Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3)

Case •

[2020] NSWLEC 40

•

27 April 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40
Hearing dates: 22 April 2020
Date of orders: 27 April 2020
Decision date: 27 April 2020
Jurisdiction:Class 4
Before: Pepper J
Decision:

See orders at [32].

Catchwords: EVIDENCE: Verde Terra parties object to affidavits, including expert evidence, filed and served by Central Coast Council after hearing adjourned part-heard – whether late affidavits fell within the scope of an order permitting further evidence to be filed by the Council “in response to” affidavits filed by Verde Terra parties - whether in the alternative leave ought to be granted to the Council to rely on the affidavits – whether leave would cause forensic disadvantage to Verde Terra parties – whether leave would cause further expense and necessitate additional hearing time - objection upheld, leave denied.
Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60
Uniform Civil Procedure Rules 2005, rr 31.19, 59.10
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341; (2017) 96 NSWLR 587
Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10
Category:Procedural and other rulings
Parties:

Proceedings 2019/101279
Verde Terra Pty Ltd (Applicant/First Cross Respondent)
Central Coast Council (Respondent/Cross Claimant)
Environment Protection Authority (Second Respondent)
Mangrove Mountain Landfill Pty Ltd (Second Cross Respondent)
Mangrove Properties (NSW) Pty Ltd (Third Cross Respondent)

  Proceedings 2019/203552
Central Coast Council (Applicant)
Verde Terra Pty Ltd (First Respondent)
Environment Protection Authority (Second Respondent)
Representation:

Counsel:

 

Proceedings 2019/101279
P Larkin SC with G Tsang (Applicant)
T Howard SC with M Astill (Respondent/Cross Applicant)
P Larkin SC with G Tsang (First, Second and Third Cross Respondents)
N/A (Second Respondent)

 

Proceedings 2019/203552
T Howard SC with M Astill (Applicant)
P Larkin SC with G Tsang (First Respondent)
N/A (Second Respondent)

 

Solicitors:

 

Proceedings 2019/101279
Ashurst (Applicant/First, Second and Third Cross Respondents)
MBM Legal (Respondent/Cross Applicant)
N/A (Second Respondent)

  Proceedings 2019/203552
MBM Legal (Applicant)
Ashurst (First Respondent)
N/A (Second Respondent)
File Number(s): 2019/101279 and 2019/203552

Judgment

The Verde Terra Parties Object to the Filing of Further Affidavits by the Council

  1. The background to this long running and complex matter, and to this voir dire, is set out in Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10 (at [1]-[54]). It is relied upon without repetition. To the extent that it is convenient to do so, the same abbreviations are used in this judgment as are used in Verde Terra (No 2).

  2. The proceedings are part-heard, having been adjourned on 6 December 2019 after 15 hearing days. On that day, by consent, the matter was listed to resume for a further 11 days on 14 April 2020. Orders 3, 4, 5 and 6 of the timetabling orders made that day provided as follows (“the December 2019 orders”):

3.   Pursuant to Uniform Civil Procedure Rules 2005 (UCPR) r 31.19, Verde Terra Pty Ltd, Mangrove Mountain Landfill Pty Ltd and Mangrove Properties (NSW) Pty Ltd (Verde Terra Parties) are granted leave to file and serve on or before 3 February 2020 evidence of the costs associated with remediation including exhumation, transport, and disposal at a licensed facility of waste from the subject site (QS evidence).

4. Pursuant to UCPR r 31.19, the Verde Terra Parties are granted leave to file and serve on or before 3 February 2020, evidence of the financial expenditure incurred, and likely to be incurred, in relation to the subject site since the making of the Court’s orders on 29 August 2014 in proceedings 40900 of 2012 (forensic accounting evidence).

5.   The Verde Terra Parties are granted leave to file and serve lay evidence on or before 29 January 2020, of:

(a)   the facts, matters and circumstances relied upon by the third cross-respondent in deciding to purchase, and deciding to proceed with the purchase of, the subject site by Mangrove Properties (NSW) Pty Ltd; and

(b)   the financial expenditure incurred in relation to the subject site since the making of the Court’s orders on 29 August 2014 in proceedings 40900 of 2012.

