Fostoria - Fannon (Aust) Pty Limited v Minister Administering the Water Management Act 2000

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

APPLICANT Mr P Duffy (solicitor)

SOLICITORS P.S. Duffy & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Shearer

SOLICITORS NSW Office of Water

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

FOSTORIA-FANNON (AUST) PTY LIMITED V MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000

JUDGMENT 1 HIS HONOUR: The applicant moves by notice of motion filed 15 June 2010 to vacate the hearing dates in these proceedings which were fixed for 23 and 24 June 2010, in other words, starting tomorrow. 2 The primary reason for the applicant wishing to vacate the hearing date is that its only expert, Dr Mark Taylor, is currently overseas and will remain overseas until 30 June 2010, after the two days of the hearing. 3 The applicant has filed and served the expert report of Dr Taylor. Dr Taylor's evidence is relevant to the contentions of the applicant set out in paragraph 40 of its statement of facts and contentions filed 17 March 2010, namely that any breach of law is minor and does not require the removal of the dam in question, that there are no material compelling environmental practical reasons for the removal of the dam and that removal of the dam would leave the applicant's property without viable water for domestic consumption and impede the applicant's farming concern.

4 On the hearing of the motion, it also became evident that there are other reasons why the applicant would wish for the hearing date to be vacated. These relate to the applicant's failure to comply with directions made by the Court on 16 April 2010, at which time the Court also fixed the matter for hearing on 23 and 24 June 2010. These non-compliances relate to the filing and service of lay affidavit evidence and of the applicant's written submissions. 5 The applicant intends to rely upon the evidence of Mr Plunkett, a director of the applicant company. This evidence is relevant to the applicant's contention in paragraph 41 of its statement of facts and contentions that the respondent is estopped from enforcing the order. It is possible, but I do not decide, that the evidence may also provide some factual basis for the applicant's contention in paragraph 39 of the statement of facts and contentions that the order is invalid for a variety of reasons. 6 The applicant says that the evidence of Mr Plunkett has been prepared although has not been sworn, however this could be done within a day. No satisfactory explanation has been given as to why that evidence was not filed and served by the date directed of 7 May 2010. 7 The applicant was also required to file and serve written submissions by 4 June 2010. Although it would be difficult to prepare written submissions relating to the contentions in paragraph 40 of the statement of facts and contentions which are dependent on Dr Taylor's evidence, there is no reason why the applicant could not have prepared its written submissions in relation to the legal questions raised in paragraphs 39 and 41 of its statement of facts and contentions. 8 The respondent opposes the vacation of the hearing date. It relied on affidavit evidence of the respondent's solicitor which chronicled the history of the matter, the various directions and the defaults by the applicant. The respondent put forward seven reasons in support of its opposition to vacation of the hearing date. 9 First, the applicant's expert, Dr Taylor, on the evidence before the Court, booked his overseas trip after he had been advised that the Court had fixed the hearing of this matter for 23 and 24 June 2010. The applicant delayed in advising the respondent after it found out that Dr Taylor would be unavailable for the hearing. The applicant also delayed in bringing this notice of motion to vacate the hearing date until last week. 10 Secondly, the applicant has been guilty of serious neglect and default over the history of this matter. The current defaults are part of a pattern. 11 Thirdly, the absence overseas of Dr Taylor is but one reason for the applicant being not ready to proceed at the hearing tomorrow. The applicant is also in default in relation to the filing and serving of its lay affidavit evidence and its submissions. 12 Fourthly, the applicant has the benefit of a stay of the order for the removal of the dam in question. Having the benefit of that stay, the applicant was under an obligation to prosecute its appeal in this Court without delay. However, the applicant has not done so and should not be allowed to delay the matter further. 13 Fifthly, the respondent has made arrangements for counsel and its expert to be available to run the hearing tomorrow and the next day but they would be inconvenienced if the hearing were to be vacated. 14 Sixthly, the respondent has been diligent in complying with the Court directions to be ready for the hearing and indeed has taken other steps to try to ensure that the matter would be ready for hearing. 15 Seventhly, the Court should consider not only the prejudice to the respondent but also to other parties in the Court and also to the Court's resources and the proper management of the Court's lists, referring to the High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

