Help Save Mt Gilead Inc v Mount Gilead Pty Limited

The Applicant's Notice of Motion

This matter was listed for a Pre-Trial Mention (PTM) on 5 June 2018, with just eight work days remaining before the trial. At the commencement the Applicant sought leave to move on a Notice of Motion seeking the following orders: 1. An order that service of this notice of motion be abridged. 2. An order that this notice of motion be returnable instanter. 3. An order granting leave to the applicant to amend the Summons in the form attached at Attachment A to this Notice of Motion. 4. An order granting leave to the applicant to administer to the fifth respondent the interrogatories in Attachment B to this Notice of Motion. 5. A direction that the applicant has leave to adduce expert evidence on the question of whether the Gilead Rezoning Air quality Review by Wilkinson Murray makes misleading representations about ozone levels in the vicinity of Mt Gilead in the period 2012 to 2015.
The parties confirmed that beyond the Notice of Motion there were no other matters requiring the Court's attention as all tasks required to be completed prior to the PTM had been satisfactorily completed in accordance with previous orders of the Court. The parties confirmed that other tasks still requiring completion prior to the trial, scheduled to commence on Tuesday 19 June 2018, were on track.
After ascertaining the respective parties' stances with respect to the Applicant's Notice of Motion, the Court indicated that it would proceed to hear full submissions on the Motion. Accordingly, the Court made the first two orders: 1. that service of the Notice of Motion be abridged; and 2. that the Notice of Motion be heard instanter.
Counsel for the Sixth Respondent indicated that his client opposed the remaining orders sought on the Motion. The solicitor appearing for the First Respondent advised that her client took a similar position, whilst counsel for the Third and Fourth Respondents advised that they were adopting a neutral position. The Second and Fifth Respondents, for whom there were no appearances, had already confirmed their respective positions generally having filed submitting appearances in the proceedings
The Notice of Motion, upon being moved, was supported by an affidavit of the Applicant's solicitor, Amanda Patricia Johnstone, sworn 1 June 2018. The affidavit was read, without objection from the Respondents.
The Applicant produced a report dated 4 June 2018 prepared by Peter W Stephenson of Stephenson Environmental Management Australia, titled "Review of Documents Relating to Air Quality and Ozone" (Stephenson Report). This report was to be the expert evidence the subject of the fifth order sought by the Applicant on its Motion. The report was marked "A" for identification. The Stephenson Report had been provided to the Respondents during the course of the afternoon prior to the hearing, soon after it was received by the Applicant. The Applicant's counsel advised that upon review of the Stephenson Report, after it had been provided to the Respondents, it had been discovered that Mr Stephenson had gone beyond his instructions, addressing matters irrelevant to the specific air quality issue to be addressed in the proceedings. Accordingly, the Court was requested to mark substantial passages of the Report as "not read", being the executive summary, the bulk of page 5, all of pages 6, 8, 9 and the bulk of page 10.
In order to understand the conclusions of the Stephenson Report in the context of the air quality report that had been before the original decision-makers, the Applicant also produced two pages, pages 12 and 13, from the Mount Gilead Rezoning Air Quality Review prepared by Wilkinson Murray, being pages 870 and 871 reproduced from the Evidence Book filed in the proceedings. These were pages were marked "B" for identification.
The Sixth Respondent produced a folder of 31 documents, comprising a chronology of the proceedings together with many of the court documents filed in the proceedings and other material from the Evidence Book, upon which it relied in the hearing before me. This folder was identified as the Tender Bundle and marked as Exhibit 1. Additionally, the Sixth Respondent tendered the letter dated 28 May 2018 from the Heritage Council of New South Wales to the Sixth Respondent discussed above [4] and [5] at which constituted a notice pursuant to s 33(1)(a) of the Heritage Act 1977, being a Notice of Intention to consider listing on the State Heritage Register of the Mount Gilead Estate, 901 Appin Road, Gilead. This Heritage Council Notice was marked as Exhibit 2.
