in significant part, the delay in putting all the material contained in MFI-A - that is, material which (apart from some matters that are the subject of an objection concerning the status of orders in an earlier court proceeding) go significantly to the question of the nature of the weeding activities or the clearing activities that were undertaken on the land by the Company. It is, to some extent, a “pot calling the kettle black” submission on the point of delay.

27. I am satisfied that a good deal of that which is proposed in the amendments is responsive to the material that is sought to be relied upon by the Applicant in MFI-A. To the extent that it is, and if, as I intend to do, I permit amendment in some regards, including matters relating to the weed control legislation, it seems to me that, as a preliminary view, that also resolves objections to the admission of that material, although that will be a matter for further discussion when it comes to the question of admission of that material in a formal sense.

28. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, at [95] to [99], the plurality set out matters that need to be considered and made it clear that the prior position that had arisen out of Queensland v JL Holdings (1997) 189CLR 146 - that, ordinarily, there would be an expectation that amendments would be permitted and the remedy or cure of costs and/or adjournment would be appropriate - was no longer the automatic position.

29. Although, obviously, the fact that there is no longer the automatic presumption of an entitlement to amend subject to that cure, I am satisfied in these proceedings that, in order to address all of the matters that are the real issues in dispute between the parties, and because there is no functional prejudice either to the Applicant or to the community, it is appropriate to permit some of the amendments (but not all of them).

30. I propose now to go through the proposed Third Further Amended Points of Defence and indicate that which I propose to accept.

31. On page 2 of the document, at g(a), I am satisfied that (i) should be permitted (as it relies on matters that are presently relating to what are described as existing structures on the site), but I am not satisfied that (ii) should be permitted to be pleaded - as it seems to me that it raises, potentially, a significant and entirely new existing use right argument that has not been in any fashion, I am satisfied, dealt with prior to the present time.

32. There then follow a number of what might be regarded as procedural minor amendments before turning to what is put as i(a), (b), (c) and (d). All of these relate to what are now proposed to be pleaded by the Company as weed control activities, pleaded in varying different fashions and giving rise to matters of statutory construction and statutory interaction concerning the legislation dealing with the removal of noxious weeds under the Noxious Weeds Act 1993, the effect of weed control orders made under that Act and how they interact with planning legislation in the state.

33. Although it is said that that may merely be regarded in the Company's view as a repleading of something already in issue, I am not satisfied that that is the case. It seems to me that, to the extent that these proposed pleadings arise out of, and in response to, matters said by Mr Lazarus in opening or further consideration by the Company of documents proposed to be relied upon by the Applicant in MFI-A, they do give rise to important matters genuinely in dispute between the parties and that they ought to be permitted to be pleaded.

34. With respect to that which is contained in the proposed response to paragraph 11AA of the Points of Claim, an amendment appearing on page 5 of the proposed Third Further Amended Points of Defence provided to me, I am satisfied that they repeat, in the context of the general planning framework, matters that had been for the most part pleaded earlier concerning matters that had been raised by the Applicant (but now abandoned) concerning a Tree Preservation Order applying in the Council's local government area. Those matters do not constitute matters about which the Council had not had notice and that they ought be permitted to be pleaded.

35. There are then some uncontentious alterations by deleting unnecessary words on pages 5 and 6.

36. I turn finally to the matter proposed to be pleaded in the response to matters of discretion raised in proposed (f) on page 7. It is a proposed amendment that seeks to insert the following:

(f)   no undertaking by Council has been given that before restoration works commence its existing nuisances on the land including the drainage of polluted stormwater on to the land and the maintenance of stormwater channels on the land are removed.

37. In the transcript, at page 331 at lines 4 to 22, Mr Lazarus raised an objection to the permitting of this amendment as an expressed objection rather than merely an objection of generality. Mr Robertson responded to that and I had a later exchange with him on this point (that is recorded at page 338 of the transcript, line 23 to page 340, line 16). Despite Mr Robertson's submission to me, a valiant one under the circumstances, that the use of the word "nuisances" did not engage any questions of legal status of structures and the like of prior activities of the Council, and was merely an infelicitous choice of some more general descriptive wording that might have been (or indeed might still be) substituted in lieu thereof, I am not satisfied that that is the proposition.

38. As observed during the course of the hearing, if the question of nuisances was going to be agitated, it almost certainly should have commenced to be agitated in a different forum and, if necessary, transferred to this Court to run in conjunction with these proceedings. That is not proposed. It is clearly far too late to indulge in such a process and I do not propose to permit that amendment.

39. It therefore follows that, to the extent that I have been through the proposed Third Further Amendment Points of Defence, I propose to allow the amendments in the fashion that I have outlined.

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Decision last updated: 27 November 2017