Land and Environment Court New South Wales Medium Neutral Citation: Lane Cove Council v Ross (No 9) [2013] NSWLEC 78 Hearing dates: 28 May 2013 Decision date: 28 May 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Application to re-open evidence refused. Catchwords: PROCEDURE: application to re-open case to file document in court - no explanation for delay - document incomplete - application refused. Legislation Cited: Civil Procedure Act 2005, ss 56-60 Cases Cited: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 Category: Interlocutory applications Parties: Lane Cove Council (Applicant) Mr Raymond Ross (Respondent) Representation: Mr N Eastman (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent) File Number(s): 40628 of 2012 Ex Tempore Judgment Mr Ross Seeks Leave to Re-Open the Evidence in His Recusal Application 1This is an application by Mr Ross to re-open the evidence upon which he seeks to rely in his application for me to recuse myself. 2The evidence that Mr Ross wishes to put before the Court was shown to me in a blurry and incomplete form on his mobile telephone by way of a photograph. Mr Ross claims that the photograph is of a document obtained from Lane Cove Council. 3As I understand it, Mr Ross asserts that the document is relevant to his allegation that Mr Mason, who gave evidence on behalf of the council during the recusal application, has been untruthful, both in respect of the evidence contained in his affidavit and during his cross-examination, when he denied having told a neighbour "I know Pepper is not a real judge". Mr Ross seeks to put the document before the Court in order to prove that this evidence was false. 4But Mr Ross cannot tell the Court how the photograph of the document had been obtained, how it came to be sent to him, who took it, or when or whether he can produce the actual document the subject of the photograph to the Court. 5The applicable legal principles governing leave to re-open evidence after it has closed were summarised by the Court 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. 6Applying these principles, and having regard to ss 56-60 of the Civil Procedure Act 2005, it is apparent that Mr Ross' application must be refused. 7Given that it is now 2pm on day two of a three day resumed part-heard Class 4 hearing, the time having been occupied by the current recusal application and multiple applications by Mr Ross to adjourn the proceedings, one of which is still ongoing, I do not consider it to be "just, quick and cheap", pursuant to the principles enshrined in ss 56 to 60 of the Civil Procedure Act and those contained in Foxman (No 4), to permit Mr Ross to re-open his case to adduce this evidence. This is particularly so given that he is not able to tell the Court why it is that this evidence was not put before it earlier, especially when Mr Mason was being cross-examined by Mr Ross. 8To permit Mr Ross to adduce this evidence would result in further delay in the finalisation of his recusal application and in the final determination of the Class 4 proceedings, if for no other reason than the fact that Mr Mason has since been excused and granting leave to Mr Ross to re-open his evidence would, as a matter of fairness to both Mr Mason and the council, necessitate Mr Mason's recall. 9In arriving at this conclusion I have been mindful of the fact that Mr Ross is an unrepresented litigant. Order 10I therefore refuse the application to re-open. ********** 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: 31 May 2013