Application for leave to file draft Second Further Amended Summons
Prior to the PTM, the Applicant's original Summons had already been amended twice. At a hearing before Robson J on 9 February 2018 comprehensive orders by consent were made regarding pleadings and evidence. As indicated in [10] above, at the PTM all the parties confirmed that, apart from the issues now arising out of the Motion and those final tasks still awaiting completion in accordance with the 9 February orders, all aspects of the proceedings are on track. Most particularly, the Evidence Book has been filed. In essence, all that remains is the filing of the respective arguments and arguments-in-reply of the parties.
Although upon review of the proposed Second Further Amended Summons, I can see that greater clarity of the Applicant's case would be achieved by allowing the filing of this further iteration of the Summons, with just eight work days between the Motion and the trial, I have decided an injustice would be done to the Respondents to allow the further amendments to be made. The Court agrees with both the Applicant and the Sixth Respondent that the changes to the Summons are not mere refinements, some are more substantial and would quite possibly give rise to responding parties having to revisit their Points of Defence and quite possibly re-examine whether they have filed sufficient material via the Evidence Book to address all the elaborated or extended issues now sought to be raised.
The Court considers that the primary issues raised in the Further Amended Summons remain alive without being rendered nugatory by not being elaborated upon. The Applicant's case remains arguable without the Second Further Amended Summons having to be filed. Litigants have a responsibility to ensure that the proceedings they commence are sufficiently founded on evidence and argument to enable them to proceed in accordance with the timetables set by courts. In this case, that timetable was set pursuant to consent orders submitted by the parties collectively. It is accepted that as further "minds" are brought to the process of case preparation that further arguments might be identified, as was clearly the case in this instance when, as the affidavit of Ms Amanda Patricia Johnstone confirms, senior counsel was engaged on 20 March 2018. However, as counsel for the Sixth Respondent pointed out, some two and half months then passed before the PTM. Although the draft Second Further Amended Summons was sent to the respondents on 23 May 2018, it was apparent by 28 May that it would be strongly opposed by the First and Sixth Respondents, yet the Motion was not moved until the PTM a week later, with notice of it only being received during the afternoon before.
The Court anticipates that if it were to allow the Second Further Amended Summons, then the remaining case preparation of all the Respondents would be prejudiced, which would quite likely result in a hearing at the trial being adjourned or otherwise disrupted by efforts by one or other party endeavouring to cover arguments not otherwise adequately canvassed in the material in the Evidence Book or in the preparation for trial to date. It would not be in the interests of achieving a just, quick and cheap resolution of the proceedings for the Applicant to now rely upon a further revised Summons, for, as the Summons sets the parameters of the proceedings, the parameters of the proceedings would be enlarged at a stage too late for it to be just or reasonable for responding parties.
In deciding that it is appropriate that the Court rejects the proposed Second Further Amended Summons, I have considered the decision of Pain J in Wollongong Coal Ltd v Minister for Planning & Anor [2016] NSWLEC 113 at [12]-[13] in which Her Honour adopts the principles in Australian Securities and Investments Commission v Rich [2005] NSWSC 706 at [69]-[70] and Tamaya Resources Ltd (In liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 at [126]-[131] which in turn adopted Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Accordingly, I have decided that the Applicant must proceed on the basis of its Further Amended Summons, rather than on the basis of its Second Further Amended Summons.
Application for leave to serve interrogatories on the Fifth Respondent
The fourth order sought by the Applicant is for leave to administer to the Fifth Respondent, the Campbelltown City Council, interrogatories. The interrogatories in question contain ten questions, four of which inquire whether or not a heritage study known as the Mount Gilead Estate Curtilage Study written by heritage consultants GML Heritage, or a summary of the findings of that Study, were placed before the councillors of the Fifth Respondent. The remaining six questions focus on whether or not the Fifth Respondent was informed that "OEH was actively considering a proposal to list the curtilage of Mount Gilead homestead on the State Heritage Register".
