A.T.B. Morton Pty Ltd v Community Association DP270447

Land and Environment Court (NSW)|2017-11-22|Before: Robson J, Mr P

EX Tempore judgment

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.
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.
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.

Consideration

Having considered the material and looked at the transcript references and evidence - I am of the view that, in relation to MFI 4, the changes to the proposed easement sought to be made by way of the tender are not so significant as to cause prejudice which would result in either a loss of hearing time of any significance and/or any significant surprise to the respondent. Whilst I note that the submissions of the respondent were to the effect that the same concerns relate to each of MFI 4 and MFI 5, I find that the changes made in MFI 4 are in fact relatively minor clarifications of the material that was previously before the Court. I do not consider that the respondent, in addressing that document, would require a significant amount of time for further preparation to provide advice and/or obtain instructions. In those circumstances I allow the tender of MFI 4.
In relation to MFI 5, after some consideration I am of the view that the document raises matters which, although may be dealt with by way of adjournment and/or compensation in relation to costs, should have been the subject of communication to the respondent much earlier. Further, I do not find the evidence of Ms Mullard persuasive. There has been repeated slippage in the timetable and failure to attend to the Court orders, including a standing direction that material slippage be brought to the attention of the Court. With respect to her, and despite her proper apologies to the Court and to the respondent for the manner in which the applicant has conducted its case, her evidence does not convince me that the interests of justice require, or permit the tender of MFI 5.
In considering the dictates of justice, I have taken into account the matters set out in s 58(2)(b) of the Civil Procedure Act 2005 (NSW). I note that there is already extensive documentary evidence in these proceedings which comprises some thousands of pages, and that the Court has undertaken a detailed view of the site, and that there has already been seven days of hearing. In these circumstances, and given the prejudice articulated by senior counsel for the respondent as likely to be caused (including a likely adjournment) by allowing the tender, I consider the tender of MFI 5 at this stage, many months after the Court's specific orders, comes too late.
In relation to the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, I can only say that the conduct of the applicant in these proceedings falls below that which is expected. There has been a clear and flagrant breach of the Court's directions and orders, for which there has been no appropriate explanation.
In relation to the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, I am not satisfied that there are circumstances which were beyond the control of the applicant which would have otherwise not been able to be attended to.
The degree to which the respective parties have fulfilled their duties requires consideration of s 56(3) of the Civil Procedure Act 2005 (NSW) which states: A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
For the reasons which I have already given, the applicant has failed to conduct itself conformably with this requirement.
In relation to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction allowing the tender of MFI 5, I am of the view that there would be sufficient prejudice to the respondent.
For these reasons, I allow the applicant to rely on the changed wording in MFI 4 and I disallow the tender of MFI 5.

Orders

The Court orders that: 1. The applicant is granted leave to rely on the documents previously marked by the Court as MFI 4. 2. The Notice of Motion is otherwise dismissed.

Amendments 29 January 2018 - Paragraph 21 - the reference to "the respondent" is substituted with "the applicant". 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 May 2018

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