Williams v NSW Minister for Planning (No 2)

[2010] NSWLEC 203

Land and Environment Court

of New South Wales

CITATION:

Williams v NSW Minister for Planning (No 2) [2010] NSWLEC 203

PARTIES:

APPLICANT:
Neville "Chappie" Williams

FIRST RESPONDENT:
NSW Minister for Planning

SECOND RESPONDENT:
Barrick (Cowal) Ltd

FILE NUMBER(S):

40890 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to amend pleading during the hearing – application refused.

LEGISLATION CITED:

Civil Procedure Act 2005, ss 56-58

DATES OF HEARING:

13 September 2010

EX TEMPORE JUDGMENT DATE:

13 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS
n/a

FIRST RESPONDENT:
Ms A Mitchelmore, barrister
SOLICITORS
Department of Planning

SECOND RESPONDENT:
Mr N J Williams SC with Mr C R Ireland, barrister
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

13 September 2010

40890 of 2009

WILLIAMS v NEW SOUTH WALES MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application to amend the Points of Claim made on the first day of the hearing of judicial review proceedings challenging the validity of modifications to a development consent for the Cowal Gold Mine.

2 Earlier this morning I rejected the applicant’s tender of a document entitled “Cowal Gold Project Indigenous Archaeology and Cultural Heritage Management Plan” on the ground, inter alia, that it did not relate to any pleaded issue. The applicant now seeks leave to amend its Points of Claim by adding the following:

“The Minister considered an irrelevant matter and/or gave relevance to a factual matter when that fact did not exist.

Particulars

The Minister gave consideration to the fact that no registered Aboriginal cultural heritage site would be impacted when in fact registered Aboriginal cultural heritage sites B, C and LC2 would be destroyed.”

3 The respondents oppose the amendment essentially on the same basis as they successfully objected to the tender of the document to which I have referred. They say that it is a new issue of which they had no notice until this morning at the hearing, that they are prejudiced by this delay, and that the applicant has had considerable time to put the respondents on notice of the case that he wished to advance. They draw attention to an earlier unsuccessful application by the applicant to amend his pleading which was heard by Craig J on 16 and 25 June 2010, that is, over more than a day. That application to amend related to development consent Modifications 7 and 8 the subject of these proceedings and to an earlier Modification 6 (also known as E42). His Honour took into account the length of time that had ensued since the proceedings were commenced, the fact that the Court was able to offer three hearing dates in September, and the fact that the proposed amendments would appear to engage a case involving, or potentially involving, the adducing of substantial evidence not otherwise required to be addressed in the proceedings. Last Monday at a directions hearing his Honour allowed some amendments to the Points of Claim concerning Modifications 7 and 8 which the respondents suggest was largely in the nature of tidying up.

4 The first respondent, the Minister for Planning, says that the new issue may be a matter on which evidence would be required, that this is a matter upon which instructions need to be obtained, and that he has not had an adequate opportunity to respond to the proposed new issue.

5 The second respondent, Barrick, say more positively that, on the instructions which counsel this morning so far have been able to obtain, it would wish to adduce evidence on this issue. It does not accept that Modifications 7 and 8 affect the said Aboriginal Cultural heritage sites.

6 The applicant essentially says that notwithstanding the respondents were only given notice of the proposed new issue this morning they should reasonably be required to deal with it on the run.

7 Under s 56 of the Civil Procedure Act 2005 the Court is obliged to give effect to the overriding purpose of the Act and the rules of Court when it exercises any power given to it by the Act or rules. The overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. By s 57, for the purpose of furthering the overriding purpose, proceedings are to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties. By s 58, in deciding whether to make any order or direction for the management of the proceedings, including any order for the amendment of a document, the Court must seek to act in accordance with the dictates of justice. For the purpose of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions of ss 56 and 57 and may have regard to a range of matters set out in s 58(2)(b). I have regard to those considerations insofar as they are relevant.

8 The question raised by this proposed late amendment is not simply whether it is reasonably arguable. For present purposes, the respondents do not contend that it is not. It raises a new issue which the respondents have not had an adequate opportunity to address because of the lateness in raising it. I accept the respondents’ submissions that they are prejudiced by the proposed late amendment and that it would not be reasonable to require them to address it on such short notice. Apart from the unpalatable spectre of an adjournment if the amendment were to be allowed, it is indicative of the time that might be consumed in hearing the proposed new issue and of its threat to the sufficiency of the remainder of the three days that have been allocated for the hearing, that almost half a day has been taken up with argument concerning the tender of the document to which I have referred and then concerning the proposed amendment to the Points of Claim. This loss of hearing time could have been avoided if the issue had been identified and notified to the respondents in a timely way. Further, the lateness of the application to amend has not been adequately explained.

9 Having regard to the rigour of the statutory regime to which I have referred and to the relevant considerations thereunder, in my view it is in accordance with the dictates of justice that I should decline to grant leave to amend.