As noted above, the Fifth Respondent filed a Notice of Submitting Appearance pursuant to r 6.11 of the UCPR in the proceedings, so therefore had no intention to participate in the proceedings, but rather simply be bound by the final judgment of the Court. First, as a threshold issue, there is no law or procedure that would allow a respondent to simply avoid responding to proper legal process, such as interrogatories, on the basis that having filed a submitting appearance that that is somehow a total bar to responding. Accordingly, the response dated 8 March 2018 from Marsdens, the solicitors for the Fifth Respondent, asserting that their client "is unable to provide a response to the Notice to Admit Facts" by relying upon their client's submitting appearance status is erroneous. A similar response to the proposed interrogatories, had it been received, would be similarly erroneous. In this respect, the Applicant relied up the decision of French J (as he then was) in the Federal Court case of P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 at [34].
Given the lateness of the request to serve interrogatories, the Court is obliged to consider the potential inconvenience, if any, that any party might suffer should the interrogatories be allowed. The Court should also consider whether there is likely to be any forensic value in the answers sought via the interrogatories being produced at such a late stage in the proceedings. The Court has formed the view that there is no justification in allowing the interrogatories to be served, in that to do so would unnecessarily require parties to consider the responses and potentially seek leave to further reply, when, on the face of the material already before the Court, there is no merit to do so.
First, the explanation as to why the interrogatories are required, as expressed in the affidavit of Ms Amanda Patricia Johnstone, is inadequate. First, there is a statement that "I have formed the view that it is necessary … to issue interrogatories" and then in [18] a statement that it will reduce the number of documents needed to be referred to in the hearing, including a need to refer to the whole of the Council's file. The issues the Applicant seeks to interrogate regarding what was or was not before the Council regarding heritage issues - specifically the GML Curtilage Study and the activity, if any, of OEH in relation to potential state heritage listing - are already addressed repeatedly in other documents amongst the pleadings and in documents contained within the Evidence Book. For instance, as to whether the Curtilage Study was before the Fifth Respondent or whether the councillors were informed of OEH activity, in their Notices Disputing Facts, the First, Third, Fourth and Sixth Respondents all dispute that such material was not before the Fifth Respondent. It follows that if such material was before the Fifth Respondent, then the requisite documents contained in the Evidence Book, including the GML Curtilage Study, are before the Court and that the parties will address the consequences at the trial. Answers to interrogatories which confirm the assertions of four respondents in their Notices Disputing Facts will not advance the knowledge base before the Court.
Further, the Court, in exercising its discretion, should have regard to the utility of the proposed interrogatories - whether their service and the responses thereto will facilitate a resolution of the proceedings. If there is an absence in the utility of serving the interrogatories, then the Court should not exercise its discretion in favour of the Applicant, particularly given the lateness of the leave being sought. In this regard, the Court agrees with the submissions of counsel for the Sixth Respondent with respect to the processes under the Heritage Act.
Although heritage considerations have always been important considerations in the decision making processes with respect to the Mount Gilead Estate, as confirmed by the GML Curtilage Study being one of the documents amongst the body of studies necessarily to be considered, when it comes to whether or not the Estate would or would not be listed on the NSW State Heritage Register, there is a formal process under the Heritage Act. As indicated in [5] above, the Sixth Respondent tendered a letter dated 28 May 2018 from the Heritage Council of New South Wales to the Sixth Respondent which constituted a notice pursuant to s 33(1)(a) of the Heritage Act, being a Notice of Intention to consider listing on the State Heritage Register the Mount Gilead Estate. Service of that Notice announces a formal process which follows involving persons being invited to make submissions in response to a Heritage Council preliminary assessment as expressed in that letter reciting the cultural values of the place. Following submissions, the Heritage Council considers them, amongst other inputs, makes a determination and then makes a recommendation to the Minister. The Minister in turn then follows a statutory pathway towards a decision whether or not register a place on the State Heritage Register. The statutory process has been explained in this Court in Millers Point Community Assoc. Incorporated v Property NSW [2017] NSWLEC 92; (2017) 224 LGERA 407, at [85]-[110].
