Gosford City Council v Verde Terra Pty Ltd

Taperell Rutledge Lawyers (Fourth respondent) File Number(s): 40900 of 2012

ex tempore Judgment 1Gosford City Council commenced proceedings on 3 September 2012 seeking declarations and injunctions arising from work then being carried out on land at Wisemans Ferry Road, Central Mangrove. The work, the subject of the proceedings, involved both a landfill activity and the remodelling of that land so as to extend an existing 9 hole golf course to an 18 hole course. The Council alleges that work was being carried out either in breach of conditions of a development consent or without consent, contrary to the provisions of the Environmental Planning and Assessment Act 1979. 2The land in question is owned by the fourth respondent, The Returned and Services League of Australia (New South Wales Branch). The land is occupied pursuant to a lease from the fourth respondent by Mangrove Mountain Memorial Club Limited (Mangrove Mountain) which operates the existing golf course. The first respondent Verde Terra Pty Limited (Verde Terra) is the company with whom the second respondent contracted to carry out the landfill and remodelling work. It admits that it was carrying out that work on the subject land. 3In points of claim filed on 13 November 2012, the Council alleged that Verde Terra subcontracted the impugned activity to the third respondent, Bingo Group Pty Limited (Bingo). 4By notice of motion filed on 16 November 2012 Bingo applied, pursuant to Pt 6 r 6.29 of the Uniform Civil Procedure Rules 2005, to be removed as a party to the proceedings. It is that notice of motion that is presently part heard before me. 5I should indicate at the outset that prior to filing its notice of motion Bingo had, by letter from its solicitors dated 17 September 2012, indicated to the Council that Bingo was not responsible for the impugned activity and requested that the Council remove it as a party to the proceedings. The Council took no action in response to that letter or at least took no action to remove Bingo as a party and thus Bingo's notice of motion. 6The notice of motion came before me for hearing on 14 December 2012. Although the Council had been given leave to file amended points of claim by 21 December 2012, it was the apparent intention that the amended document was to articulate its case at the hearing of the notice of motion. However, that document had not, by the time of the hearing, been filed. The only relevant averment then known to Bingo and available to the Court was that contained in the original points of claim in which it was alleged that Bingo was carrying out the impugned work, as it had entered into a subcontract so to do with the first respondent. 7There was evidence before me denying the existence of any such contract, that evidence being contained in affidavits filed on behalf of Bingo from officers of the Company and also from a contractor to the Company. The Council conceded that it had no evidence, at least at that time, that such a subcontract existed. Relying upon minutes of meetings of the second respondent together with searches provided by ASIC, the Council nonetheless contended that there was some involvement of Bingo which it sought to establish. The Council had not at that time served any notice to produce upon Bingo seeking documents to establish the nature of the involvement of the Company, if any, in carrying out the impugned works or to establish its working relationship, if any, with the first respondent. 8However, the Council foreshadowed in the course of that hearing that further steps would be taken in order to gather evidence which sought to implicate Bingo and that amended points of claim were to be filed in its case against all respondents. In an endeavour to ensure that the real issues in the proceedings were properly ventilated, I granted an adjournment on 14 December so as to enable the Council to address the matters that it had identified as then being outstanding. 9The directions that I then gave included a direction that the Council file and serve any amended points of claim upon which it proposed to rely by 1 February 2013 together with a direction that it should file and serve any further evidence upon which it relied in response to Bingo's notice of motion by that same date. Although that seemed an extensive period in which to accommodate the Council's requirements, cognisance was taken of the fact that the period allowed included the law vacation. I should add that in the course of the hearing on 14 December I enquired of the Council's counsel as to the time sought to prepare and file its further documents. I was told that 8 February was a reasonable date. As will be apparent, I foreshortened that period by one week. The further hearing of the motion was fixed for today, 19 February 2013. 10The matter was re-listed before me on 4 February at the request of the Council. It was re-listed on that day because the Council acknowledged that it had not complied with the directions that I had given in December. In short it had not filed any evidence, nor had it filed any amended points of claim. On that date I confirmed that the hearing of the notice of motion was to proceed today. At the request of the Council, I extended the time in which it could file amended points of claim and an amended summons. The amended documents were in fact filed on 8 February. 11The hearing of the notice of motion resumed before me today. The amended points of claim as filed a few days ago alleged that the second respondent had granted the first respondent or in the alternative, had granted the third respondent, permission to operate the disposal facility and carry out civil works the extent of which is the subject of the proceedings. In particulars given of that allegation, the applicant says that it is unable to say which respondent operates the facility and carries out the works. 