Land and Environment Court New South Wales Medium Neutral Citation: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 Hearing dates: 8 March 2011 Decision date: 08 March 2011 Jurisdiction: Class 4 Before: Pepper J Decision: Leave to reopen refused Catchwords: PROCEDURE: application to reopen case to adduce further documentary evidence obtained pursuant to a subpoena -application on last day of hearing during the course of closing submissions - application refused - documentary evidence had limited probative value and, if admitted, would have either caused prejudice to the other parties, necessitated an adjournment of the proceedings, or both Legislation Cited: Civil Procedure Act 2005, ss 56-60 Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005, rr 21 and 29.5 Cases Cited: Australian Securities and Investment Commission v Rich [2006] NSWSC 826; 235 ALR 587 Gaskin v Ollerenshaw [2010] NSWSC 788 Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 2) [2011] NSWLEC 25 Category: Procedural and other rulings Parties: Wollondilly Shire Council (Applicant) Foxman Environmental Development Services Pty Ltd (First Respondent) Phillip Foxman (Second Respondent) Botany Building Recyclers Pty Ltd (Third Respondent) Representation: Counsel: Mr T Howard (Applicant) Mr P Clay with Mr M Seymour (First, Second and Third Respondents) Solicitors: Hones La Hood (Applicant) Whittens Lawyers (First, Second, Third Respondent) File Number(s): 40578 of 2010 Judgment Introduction 1The background to this judgment, which articulates in greater detail the reasons for refusing the council's application to reopen its case, is contained in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 2) [2011] NSWLEC 25. 2This is the council's application, made on the last day of the hearing during closing submissions, to reopen its case to adduce further documentary evidence produced pursuant to a subpoena, issued 25 February 2011, to the Department of Environment, Climate Change and Water ("DECCW"). 3A reason for the late application is because the subpoena issued to DECCW had, pursuant to Wollondilly (No 2), been stood over to 3 March 2011 pending the finalisation of an agreed statement of facts by the parties. While it was anticipated that the agreed statement of facts would be completed by 2 March 2011, the agreement was not tendered until 7 March 2011, the penultimate day of the seven day hearing. 4No explanation was proffered, however, by the council as to why the subpoena to DECCW was not issued until 25 February 2011, that is to say, only one week before the commencement of the hearing. Application to Set Aside the Subpoena is Refused 5Further complicating matters was the fact that the subpoena had lapsed on 3 March 2011, and therefore, it was necessary for the council to make an application to revive it. That application was granted on 7 March 2011, although when the subpoena was called upon that day by the council, the respondents' oral application to have it set aside referred to in Wollondilly (No 2) was renewed. 6The basis for the application to set the subpoena aside was, first, because it lacked legitimate forensic purpose, and second, because it was too broad, seeking as it did documents from December 2007, whereas the conduct the subject of the proceedings did not, as pleaded, commence until September 2009. 7The Court did not set aside the subpoena. This was because, as submitted by the council, the purpose in obtaining the volumetric surveys the subject of the subpoena was to demonstrate that Botany Building Recyclers Pty Ltd ("BBR") was either in actual, or imminent, breach of its licence to operate its Banksmeadow waste facility by exceeding the amount of material it was licensed to store at the facility. The information would, it was submitted, permit the Court to more readily infer: that BBR had moved the material stored at the waste facility in order to comply with its licence; that the material was transported to the land the subject of these proceedings; and that as a consequence, the material deposited was unwanted and therefore "waste" as defined in the Protection of the Environment Operations Act 1997. 8The Court was further informed by the council that volumetric surveys were not regularly performed by BBR and that in order to capture the volumetric survey closest to the period of time covered by these proceedings, it was necessary to seek all volumetric surveys from the period December 2007 to date. 9On this basis the subpoena neither lacked forensic legitimacy, nor was it impermissibly broad in scope. Applications to Reopen: Applicable Legal Principles 10The Uniform Civil Procedure Rules 2005 ("UCPR") do not contain a specific provision dealing with the reopening of a party's case. Instead a general discretion is conferred as to the conduct of the proceedings in r 2.1, which states that: The court may, at any time and from time to time, give such directions and make such orders for the conduct of proceedings as appear convenient... for the just, quick and cheap disposal of the proceedings. 11Similarly, r 29.5 of the UCPR provides that, "[t]he court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial". 12These provisions, together with the principles set out in ss 56-60 of the Civil Procedure Act 2005 ("the CPA"), are sufficient to give the Court the power to determine the application by the council to reopen its case. 13The overarching guiding principle in determining whether leave to reopen ought to be granted is ( Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 per Clarke JA, with whom Mahoney and Meagher JJA agreed): ...whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place... 14While this authority, and others of its ilk, were dealing with a statutory regime that preceded the promulgation of the overriding purpose contained in s 56 of the CPA, it nevertheless remains apposite ( Gaskin v Ollerenshaw [2010] NSWSC 788 at [22] per Garling J and Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [17] per Biscoe J). 15In Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587 at [18] Austin J set out some of the factors which may be relevant in any consideration of whether or not to grant leave to reopen to a party for the purpose of adducing further evidence (quoted and applied in Gaskin at [23]): 18 .... The list is as follows: (a) the nature of the proceeding; (b) whether the occasion for calling the further evidence ought reasonably to have been foreseen; (c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; (d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief; (e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case; (f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time; (g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs; (h) the public interest in the timely conclusion of litigation; and (i) what explanation is offered by the plaintiff for not having called the evidence-in-chief. 16As will become apparent, when these factors are applied to the facts of this application, they all but compel its refusal. Leave to Reopen is Refused 17The respondents opposed the application for leave to reopen primarily on the basis that the volumetric survey had no probative value. I agree with this submission. 18The survey indicates that as at 27 March 2010 a volumetric figure of 11,823 m of material was stored at the Banksmeadow waste facility. This was in excess of licence condition L 5.4.1 which stipulated that the maximum storage capacity of the waste facility was 10,000 m or 20,000 tonnes, or whichever was the lesser, of waste and/or processed materials. 19However, a closer examination of the volumetric survey revealed that a materially significant portion of the material stored on the site was undefined, was raw material or was soil. These materials may or may not have been waste and/or process material in accordance with condition L 5.4.1 of the licence. The information contained in the volumetric survey was therefore entirely equivocal. 20Mr Howard, who appeared for the council, sought to remedy the ambiguous nature of the volumetric survey by also seeking to tender a covering letter from BBR to the Environment Protection Authority. The letter purportedly indicated that it was a volumetric survey of the waste on the BBR site. Mr Clay, appearing for the respondents, objected to the Court seeing the letter and submitted that if it were put before the Court, it would necessitate obtaining instructions about the contents of the letter and the volumetric survey. 21This would inevitably have resulted in further delay in the finalisation of the hearing of the proceedings, which had been characterised by a number of adjournments. 22Given the negligible probative value of the survey - a consequence of the indeterminate information contained in it; the prejudice that the tender of this survey and the accompanying cover letter could cause the respondents; and the very high likelihood that a further adjournment of these proceedings, albeit brief, would have been required in order to provide the respondents with an opportunity to consider their position in relation to this late evidence, the Court declined to grant the council leave to reopen its case on the basis that it was not in the interest of justice to do so. 23Furthermore, to do otherwise would not have facilitated the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings (s 56 and ss 57-60 of the CPA). Order 24The council's application for leave to reopen their case is refused. ********** 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: 25 March 2011