Supreme Court New South Wales Medium Neutral Citation: Crawley v Baxter [2022] NSWSC 1493 Hearing dates: On the papers Date of orders: 02 November 2022 Decision date: 02 November 2022 Jurisdiction: Equity Before: Henry J Decision: Application for leave to reopen granted Catchwords: CIVIL PROCEDURE – application to re-open case – where defendant seeks leave to adduce further affidavit evidence after judgment reserved – where plaintiff filed affidavits in response – where evidence relates to viability of alternative access route to plaintiff's land – where evidence is relevant and potentially important to defence of plaintiff's claim – application granted on terms that grant leave to plaintiff to rely on his affidavits Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 Smith v New South Wales Bar Association (1992) 176 CLR 256 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Category: Procedural rulings Parties: Edwin Max Crawley (plaintiff) John Baxter (defendant) Representation: Counsel: J Trebeck (Plaintiff) S Doupe (Defendant) Solicitors: Turner Freeman Lawyers (Plaintiff) O'Brien Winter Partners (Defendant) File Number(s): 2021/0080217 Publication restriction: Nil JUDGMENT 1. By notice of motion filed on 20 September 2022, the defendant, John Baxter, seeks leave to re-open his case to file and serve further affidavit evidence after completion of the hearing. 2. In accordance with directions made by the Court, Mr Baxter's application is being dealt with on the papers. Mr Baxter relies on the affidavit from Damien O'Brien affirmed on 16 September 2022 (which is the affidavit for which leave to reopen is sought) and written submissions. In response, Mr Crawley reads the affidavits of Bernard Finlay affirmed on 10 October 2022 and Alexander Munro affirmed on 12 October 2022 and relies on written submissions also dated 12 October 2022. On 19 October 2022, Mr Baxter gave notice that he did not wish to file and serve any submissions in reply. 3. The application is made in proceedings that concern land in Copeland, NSW. The plaintiff, Edwin Crawley, is the registered proprietor of land, comprised in Folio Identifiers 89/753147 and 99/753147 (Crawley Land). Mr Crawley seeks an order pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) for the imposition of an easement over adjacent land owned by Mr Baxter, comprised in Folio Identifier 1/1182854 (Baxter Land), which Mr Crawley says is reasonably necessary for the effective use of his land to enable access from Scone Road. 4. The hearing took place over five days in April, June and July 2022. Judgment is reserved. An issue raised by Mr Baxter in response to Mr Crawley's application is whether a trail known as Craddock's Creek Trail (together with a trail known as Crawley's Trail) that runs between Scone Road and the Crawley Land is an alternative access route to the Crawley Land. 5. Craddock's Creek Trail (and Crawley's Trail) is located within the Copeland Tops State Conservation Area and is managed by NSW National Parks and Wildlife Service (NPWS). At the hearing, Mr Crawley contended that Craddock's Creek Trail is not a viable option for access to the Crawley Land for reasons that include the surface and state of the trail, which he says is not accessible to large or two-wheel drive vehicles. 6. The applicable principles are well-known. Mr Baxter's submissions refer to the general rule that a decision whether (or not) to allow an application by a party to re-open their case is to be made having regard to the interests of justice: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478D (Urban Transport v Nweiser). 7. As Mr Baxter's application involves an exercise of the Court's powers to make directions and orders relating to evidence and the conduct of proceedings, regard must also be had to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to facilitate the just, quick and cheap resolution of the real issues in the proceedings (CPA, ss 56(1), 56(2); UCPR, r 2.1), the objects specified in s 57 of the CPA, which include the just determination and the timely disposal of the proceedings, and the need to seek to act in accordance with the dictates of justice: CPA, ss 57(1), 58(1)-(2). 8. The key issue to be determined is whether the interests of justice are better served by allowing or rejecting Mr Baxter's application having regard to all the circumstances of the case: Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46] (Cappello v Scrivener), citing Urban Transport v Nweiser. Relevant factors to consider include: 1. the degree of importance, relevance and probative value of the proposed new evidence to the issues in the case; 2. the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs; 3. the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing; 4. the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense; 5. whether the occasion for calling the further evidence ought reasonably to have been foreseen; and 6. any delay in making the application. 1. There are no fixed rules for when leave to re-open will be granted or refused, although there are four recognised, but non-exhaustive, classes of case in which leave may be granted, namely, where there is fresh evidence, an inadvertent error, a mistaken apprehension of the fact and a mistaken apprehension of the law: Cappello v Scrivener at [46(c)]. 2. The evidence that Mr Baxter seeks leave to file and serve (and rely on in these proceedings) is set out in Mr O'Brien's affidavit. It refers to Mr Baxter becoming aware, on 17 August 2022, that the Craddock's Creek Trail underwent a significant upgrade to the road surface by NPWS and annexes photographs taken on that day which depict the upgrades. According to Mr O'Brien's affidavit, Mr Baxter was informed by a NPWS contractor that the track was upgraded to enable access by fire trucks and he contends that the upgrades provide for "vehicles to use and access the road safely and it is now trafficable". The affidavit also refers to Mr Baxter observing tyre tracks coming from the direction of the Crawley Land and travelling along Craddock's Creek Trail on 12 September 2022. 