Wilson v Bourke Shire Council

[2000] NSWLEC 271

Land and Environment Court

of New South Wales

CITATION:

Wilson v Bourke Shire Council & Anor [2000] NSWLEC 271

PARTIES:

APPLICANT
Wilson

RESPONDENT
Bourke Shire Council & Anor

FILE NUMBER(S):

10312 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Practice & Procedure :- application to raise complex issues following allocation of hearing dates - inability of respondents to obtain evidence in answer to proposed amendments - amendment to claims allowed - adjournment granted on terms as to costs.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

State of Queensland and Anor v JR Holdings Pty Limited (1996-1997) 189 CLR 146

DATES OF HEARING:

22/9/00, 25/9/00

EX TEMPORE
JUDGMENT DATE :

09/25/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Larkin (Barrister)

SOLICITORS
Environmental Defender's Office Ltd

FIRST RESPONDENT
Mr J Whitehouse (Solicitor)

SOLICITORS
Minter Ellison

SECOND & THIRD RESPONDENT
Mr P McEwen SC

SOLICITORS
Bruce & Stewart Commercial Practice

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10312 of 2000
CORAM: Cowdroy J
DECISION DATE: 25/9/00

Bruce Wilson on behalf of the Gurrungar Environment Group

Applicant

v

Bourke Shire Council

First Respondent

Hoynes, Wheeler & Thorne Pty Limited

Second Respondent

Clyde Agriculture Limited

Third Respondent

JUDGMENT

1. The Court has before it two notices of motion, one by the applicant namely; seeking to add additional issues in the proceedings, the other by the third respondent namely; seeking to vacate the hearing date.

2. On 17 April 2000 class one proceedings were filed by the applicant on behalf of the Gurrangar Environmental Group, objecting to the decision of the first respondent to grant development consent to the second respondent for an above-ground water storage and irrigated development. That application was superseded by an amended application class one filed on 17 May 2000. On that day a statement of issues was also filed by the applicant which identified four issues. The issues as framed are so vague as to give enormous scope to the applicant to raise numerous matters and the issues clearly require definition.

3. On 26 May 2000 an amended statement of issues was filed by the applicant which increased the number of issues to six. Certain particulars were incorporated in the amended statement of issues but the critical issues concerning the impact of the development upon the groundwater system, the impact of the development upon native vegetation and fauna, and the means to be employed to protect the environment were issues for which no particularisation was provided. Such statement of issues was current when these proceedings were at callover on 6 June 2000. On that day the Registrar fixed the hearing to commence on 3 October 2000 and directed that evidence in chief be filed 28 days prior to the hearing date and that replies from the respondents be provided 14 days before the hearing date.

4. Particulars of the applicant’s claims were sought by the third respondent. In response, certain particulars were provided which repeatedly included a statement that additional matters would be provided following receipt of expert reports.

5. The affidavit of Christopher David Norton, sworn 21 September 2000 filed in support of the applicant’s notice of motion, refers to the difficulties experienced by the applicant. It appears that their preferred expert, Associate Professor Thoms, advised Mr Norton on about 23 June 2000 that he would be absent overseas for several months. Accordingly attempts were made to locate other experts. In late June 2000 Mr Norton telephoned a number of other persons who might be potential witnesses and by late August 2000 he had contacted numerous potential witnesses. The evidence suggests that little was done between late June 2000 and late August 2000, such inaction is unexplained and inordinate. It was not until 31 August 2000 that Dr Richard Kingsford agreed to provide expert evidence for the applicant.

6. The reports of the applicant were due to be served on 5 September 2000. On 11 September 2000 Dr Kingsford’s report was served. On 12 September 2000 Dr Khan’s report was served. On 12 September 2000 the applicant’s solicitor made a request to inspect the subject property on 23 September 2000. On the following day there was a demand for a response to the request which had been made less than twenty-four hours before. It is puzzling to know why an inspection of the subject property was required in view of the fact that the expert had already provided his report. The inspection was inconvenient to the third respondent who declined permission, based upon reasonable grounds, namely that the proposed time for the inspection was the same date fixed for the annual meeting of the company which took place at the subject property.

7. On 14 September 2000 Dr Myers’ statement for the applicant was served. On the same day, the applicant foreshadowed filing of a further amended statement of issues.

8. The history clearly shows that as at the date the matter was set down, the applicant did not know its case. It was relying upon the expert reports to in fact make its case, and until those expert reports had been received it really did not know what was the evidence nor what the issues of the proceedings were.

9. The issues now sought to be raised by the applicant’s notice of motion filed on 15 September 200 are matters of importance to the applicant. They are also matters that go well beyond what was initially considered to be the issues in the proceedings. Expert evidence from different disciplines will be required. Neither the first respondent (the Bourke Shire Council), nor the third respondent has had an opportunity to obtain expert advice upon such new issues. That situation is exacerbated by the present Olympic Games which has caused difficulty in obtaining expert evidence.

10. The third respondent, in its notice of motion, seeks to have the hearing adjourned upon the basis of the difficulties which it now experiences in obtaining experts in the time allowed. Taking into consideration the current holiday period and Olympic Games, I am satisfied that the difficulties faced by the first respondent and the third respondent are insurmountable.

11. The applicant insists that the additional matters for determination are vital to its interests and has submitted that this is now a test case. If that is so it defies belief that the respondent’s experts could answer the issues now raised within ten days. It is obvious that if the additional issues are to be raised, and indeed if the third respondent and the first respondent are to be afforded a proper opportunity to prepare their case, an adjournment will be required.

12. The Court considers that it is bound by the decision of the High Court of Australia in the State of Queensland and Anor v JR Holdings Pty Limited (1996-1997) 189 CLR 146 to permit the applicant to raise the issues which it seeks to raise in its notice of motion dated 15 September. Accordingly the Court grants leave to the applicant to rely upon the further amended statement of issues attached to its notice of motion.

13. In the circumstances an appropriate order for costs should be made. The respondents are blameless of any delay in relation to the preparation of their case. I regard the necessity for the adjournment of the hearing which will inevitably follow as something which falls squarely upon the applicant. It is obvious that the hearing cannot commence on 3 October 2000. This is especially unfortunate not only for the parties but also for the Court which has allowed seven hearing days for this purpose.

Orders

14. The Court orders:-

1. Leave be granted to the applicant to rely upon the amended statement of issues.

2. The applicant is to pay the costs of the first, second and third respondent thrown away by reason of the adjournment, including the costs of this motion.

3. No order is made in relation to the notice of motion which is filed by the third respondent.