In the Applicant's Notice to Admit Facts dated 7 March 2018, the Applicant sought, and now in its proposed interrogatories seeks, information whether Mount Gilead Homestead and its curtilage was "being actively considered by OEH for State heritage listing". This line of inquiry should be considered in the context of the Sixth Respondent's three Notices to Produce for Inspection all dated 15 January 2018 seeking "All Documents dated from 2015 onwards which relate to the potential for the Mount Gilead Homestead and its curtilage to be listed on the State Heritage Register". The Sixth Respondent also served a Subpoena to Produce with Subpoena Notice and Declaration also filed 15 January 2018 seeking documents following the same line of inquiry. All responses and documents obtained by the Sixth Respondent will be contained within the Evidence Book at the trial. This line of inquiry into the formal Heritage Act process, which would necessarily guide decision makers, is relevant and material to the issues in these proceedings.
For the Applicant to pursue the more informal preliminary processes involved with heritage listing prior to the issue of the s 33(1)(a) Notice, has less utility. In the context of the exercise of discretion whether to give leave for interrogatories to be served so late in the proceedings. I consider such low utility does not justify the exercise of discretion in favour of the Applicant. Given that there is other material in the Evidence Book relating to the Fifth Respondent's considerations and the fact that the GML Curtilage Study was an important document in the process, it will be for the trial judge to determine what weight should be accorded the processes, identifying the heritage values of the Mount Gilead Estate, which preceded or were outside the formal Heritage Council processes.
Accordingly, I have determined not to grant leave to the Applicant to administer to the Fifth Respondent interrogatories at this late stage in the proceedings.
Application to adduce expert evidence in relation to the Mount Gilead Rezoning Air Quality Review
The order sought by the Applicant with respect to the filing of expert evidence is, on its face, fraught with difficulty. Clearly the order sought pursuant to the Motion is an effort to comply with r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR) in that leave is being sought ahead of the trial to rely on the expert evidence of Mr Peter Stephenson. Although clearly late, nevertheless the path being pursued by the Applicant in seeking leave is the correct one. Preferably, such an application should have been foreshadowed a lot earlier in the case preparation, however the Court must now deal with the application.
In considering whether to grant leave, the Court is obviously cognizant of the usual practice in judicial review proceedings that expert evidence ought not be called - the focus is to be on the material which was before the decision maker at the time of the decision being reviewed. It is the exceptional case when the Court will allow expert evidence in such proceedings. The decisions relied upon by the Sixth Respondent in resisting the Applicant's application are sound and binding upon this Court. In particular the decision of Pain J in Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 at [7] and in the Court of Appeal in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348 at [35]: The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.
The Court finds the summary of the law in the Sixth Respondent's submissions as follows is correct: 13. The observations in the above paragraph were cited with approval by a differently constituted Court of Appeal which also refused leave to appeal in respect of a first instance decision declining to grant leave to rely upon expert evidence: Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141 at [5] per Beazley P, Ward and Gleeson JJA. 14. The same approach had been reflected in numerous other first instance authorities. In Countouris v Kallos [2007] NSWSC 944 at [5] (referred to by Pain J), Young CJ in Eq observed that, when determining whether to give leave under r 31.19, the court must bear in mind the overriding purposes in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) (CPA). In Chapman v Chapman [2007] NSWSC 1109 (also referred to by Pain J), Brereton J held that foremost amongst the purposes of the new rules is ensuring that the court has control over the giving of expert evidence, and restricting expert evidence to that which is reasonably required to resolve the proceedings. His Honour, refused to allow expert accounting evidence to be adduced in that case as it was not reasonably required; it being "just [the] type of evidence that the rules were intended to empower the court to discourage and disallow" (at [11]). That was so notwithstanding that the report had already been prepared and it was accepted that aspects of it were admissible (at [10]). So too in Bizzanelli v Bizzanelli [2007] NSWSC 1085, Brereton J refused to allow expert evidence to be adduced under r 31.19 as it would not assist in informing "the real issues in the proceedings" (at [10]).
