Anderson & Anor on behalf of Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning and Ors

Evidence :- Leave to re-open case after evidence has closed and before judgment in order to issue a subpoena to produce a document. KEY ISSUES: Interlocutory Relief:- whether interlocutory injunction should be made to restrain work pending final judgment on challenge to development consent, given that an undertaking to the Court not to do the work for a period had been given in other proceedings.

LEGISLATION CITED: National Parks and Wildlife Act 1974 (NSW), s 90

CASES CITED: Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79

APPLICANTS: Mr A Oshlack, agent SOLICITORS: N/A

FIRST RESPONDENT: Mr A Galasso, SC LEGAL REPRESENTATIVES: SOLICITORS: Department of Planning

SECOND AND THIRD RESPONDENTS: Ms A Mitchelmore, barrister SOLICITORS Bourke Love McCartney Young

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ANDERSON & ANOR ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v NSW MINISTER FOR PLANNING AND ORS

EX TEMPORE JUDGMENT 1 HIS HONOUR: I reserved judgment in this matter on 14 March 2008 after a four day hearing. Before the court is a motion filed by the applicants on 20 March 2008 which seeks, first, leave to reopen their case to issue a subpoena to produce documents addressed to the Jali Local Aboriginal Land Council (Jali LALC) and, secondly, an interlocutory injunction restraining the second and third respondents from carrying out work on land in reliance upon the development consent the validity of which they have challenged in these proceedings.

LEAVE TO REOPEN: SUBPOENA 2 A copy of the proposed subpoena, which should have been attached to the notice of motion, has been handed to me by the applicants' agent, Mr Oshlack. It is very broad indeed. However, upon inquiry, he indicated that actually what was sought was, first, any copy of a letter of 24 May 2007 from the Jali LALC signed by its chairperson to Mr Condon of the third respondent, North Angels Beach Development (Ballina) Pty Ltd and, secondly any minutes of the Jali LALC containing a resolution authorising the chairperson to write that letter. The copy of the letter is in evidence in the proceedings.

3 As was the position at the conclusion of the hearing, it is common ground that there was no such resolution. The applicants' agent, upon that being confirmed today, indicated that the subpoena was not pressed in relation to the minutes. That leaves then the proposed subpoena to produce any copy of the letter of 24 May 2007.

4 The principles on an application to reopen before judgment were discussed by me in Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 at [17]: The discretionary considerations where leave is sought to adduce further evidence after judgment are stricter than where leave is sought before judgment and after evidence has closed. In the latter situation The principle which should guide the court in determining whether to grant an application for leave to re-open is 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, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one : Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 per Clarke JA (Mahoney and Meagher JJA agreeing). In Nasser v Roads and Traffic Authority of NSW [2006] NSWLEC 100 Pain J acceded to an application for leave to re-open after evidence had closed and before judgment in a matter in class 3 of the Court's jurisdiction. Her Honour said at [17]: The primary consideration I need to take into account is what is fair in the circumstances given that it is also important for the Court to be informed about all relevant matters (see Land and Environment Court Act 1979 section 38(2)) . This expression fair in the circumstances may be understood as synonymous with the interests of justice in Nweiser. 5 The respondents made three submissions in opposition to the grant of leave to issue a subpoena to produce any copy of the letter. First, the subpoena should have been issued in a timely way before the hearing. Secondly, the affidavit evidence of the applicant Susan Anderson indicates that on 5 March 2008, before the hearing commenced, she enquired of the JaliI LALC secretary as to whether there were any minutes that recorded a resolution authorising that letter and was informed that minutes could not be produced without a court order. Thirdly, assuming that no copy of the letter is produced in answer to the subpoena, thus indicating prima facie that it is not on the Jali LALC file, that does not advance the applicants' case.

6 The force of the submissions is diluted to an extent by what I have been told from the bar table by the applicants' agent, namely, that after I reserved judgment, it appeared from an oral inquiry made of the Jali LALC that they did not have a copy of the letter.

7 For cases to proceed in an orderly fashion and with finality, one cannot ordinarily have parties continuing to make enquiries, which could have been conducted earlier, after judgment has been reserved in the expectation that they can then apply to reopen because they think that a train of inquiry might result in something which, in their perception, is relevant. On the other hand, from what I have been told from the bar table, there was no appreciation (or reason to appreciate) that the Jali LALC did not, or may not, have a copy of this letter on their file until after the hearing had concluded. It is not at all clear to me that any inability to produce a copy of this letter from their file, thus indicating that it cannot be found, is going to advance the applicants' case. However, the applicants apparently have a perception that it will or might. In the circumstances, and given that all that is sought to be produced is any copy of a one page letter, I consider that I should give leave to the applicants to reopen their case to issue a subpoena to the Jali LALC to produce any copy of its letter of 24 May 2007, signed by its chairperson, to North Angels Beach (Ballina) Development Pty Ltd, Mr Chris Condon. The subpoena is to be made returnable on Monday 31 March 2008 at 9.30 am before me. The applicants are to arrange for the issue of the subpoena by 5 pm this afternoon. The subpoena is to be served by 10 am tomorrow. Service may be effected by facsimile and by the applicants' agent notifying a responsible officer of the Jali LALC by telephone that it is to be served by facsimile.

INTERLOCUTORY INJUNCTION 8 The applicants' proposed interlocutory injunction seeks to restrain the second and third respondents, their servants, employees, contractors or agents from carrying out any work or activity on land described as Lot 208 DP 851318 in reliance on the authority of the approval of development application 188-8-2004 issued by the first respondent, the NSW Minister for Planning, on 18 November 2007. The validity of that approval is challenged in these proceedings, in which my judgment is reserved.

9 I am informed that there are other proceedings in this Court, which may have been commenced since I reserved judgment, by the same applicants against the Director-General of the Department of Environment and Climate Change and Christopher Condon on behalf of North Angels Beach Development (Ballina) Pty Ltd (the third respondent in the proceeding before me) challenging the validity of a consent under s 90 of the National Parks and Wildlife Act 1974 in relation to the subject land. It is common ground that earlier this morning at a directions hearing in relation to those other proceedings, an undertaking to the Court was given by that company not to carry out any work or activity on the subject land until 21 April 2008.

10 The applicants nevertheless submit that an interlocutory injunction should be made restraining any such work or activity until judgment is delivered in the proceedings before me. I do not agree that that is necessary having regard to the undertaking to the Court that has been given in the other proceedings. If my judgment is delivered before 21 April 2008, when the undertaking expires, the injunction now being sought is unnecessary. If my judgment is not delivered by that date, the applicants can, at about that time, seek an interlocutory injunction or an extension of the undertaking, possibly by consent. Accordingly, I dismiss the application for an interlocutory injunction.

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