6.   The Central Coast Council (Council) is to file and serve all affidavits responsive to the evidence filed by the Verde Terra Parties referred to above in orders 3, 4 and 5 on or before 13 March 2020.

  1. Due, however, to the Court’s inability to run a virtual hearing as necessitated by the Covid-19 pandemic, especially where multiple witnesses are required for cross-examination (including to give concurrent expert evidence), those hearing dates were vacated on 6 April 2020.

  2. On 16 April 2020, the matter was listed to resume on 12 October 2020 for four weeks. The listing was made on the assumption that the Court’s inadequate virtual courtroom resources will have by that time improved, or failing this, that the parties will be able to agree on and provide their own technological solution to enable the hearing to be completed this year.

  3. When the matter came before the Court on 16 April 2020, the Court was informed by the Verde Terra parties that pursuant to order 5 of the December 2019 orders, it would be seeking to rely upon three additional lay witnesses. No expert forensic accounting evidence was sought to be relied upon pursuant to order 4.

  4. By contrast, the Court was relevantly informed by the Council that eight additional affidavits, including from an expert forensic accountant and an expert hydrogeologist, were filed in response and are sought to be relied upon by it at the resumed hearing, ostensibly pursuant to order 6 of the December 2019 orders.

  5. Accordingly, the hearing time was increased from 11 to 20 days out of an abundance of caution to ensure that the matter was completed this year. Orders were also made permitting the Verde Terra parties to challenge the Council’s reliance on any or all of the proposed further eight witnesses. If these challenges are successful, it is almost certain that the hearing time presently allocated to conclude the matter will be reduced by at least five days.

  6. This judgment concerns that challenge. The affidavits sought to be relied upon by the Council and objected to by the Verde Terra parties are as follows (“the further affidavits”):

No.

Document

Description

1.

1. Affidavit of Timothy Wilkinson affirmed 19 March 2020 and the Wilkinson Report (Exhibit TW1 dated 28 May 2019).

Expert hydrogeologist

2.

Affidavit of Scott Cox sworn 20 March 2020

Council planner

3.

Affidavit of Algis Sutas sworn 23 March 2020

Natural Resources

Access Regulator

4.

Affidavit of John Edye affirmed 11 March 2020

Local residents

(Resident Affidavits)

5.

Affidavit of Stephen Rickards affirmed 10 March 2020

6.

Affidavit of Frances Muggleton affirmed 10 March 2020

7.

Affidavit of Jean Macleod affirmed 9 March 2020

8.

Report of Mr Nicholas Gaudion dated 20 March 2020

Forensic accountant

  1. The Council submitted that the further affidavits fell within the purview of order 6 of the December 2019 orders. In the alternative, it argued that leave ought to be given to it to rely upon the affidavits in any event. Both contentions were stridently resisted by the Verde Terra parties.

  2. During the course of the hearing, the parties were able to resolve the dispute insofar as the evidence of the forensic accounting expert, Mr Nicholas Gaudion, was concerned by, upon the Court determining that this course was appropriate pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (“UCPR”), agreeing to the filing of Mr Gaudion’s report, provided that leave was given to the Verde Terra parties to rely upon a reply report from Dr Rodney Ferrier. Joint conferencing between the expert forensic accountants is to occur prior to the matter resuming, but not until a dispute concerning the scope of various subpoenas and notices to produce seeking the production of various financial communications is dealt with.

  3. In my opinion, the Council ought not, save for three paragraphs of one affidavit, be permitted to rely upon the further affidavits. Not only do they largely not fall within the intended purview of order 6 of the December 2019 orders because they are not in response to the three lay affidavits served by the Verde Terra parties, to allow reliance on this evidence would cause the Verde Terra parties forensic disadvantage, would in all likelihood necessitate the need for further evidence to be called by the Verde Terra parties, and would result in additional time and cost to the parties. In short, the further affidavits is evidence that the Council ought to have filed and served prior to the start of the hearing and it ought not be permitted to do so now at this late stage. My reasons for this conclusion are set out below.

