Taylor & Anor v Port Macquarie Hastings Council [2009] NSWLEC 175

Land and Environment Court of New South Wales

CITATION : Taylor & Anor v Port Macquarie Hastings Council [2009] NSWLEC 175

APPLICANTS John Henry Taylor and Mildred Joy Taylor PARTIES : RESPONDENT Port Macquarie Hastings Council

FILE NUMBER(S) : 30623 of 2005

CORAM: Preston CJ

KEY ISSUES: APPEAL - PRACTICE AND PROCEDURE :- notice of motion to review registrar's decision to set aside a subpoena to a third party and a notice to produce to the respondent - notice of motion partially successful - notice of motion to strike out the applicants' amended points of claim - no leave to amend points of claim had been granted - leave sought at hearing of notice of motion - leave not granted - costs

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 ss 55, 66

DATES OF HEARING: 23 September 2009

EX TEMPORE JUDGMENT DATE : 23 September 2009

APPLICANTS J E Lazarus (barrister) SOLICITORS LEGAL REPRESENTATIVES: Donovan Oates Hannaford RESPONDENT J R Dupree (barrister) SOLICITORS Russo & Partners

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

23 SEPTEMBER 2009

05/30623 TAYLOR & ANOR v PORT MACQUARIE HASTINGS COUNCIL

JUDGMENT 1 HIS HONOUR: The applicants have brought proceedings by way of objection under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 as to the amount of compensation payable for the compulsory acquisition of land formerly owned by them. The proceedings have had many interlocutory events. One of those interlocutory events was a hearing by the Acting Registrar of a motion by the resuming authority, Port Macquarie Hastings Council, that a subpoena to a third party and a notice to produce to the council be set aside. The Acting Registrar, on 10 July 2009 upheld the respondent's motion and set aside the subpoena and the notice to produce and made some consequential orders including as to costs. Notice of motion to seek review of Acting Registrar's decision 2 By notice of motion dated 16 July 2009 the applicants seek to review the Acting Registrar's decision under Pt 49 r 49.19 of the Uniform Civil Procedure Rules 2005. 3 The applicants had issued a subpoena to a third party, Environmental Resources Management Australia ("ERM"). Only two documents were produced by ERM in response to the subpoena, being a covering letter together with a statement of environmental effects in relation to a proposed waste transfer station on Lot 7 in DP 775532 Ocean Drive, Kew dated June 2003 that was prepared by ERM. The land the subject of that statement of environmental effects is part of the land that was compulsorily acquired by the respondent in these proceedings and that is the subject of these proceedings. 4 After considerable discussion as to the nature and heads of claim for compensation by the applicants, it became clear that the statement of environmental effects may contain information and statements that could be of potential relevance to the applicants' claims. In particular, an issue in these proceedings will be the development potential of the resumed land at the date of acquisition and whether that development potential was restricted by reason of the environmental constraints of the land. 5 The statement of environmental effects contains information and statements as to the environmental characteristics of the land. It was produced prior to the date of acquisition. On this basis it may contain information that is potentially relevant to the applicants' claim or the respondent's defence of that claim as to the development potential of the land. It is of course not necessary at the stage of a subpoena to determine its ultimate relevance. That is a matter to be determined at the trial when and if the document is sought to be tendered or otherwise relied upon. At this stage of determining whether a subpoena should be set aside, it is sufficient to note the potential relevance to the applicants' claims. 6 The applicants advise that they were satisfied, having had discussions with the subpoenaed party, ERM, that the production of those two documents, the statement of environmental effects and the covering letter, was a complete answer to the subpoena and the applicants would not call upon the subpoena any further. In these circumstances, the purpose of the subpoena is spent and its terms and breadth need not be further considered. I am satisfied, therefore, that the subpoena should be allowed to stand so as to provide the basis upon which the two documents were produced. For this reason I consider it is appropriate to review the Acting Registrar's decision in respect of this subpoena and to set aside the Acting Registrar's orders that, in turn, set aside the subpoena and required the destruction of the two documents that had been produced in response to the subpoena. 7 The applicants had also issued a notice to produce to the council. However, examination of the terms of the notice to produce shows that it is broadly drawn and includes subject matter and, hence, documents beyond what could potentially be relevant to the applicants' claims. The applicants submitted that the documents they was seeking to obtain by issuing the notice to produce were of a similar nature to the documents that had been produced by ERM and also for that same purpose, namely, documents relevant to the environmental characteristics of the land. Such documents may be of potential relevance for the reasons I have already articulated in relation to the statement of environmental effects by ERM. However, the terms in which the notice to produce has been drawn are far wider than this. They would include many documents that could not be of any potential relevance to any claim by the applicants. 