Further, with respect to expert evidence in the context of judicial review, the Court accepts that the summary of the law set out in the Sixth Respondent's submissions as follows is accurate: 26. The general principle is that evidence and documents that do not form part of the record before the original decision maker are not admissible in subsequent judicial review proceedings. So for example, in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Weinberg J stated the general position in Australia as follows (at [442], 445]): "Ordinarily there would be no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the relevant decision. … …I accept that, ordinarily, material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review." 27. Similarly in Chandra v Webber [2010] FCA 705 Bromberg J stated (at 40]): "The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: … The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon? Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision." 28. This constraint is a necessary concomitant to the principle that judicial review is not concerned with the merits of the decision but the lawfulness of the decision made. It has been recognised that the danger in acceding to a request to admit further evidence on judicial review is that the court will necessarily need to revisit findings of fact. That observation needs to be coupled with that of Pain J as to the experience of the court generally being that expert evidence in judicial review proceedings is of very limited assistance.
However, the critical question is how those principles of law are to be applied to the evidence proposed to be relied upon in this case, being a redacted version of the Stephenson Report. A submission from the Applicant's counsel indicated to the Court that the same analysis of data as set out in the Stephenson Report, could be arrived at by a time-consuming exhaustive analysis of the EPA and other documentation contained in the Evidence Book and then submissions putting forward propositions as to how that data ought to be read. Further, counsel for the Third and Fourth Respondent submitted that in reality the analysis that is sought to be put before the Court via the redacted Stephenson Report is not actually expert evidence but rather an analysis of how to approach the material to be examined. This submission was really to the effect as to whether there was any necessity for it.
Reflecting on these submissions and reviewing the redacted Stephenson Report, I have reached the conclusion that in reality it does not constitute expert opinion, of the usual character, rather it constitutes a relevantly experienced person's "road map" as to what to refer to and how to read the data. The issues relate to whether there was data at one or more air quality monitoring stations that should have been considered by the original decision maker and then what that data was in comparison with the data put forward in Mount Gilead Rezoning Air Quality Review. Mr Stephenson is not being called to interpret the location of the air monitoring stations nor the data available from those stations, he is simply setting out a factual reference to the location of stations and the existence of data from those stations and whether it was or was not omitted from the Air Quality Review before the decision-maker. The redaction of passages from the Stephenson Report ensures that expert opinion or assessment is curtailed to the minimum, leaving just references to factual material for the Court to review in the context of other material before the Court.
Accordingly, I consider the redacted Stephenson Report is relevant and, very importantly, has the capacity to shorten the exercise before the trial judge which might otherwise require the Applicant's counsel to trawl through a multiplicity of documents to arrive at a similar comparator position. The Stephenson Report has the capacity to lead to a quicker and cheaper analysis of relevant material in an orderly fashion easier for the Court to assimilate. As long as the Respondents are given an opportunity to place responding material before the Court, if it is needed, strictly confined to precisely the matters explained in the Stephenson Report, then justice will be served.
Consequently, I have decided that the Stephenson Report, in its redacted state, may be placed into evidence before the Court. Noting the Sixth Respondent's reservation of its position as to the Report's admissibility, I make no observations on such matters, leaving such issues to the trial judge if such issues are raised in argument.