The Further Lay Evidence of the Verde Terra Parties

  1. The lay evidence served by the Verde Terra parties in response to order 5 of the December 2019 orders is relevant to the issues for determination in the proceedings, especially that of discretion. It may be summarised as follows:

  1. an affidavit of Mr Damien Ryan, affirmed 6 February 2020 (he was sole director and secretary of some of the Verde Terra parties from about March 2014 to October 2017). Mr Ryan deposed to the decision-making surrounding the purchase of the site the subject of the proceedings and the expenses related to the implementation of the 2014 consent orders and the operation of the landfill;

  2. an affidavit of Mr Tony Tartak, sworn 7 February 2020 (an owner in the Verde Terra parties at the relevant time). Mr Tartak deposed to the purchase of Verde Terra Pty Ltd (“Verde Terra”), the risks associated with the 2012 proceedings and the making of the 2014 consent orders, the decision to purchase the subject site, and the expenses associated with complying with the 2014 consent orders and landfill operations, including the loans from various family members and discretionary trust distributions that were advanced for these purposes. Mr Tartak also gave evidence to the effect that at the time of purchase of the subject site, the Council was observed tipping waste on the land; and

  3. an affidavit of Mrs Mary Tartak, sworn 7 February 2020 (Mr Tartak’s wife and an investor in the Verde Terra parties at the relevant time). Mrs Tartak also deposed to the various loans made to the Verde Terra parties.

The Council’s Further Affidavits

  1. The evidence in order 6 of the December 2019 orders purportedly “responsive to the evidence filed by the Verde Terra Parties referred to” in order 5 of those orders filed by the Council may be summarised in the following way:

  1. an affidavit of Mr Timothy Wilkinson, a hydrogeologist, attaching an expert report prepared by him dated 28 May 2019 (that is, more than five months prior to the commencement of the hearing on 18 November 2019). The report concludes that the landfill is within a groundwater recharge area, that the excavated cells intersect with a groundwater aquifer, and that hydrogeological and groundwater impact assessments must be undertaken before the Council grants any further development consent;

  2. an affidavit of Mr Algis Sutas, a Compliance Officer with the Natural Resources Regulator. Mr Sutas asserts that the works contemplated in the 2014 consent orders would have required various approvals and licences under the Water Management Act 2000 and that in 2011, the NSW Office of Water rejected an application for an approval lodged by Verde Terra;

  3. an affidavit of Mr Scott Cox, the Director of Environment and Planning at the Council. His evidence deals with three discrete topics:

  1. first, at paragraphs 1-30, he deposes to becoming aware in 2016 of significant community concern in respect of the waste facility at the subject site and the need for the Council to re-examine its operation. He states that he could not understand why the former Gosford City Council had resolved the 2012 proceedings and agreed to the making of the 2014 consent orders. Subsequently, that he came to the view in 2016 and 2017 that the waste disposal activities contemplated by the 2014 consent orders, including as proposed to be varied by the Verde Terra parties, did not have development consent as required;

  2. second, at paragraphs 31-36, he deposes that the Council had received a great number of submissions with respect to the 2018 DA and the application to vary EPL 11395 in 2018;

  3. third, at paragraphs 37-39, he conceded that the former Gosford City Council had unlawfully caused, in his opinion, waste material to be disposed of on the subject site; and

  1. affidavits from Mr John Edye, Ms Frances Muggleton, Mr Stephen Rickards and Ms Jean Macleod, all residents who live, or have an interest, in the locality where the landfill site is situated. Their evidence was to the effect that they are concerned about the waste facility and that they were not aware of the 2012 proceedings. Furthermore, that had they been notified of the works proposed to be carried out by Verde Terra pursuant to the 2014 consent orders that they would have objected on various grounds, and moreover, that had consent been granted that they may have exercised their appeal rights in this Court (“the residents’ affidavits”).

