Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166

Land and Environment Court New South Wales

Medium Neutral Citation: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 4) [2014] NSWLEC 166 Hearing dates: 21 October 2014 Decision date: 21 October 2014 Jurisdiction: Class 4 Before: Pepper J Decision: Leave granted to applicant to rely upon the supplementary affidavit of Dr Stephen Debus affirmed 9 October 2014 Catchwords: PROCEDURE: application for leave to rely on supplementary expert report - supplementary report required due to late publication of scientific material affecting the content of the original expert report - material relevant to principal issue for determination - no prejudice to parties if leave granted - leave granted. Legislation Cited: Uniform Civil Procedure Rules, rr 31.19, 31.20, Sch 7 Cases Cited: Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127 Category: Interlocutory applications Parties: Friends of Tumblebee Incorporated (Applicant) ATB Morton Pty Limited (First Respondent) Cessnock City Council (Second Respondent) Representation: Ms J Walker (Applicant) Ms H Irish (First Respondent) Submitting Appearance (Second Respondent) Environmental Defender's Office NSW (Applicant) ATB Morton Pty Limited (First Respondent) Marsdens Law Group (Second Respondent) File Number(s): 40027 of 2014

Judgment

Tumblebee Seeks Leave to Rely on a Supplementary Expert Report 1By notice of motion filed on 15 October 2014, the applicant in these Class 4 judicial review proceedings, Friends of Tumblebee Incorporated ("Tumblebee"), seeks leave pursuant to either r 31.19 or r 31.20 of the Uniform Civil Procedure Rules 2005 ("UCPR") to rely upon the supplementary expert report of Dr Stephen Debus, dated 9 October 2014. 2The application is not opposed by the first respondent, ATB Morton Pty Limited ("ATB"). The second respondent, Cessnock City Council ("the council"), has filed a submitting appearance. In my view, the application ought to be allowed.