8 For this reason I would not propose to review the Acting Registrar's decision setting aside the notice to produce issued to the council. That decision should stand and, hence, the notice to produce remains set aside. It is a matter for the applicants to decide whether to issue any further notice to produce but if they do so, it should be limited in its terms to documents relating to the environmental characteristics of the land. It will be a matter for the future, having seen the terms of the notice to produce, as to whether it is too widely drawn or otherwise ought to be set aside. That can be dealt with at a future time. 9 For these reasons I would propose to exercise the power under r 49.19 to review the Acting Registrar's decision so as to set aside orders 1, 6, 7 and 8 the Acting Registrar made on 10 July 2009. It will be necessary to deal in a moment with the question of costs of this motion. Notice of motion to strike out applicants' amended points of claim 10 The council also filed a notice of motion dated 1 September 2009 seeking to strike out the applicants' amended points of claim dated and filed on 7 August 2009. The applicants had filed points of claim at one of the directions hearings. On 24 July 2009, the court made directions by consent of the parties. One of those directions was that the applicants file and serve amended points of claim by 7 August 2009. The applicants acted pursuant to that direction and filed and served amended points of claim. However, the terms of the direction did not extend to granting leave to the applicants to amend their points of claim in terms of the documents filed on 7 August 2009. Paragraph 14 of the Practice Note - Class 3 Compensation Claims states that parties require leave of the court to amend their points of claim and points of defence. Hence, there still was the need to obtain the court's leave to amend the points of claim in accordance with the filed amended points of defence. 11 This matter was also dealt with today. Upon ascertaining that no leave has been granted by the court, the applicants and respondent properly agreed to deal with an application for leave to amend the points of claim in terms of the amended points of claim filed on 7 August 2009 and this was done. After considerable and helpful argument, it became clear that the document that had been filed on 7 August 2009 did not adequately describe the applicants' claim as to the heads of compensation to which they said they were entitled under s 55 of the Land Acquisition (Just Terms Compensation) Act. 12 A number of facts were pleaded which may potentially be facts used by the various experts, particularly the expert valuer, to determine the amounts of compensation claim. However, those facts needed to be recast to make them relevant to the claims for compensation. It was also fair to say that through the dialogue between the applicants' counsel and myself a clearer understanding of the applicants' claim was revealed. The amended points of claim did not adequately capture that clearer articulation of the claim. In these circumstances, leave ought not to be granted to amend the points of claim in terms of the amended points of claim filed on 7 August 2009. Rather, the applicants should be given an opportunity to revise the form of amended points of claim to better accord with and describe the claims that are now being sought. 13 Accordingly, leave is refused to amend the points of claim in terms of the amended points of claim filed and served on 7 August 2009. This also means that the council's notice of motion dated 1 September 2009 should be dismissed. Again, I will need to deal with costs shortly. Case management 14 The parties also took advantage of the hearing today to examine the preparation of the matter for trial. As a result it has been possible to formulate some directions which will ensure the orderly and efficient preparation of the matter and the fixing of the matter for trial. These directions include allowing the applicants to serve further amended points of claim or draft points of claim which can be reviewed by the respondent and then form the basis for an application for leave to amend. There will also be a timetable for evidence and joint conferencing and a fixing of the matter for hearing. At the conclusion of this judgment, I will make orders in terms of the agreed directions for the preparation of this matter and the trial. Costs 15 I now turn to determine questions of costs. Four categories of costs need to be determined: first, the costs in relation to the applicants' motion to review the Acting Registrar's decision; second, the costs in relation to the council's motion to strike out the applicants' amended points of claim filed on 7 August 2009; third, the costs of that part of today's hearing that related to case management; and fourth, the costs of the applicants' application to review order 3 of the Acting Registrar's decision made on 10 July 2009 ordering the applicants to pay the costs of the respondent. I will deal with each. 16 In relation to the first, for the reasons I have already given, I have determined that the Acting Registrar's decision in relation to the subpoena to ERM should be set aside. However, the reasons that I have given for doing so show the limited basis upon which I determined to intervene. The Acting Registrar's decision sets out in para 8 of the reasons for decision a summary of the various paragraphs of the subpoena that was addressed to ERM. It can be seen from that summary that the subpoena was drawn quite broadly. It certainly was not limited to production of the statement of environmental effects in relation to the land or the quarry. For the reasons I have given earlier, the applicants stated that they were no longer seeking to call upon all of the paragraphs of the subpoena but were content to accept the production of only the statement of environmental effects and the covering letter in complete answer to the subpoena. 17 Clearly, the statement of environmental effects was but one of the documents sought in the broadly drawn subpoena. The applicants have also articulated at the hearing the relevance of the statement of environmental effects. The relevance had nothing to do with the development that was the subject of the statement of environmental effects, namely, a proposed waste transfer station, but rather related to the information in the statement of environmental effects concerning the environmental characteristics of the land. It was this information that I was persuaded was potentially relevant to the applicants' claims for compensation. Hence, it was these two facts, namely, the applicants' acceptance that they would not further call upon the subpoena and that the production of the statement of environmental effects and covering letter could be accepted as a complete answer and, secondly, the articulation of the relevance of that statement of environmental effects, that were determinative in my concluding that the Acting Registrar's decision setting aside the subpoena should itself be set aside. But for those two facts, there may well be considerable force in the Acting Registrar's decision that the subpoena was too broadly drawn and I would not have otherwise intervened in the decision. In relation to the notice to produce to the council, I was not persuaded that there was any basis to intervene in the Acting Registrar's decision. The notice to produce was too broadly drawn seeking documents that could have no potential relevance to the applicants' claims for compensation. Accordingly, I did not intervene in that decision or orders of the Acting Registrar. 