The Scope of Order 6 of the December 2019 Orders

  1. During the course of the making of the December 2019 orders, a debate arose about whether the words “responsive to” or “in reply to” should be used in order 6. A draft of the orders prepared by the Court and given to the parties for discussion originally contained the words “in reply”. The transcript of that exchange is as follows (T731:48-733:50 and then at 737:30-738:02, emphases added. It should be noted that Mr Tom Howard SC is counsel for the Council and Mr Patrick Larkin SC is counsel for the Verde Terra parties):

HOWARD: May it please the Court.  Could I raise one other ‑ just to finish in relation to the directions, your Honour could I ask your Honour to have regard to your Honour's direction in draft as number 6?

HER HONOUR: Yes.

HOWARD: Your Honour, we would be wishing to have an opportunity to file and serve all affidavits on the issues, that is on the estoppel and discretion issues, not strictly in reply.  So, any evidence that we wish to adduce going to the same discretion, we would ask that that be within the ambit of the order, so that it wouldn't ‑ we would ask that the words "in reply" be substituted with the words "on the issues of estoppel or discretion".

HER HONOUR: Ought you not have done that already?  Again, I'm struggling to see ‑ it might be my limited lack of images [sic] at this time of year ‑ but I'm struggling to see what affidavits you would have in mind that wouldn't be improperly in reply to whatever discretionary matters are raised by the affidavits served by Verde Terra.

HOWARD: Yes.  Well, the starting point, we submit, is that this, of course, is a matter pertaining to our cross‑claim, at least as we understand it.  So, that where we are in terms of the procedural part of this is that the Verde Terra parties are saying that this will go to a discretion whether or not to set aside the consent orders agreement in the event that your Honour finds‑‑

HER HONOUR: But this is not a new issue.

HOWARD: No, it is not a new issue, your Honour.

HER HONOUR: This is obviously evidence I would have thought that would have been prepared already.

HOWARD: Your Honour, we don't know what evidence is going to be adduced yet on discretion‑‑

HER HONOUR: Exactly, which is why it's going to be evidence in reply to that evidence that has been ‑ the further evidence that is being adduced‑‑

HOWARD: It depends what the ambit is of the expression "in reply".  We may be prompted by the evidence to obtain‑‑

HER HONOUR: In response?  Are you happy ‑ in response to the evidence filed other than orders, whatever they are?

HOWARD: We're in the Court's hands.  We would submit that the appropriate direction would be to enable us to reply to effectively provide our evidence on the estoppel and discretionary issues, but if your Honour prefers to make it in response, then we would obviously accept that, but that's our position.  So, we don't know yet exactly what evidence is going to be adduced and don't yet have an opportunity to fully consider our forensic consideration in relation to why it is that our opponents say that a discretion should be exercised not to set aside the consent orders agreement, if the Court considers that it is void for illegality.  So, in any event, your Honour, we're in the Court's hands in relation to that matter as well.

HER HONOUR: I certainly wouldn't and couldn't shut you out of responding to, in an evidential sense, anything required to meet the evidence put on as a result of these orders ‑ let me emphasise those words by VT, but what I don't wish is, effectively, unless there's very good reason, evidence to be served by the council that ought properly to have been served as part of its evidence‑in‑chief already in support of its cross‑claim and in support of the judicial review proceedings against the EPA.

HOWARD: May it please the Court.

HER HONOUR: Does that‑‑

HOWARD: I hear what your Honour is saying.  The only point I'm trying to‑‑

HER HONOUR: This is what I meant by "in reply", but I'm happy to change it to "in response", but I have to say I'm struggling to see what the semantic‑‑

LARKIN: Perhaps, in response to the evidence‑‑

HOWARD: You see, your Honour, what I had in mind, for example, is that the evidence that the Verde Terra parties will be seeking to adduce will be of the nature that they've described.  Your Honour earlier on made some remarks about two veins of considerations here, appositely, with respect, the equity side and the public law side.

HER HONOUR: The internal struggle.

