Land and Environment Court New South Wales Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34 Hearing dates: 5 March 2012 Decision date: 05 March 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Leave to reopen is refused Catchwords: PRACTICE AND PROCEDURE: application for leave to reopen to admits further evidence - whether interests of justice better served by allowing or rejecting the application - evidence not relevant - prejudice to party opposing application - no explanation for failure to obtain evidence earlier or for delay in making application - application refused Legislation Cited: Environmental Planning and Assessment Act 1979, s 76A, Pt 3A National Parks and Wildlife Act 1974 s 86 Cases Cited: Kennedy v Stockland Developments Pty Ltd (No2) [2012] NSWLEC 3 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 Category: Interlocutory applications 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 Ex Tempore Judgment The Applicant Applies to Reopen His Case at the Commencement of Final Submissions 1This is an application by the applicant to reopen his case in order to admit into evidence a deed made between BHP Refactories Pty Ltd ("BHP") and the Council of the City of Wollongong ("the council"). 2The application was made after the evidence of both parties had closed but before final addresses had commenced. The application comes on day four of what was originally listed to be a three day hearing and after a two week adjournment in the proceedings. Factual Background to the Application 3Mr Kennedy is an Aboriginal person of the Yuni Nation with traditional links to the land and is the founder of the Sandon Point Aboriginal Tent Embassy. 4Stockland is a corporation that has the benefit of major project approval pursuant to the now repealed Pt 3A of the Environmental Planning and Assessment Act 1979 ("the EPAA") for the construction of a 181 lot subdivision with associated works and a boundary readjustment. These works include the construction of a road running east to west along the southern boundary of the subdivision development site. 5Mr Kennedy claims that Stockland has breached the approval by undertaking works not authorised by the approval for the purposes of clearing and constructing a shared road way on land described as "Wilkies Walk". As a consequence, he further alleges that Stockland is carrying out construction of a road without consent in breach of s 76A of the EPAA and that Stockland has breached s 86 of the National Parks and Wildlife Act 1974 by damaging or destroying objects of Indigenous cultural heritage and a potential archaeological deposit. 6Additional factual background to the application is set out in Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 at [7]-[20] and is not repeated here. Applicable Legal Principles 7The applicable legal principles in respect of an application to reopen a party's case to admit additional evidence were set out in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 (at [10]-[15]): 10. The 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. 11. Similarly, 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". 12. These 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. 13. The 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... 14 . While 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). 15. In 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. 9When regard is had to these principles, it is apparent that the interests of justice are better served by rejecting the application. Leave to Reopen is Refused 10The application is rejected for three principal reasons. First, the relevance of the evidence is not apparent to the case as pleaded by the applicant. 11The document sought to be admitted purports to be a deed between the two parties granting a licence to the council to use land known as "Wilkies Walk" as a public walkway. The applicant asserts that the deed is evidence that Wilkies Walk is public land and that in the absence of any evidence that the licence has been terminated, Stockland did not have approval to build any part of the road over Wilkies Walk. 12Neither BHP nor the council are a party to the proceedings. Moreover, BHP sold the land the subject of the deed to the respondent, Stockland Developments Pty Ltd ("Stockland"), in 2000. In addition, the document is dated 11 August 1994, which is approximately fifteen years prior to the granting of major project approval the subject of these proceedings. On the face of the document, therefore, the deed appears to have little relevance to the proceedings. 13When pressed, the applicant had recourse to paragraphs 6 and 7 of the points of claim in order to justify the deed's relevance. 14Paragraph 6 of the points of claim deals with an alleged breach of s 76A of the EPAA by the carrying out of work on the land that includes Wilkies Walk, absent, as the applicant claims was required, any environmental and cultural heritage assessments having been undertaken. Plainly, this document is in no way relevant to this allegation. 15Paragraph 7 deals squarely with the major project approval determination and similarly alleges that there was no approval given under the determination for the construction of the road in its present form, again, because no mandated environmental assessment was undertaken by Stockland. Again, the deed can have no relevance to the terms of the approval and its breach as alleged. 16Second, the application is rejected because, if the deed were admitted into evidence at this late stage in the proceedings it would cause real prejudice to Stockland. This document, which the applicant alleges gives rise to an inference that the licence for the public to use the land has not been terminated, cannot now be tested by Stockland and its status is unknown. If, as the applicant claims, there was no termination of the licence granted by this deed, this is a matter that the respondent would wish to challenge but, absent another adjournment of an already protracted hearing, would be precluded from doing so. 17Third, there is no cogent evidence in any proper form explaining why this evidence could not have been admitted earlier or explaining the reasons for the delay in making the application. The respondent was served with this document at approximately 4.00 pm on Sunday prior to this case recommencing the following day. Liberty to apply was given to the parties specifically to ensure the ventilation of such issues prior to the hearing resuming in order to facilitate the efficient conduct of the remainder of the proceeding. This liberty was not exercised by the applicant, who instead elected to make the application, with almost negligible notice to Stockland, on the first day of the resumption of the hearing after a two week adjournment. 18Mr Oshlack, appearing as agent on behalf of the applicant, stated that he only received this document "from a local resident three or four days ago". Even if the Court were to accept evidence in this form from the bar table, which it does not, this does not explain why the document was served so late on the respondent. As a consequence of the late service and the late notification of the application, Stockland has been unable to verify its status (it may, for example, have been superseded by another agreement) or give proper instructions as to its content. Order 19For these reasons the applicant's application for leave to reopen his 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: 05 April 2012