18 Viewed this way, therefore, although I have determined to set aside certain of the orders of the Acting Registrar, the applicants cannot be said to have been substantially successful and the proper order ought to be that the applicants pay the respondent's costs associated with the applicants' notice of motion to review the Acting Registrar's decision including that part of today's hearing that involved that matter. 19 In relation to the council's motion to strike out the applicants' amended points of claim filed on 7 August 2009, it can be seen that both parties have proceeded on a misunderstanding as to the terms of the court's directions made on 24 July 2009. As I have earlier stated, those directions simply allowed the filing of amended points of claim but leave was not granted. Leave was required before the points of claim could be amended. Nevertheless, today's hearing was put to good use and the applicants made oral application for leave to amend in accordance with those amended points of claim. I have determined that leave ought not be granted for the reasons I have given earlier. This means that the applicants have not been successful in their application for leave to amend their points of claim in accordance with the amended points of claim filed on 7 August 2009. For that reason I would make an order that the applicants pay the respondent's costs in relation to today's hearing of the application for leave to amend the points of claim. However, because both parties proceeded, prior to the hearing today, on the erroneous basis that leave had already been granted and prepared the matter, including preparing written submissions, on the basis that what was required was to strike out those amended points of claim, I do not consider that the costs associated with doing that work should be included in any costs order. All of that work is of no utility in relation to the question of whether leave ought to be granted. It had been directed to a different question. For that reason I would limit the scope of the costs that the applicants should pay to being the costs of today's hearing before me dealing with the oral application for leave. 20 In relation to case management, the parties properly took advantage of the fact that the matter was before the court today and sought appropriate directions. This did not take up any considerable period of time, perhaps only half an hour. I would not make a separate order in relation to this part of the hearing. 21 In relation to the applicants' application to review order 3 of the Acting Registrar made on 10 July 2009, I do not consider that the applicants have made out a case for the court to intervene. The Acting Registrar determined that both the subpoena to the third party and the notice to produce to the council should be set aside. In relation to the notice to produce, the council had advanced a number of grounds as to why the notice to produce should be set aside. The Acting Registrar accepted one of those grounds, namely, that there was no legitimate forensic purpose, but did not accept another ground, namely, that it was an abuse of process. The applicants say that because the applicants only succeeded on one ground, not both, then each party had partial success and therefore there should not be an order that the applicants pay the respondent's costs. I do not agree. A party may advance a number of reasons in support of an argument. It is not necessary for it to succeed on every one of the reasons advanced. It is sufficient that it persuaded the court on any one of its reasons to set aside the notice to produce. This is what occurred in this case. I do not consider it appropriate to separate costs according to the reasons advanced. Accordingly, it was an appropriate order that the Acting Registrar made that the applicants pay the respondent's costs in relation to the notice of motion to set aside the notice to produce. 22 For those reasons, the costs orders should be as follows: (a) The applicants pay the respondent's costs of its notice of motion dated 16 July 2009. (b) The applicants pay the respondent's costs of the hearing today of the applicants' application to seek leave to amend its points of claim in accordance with the amended points of claim filed on 7 August 2009. Orders 23 The court now makes the following orders and directions: (1) Orders 1, 6, 7 and 8 of the Acting Registrar made on 10 July 2009, are set aside. (2) The applicants' notice of motion dated 16 July 2009 is otherwise dismissed. (3) The respondent's notice of motion dated 1 September 2009 is dismissed. (4) Leave is refused to the applicants to amend their points of claim in the form of the amended points of claim filed on 7 August 2009. (5) The applicants are to pay the respondent's costs of the applicants' notice of motion dated 16 July 2009. (6) The applicants are to pay the respondent's costs of the hearing today of the applicant's oral application for leave to amend their points of claim in the form of the amended points of claim filed on 7 August 2009. (7) The applicants are to file and serve their expert reports by 2 October 2009. (8) The directions hearing on 2 October 2009 is vacated. (9) The applicants are to serve on the respondent a draft amended points of claim by 16 October 2009. (10) The respondent is to notify the applicants whether it opposes leave being granted to the applicants to amend the points of claim by 23 October 2009 and, if so, file and serve an outline of the grounds of opposition. (11) The matter is re-listed before Preston CJ on 29 October 2009 at 9am for directions and, if necessary, to determine the applicants' application for leave to amend their points of claim. (12) The respondent to file and serve points of defence by 13 November 2009. (13) The respondent to file and serve its expert reports and lay affidavits by 4 December 2009. (14) The parties' respective experts, grouped in areas of expertise, are to confer and produce joint reports in accordance with the practice note by 5 February 2010. (15) The matter is listed for hearing on Friday, 19 February 2010 to commence on site at 10am and to continue for five days in the week commencing Monday, 22 February 2010. (16) A conciliation conference under s 34 of the Land and Environment Court Act 1979 is to be arranged between the parties or their representatives on Friday, 12 February 2010 at 10am at court. (17) Liberty is granted to the parties to apply to the Court on 2 days notice.