HOWARD: Yes, and what we had in mind, depending on what evidence is adduced is whether we might consider properly responsive to the case being presented by the Verde Terra parties on discretion as to which they would, effectively, carry the persuasive burden, we say, might be evidence in the nature going to the public law side of it.  So, that is evidence that we would regard as being responsive.  For example, it might be ‑ there might be evidence which would be to the effect of someone saying, "Well, I'm in this matter.  I use this aquifer.  If this application were made as a development application, I might wish to make a submission.  I might wish to exercise an appeal right."  So, that's the category of evidence, your Honour, that, to be candid with the Court, I had in mind when I sought to expand or to expand the restrictive nature of the evidence connoted by the words "in reply".  Now, it may well be, your Honour that there wouldn't be any evidence of that nature, but we just don't know what the discretionary case is that we're meeting.  We now know that the names of some people giving evidence on some factual matters.  We've got some indication of the nature of the evidence, although that's still of a fairly general nature, but that's why we would ask that (6) be more expansive than just quoting reply.  If your Honour‑‑

HER HONOUR: If the following order was used, responsive to the evidence filed by Verde Terra parties referred to above?

HOWARD: Yes, your Honour, we'd be content with that.

…

LARKIN: The next matter is we are content with an order that Central Coast Council file and serve affidavits in response to the ones referred to in o 5.  We would not accept that evidence of people wanting to give evidence that they might use aquifers or evidence to the effect that my learned friend suggested is within the scope of that order, and we would object to it if it's served.  That's material that plainly should have been served earlier in time.  That plainly has been ‑ forensic decisions have been made‑‑

HER HONOUR: I'm not going to box at shadows.

LARKIN: No, we will have to deal with it when we see it.

HER HONOUR: I am not going to box at shadows as to evidence that, again, doesn't yet exist and may never.

LARKIN: No.  Thank you, your Honour.  But my learned friend‑‑

HER HONOUR: I say that for on both parties.

LARKIN: Council needs to know that we would ‑ firstly, we welcome your Honour's suggestion that the order be directed towards a response to the evidence referred to in o 5, and we would expect that the evidence be properly so restricted.  I think they're the key matters. 

  1. The Council relied in particular on the passage at T733:20-50 (emphasised in italics) to submit that properly construed the further affidavits fell within the scope of order 6 of the December 2019 orders insofar as they were all relevant to the issue of discretion in the setting aside of the 2014 agreement and the 2014 consent orders (see The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341; (2017) 96 NSWLR 587 at [72]-[82] and the cases cited thereat).

  2. The submission may be rejected at a level of generality having regard to what the Court said, and more specifically with respect to the content of the further affidavits. First, when read objectively and as a whole, whatever the intention was of the Council in its exchange with the Court, the Court made it plain (see the transcript quoted above emphasised in bold) that any evidence that ought properly to be characterised as evidence-in-chief fell outside the terms of order 6. With the exception of paragraphs 37 to 39 of Mr Cox’s affidavit, the further affidavits fit this description. That is, they are all evidence-in-chief that ought to have been filed much earlier than 2020. None of the material deposed to in the affidavits has only recently come to the attention of the Council.

  3. Second, the Court made it clear that any evidence filed by the Council would be circumscribed by the content of the evidence filed by the Verde Terra parties. Order 6 was not expressed to be open ended. The order made it tolerably clear that the evidence to be filed by the Council was to be “in response to” the “the evidence filed by the Verde Terra Parties referred to above in orders 3, 4 and 5” (emphasis added); not the evidence filed by the Verde Terra parties to date relevant to the issue of discretion (or any other issue).

  4. In other words, for example, if the Verde Terra parties had filed evidence pursuant to order 5 of the December 2019 orders to the effect that in deciding to purchase the subject site it had formed the view that the operation of the landfill and the works contemplated by the carrying out of the 2014 orders would not have an impact on the amenity of residents (including their use of groundwater), then the Council could have justifiably put on evidence to establish the contrary position. But the Verde Terra parties did not put on such evidence and the residents’ affidavits cannot be described as “in response to” the evidence of Mr Ryan or Mr and Mrs Tartak. This is how that exchange relied upon by the Council between counsel for the Council and the Court ought properly to be understood.