3. Mr Baxter submits that leave to re-open should be granted as the evidence came to light following the close of his case and the Court reserving judgment, and he was not dilatory in bringing the application. He submits that there would be a degree of injustice if the application was refused as the viability of the Craddock's Creek Trail as an alternative means of access to the Crawley Land was a hotly contested issue at the hearing and the further evidence is relevant to that issue and could affect the potential outcome of the Court's decision whether to grant relief under s 88K of the Conveyancing Act. 4. Mr Crawley's submissions acknowledge that the roadworks were effected after the hearing concluded and no point is taken in that respect, appropriately in my view. The evidence the subject of Mr Baxter's application was not inadvertently overlooked or withheld for a tactical advantage (Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266), but amounts to fresh evidence that is, I accept, relevant to the issues for determination. 5. Mr Crawley's written submissions do not state that he opposes Mr Baxter's application although I have proceeded on the understanding that he does, having regard to the assertion in his written submissions that the new evidence does not materially alter the fact that the Craddock's Creek Trail (and Crawley's Trail) remains a non-viable alternative access available to Mr Crawley to access his land at a particular boundary point, referred to at the hearing by reference to a map (Exhibit K) as "Point L". That assertion relies on the information contained in the affidavits of Mr Finlay and Mr Munro. 6. Mr Finlay gives evidence that he observed works to about 30% of the access trail on small sections and not the entire length, that no works were done from one location (referred to as Point 8B) and from that location, the trail remained wet and muddy with a dirt/clay surface, and annexes photographs of the trail based on his observations. He also gives evidence that the new tyre tracks (referred to in Mr O'Brien's affidavit) are similar to those seen on vehicles used by NPWS staff when accessing trails in the Copeland area. The effect of his evidence is that the trail is not trafficable by two wheel drive vehicles. 7. Mr Munro gives evidence of observations he made at a site visit on 10 October 2022, which corroborates Mr Finlay's 30% estimate. Mr Munro's affidavit also annexes correspondence with the Barrington Tops NPWS, Area Manager, that refers to works undertaken by NPWS around Craddock's Creek Trail, Duffers Creek and Crawley's Trail since August 2022, which have now concluded, to remediate a failed section of the trail following a significant landslip and recent extreme weather events and states that Craddock's Creek Trail is not open to the public for vehicular access and is classified as a "Cat.9" fire trail and is not suitable for heavy vehicles. 8. The contents of Mr Finlay's and Mr Munro's affidavits raise doubts as to the importance and probative value of the evidence that Mr Baxter's seeks to adduce on this application. That said, I do not consider it is appropriate to seek to resolve the apparent conflicts in the evidence recently served by, for example, accepting Mr Finlay's direct evidence over that of Mr Baxter (as Mr Crawley submits) or determine the question of the viability of Craddock's Creek Trail as an access route on this interlocutory application based on that evidence. 9. Having regard to the circumstances of this case and the issues raised, I have concluded that Mr Baxter should be granted leave to re-open to rely on Mr O'Brien's affidavit as part of the evidence in the proceedings on terms that also provide for leave to be granted to Mr Crawley to file, serve and rely on the affidavits of Mr Finlay and Mr Munro. That approach should not be taken as signifying any view on the probative value of the evidence sought to be relied on by either party or the ultimate outcome of the issue of whether Craddock's Creek Trail is a suitable alternative access route. Rather, it recognises that the evidence sought to be adduced by Mr Baxter is relevant and potentially important to his defence of Mr Crawley's claim, that Mr Crawley should be entitled to rely on his evidence in response, and the interests of justice would be best served by considering the further affidavits and submissions served on this application as part of the overall evidence and submissions made in this case. 10. I am conscious of the public interest in the finality of litigation and the need to manage the proceedings expeditiously and efficiently. However, Mr Baxter's motion was brought promptly after judgment was reserved and the re-opened evidence will be relatively confined. 11. I do not propose to make any further directions in the proceedings, noting that the parties' submissions did not raise any concerns about the admissibility of the evidence that is sought to be adduced and the submissions filed at the hearing and on this application address in some detail the arguments as to whether Craddock's Creek Trail is or is not an alternative access route in the context of Mr Crawley's claim. To the extent the parties consider that further directions are necessary, I will grant them liberty to apply to my chambers within seven days and, if necessary, a short directions hearing can be held. 12. The parties are agreed that the costs of the application to re-open should be reserved. 13. Accordingly, and for these reasons, I make the following orders and directions: 1. The defendant be given leave to re-open his case to file and rely on the affidavit of Damien O'Brien affirmed 16 September 2022 and his outline of submissions dated 13 September 2022. 2. The plaintiff be given leave to file and rely on the affidavit of Bernard William Finlay affirmed 10 October 2022 and the affidavit of Alexander Munro affirmed 12 October 2022 and his written submissions dated 12 October 2022. 3. The costs of the defendant's application for leave to re-open be reserved. 4. Grant liberty to the parties to approach the Associate to Henry J by 9 November 2022 in the event that the parties consider that further directions are necessary. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2022