Costs on the Motion
The Sixth Respondent sought its costs on the Motion, justifying its request on the basis that the Applicant had irresponsibly inconvenienced the parties by moving its Motion so late in the case preparation period, especially in the context of prior opportunities it had to seek the orders it has sought earlier. No other party made submissions regarding costs.
The Court acknowledges that the Applicant's Motion is late however it perceives in the explanations given in the Affidavit of Amanda Patricia Johnstone that the Applicant has been faced with difficulties in accessing, in a timely fashion, information it considered necessary to properly present its case including necessary advice, both from counsel and experts. It is clear that, at least with respect to the Mount Gilead Curtilage Study, the Applicant repeatedly endeavoured to obtain information which it considered would assist it in presenting its case to the Court. A Notice to Produce for Inspection was followed by a Notice to Admit Facts which in turn was followed by the most recent effort to serve interrogatories, all intent on pursuing similar information. Efforts by the Applicant to arrive at a focussed analysis of aspects of the Mount Gilead Air Quality Review followed a different, but apparently equally frustrating path, again in the context of the Applicant believing it was necessary to assist the Court to examine the issues raised in its original Summons and subsequent iterations.
The Court is cognizant of the trite, but nevertheless true, observation that there can be an imbalance in the resources of litigants in proceedings which can undermine the capacity of less-resourced parties to participate in proceedings with desirable expedition and efficiency. In this case, amongst the respondents are three government entities and a corporate entity associated with one of Australia's largest development corporations. The Department of Planning represents the State Government entities, one of which is the Minister for Planning, whilst other parties are represented by large legal firms. Although inequalities amongst participants in legal processes is common place, adherence to proper process and procedure should never be compromised. However in adopting a considerate approach, mindful of the overriding considerations of achieving a "just, quick and cheap" resolution of matters in dispute, courts will always strive for an "even playing field". In determining whether a degree of discretionary tolerance might be exercised in favour of a less-resourced party, the Court should be guided by the degree to which parties have been or might be inconvenienced.
In this case, the Court has determined that the Applicant should succeed with respect to one of its three requests in its Motion. Given the issue regarding the Mount Gilead Air Quality Review has been "alive" since the outset of the proceedings, as said earlier, it does serve the interests of achieving a just, quick and cheap outcome by having material placed before the Court that in a more expeditious manner can or might facilitate a focus on the real issues. Accordingly, albeit undesirably late, the Stephenson Report is considered to be a positive contribution to achieving greater clarity or focus which should obviate the need to traverse an alternative and longer path to reaching the same end point of an understanding of material facts. This would be in the interests of all parties and the Court. As to whether unacceptable inconvenience will be caused to other parties, the Court does not think so, given the strict focus of the allowed passages in the Stephenson Report and any response thereto, similarly strictly focused, that might be filed by a respondent. Accordingly, the Court considers the Applicant has potentially assisted the proceedings to achieve a just, quick and cheap outcome, therefore it should not be penalised by a cost order for bringing its Motion so late, rather, the costs should simply be costs in the cause.
ORDERS
Further to the orders made during the hearing as referred to in paragraph [11], the Court now orders as follows: 1. Leave is not granted to the Applicant to further amend the Further Amended Summons (Judicial Review); 2. Leave is not granted to the Applicant to serve upon the Fifth Respondent interrogatories; 3. Leave is granted to adduce evidence from Mr Peter Stephenson of Stephenson Environmental Management Australia in the form of the report dated 4 June 2018, identified as Project No 5961/18/B - final, but with the following passages redacted: all of the executive summary; on page 5, the six dot points which follow the first dot in paragraph 2.1 and in paragraph 2.2, all that follows the first dot point; all of pages 6, 8 and 9; and the last four paragraphs on page 10; 4. Should any Respondent wish to call evidence responding to, but strictly limited to, that which the Applicant has been allowed to adduce pursuant to Order 3, then such evidence is to be served and filed by 12.00 noon on Monday 18 June 2018; and 5. Costs shall be costs in the cause.

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