  5. Third, although the Council submitted that each of the further affidavits was essentially evidence of a species of detriment, which was in response to the detriment deposed to in the affidavits of Mr Ryan and Mr and Mrs Tartak, the fact remains that by making order 6 the Court did not intend evidence of financial detriment to be met with evidence of hydrogeological detriment or access to justice detriment from resident objectors.

  6. In my opinion, with the exception of paragraphs 37 to 39 of Mr Cox’s affidavit, none of the further affidavits is evidence that was contemplated by order 6 of the December 2019 orders.

Leave to the Council Ought Not be Granted to Rely on the Evidence

  1. No formal application supported by accompanying affidavit evidence was made by the Council to seek, in the alternative, leave to rely on the further affidavits. The most obvious consequences of this omission are, first, that there is no explanation whatsoever before the Court for the delay by the Council in filing the further affidavits, and second, it meant that the Verde Terra parties were not given the opportunity to file an affidavit in reply deposing to the forensic disadvantage that they would suffer if reliance at this late stage on the further affidavits was permitted by the Court. Having said this, much of this disadvantage is self-evident.

  2. In the seminal decision of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 the plurality opined as follows (at [98]-[103], footnotes omitted):

98   Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

99   In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party’s opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all (195). Such a view may largely explain the decision of this Court in Shannon v Lee Chun (196), which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment (197). In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.

100   The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd (198), that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted (199). In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd (200), French J said of Bowen LJ’s statements in Cropper v Smith:

“… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.”

101   In Ketteman Lord Griffiths recognised, as did the plurality in JL Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons (201). So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.

102   The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

103   The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings (202). Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

  1. Although the remarks were made in the context of an application to amend pleadings, they are no less apposite in the context of the Council’s application for leave to rely on the further affidavits.

  2. In deciding whether or not to grant leave regard must be had to the overriding purpose contained in s 56 of the Civil Procedure Act 2005 (“the CPA”), as that provision is informed by ss 57 to 60 inclusive of that Act.

  3. In my opinion, having regard to the principles in Aon and the matters contained in ss 56-60 of the CPA – especially the dictates of justice - the application for leave ought to be rejected because, first, although not fatal in and of itself, no explanation whatsoever has been given for the lateness of the further affidavits. As referred to above, save for three paragraphs of Mr Cox’s affidavit, the evidence contained in the further affidavits is all evidence-in-chief that was within the Council’s knowledge prior to the date of its filing. It ought to have been served well before the commencement of the hearing; not at the midpoint of the part-heard trial. For example, the expert report of Mr Wilkinson has been in the Council’s possession since May 2019. It beggars belief that it was not served until February of this year.

  4. Second, each affidavit would bring into the proceedings new issues not raised to date, whereas issues relating to discretion have been identified in the pleadings for some time. In order to meet these new issues, further evidence is likely to be required to be filed by the Verde Terra parties:

  1. in respect of Mr Cox’s affidavit, it is likely that had the Verde Terra parties been notified at the appropriate time in 2019 that the Council would seek to adduce evidence of the state of mind of its Director of Environment and Planning, they would have issued a different or further notice to produce than the one the subject of Verde Terra (No 2). Moreover, it is possible that a different approach would have been taken to that voir dire given that the Council repeatedly relied upon a submission that the Council was not putting in issue its state of mind (T649:47, 650:20, 659:46-49 and 682:10-14). In addition, because the Verde Terra parties contend that the Council is out of time to commence its judicial review proceedings pursuant to r 59.10 of the UCPR, it would need to adduce evidence in reply to that contained in Mr Cox’s affidavit purporting to explain the Council’s delay in commencing proceedings. The Council has been aware of this contention since at least 26 July 2019;

  2. had the Verde Terra parties been notified earlier that the Council would seek to introduce, through Mr Sutas, an issue concerning the application lodged with the NSW Office of Water by Verde Terra in 2011, further investigations would have been undertaken by them, including the issuing of subpoenas, and evidence in reply would have been prepared. Mr Sutas has been involved with the subject site from 1992. He was also aware of the 2012 proceedings;

  3. in relation to the residents’ affidavits, if allowed, the Verde Terra parties would need to consider whether or not to obtain similar evidence from other residents and members of the golf club who support the landfill and the completion of the works proposed on the golf course; and

