Walfertan Processors Pty Limited v Upper Hunter Shire Council

[2009] NSWLEC 1134

Land and Environment Court

of New South Wales

CITATION:

Walfertan Processors Pty Limited v Upper Hunter Shire Council [2009] NSWLEC 1134

PARTIES:

APPLICANT
Walfertan Processors Pty Limited

RESPONDENT
Upper Hunter Shire Council

APPLICANTS ON JOINDER APPLICATION
Darley Australia Pty Limited
William Bourke

FILE NUMBER(S):

11319 of 2008

CORAM:

Moore SC

KEY ISSUES:

PRACTICE AND PROCEDURE :-

LEGISLATION CITED:

Land and Environment Court Act 1979, s 39A

DATES OF HEARING:

27 March 2009

EX TEMPORE JUDGMENT DATE:

27 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso SC
INSTRUCTED BY
Clayton Utz

RESPONDENT
Mr T Robertson SC
INSTRUCTED BY
Sparke Helmore

APPLICANT ON JOINDER APPLICATION
Mr P Larkin, barrister
INSTRUCTED BY
Halletts Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

27 March 2009

08/11319 Walfertan Processors v Upper Hunter Shire Council

JUDGMENT – Application for joinder

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This is an application pursuant to s 39A of the Land andEnvironment Court Act 1979 for two parties represented by Mr Larkin to be joined as parties to the proceedings. The effect of joinder, if granted, will be in functional terms to add a single contradicting voice on impact contention number three dealing with waste water issues in the proceedings, those issues now being the subject of an agreement between the experts retained by the applicant and by the council.

2 The questions that I am obliged to deal with under s 39A are in a number of parts. I am satisfied that in this instance I merely need to consider whether a basis for joinder has been established under s 39A(a) and, if so, should I exercise the Court’s discretion as it being of sufficient seriousness to permit Mr Larkin’s clients to become parties rather than merely be heard through expert witnesses.

3 I am satisfied, firstly, that the test in s 39A(a) has been satisfied because the issue, although it has been addressed by the experts (and there is no suggestion that the experts have not properly and diligently conducted their evidentiary review and joint conferencing to reach that conclusion), I have material in an affidavit of Mr Cole dated 26 March 2009 which attaches information from Mr Gary Graham of ERM Pty Limited and material from Mr Adam Bishop, also of ERM Pty Limited, in which each of them expresses explicit disagreement with the conclusions that have now been the subject of the agreement between experts.

4 I am therefore satisfied that on a critical issue that had been placed in contention by the council that there is no longer an effective contradictor. It is my view that, for this issue to be sufficiently addressed in the proceedings and to enable us to consider it, there would be appropriate utility in there being not merely the contradictory evidence but the ability of a person to test that contradiction by way of cross-examination - both from the point of view of those who are represented by experts who are in agreement and also to test it by participation of an advocate on behalf of the clients whose experts are in disagreement.

5 I am satisfied (and the applicant in the proceedings does not contest) that the application for joinder, although made late, has not been made with any sense of delay in that the application for joinder has been made, I am satisfied, sufficiently expeditiously after the applicants on the motions became aware of the agreement between the joint experts on this issue, so there is no reason on the basis of delay to do that.

6 There is also no reason, in my view, to conclude that the trial will be unnecessarily delayed or significantly extended as a consequence of this joinder, if it is to be granted as I propose. The process that I propose to follow at the conclusion of this decision is to take an adjournment and permit the parties to discuss timetabling, and then recommence at 12 o’clock if necessary to discuss any matters of disagreement. I am satisfied that, as discussed during the course of the submissions to me, the trial can be managed so as to conclude with full and appropriate participation by Mr Larkin’s clients but still conclude within the three day period, and indeed there will be appropriate directions to ensure that that occurs. Equally, I am satisfied that we can make arrangements by a slightly earlier start that the experts can confer without any additional significant to the parties after the site inspection has taken place.

7 I am fortified in the view that it is appropriate to permit Mr Larkin’s clients to be joined as it does not appear to be contested that at least one of the significant witnesses on behalf of the applicant has not visited the site for some considerable time, and her opinions have been expressed on the basis of such information she has about the current state of the site, not based on a visit to the site to inspect it in its present condition.

8 As a consequence of that, having the ability to test her expert evidence by having an effective contradictor on what appears to be a critical issue in the proceedings, I am satisfied, warranted consideration of the matters raised by s 39A(a). It would also seem to me under the circumstances that there might well be justification under s 39A(b)(ii), but I do not need to consider those matters given that I have reached the conclusion that under s 39A(a) there is an appropriate basis, and that as a matter of discretion it would be appropriate to exercise the discretion and join Mr Larkin’s clients as parties to the proceedings.

Senior Commissioner