16 There is considerable force in each of the respondent's seven reasons not to vacate the hearing. However, the problem in this case is that if the hearing were not to be vacated and the applicant were forced to commence the hearing tomorrow, the applicant would be severely prejudiced. The applicant could not rely upon the expert evidence of Dr Taylor that has been filed and served because Dr Taylor would be unavailable for cross-examination and also would be unavailable to respond to the expert evidence adduced by the respondent from Mr Outhet. This would mean that the applicant is without evidence in support of its contentions in paragraph 40 of its statement of facts and contentions. 17 The respondent has also said that it would oppose the applicant relying upon the evidence of Mr Plunkett, even if it were served today, because understandably the respondent would have insufficient time to be able to respond to Mr Plunkett's evidence before the hearing. If the applicant were unable to rely upon the evidence of Mr Plunkett, it would have no evidence in support of its contention in paragraph 41 of the statement of facts and contentions. 18 The absence of evidence from Mr Plunkett may also affect the factual basis for the applicant's contentions in paragraph 39 of the statement of facts and contentions. The applicant would, therefore, be reduced to relying only on the contention in paragraph 39 that the order is invalid and then only on such documents as it is able to tender at the hearing.

19 Such an outcome clearly impedes the applicant's case. I do not think justice will be served in so impeding the applicant, notwithstanding that this is a product of its own actions or lack thereof.

20 The alternative would be to vacate the hearing date but fix a new hearing date within a short period of time. An investigation of the Court diary as well as the parties' available dates for their legal representatives and experts reveals that hearing dates in July are available. However, those dates in July would cause prejudice to the respondent because the respondent's instructing solicitor, who has had carriage of the matter throughout, would be overseas. I do not consider that it would be fair or reasonable to cause the respondent prejudice by offering an indulgence to the applicant by vacation of the hearing dates.

21 The next available dates that are convenient to the Court and the parties' legal representatives and experts are 5 and 6 August 2010. This involves a deferral of the hearing for some six weeks. In the circumstances of this case, I consider that such a deferral of the hearing is the just outcome.

22 However, it must come at the price that the applicant pay the costs of the respondent, not only of the motion to vacate the hearing date but also of any costs that would be thrown away by reason of the vacation of the hearing date and the setting of the new hearing date. 23 I also consider it would be necessary to make a new timetable which would require the applicant to remedy promptly the defaults that are outstanding in relation to the filing and serving of evidence and submissions. The applicant will need to comply with these directions that I will make. If the applicant fails to comply with these directions, it should not assume that the Court would allow any further time for the applicant to comply. 24 If the applicant finds itself in a position where it needs to vary the directions that I will make, the applicant is to use the liberty to restore that I will grant to the parties to re-list the matter before me. Variation of the timetable will not be allowed by application to the Registrar or by eCourt.

25 For these reasons, I uphold the applicant's notice of motion to vacate the hearing date and I fix a new hearing date for 5 and 6 August 2010 and make the orders and directions set out below.

26 The respondent seeks an order that its costs be on an indemnity basis. Ordinarily, a court will not make an order on an indemnity basis unless the circumstances are such as to warrant such an order. Although the seven matters referred to by the respondent do establish that the applicant's conduct leading up to this application to vacate has not been without fault, I do not consider that the circumstances meet the threshold established in authorities for making an order on an indemnity basis. 27 I also consider that when costs are assessed there would not be a considerable difference between the costs on a normal basis and costs on an indemnity basis having regard to the nature of the application and the order for costs that I will make. Therefore, the costs order should be on the usual basis.

28 The Court: 1. Vacates the hearing of the matter set down for 23 and 24 June 2010. 2. Directs the applicant to file and serve any lay affidavit evidence on which it seeks to rely by 23 June 2010. 3. Directs the applicant to serve a draft index to the tender bundle of documents, together with any documents in the possession of the applicant to be included in the bundle, by 23 June 2010. 4. Directs the respondent to file and serve any lay affidavit evidence on which it seeks to rely by 9 July 2010. 5. Directs the respondent to file and serve the tender bundle of documents by 9 July 2010. The bundle is to include a table of contents and be paginated. Unnecessary copying and duplication of documents is to be avoided. Any party objecting to the tender of a document within the bundle is to notify the other party of the objection and the grounds in support at least three working days before the bundle is to be filed. The documents subject to objection are to be included in the bundle, but the objection and grounds in support, as well as the party tendering the document and the party objecting to the tender, are to be noted in the table of contents to the bundle. 6. Directs the Applicant's and Respondent's experts to confer in accordance with Division 2 of Part 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules and file and serve a joint expert report by 16 July 2010. 7. Directs the applicant to file and serve written submissions on all contentions by 23 July 2010. 8. Directs the respondent to file and serve written submissions on all contentions by 2 August 2010. 9. Fixes the matter for hearing before a Judge on 5 and 6 August 2010, commencing in Court at 10am. 10. Orders the applicant to pay the respondent's costs of the applicant's notice of motion filed 15 June 2010 and all costs thrown away by vacation of the hearing dates, being 23 and 24 June 2010. 11. Grants the parties liberty to apply on 2 days notice.

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