Land and Environment Court of New South Wales CITATION : Carriage v Stockland Development Pty Limited (No 5) [2004] NSWLEC 674 APPLICANT Allan Richard Carriage PARTIES : FIRST RESPONDENT Stockland Development Pty Limited SECOND RESPONDENT Director-General of the Department of Environment and Conservation FILE NUMBER(S) : 40187 of 2004 CORAM: Cowdroy J KEY ISSUES: Administrative Law :- application to reopen hearing following judgment LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 1 r 6, Pt 15 r 9 Akins v National Australia Bank (1994) 34 NSWLR 155; Autodesk Inc and Anor v Dyason and Ors (No. 2) (1992-1993) 176 CLR 300; CASES CITED: Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553; Smith v New South Wales Bar Association (1992-1993) 176 CLR 256; Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471; Wollong Pty Limited v Shoalhaven City Council (No.2) (2002) 122 LGERA 178 DATES OF HEARING: 26/11/2004 EX TEMPORE 11/26/2004 JUDGMENT DATE : APPLICANT Mr A. McAvoy (Barrister) SOLICITORS Shaw Reynolds Lawyers LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr P. Clay (Barrister) SOLICITORS Baker & McKenzie JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 26 November 2004 40187 of 2004 ALLAN RICHARD CARRIAGE Applicant STOCKLAND DEVELOPMENT PTY LTD First Respondent DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION Second Respondent Judgment - No 5 1 By notice of motion filed 27 October 2004 the applicant seeks leave to reopen the hearing for the purpose of tendering additional evidence. A judgment was delivered in the proceedings on 30 September 2004 but no final orders have been made: see Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553. The applicant claimed that between late 2003 and up to 15 March 2004 the first respondent, during the course of excavations uncovered Aboriginal objects. The Court found that the applicant failed in his claim against the first respondent. The claim against the second respondent was upheld and the proceedings were adjourned part heard to consider appropriate relief. 2 The notice of motion is said by the applicant to be made pursuant to Part 1 rule 6 of the Land and Environment Court Rules 1996 ("the rules"). However since Part 15 rule 9 of the rules specifically applies to the setting aside of or varying any order (which includes a decision or judgment by definition) the provisions of the latter Part apply. The motion only affects the interests of the first respondent. 3 The evidence sought to be tendered by the applicant if the hearing is reopened relates to the presence of Aboriginal objects on lot 224 of the Sandon Point development. The solicitors for the applicant claim that such evidence did not come to their attention until after the hearing in these proceedings, and the significance of such evidence did not become apparent until 26 October 2004. 4 The evidence in support of the motion prima facie establishes that objects, identified by an archaeologist as Aboriginal objects were present in a mound of spoil on lot 224 which had been excavated from that lot during the relevant pleaded period. The evidence comprises a video allegedly filmed during the pleaded period, and photographs which were taken on 16 August 2004. 5 Ms Kathryn Ridge, a solicitor in the employ of Shaw Reynolds, Lawyers gave oral evidence concerning the circumstances in which such evidence came to her attention. In summary she said that on 7 October 2004 she received a parcel containing videos and photographs relating to the lot but believed they related to work undertaken after the hearing and for that reason were not relevant to these proceedings. It was not until 26 October 2004 that she received instructions that in fact the photographs had been taken of a spoil mound and that other evidence, including a video prima facie establishes that the spoil mound was created during the pleaded period. Further the photographs depict objects in the spoil mound which are identified by expert evidence as Aboriginal objects. 6 If the evidence referred to above is proved to be correct, the Court's finding in respect of the first respondent could be reversed. Accordingly the evidence has the potential to be of critical significance to the applicant's claim. 7 As was observed by Mason CJ in Autodesk Inc and Anor v Dyason and Ors (No. 2) (1992-1993) 176 CLR 300, the jurisdiction to reopen a judgment and to grant a rehearing is to be exercised with great caution (see p 302). However His Honour observed:- The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. … the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or law. 8 In Smith v New South Wales Bar Association (1992-1993) 176 CLR 256 the High Court, in its majority judgment observed that if there was a deliberate decision not to call the evidence sought to be relied upon, it would "tell decisively against the application" (at p 266). However other cases would "depend entirely upon the issue that is opened up" (at p 267). 9 In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Clarke JA said (at p 478):- The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. Clarke JA then considered the numerous considerations that could apply in making such determination such as whether the failure to call the evidence was deliberate. He continued:- Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. 10 In Wollong Pty Limited v Shoalhaven City Council (No.2) (2002) 122 LGERA 178 Talbot J declined to exercise the Court's discretion to re-open a hearing where he had already made findings concerning a valuation. In those proceedings the evidence sought to be adduced was in existence in documentary form prior to the commencement of the hearing. His Honour was not satisfied that the interests of justice required the proceedings to be reopened. 11 The first respondent submits that the applicant could have applied to the Court prior to the commencement of the hearing to seek an order for access to lot 224 to determine whether Aboriginal objects existed on the land. In the present circumstances the evidence of the kind now sought to be led did not exist. The reason for its omission appears to have resulted from the fact that the solicitors having the carriage of the proceedings were retained between three and five weeks prior to the commencement of the hearing. The Court is satisfied that such evidence was not known to the applicant. It results from the fact that a neighbour to the development had taken the video footage of excavation on lot 224 during the pleaded period. Prima facie such evidence would establish that the excavated material, of which photographs were taken after the hearing contained Aboriginal objects. The Court is satisfied that the legal advisors of the applicant did not understand the sequence recorded in the video and its relationship to the photographs until 26 October 2004. 12 The first respondent referred to the decision of Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 in which Clarke JA referred to three general conditions required to be satisfied before fresh evidence could be admitted in an appeal. Such considerations, whilst constituting a "useful guide" (see Smith at p 267) are not determinative. 13 Having considered the evidence adduced at this hearing the Court considers that despite the principle of finality in litigation, the interests of justice require that the Court exercise its discretion in favour of the applicant. The leave granted to reopen will be confined to the evidence which has now been presented to the Court in this application and evidence of the first respondent in reply. Costs 14 The Court has heard argument concerning the costs of this motion and considers that costs should be reserved. Orders 15 The Court makes the following orders:- 1. ORDER that the applicant be granted leave to reopen the hearing; 2. ORDER that costs of this motion be reserved; 3. ORDER that the proceedings be referred to the Registrar for directions on Friday 3 December 2004. ************ 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.