Riopar Pty Limited v Lane Cove Council [2002] NSWLEC 230

Land and Environment Court of New South Wales

CITATION : Riopar Pty Limited v Lane Cove Council [2002] NSWLEC 230 APPLICANT Riopar Pty Limited PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 10308 of 2002 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- application to raise extensive new issues subsequent to allocation of hearing date LEGISLATION CITED: Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 ; CASES CITED: The State of Queensland and Another v J L Holdings Pty Limited (1996-1997) 189 CLR 146; Wilson v Bourke Shire Council & Anor [2000] NSWLEC 271 DATES OF HEARING: 25/10/2002 EX TEMPORE JUDGMENT DATE : 10/25/2002

APPLICANT Mr R O'Gorman-Hughes (Solicitor)

SOLICITORS: Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms E Ranken (Solicitor)

SOLICITORS: Pike Pike & Fenwick

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10308 of 2002

COWDROY, J

25 October 2002 RIOPAR PTY LIMITED Applicant v LANE COVE COUNCIL Respondent Judgment

1 By notice of motion filed on 21 October 2002 the respondent seeks leave to rely upon additional issues in proceedings which are set down for hearing and scheduled to commence on 13 November 2002. The application is opposed. 2 The original statement of issues was filed in June 2002 and the matter was set down for hearing on the basis of such issues. The matters now sought to be raised are far more extensive than those formulated at the date of the callover. 3 The Court is mindful of the inconvenience that will be caused to the applicant if leave is granted. Nevertheless the Court considers that it is bound by the decision of the High Court of Australia in The State of Queensland and Another v J L Holdings Pty Limited (1996-1997) 189 CLR 146. In that decision the High Court of Australia determined that case management directions should not prevent a party from litigating an issue which is fairly arguable. The High Court said at p. 155 (per Dawson, Gaudron, McHugh JJ):- Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.