  4. with respect to Mr Wilkinson’s expert evidence, in addition to the fact that no direction has been sought by the Council for reliance upon his report pursuant to r 31.19 of the UCPR, had the Verde Terra parties been served with the report earlier, they would have conferred on the matters raised by Mr Wilkinson with their expert, Prof Kerry Rowe, who, as his curriculum vitae establishes, is a leading expert on hydrogeology and landfilling. Prof Rowe could have engaged in a joint conclave with Mr Wilkinson in 2019 and a joint expert report could have been produced, with concurrent evidence given by the experts on the matters in dispute. Prof Rowe’s evidence has, however, been completed and he has returned to Canada. That this forensic disadvantage is not mere hypothetical is demonstrated by the fact that one of the very issues raised by Mr Wilkinson in his expert report, namely, whether or not the proposed cells in the landfill site overlie an aquifer, was expressly put to and denied by Prof Rowe in cross-examination (T500).To respond to Mr Wilkinson’s evidence would necessitate Prof Rowe being recalled to give further evidence, or in the alternative, a new hydrogeological expert being engaged.

  1. As was also submitted by the Verde Terra parties, if the Council is allowed to rely on the further affidavits, in addition to the hearing time required to deal with the extra evidence, the Verde Terra parties will have to meet the evidence thereby generating further legal costs.

  2. Furthermore, given the highly contested nature of the proceedings to date, it is likely that responding to the further affidavits will generate a plethora of additional interlocutory disputes with their concomitant cost and demand on curial resources.

Leave Must be Refused With Costs

  1. To submit, as the Council did, that leave ought to be granted because the evidence is relevant and because the hearing of the matter will not resume until October 2020, thereby affording the Verde Terra parties sufficient time to meet the evidence, is not, in all of the circumstances of this protracted and increasingly expensive litigation, sufficient for the Court to grant leave. Not only will the further affidavits cause the Verde Terra parties forensic disadvantage, the late evidence will have the very real tendency of causing evidence in reply to be filed by the Verde Terra parties, of encouraging further interlocutory applications by both parties, of further drawing upon the limited resources of the Court, of further increasing the length of time to complete this matter, and of increasing costs. None of this is “just, quick and cheap” (s 56 of the CPA).

  2. Leave must therefore be refused, save for one exception. That is, the affidavit of Mr Cox, but only with respect to paragraphs 1, 37, 38 and 39 inclusive. As explained above, paragraphs 37 to 39 are properly responsive to the evidence of Mr Tartak (and paragraph 1 of Mr Cox’s affidavit is necessary to make sense of paragraphs 37 to 39). The remaining paragraphs cannot, however, be relied upon for the reasons given earlier.

  3. Save for three paragraphs of Mr Cox’s affidavits and the affidavit of Mr Gaudion, debate about which was resolved by consent, the Council has been unsuccessful in its application. These being Class 4 proceedings, there is no reason (none was offered by the Council) why the Council ought not pay the Verde Terra parties’ costs.

Orders

  1. The formal orders of the Court are therefore that:

  1. leave is refused to the Council to rely upon the following affidavits:

  1. the affidavit of Mr Timothy Wilkinson, affirmed 19 March 2020 and his report dated 28 May 2019;

  2. the affidavit of Mr Algis Sutas, sworn 23 March 2020;

  3. the affidavit of Mr John Edye, affirmed 11 March 2020;

  4. the affidavit of Mr Stephen Rickards, affirmed 10 March 2020;

  5. the affidavit of Ms Frances Muggleton, affirmed 10 March 2020;

  6. the affidavit of Ms Jean Macleod, affirmed 9 March 2020; and

  7. paragraphs 2 to 36 inclusive of the affidavit of Mr Scott Cox, sworn 20 March 2020;

  1. the Council is to pay the Verde Terra parties’ costs of the application; and

  2. the exhibits are to be returned, with the exception of Exhibits A, B, C, E and L, which are to be retained on the Court file.

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Decision last updated: 27 April 2020

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