12In opposing Bingo's motion the Council today sought to read an affidavit sworn yesterday by the Council's solicitor. The affidavit, together with annexures, is said to run to 100 pages. It was forwarded electronically to all of the respondents, certainly to the first and the third respondents, only last night. The affidavit was first seen by the solicitor acting for the third respondent at about 10.00pm. 13Understandably, none of the respondents has had an opportunity to consider the contents of that affidavit together with its many annexures. No prior notice of the likely content of that affidavit nor of the fact that it was to be forwarded to any of the solicitors acting for the respondents had been given by the Council's solicitor. Importantly, that is so in the case of the first and third respondents. 14I am told that the affidavit seeks to explain the Council's efforts to obtain evidence, at least evidence directed to the involvement, if any, of Bingo. I am also told that the affidavit seeks to refer to documents produced by the first and third respondents last Friday in response to notices to produce served by the Council on them or their solicitors on 5 and 11 February respectively. Those documents are said to be material to the Council's case that Bingo is a proper party. No adequate explanation was given as to why these notices to produce, sought to address and seek documents from Bingo as to its involvement in subject work, had not been served long before February of 2013. 15As I have indicated, the solicitor acting for the third respondent had indicated in September that Bingo was not a proper party and in the course of the hearing on 14 December the prospect of the notice to produce been discussed. No notice was forthcoming until almost the eve of the present hearing. Fairness would not allow the Council to proceed with its opposition to Bingo's motion by relying upon the evidence served so late, in breach of the directions earlier given by the Court, and without any reasonable opportunity for the respondents to consider that evidence. 16In addition to its proposed reliance upon the affidavit of its solicitor, the Council submitted that in light of the documents produced in response to the notices to produce, it needed to consider the joinder of a further respondent. If I was to deny the Council the opportunity to rely upon the new affidavit of its solicitor on the present motion, there remained the prospect of a further application or applications for joinder and also to rely upon further points of claim. It was in those circumstances, that I determined, albeit with great reluctance, to afford a final opportunity to the Council to amend its claim and justify its joinder of Bingo as a party by the grant of a further adjournment. 17However, save for some extraordinary circumstance, I would expect the filing of amended points of claim and the taking of other steps that I propose to direct, will see the conclusion of this episode in the proceedings and that no further notices of motion and applications would be necessary. Further I would intend that all outstanding interlocutory applications, including Bingo's notice of motion, be determined by me on the next occasion. Application of the provisions of s 56 of the Civil Procedure Act 2005 requires as much. 18Following my indication to the parties that I proposed to take the course that I have just described, I encouraged them to agree upon some orders and directions that should be made and given for the further preparation of this matter for hearing, including the preparation for the hearing of the present motion. They have agreed upon those orders to some extent, but there is disagreement about the time that should be afforded to the Council to file and serve its evidence. I interpolate that until now, and not withstanding the commencement of the proceedings in September of last year, no evidence has been provided or filed by the Council in support of its case. 19The Council sought until 25 May 2013 in order to file evidence said to be directed to environmental harm. That, in the timeline that I have described, seems to be an excessive time in which to have these proceedings prepared for hearing. Upon enquiry being made and requested by me, I was told by the Council's counsel that evidence, including expert evidence directed to environmental harm, could be provided by 26 April. Although that in itself seems to me to be an undue length of time for an applicant to prepare its primary evidence, given the nature of the evidence as described to me, which included expert evidence from a number of disciplines, in an endeavour to avoid further interlocutory applications for extensions of time, I have agreed that 26 April is the time by which evidence should be provided. It will be observed that considerable latitude has already been afforded to the Council. Any further application to extend latitude to it would require very close scrutiny by the Court before the Council was further indulged. 20I earlier indicated the reluctance that I had in adjourning these proceedings. Ultimately, as will be apparent, I determined that the adjournment should be granted in the interests of justice. However costs of that adjournment must be borne by the Council. 21The Council opposed the making of such an order, that is to say, an order as to costs. The circumstances in which the adjournment was necessitated are earlier recited. They clearly support the making of the order. It has been necessitated by the failure to comply with directions in a timely way and the late taking of steps to gather evidence, particularly that directed to the involvement of Bingo with other parties in order to sustain its joinder as a respondent. As I have said, no adequate explanation has been offered as to why those steps, particularly the notice to produce, was not filed long ago. 22For those reasons I propose to make the following orders and give the following directions: