A.T.B. Morton Pty Ltd v Community Association DP270447 [2017] NSWLEC 162

Land and Environment Court New South Wales

Medium Neutral Citation: A.T.B. Morton Pty Ltd v Community Association DP270447 [2017] NSWLEC 162 Hearing dates: 22 November 2017 Date of orders: 22 November 2017 Decision date: 22 November 2017 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [24] Catchwords: PROCEDURE – failure to comply with directions to file further material – whether the tender should be allowed out of time – whether the tender would prejudice the respondent – whether the amendments contemplated in the tender are significant – whether it is in the interests of justice to allow the material to be tendered Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59 Land and Environment Court Act 1979 (NSW), s 38 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Category: Procedural and other rulings Parties: A.T.B. Morton Pty Ltd (Applicant) Community Association DP270447 (Respondent) Representation: Counsel: A M Pickles SC with J McKelvey (Applicant) P Tomasetti SC with A Hemmings (Respondent)

Solicitors: A.T.B. Morton Pty Ltd (Applicant) O'Hearn Lawyers (Respondent) File Number(s): 2016/00153777 Publication restriction: No

EX Tempore judgment 1. The hearing in this Class 3 matter commenced over seven months ago on 7 April 2017 and ran for five days before being adjourned part heard. At the re-commencement of hearing yesterday, 21 November 2017, Mr Pickles, senior counsel for the applicant, sought to tender and rely upon two documents styled "Further amended Annexure A – Option A" and "Further amended Annexure A – Option B", which I have marked MFI 4 and MFI 5 respectively. 2. The documents each contain separate amendments to the terms of an easement, which is sought by the applicant. Both MFI 4 and MFI 5, which are in a not dissimilar form, also annex aerial photographs and plans with markings, and depictions of the now proposed easements. The differences between MFI 4 and MFI 5, briefly summarised, are that MFI 4 seeks to make amendments to the form of easement which was previously the subject of the Class 3 Application before the Court, whereas MFI 5 seeks to create a different easement from that which was originally proposed, which, the applicant submits, was foreshadowed in the earlier evidence and was generally referred to as "Option B". Mr Pickles stated that the tenders "finessed" the earlier material already before the Court. 3. Mr Tomasetti, senior counsel for the respondent, objected to the admission into evidence and reliance upon these documents which he described as amendments to the application before the Court. His reasons may be briefly stated as follows: 1. On the last day of the earlier hearing, that is, 13 April 2017, I gave specific orders in relation to the ongoing conduct of the matter which are recorded in the transcript at pages 418.35-419.4 and were entered as follows: 1. On or before 28 April 2017, the applicant is to provide full particulars of all measures in relation to traffic control, precise details of traffic management devices, and the precise terms of the easement sought. 2. On or before 28 April 2017, the applicant is to provide plans and/or aerial photographs identifying the precise route of the proposed easement, with specific reference to the various options presently the subject of evidence. 3. Adjourn for further hearing on 9, 10 and 11 August 2017. 1. The hearing was accordingly adjourned on 13 April 2017 for further hearing on 9, 10 and 11 August. That date was later vacated and the matter set down for further hearing from 21 November 2017. MFI 4 and MFI 5, the documents containing the details the subject of the orders, were not provided on or before 28 April 2017. They were only emailed to the respondent's solicitors and counsel, on Friday, 17 November 2017. The documents were emailed in a zip file and were, according to Mr Tomasetti, difficult to open and took significant time to print and collate in the appropriate format. In any event, as of yesterday, I am told that Mr Tomasetti and junior counsel, Ms Hemmings, had not been able to access the documents due to the file size, and they accordingly had some difficulty obtaining instructions which he says, creates a significant and ongoing prejudice. 2. Mr Tomasetti submits that the very late receipt has caused serious problems and reminds the Court that it is the third amendment to the primary easement sought in the proceedings. Mr Tomasetti responds to Mr Pickles' suggestion that the documents were in fact a "finessing" of that which was otherwise before the Court, as being inappropriate and not correct. 3. Mr Tomasetti details the particular difficulties faced by the respondent and the prejudice which follows from the late provision of the material. This involves the fact that the respondent has already marshalled detailed evidence, including six affidavits from lay witnesses, two of whom – Mr Gavin and Mr Slattery – have given oral evidence and were cross‑examined. Further, Mr Tomasetti says that the very late receipt of the material means that it was not possible for the various members of the respondent, being a community association, to provide proper instructions, and indeed, to be given considered advice in relation to the new material. Mr Tomasetti also draws the Court's attention to the difficulty he anticipates in obtaining proper instruction and consideration of the matter by the various experts otherwise retained by the respondent. 