Land and Environment Court New South Wales Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 5) [2012] NSWLEC 21 Hearing dates: 14 February 2012 Decision date: 14 February 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Application to amend dismissed Catchwords: PRACTICE AND PROCEDURE - late application to amend raising new factual and legal issues - no prejudice to the applicant if amendments not allowed - prejudice to the respondent if amendments allowed - no explanation for the delay - application dismissed Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 64 Environmental Planning and Assessment Act 1979, s 76A Cases Cited: Aon Risk Services Ltd & Australian National University [2009] HCA 27; (2009) 239 CLR 175 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144 Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249 Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 Vilro Pty Ltd and Roads and Traffic Authority of NSW [2010] NSWLEC 141 Category: Procedural and other rulings Parties: Mr Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent) Representation: Mr A Oshlack (Applicant) Mr J E Robson SC with Mr H El-Hage (Respondent) Herbert Geer (Respondent) File Number(s): 40977 of 2011 Extempore Judgment Late Application to Amend 1This is an application by Mr Roy "Dootch" Kennedy, the applicant, on behalf of the Sandon Point Aboriginal Tent Embassy, to amend his points of claim and amended summons. 2The proposed amendments were served on the respondent, Stockland Developments Pty Ltd ("Stockland"), late. Specifically, they were served on Stockland the night before this matter was due to commence a three-day hearing. The matter was commenced on 27 October 2011 and set down for hearing on 11 November 2011. 3The amendments effectively seek to raise the following new claims in paragraph (1)(i) of the points of claim in the pleadings (with cognate changes to the amended summons), namely, that: (a) Stockland has undertaken work to establish a temporary pathway without development consent under the Environmental Planning and Assessment Act 1979 ("the EPAA"); (b) Stockland has breached s 76A of the EPAA by establishing the temporary pathway; (c) Stockland has undertaken works to establish the temporary pathway on a separate lot of land that has not previously been the subject of these proceedings as pleaded, namely, Lot 517 DP1156416 ("Lot 517") and that these works have been conducted without development consent. Lot 517 is owned by Wollongong City Council ("the council"), which is not a party to these proceedings; and (d) that the works described in the points of claim have occurred on Lot 517, absent consent. Background to the Application 4The background to these proceedings has been set out in a number of recent judgments of this Court, but was summarised most recently by Sheahan J in the decision of Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 and by myself in Kennedy v Stockland Developments Pty Ltd (No 3) [2011] NSWLEC 249. Suffice it to say, I do not repeat this history for present purposes. It is lengthy, complex and the development at Sandon Point has been the subject of multiple challenges over the past decade. Applicable Legal Principles 5The legal principles to be applied to an amendment application are set out in a number of decisions of this Court. The starting point is, however, s 64 of the Civil Procedure Act 2005 ("the CPA"), which permits the Court to grant leave to amend at any stage. But in exercising this discretionary power, the Court must take into account the overriding purpose contained in s 56 of that Act, viz , to ensure the "just, quick and cheap" resolution of the real issues for determination in the proceedings. The Court must also have regard to ss 57 and 58 of the CPA. These latter provisions are concerned with the "dictates of justice". These dictates include the just determination of the proceedings, the efficient disposal of the business of the Court, the likely cost of the proceedings, and the justice of the application to amend to the parties (see the decision of the High Court in Aon Risk Services Ltd & Australian National University [2009] HCA 27; (2009) 239 CLR 175, as applied by this Court in Vilro Pty Ltd and Roads and Traffic Authority of NSW [2010] NSWLEC 141 and Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144). Applicant's Evidence and Submissions 6The applicant has not furnished the Court with any evidence in support of his application to amend. In particular, the applicant has not furnished the Court with any evidence explaining why the amendments sought were served on the responded late or indeed what prejudice would flow to the applicant if the application were denied. 7In support, the applicant submits, first, that the proposed amendments are very discrete having regard to the extensive nature of the development that has been challenged in the proceedings. The applicant described the proposed amendments as "minor in the scheme of the whole matter". 8Second, the applicant submits that the physical works the subject of the proposed amendments are small in scope. Presumably this contention is made in order to assert that the evidence that would be required to prove whether or not the physical works had taken place on the impugned land is small in compass. 9Third, the applicant states that there is already sufficient evidence before the Court in relation to the very subject matter of the proposed amendments, namely, whether or not Stockland had consent to carry out the works that are now claimed to be unlawful. 10The applicant referred to the affidavit of Mr Michael Braithwaite, affirmed 7 February 2012, where, at paragraphs 31 to 39 of that affidavit, Mr Braithwaite (who is the development manager for Stockland and whose responsibilities include the development of the land owned by Stockland at Sandon Point which is the subject of these proceedings) deposes to the "permission" given by the council to Stockland to construct the temporary pathway. Mr Braithwaite goes on, at paragraphs 41 to 45 of his affidavit, to discuss the nature of those construction works. 11The applicant submits that in light of Mr Braithwaite's evidence there can be no prejudice flowing to Stockland were the amendments to be permitted because all of the factual matters upon which it would seek to rely in order to refute the new allegations are already the subject of evidence filed in Court in these proceedings. 12Fourth, the applicant submits that if the amendments are not granted then he will be required to commence further litigation in respect of the matters he now seeks to have included in these proceedings. While Mr Oshlack, who appears as an agent for Mr Kennedy, does not presently have these instructions, I readily infer, given the extensive litigious history of this development, that they are likely to be obtained. 