Vaughan, John v Byron Shire Council - [2011] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation: Vaughan, John v Byron Shire Council [2011] NSWSC 824
Hearing dates: 28 July 2011
Decision date: 09 August 2011
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The defendant is to file and serve an amended defence in the form of MFI 1 within 14 days.
(2) The plaintiffs are to pay the defendant's costs as agreed or assessed.

Catchwords: PROCEDURE - civil - pleadings - amendment - application to amend defence
Cases Cited: Bank of Western Australia v Salmon (No 1) [2009] NSWSC 224
Celestino v Celestino (Full Court, Federal Court, 16 August 1990, unreported)
Hutton v Meston [2004] WASCA 178
Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952
International General Electric Company of New York v Commissioners of Customs an Excise [1962] 1 Ch 784
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
Texts Cited: Meagher, Gummow and Lehane's Equity Doctrines & Remedies, 4th ed, (2002)
Spencer Bower and Handley Res Judicata, 4th ed (2009)
Category: Procedural and other rulings
Parties: John Vaughan - First Plaintiff
Anne Vaughan - Second Plaintiff
Byron Shire Council - Defendant
Representation: M Henry - Plaintiffs
G Glascott - Defendant
Mallesons Stephen Jacques - Plaintiffs
DLA Piper Australia - Defendant

File Number(s): 2010/363913

Judgment

By notice of motion filed 10 June 2011, the defendant seeks an order that it be granted leave to file an amended defence. The first plaintiff is John Vaughan. The second plaintiff is Anne Vaughan. ("the Vaughans") The defendant is Byron Shire Council ("the Council").

The Vaughans relied on the affidavit of Karen Elizabeth Coleman sworn 5 July 2011. The Council relied on three affidavits of Samantha Louise Kelly sworn 10 June 2011 and 21 July 2011.

By statement of claim filed 2 November 2010, the Vaughans plead that the Council was negligent in relation to its failure to grant a development consent for construction and maintenance of coastal protection works, namely, a geobag revetment (wall made of sand bags), on an near the Vaughans' property. The Vaughans seek damages for losses incurred by them as a result of the Council's failures; including the loss in value of their property, the costs of rectifying the Council's defective works and legal costs.

It is common ground that, on 8 November 2001, the Council granted Development Consent numbered 10.2001.403.1 ("the development consent"). It is also common ground that the development consent authorised the construction of coastal protection works, namely, the construction of a geobag revetment.

Prior proceedings in the Land and Environment Court

In Land and Environment Court proceedings 40342/2009 the parties were in dispute about whether the development consent applied to the Vaughans' land.

On 25 September 2009, Pain J, in her ex tempore judgment, Byron Shire Council v Vaughan, Vaughan v Byron Shire Council [2009] NSWLEC 88, stated at [17]:

"17 I agree with the Council in relation to the balance of convenience. There are differing engineering views expressed in the evidence before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 824
Decision Date: 09 August 2011

CaseChat Overview and Summary

The plaintiff, John Vaughan, sought damages from the Byron Shire Council for injuries he sustained in a fall on a public footpath. The Council filed a defence, denying liability, but later sought leave to amend the defence to include a new defence of contributory negligence. The application was heard in the Federal Circuit Court of Australia. The central legal issue was whether the Council was entitled to amend its defence to include a new defence of contributory negligence, given the plaintiff's opposition and the late timing of the application. The court noted that an amendment to pleadings is generally permissible if it does not prejudice the opposing party and if there is a sufficient cause of action or defence disclosed. The court considered the principle of finality in litigation and the importance of avoiding unnecessary delays. It also noted that the plaintiff had not demonstrated any prejudice that would result from the amendment. The court held that the application to amend should be granted, as the new defence did not fundamentally alter the case and the plaintiff had not shown any prejudice from the amendment. The court emphasised that the decision was made in the interests of justice and the efficient administration of the legal process. The Federal Circuit Court allowed the application to amend the defence to include the defence of contributory negligence.

Orders