Aubrey Robert Mills v North West Local Land Service [2016] NSWLEC 102

Land and Environment Court New South Wales

Medium Neutral Citation: Aubrey Robert Mills v North West Local Land Service [2016] NSWLEC 102 Hearing dates: 05 August 2016 Decision date: 05 August 2016 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [4] [12] [15] Catchwords: Application to amend orders – application to file further expert and non-expert evidence Cases Cited: Mills v Local Lands Services [2015] NSWCATAD 207 Category: Procedural and other rulings Parties: Aubrey Robert Mills (Applicant) Local Land Services (Respondent) Representation: Counsel: Heather Irish (Applicant) Peter Russell (Respondent)

Solicitors: Sylvester Joseph, Cole & Butler (Applicant) Russell Booby, Bell & Johnson (Respondent) File Number(s): 2016/187189

EX TEMPORE Judgment 1. Before me is a notice of motion filed 3 August 2016 seeking further orders in relation to the Class 3 proceedings commenced by Aubrey Robert Mills. I gave an ex tempore judgment in relation to these proceedings Monday 1 August, when the applicant had sought, amongst other things, to vacate the hearing, set down 16 – 19 August commencing at Moree, in anticipation of calling further evidence. I did not accede to the request to vacate the hearing date and made orders in relation to further conduct of the matter. 2. In accordance with an indulgence to bring the matter back before the Court on 24 hours' notice, the applicant yesterday filed a motion seeking further orders. Briefly summarised, those orders seek, first, leave to allow the applicant to rely upon an affidavit of Reece Anthony Mills of 3 August 2016; second, leave to allow the applicant to rely upon an affidavit of Dr Ross Jenkins of 3 August 2016; and third, leave extending the time for compliance with orders made on 4 July 2016, such that the applicant may file a reply to the respondent's supplementary statement of facts and contentions. 3. I note, but do not recite, the matters I dealt with on Monday in relation to the history of the matter, save to reiterate that this Class 3 appeal relates to a decision of the New South Wales Civil and Administrative Tribunal of 13 October 2015, which followed a hearing in May and June 2015 (see Mills v Local Lands Services [2015] NSWCATAD 207). That appeal occupied three days of hearing and the parties provided detailed oral and written submissions. 4. In relation to the affidavit of Reece Anthony Mills, I have read the affidavit and I have heard submissions from both of the parties. Whilst there is some force in what Mr Russell, who appears for the respondent, says in relation to the lateness and to the conduct generally of the applicant, about which he is critical, I am of the opinion that, given the fact that Mr Reece Anthony Mills had sworn an affidavit in the earlier proceedings, had given oral evidence and that it was communicated that some further material from Mr Mills was to be relied upon, I am minded to grant leave to the applicant to file the affidavit and to rely upon it, subject to objections at the hearing which commences the week after next. 5. I do this for the reason that Mr Mills has been a witness in the earlier proceedings, his evidence is of a lay nature, and he would, as I understand the procedure adopted in these matters, be entitled to give further oral evidence. Further, given the nature and extent of his evidence, the respondent would, albeit with some concern, be in a position to meet what he says in the affidavit. I have not formed a view in relation to the admissibility of matters in the affidavit, particularly where he seeks to rely upon what appears to be a kerbside valuation and I will leave that to the hearing. That is not an invitation to put on further evidence. 6. I am not minded to make the order sought in para 3 in relation to Dr Ross Jenkins. Dr Jenkins' expert evidence relates to an issue (the historical existence of a fence), about which the parties were in dispute as early as May 2015. 7. Given the time that the evidence in relation to the fence has been a live issue, it is inappropriate that the applicant be given leave to rely upon expert evidence which is provided to the respondent some seven working days before the hearing commences. The concerns expressed by Mr Russell for the respondent, both in relation to both the lateness and the fact that Dr Jenkins indicates his desire to rely upon further material, are persuasive. 8. Ms Irish for the applicant has strongly argued that the concern in relation to Dr Jenkins' evidence could be dealt with a number of ways. I will deal with those briefly. First, she suggests that the relevance of the "fence evidence" could be dealt with by way of a preliminary question and, if the Court was minded to find in a certain way, then much of the evidence, including any anticipated evidence of Dr Jenkins, would be rendered otiose. I am of the opinion that it is too late to raise a preliminary question as such. 9. The second suggestion of Ms Irish was that, if the respondent was able to adduce expert evidence, it could be dealt with by a joint expert report. I do not consider, given matters raised by Mr Russell, that that is a feasible option. 10. Ms Irish's third suggestion was that, so that the hearing dates were not "sacrificed", it may be appropriate to commence the hearing in Sydney, have the "preliminary question" determined, and the need or otherwise for further view or hearing at Moree could then be considered. 11. Whilst there may be some attraction in that approach, it is my view that it is too late. The parties have known since May that the hearing had been set down for the week after next in Moree. Indeed, it was set down in Moree against, as I understand it, the submission made by the respondent. Although I have expressed a residual concern, I accept that, given the desire of the applicant for the Court to see the subject site and Ms Irish's considered view that the Court would be assisted by seeing the site, it is inappropriate to adopt any of the three suggestions made to alleviate what is the otherwise compelling concerns of the respondent. 12. I add to the above that I am not satisfied, despite the affidavit of Mr Joseph sworn 3 August 2016 (and his earlier affidavit read last Monday), that it would be appropriate that this further evidence be called. I am satisfied that the lateness of the evidence, and the fact that it appears not to be completed and final, lead me to the view that it is inappropriate to make the order sought in the motion in relation to leave to rely upon Dr Ross Jenkins' report. 13. The applicant also seeks leave to extend the time to reply to the respondent's supplementary statement of facts and contentions. Ms Irish has made detailed submissions in relation to this matter. I am concerned that reliance upon this particular order may invite the applicant to raise issues that have not otherwise been raised in the matter. I have not been given a complete copy of that which is sought to be relied upon but, to the extent that there are to be some corrections to the wording earlier relied upon by the applicant, I have no concern. 14. To the extent that other matters are said responsive to the respondent's supplementary statement of facts and contentions, I am of the opinion that the applicant is entitled to respond to those matters but I will not entertain any new issues. Thus, I grant leave for the correction, at the very least, but I am concerned that, given that there is of now seven working days before the hearing, the applicant may seek to raise a new issue. 15. Therefore, the parties are to prepare short minutes reflecting what has been found, and provide a timetable for the respondent to respond to the evidence. I ask Mr Russell to attempt to get instructions in relation to that aspect quickly. 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: 11 August 2016