13Fifth, when raised in answer to a question by the Court as to whether or not the council was aware of this application given their interest in Lot 517, the applicant referred the Court to an affidavit of Mr Marcel Van Wijk, affirmed 21 November 2011, particularly at paragraphs 14 to 17. In that affidavit, Mr Van Wijk deposes to an "onsite" inspection at which he was present with the Lord Mayor, councillors and council staff on 2 November 2011, the purpose of which was to "look on site in relation to council's preparation of a Sandon Point Plan of Management". During the course of this onsite meeting, observations were made as to the extent of the earthworks at the bottom of Wilkies Walk. Two photos of what Mr Van Wijk observed during the inspection were attached to the affidavit. This evidence, the applicant submitted, demonstrated that the council was aware of the construction taking place on Lot 517 and the council was therefore on notice that there was an issue concerning the lawfulness of these works. Stockland's Evidence and Submissions 14Stockland submits that these new claims give rise to a significant change in proceedings and involve a fundamental shift in the applicant's case. Stockland claims that, first, the amendments challenge the decision-making process of the council. Second, the nature of the "activity" undertaken by Stockland, which is a term that has been specifically defined in the points of claim, has been expanded to include the whole of the temporary pathway and not a portion of it, as previously pleaded, but moreover, that this explained "activity" has been undertaken on an additional plot of land, namely, Lot 517, not previously part of the proceedings. Third, this gives rise to a factual question as to whether any part of that temporary pathway is located on this additional plot of land. And if so, fourth, whether the "activity", in its expanded form, constitutes a breach of the EPAA because, fifth, consent was required to undertake it. 15Stockland submits that, leaving aside the legal question raised by the amendments, these matters give rise to new factual disputes, which will necessitate further evidence being obtained to meet the allegations. 16In this regard, Stockland relies on an affidavit of Mr Robert Wilcher, affirmed 14 February 2012. Mr Wilcher is a partner of Herbert Geer, who is a solicitor for Stockland and who has carriage of these proceedings. Mr Wilcher, as his evidence discloses, is an experienced litigator. Furthermore, he has acted for Stockland over the past decade in relation to the litigation surrounding the development at Sandon Point. 17Mr Wilcher states, at paragraph 7 of his affidavit, that Stockland would need to undertake the following matters in order to prepare its case in response to the issues raised by the amendments: (a) first, instructions would need to be obtained from Stockland and Mr Wilcher would need to provide advice on the proposed amendments; (b) second, instructions would need to be obtained from Stockland's contractors and employees, particularly those involved in the construction works associated with the temporary pathway; (c) third, additional documentary material would need to be marshalled to refute the new allegations. This would, it is inferred (it was not explicitly stated in the affidavit), include documentary evidence concerning the permission that has been granted by the council to Stockland and the decision-making processes of the council with respect to the activities constituting the construction of the temporary pathway; (d) fourth, potential witnesses would need to be interviewed and affidavits obtained, particularly from council officers; (e) fifth, expert evidence may need to be obtained, such as surveying evidence, in order to determine the precise location of the temporary pathway; and (f) sixth, evidence may need to be obtained from members of the public who use the temporary pathway, such evidence relevant to any issue of discretion. 18It is Mr Wilcher's evidence that, in his experience, Stockland would require at least 28 days to undertake the necessary inquiries and martial the additional evidence to meet these claims. Leave to Amend is Refused 19There is no doubt in my mind that, for the reasons given by Stockland, real prejudice would flow to it if the amendments were permitted. No prejudice is likely to be suffered by the applicant, however, if the application is refused. The applicant will not be precluded from commencing fresh proceedings to agitate the issues he seeks to include in the present proceedings through the vehicle of the amendment application. 20The Court is also concerned with the fact that the council does not play any part in these proceedings. The proposed allegations plainly raise issues to which the council may wish to respond given that the decision-making process of the council in granting permission to Stockland to construct part of the temporary pathway on Lot 517 would be under challenge and given that the conferral of permission to construct the temporary pathway on its land does not necessarily equate to the conferral of consent for the purposes of the EPAA. 21While Mr Oshlack states that the council is aware of these proceedings and is clearly aware of the construction taking place to build the temporary pathway, this, even if correct, in my opinion, is not sufficient notice to the council to determine whether or not to participate in the proceedings if the amendments were permitted. 22The Court is additionally troubled by the fact that the applicant has not filed any evidence to explain his delay in bringing the application to amend. The High Court in Aon (at [118]) has emphasised the importance of an explanation for the delay. Although this factor alone is not determinative, the absence of any explanation for the delay is magnified by the fact that the applicant has clearly been aware of the existence of the temporary pathway since it was established in or around September or October 2011. This is clear from the evidence the applicant relied upon, for example, Mr Van Wijk's affidavit and Mr Braithwaite's affidavit. 23While the spectre of fresh proceedings in respect of this development and the temporary pathway is unpalatable, given the lengthy litigious history of this development, any threat of a multiplicity of proceedings over the same or similar subject-matter has long since lost its potency and is relegated to a minor consideration in the exercise of the Court's discretion to permit the amendments. 24Finally, as Stockland submits, it is no answer to the application that the Court can adjourn the proceedings, allow the amendments and permit the matter to go ahead at a later date in its amplified form. As Stockland states, it has come fully prepared to meet the case it understood, at least until the evening of 13 February 2012, was being put against it. In any event, while the financial position of Mr Kennedy is not presently known, there is no evidence before the Court that he can, irrespective of his willingness to do so, meet the costs thrown away occasioned by the adjournment, which at this late stage, are likely to be considerable. Conclusion and Order 25In all these circumstances, the Court must dismiss the application to amend. ********** 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: 21 February 2012