Land and Environment Court New South Wales Medium Neutral Citation: Manning v Bathurst Regional Council [2012] NSWLEC 127 Hearing dates: 1 June 2012 Decision date: 01 June 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Leave granted to file amended summons. Hearing date vacated: see para [14] Catchwords: PRACTICE AND PROCEDURE: application for leave to amend summons - consequential vacation of hearing date - leave granted Legislation Cited: Civil Procedure Act 2005 ss 56-60 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Category: Procedural and other rulings Parties: Bhakti Manning (Applicant) Bathurst Regional Council (First Respondent) Grant Lynch (Second Respondent) Representation: Ms V McWilliam (Applicant) Ms A Hemmings (First Respondent) Mr C Peadon (Second Respondent) Susan Hill & Associates (Applicant) Crennan Legal (First Respondent) Kenny Spring Solicitors (Second Respondent) File Number(s): 40275 of 2012 EX TEMPORE Judgment The Parties Apply to Vacate a Hearing Date 1Before the Court are two notices of motion: (a)a notice of motion filed by the applicant on 29 May 2012 seeking leave to file an amended summons; and (b)a notice of motion filed on 28 May 2012 by Bathurst Regional Council ("the council") seeking to vacate the hearing date of 19 June 2012. 2The motions were supported by an affidavit of Ms Susan Hill, the solicitor for the applicant, sworn on 29 May 2012, and an affidavit of Ms Laura-Jane Longmore, the solicitor for the council, sworn on 25 May 2012. 3By summons filed 20 March 2012, the applicant seeks declaratory relief to the effect that two development consents granted on 5 December 2011 and 6 February 2012 are invalid. The consents relate to a premises at 9 McKell Street, West Bathurst, owned by the second respondent, Mr Grant Lynch. The bases of invalidity include a denial of procedural fairness and failure on the ground of uncertainty. 4In the original summons, in addition to declaratory relief, the applicant sought an order that Mr Lynch be restrained from acting on the consents. The proposed amended summons, however, includes an additional order that Mr Lynch demolish the development constructed pursuant to the consents. 5It appears from the procedural history of this matter that the proceedings were set down for final hearing at the first directions hearing on 13 April 2012. It is also apparent that there has been a history of delay by the applicant in complying with the timetable set by the Court for the preparation of the matter. This delay has had a consequential adverse effect on the respondents' preparation. Indeed, on the last occasion the matter was before the Court, on 25 May 2012, the respondents foreshadowed the need for the hearing to be vacated by reason of the applicant's delay and the possible amendment of the summons. 6No reason is given in the affidavit of Ms Hill for the failure of the applicant to comply with previous orders of the Court or why the amendment to the summons is sought at this late stage. Ms Hill has also not provided any evidence of the prejudice that would flow to the applicant if leave is not granted to file the amended summons. 7Ordinarily, this, together with the alleged prejudice flowing to the respondents, would be sufficient to cause the Court to decline to exercise its discretion to grant leave to amend (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175). 8Criticism must also be directed to the affidavit of Ms Laura-Jane Longmore. Although her affidavit details the difficulty caused to the council by the applicant's slippage in the timetable referred to above, the affidavit does not provide any evidence of any prejudice that would flow to the council if leave to amend the summons is permitted. That is to say, the affidavit does not demonstrate the necessity for the vacation of the hearing date caused by the filing of the amended summons. Again, this would be sufficient to decline the exercise of the Court's discretion to vacate the hearing date, on the basis that there was no need to do so. 9Unsatisfactorily instead, statements were made from the bar table, and an inference was drawn from the consent short minutes of order handed up to the Court, that, in its present state of preparedness, the hearing on 19 June 2012 cannot proceed because if it did, incurable prejudice would flow to the respondents. I accept that this is so. 10Upon questioning by the Court, the council also informed the Court that the relief seeking an order for demolition will in all likelihood necessitate further evidence to be filed by it, and by Mr Lynch. This is undoubtedly correct. 11In all the circumstances, therefore, it is an appropriate exercise of the Court's discretions to grant the applicant leave to file the amended summons and to vacate the hearing date. The Court exercises these discretions having regard to the principles set out in ss 56-60 of the Civil Procedure Act 2005. 12Finally, the Court notes that one of the consent orders is that the applicant is to pay the respondents' costs thrown away as agreed or assessed occasioned by the filing of the amended summons and the vacation of the hearing date. This is an appropriate order. Indeed, had the respondents sought an order that these costs be paid on an indemnity basis, the Court would have, in all likelihood, viewed the submission favourably. However, because no such order was sought, none is made. Orders 13The parties handed up proposed short minutes of order by consent, which the Court made. ********** 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: 01 June 2012