Land and Environment Court of New South Wales CITATION : Hardie Ayrefield Pty Ltd v Director General Department of Natural Resources [2006] NSWLEC 695 APPLICANT: Hardie Ayrefield Pty Ltd PARTIES : RESPONDENT: Director General of the Department of Natural Resources FILE NUMBER(S) : 10536 of 2006 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- determination of preliminary questions DATES OF HEARING: 25/10/2006 EX TEMPORE JUDGMENT DATE : 10/25/2006 APPLICANT: Ms P M Lane, solicitor SOLICITORS Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT: Mr D Armstrong, solicitor SOLICITORS Department of Natural Resources JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 25 October 2006 HARDIE AYRELD PTY LIMITED v DIRECTOR GENERAL OF THE DEPARTMENT OF NATURAL RESOURCES JUDGMENT HIS HONOUR: 1 This is notice of motion for the determination of preliminary questions prior to other issues as set out in the applicant's notice of motion, filed on 13 October 2006. The respondent neither consents nor opposes an order that they be determined as a preliminary question. 2 The affidavit of Diana Grant of 13 October 2006 in support of the application indicates that if the issues set out in the notice of motion were to be determined in favour of the applicant, they would be dispositive of the proceedings without any need for the Court to enter into a hearing on the merits issues which would take, it is said, at least some three further days or thereabouts. 3 The questions identified in the notice of motion are all directed towards the Court determining that the remediation notice issued by the respondent is void as ultra vires s 38 of the Native Vegetation Act 2003. The principles that guide the exercise of the discretion to order the determination of any question separately from any other question in the proceedings were set out in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57 by Jagot J. One of those principles identifies that special problems can arise where the question sought to be separated is one of mixed fact and law. The applicant's submission is that the questions are questions of law. The only qualification is said to relate to question in the notice of motion, which says: "The area covered by the remediation notice extends beyond the area that the respondent alleges was cleared". The applicant proposes a regime of directions including an agreed statement of facts which would include agreement on the facts relevant to question (iv) before the preliminary questions come to be heard. Both parties have indicated optimism that the facts can be agreed in an agreed statement of facts. On inquiry I was informed by the applicant that if perchance there was no agreement concerning the facts relevant to ground (iv) then that should be capable of resolution by tendering some documents of the respondent, and should be capable of being resolved well within an hour. 4 In these circumstances and having regard in particular to the capacity of the determination of the preliminary issues to avoid the expense to the parties and the time involved in determining the merits issues, I am persuaded that I should accede to the orders sought in the notice of motion. 5 Accordingly, I will make orders in accordance with paras 1, 2, 3, 4 and 5 of the applicant's notice of motion filed on 13 October 2006. I note that order 4 directs that the matter be listed for further callover on 29 November 2006 for the purpose of setting the matter down for a hearing on the issues of law. That further callover will be before the Registrar. 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.