4. A further specific concern raised by Mr Tomasetti is that his solicitors, and indeed, each of the members of the respondent, either reside or conduct their businesses in and around Newcastle and the Central Coast. He also notes the matter is set down for four days of further hearing this week, and I note in passing that it is set down for a further two days on 5 and 6 December 2017. Mr Tomasetti submits that proper and detailed instructions need to be obtained and the consequences thereof may be that further evidence would need to be called. In all the circumstances Mr Tomasetti submits that the respondent would be severely and inappropriately prejudiced should the tender be permitted, and indicates again that this is occurring in the morning of day six of the proceedings, and in breach of clear orders of the Court. He also makes reference to the fact the respondent, given its particular constituency, has already spent a significant amount of money – he notes in excess of $500,000 – in costs thus far. 5. Mr Tomasetti refers in particular to the principles considered by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and s 58(2)(b) of the Civil Procedure Act 2005 (NSW). 6. He submits that the tender amounts to an amendment of the Class 3 Application, and the Court should understand that the respondents are, to use his expression, "reluctant litigants" brought to the Court by the applicant seeking an indulgence or privilege over their land. At the very least, he says the applicant should proceed by Notice of Motion and supporting evidence in relation to the amendment and provide reasons for the delay in the provision of the material. Mr Tomasetti states that the conduct of the respondent is "oppressive, unreasonable and outrageous", and asks the Court not to entertain the matter, at least not on the evidence presently before the Court. 7. If the Court was so minded to entertain the tender, at the very least Mr Tomasetti submits that the applicant should be directed to file a Notice of Motion seeking to amend the Class 3 Application and providing supporting evidence explaining the non-compliance with the Court's orders. Mr Tomasetti then submits that if this were to occur, an adjournment would be required to allow his client to respond. However, Mr Tomasetti submits that in the circumstances, if the Court does adopt this course of action, even an adjournment and an order for costs would not be appropriate. 1. Mr Pickles yesterday made submissions accepting that the tender would result in some prejudice being suffered by the respondent, and accepting that there would need to be some proper explanation for the delay in the provision of the material. Mr Pickles accepts the concerns of the respondent in relation to previous delays and concedes that the material should have been communicated to the Court and the respondent earlier. However, Mr Pickles referred to various material before the Court, and submits that the tender is not an "amendment" as such. He submits that, in relation to the changed wording of the easement, the Court of Appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [183]-[184] indicated that there was some flexibility in relation to the terms which may be imposed in the Court granting an easement. Further, Mr Pickles submits that in any case Class 3 proceedings in this Court do not involve formal pleadings. 2. Mr Pickles also submits that MFI 5 is a form of easement which the respondent itself may prefer, which he supports by reference to the evidence that was given in the earlier hearing. Mr Pickles disputes Mr Tomasetti's suggestion from the bar table that the consideration of the amendments and the attendances upon expert and lay witnesses would take as long as suggested by Mr Tomasetti, and notes that some of the experts are still to give evidence in any event. 3. Having heard submissions yesterday, I indicated that I was not content with the situation caused by the applicant's conduct, and I directed the applicant to prepare a Notice of Motion seeking leave to rely upon MFI 4 and MFI 5 and to provide evidence as to the circumstances that led to the failure to comply with the orders made on 13 April 2017. 4. As a result of yesterday's directions, a Notice of Motion was filed in Court this morning. The applicant also filed and read the affidavit of Michelle Mullard, the applicant's solicitor, sworn 21 November 2017, and Ms Mullard was cross-examined by Mr Tomasetti. The parties then made further submissions, which I summarise as follows. 5. Mr Pickles submits that the Court should take into account ss 56-59 of the Civil Procedure Act 2005 (NSW) in determining whether or not to allow the tender, and refers to the "dictates of justice". The applicant's primary position is that MFI 5 comes from the joint traffic engineers' evidence and is not something the applicant has "dreamt up". Mr Pickles refers to Exhibit A, p 1321-1323, the traffic engineering evidence (p 304 on day four, and at p 223-226, line 17), which he submits makes it clear that the essence of MFI 5 was already the subject of evidence as "Option B". He refers to the traffic joint report, where experts specifically refer to various devices to control traffic arising from the proposed easement, including boom gates, and the like. He submits that, to the extent that there is "new" evidence, it is limited to the precise manner of how trucks would be controlled on the applicant's site itself, and not on the respondent's land. He thus submits that the amended wording of the proposed easement in MFI 5 reflects the evidence. 6. Mr Pickles emphasised that there was a need for the Court to balance the prejudice said to be caused to the respondent against the scope of the amendment, and submits that the new material is facultative and not intended to introduce new matters. He submits that MFI 4 objectively viewed is reflective of the evidence already given, and this is a matter which the Court would properly take into account in relation to the accepted prejudice to the respondent that is, to use his word, "minimal". To address the prejudice, Mr Pickles submits that some time could be allowed, to enable communication with the experts and others. He also notes that the valuers have already in their evidence hypothesised something to the effect of Option B (MFI 5). Mr Pickles refers to the joint report of the valuers in Exhibit A at p 1323, which was filed on 5 April 2017, and notes that the valuers have already valued the revised right of way envisaged in MFI 5, and refers to "scenario 3" of that joint report. 7. In relation to MFI 4, Mr Pickles says that there should be no concern. He submits that plan 4 and plan 7 attached thereto show signage that is already the subject of evidence, and shows a new gate and chain fence. He also refers to s 38 of the Land and Environment Court Act 1979 (NSW) which provides that this particular class of proceedings is to be conducted with as little formality as appropriate. He also says that s 58 of the Civil Procedure Act 2005 (NSW) provides a balance in the interests of justice, and that a fair reading of the transcript of the earlier hearing would indicate that the evidence underlying MFI 4 has already been given, and that there is little or no prejudice arising from the tender of the material. 8. Mr Tomasetti, in reply, refers the Court to the evidence given by the various experts, particularly the town planners, Mr Fielding and Mr Mitchell, on 13 April 2017 at line 16, at transcript p 414 and following. He also refers to the traffic expert evidence, and says that it was made abundantly clear on a much earlier occasion that the intention of the Court was that the town planners and others would be given the opportunity to look at any new material such as that now contained in MFI 4 and MFI 5. Mr Tomasetti reiterates his submissions made yesterday and submits that the applicant's seven month delay in providing the material is such that the tenders should not be allowed at all. He repeats the concerns of the respondent (and the respective landowners) and the difficulty they face in the conduct in these proceedings. He again indicates also that the applicant is seeking a right of way, an indulgence, and reminds the Court that earlier hearing dates have already been vacated due to the applicant's earlier default. Mr Tomasetti says that there will be significant expense should the tender be allowed, and that the prejudice is incurable and has caused stress to his clients. The inconvenience, expenses, and distress should be sufficient to disallow the tender, and this combined with the applicant's failure to comply with the Court's orders indicates that the Court would not allow the indulgence of the tender. 9. In relation to the evidence of Ms Mullard, Mr Tomasetti accepts that Ms Mullard makes an apology for the delay, however notes that she indicates in her sworn evidence that she accepts that the changes sought in the documents are not minor. He submits that on a proper reading, the affidavit of Ms Mullard gives no real explanation for the seven month delay. Mr Tomasetti also refers to an ex tempore judgment which I gave on 9 December 2016 as List Judge where the applicant had sought the vacation of an earlier hearing date that had been set down for December 2016, and points to the oral evidence given by Ms Mullard that that vacation had resulted from the applicant's earlier "default", and inability to comply with the Court's earlier directions for preparation for hearing. 10. Mr Tomasetti submits that there has already been, on a number of occasions, significant slippage in the timetable and that those matters appeared not to be of a critical nature to Ms Mullard. He refers to her evidence and repeats that no contact was made with the respondent in relation to the seven month delay. Rather, Mr Tomasetti submits that most of Ms Mullard's affidavit relates to dealings with other entities regarding other matters not necessarily related to the tender of MFI 4 and MFI 5. 11. Mr Tomasetti submits that if the respondent had been informed of the reasons for the delay – which it was not – it would have undertaken action to bring the matter back before the Court. In the circumstances, his submission is that because of the applicant's failure to adhere to the clear directions of the Court, the respondent was in effect allowed to proceed and prepare its case on the basis that there was going to be no further evidence in relation to the form of the easement sought. Accordingly, Mr Tomasetti submits that the respondent has conducted itself in a certain way (and I assume has made certain forensic decisions) in relation to the conduct of the hearing which would now be affected in a way that causes prejudice if the tenders were allowed.