Homemaker Hub Pty Ltd v Strathfield Council

DATES OF HEARING: 11 May 2009 12 May 2009

APPLICANT Mr C McEwen SC SOLICITORS Gilbert and Tobin APPLICANT ON NOTICE OF MOTION FOR JOINDER Mr C Birch SC LEGAL REPRESENTATIVES: SOLICITORS Speed and Stracey Lawyers RESPONDENT Mr T Hale SC SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11199 of 2008 Homemaker Hub Pty Ltd v Strathfield Council

JUDGMENT 1 Her Honour: These are Class 1 proceedings with a hearing date in about one month. The Applicant has filed a Notice of Motion dated 7 May 2009 seeking orders that: 1. Pursuant to s 62(3)(b) of the Civil Procedure Act 2005 (NSW) the Respondent is limited to bringing evidence from one expert in each field of expertise being planning, economics and traffic. …

2 The relevant order which the Applicant's motion essentially seeks to enforce was made by the Registrar on 24 April 2009, being prayer 2 of the short minutes of order, as follows: The Applicant's town planning expert, Julie Bindon of JBA Planning, the Respondent's town planning expert and a Council officer are to file and serve their statements of evidence on the town planning contentions by 1 May 2009 and are to confer and file a joint report by 15 May 2009.

3 Westfield Management Ltd (Westfield) has filed a Notice of Motion dated 11 May 2009 seeking joinder as a party under s 39A of the Land and Environment Court Act 1979 (the Court Act). It relies on an affidavit of Mr Speed sworn 11 May 2009 which sets out the numerous interactions between the Council and Westfield which resulted in the provision by Westfield of the expert reports of Mr Rumbold (economist), Mr Jarrett (architect) and Mr Ingham (town planner) to the Council. Whether it needs to press that motion depends on how I determine the Applicant's Notice of Motion as that will determine whether the three additional reports which the Council had provided to it by Westfield and that it now presses in its case can be relied on. If these are allowed in, Westfield will not press its motion for joinder.

4 While the Applicant's motion refers to planning, economic and traffic evidence, I note that it is agreed between the parties that the report of Mr Rumbold on the economic impacts of the proposed development can be relied on by the Council. Nor is there a matter concerning the traffic evidence which needs to be resolved in this judgment. The additional evidence that requires consideration is the report of Mr Ingham, town planner, and Mr Jarrett, a specialist retail design architect. These reports were served on the Applicant without effective notice on 1 May 2009. No court order was in effect to enable them to be relied upon.

5 The parties have already filed in accordance with the Court's orders of 24 April 2009 planning evidence of Ms McCabe, the Council's expert, and Ms Bindon, the Applicant's expert, both of whom have provided extensive reports.

6 A separate issue arises in relation to Mr Robinson whose report is put forward as a report of a Council officer. The Applicant argues that while the order of 24 April 2009 provided for a report of a Council officer to be relied upon, his report repeats what is already in the evidence of the planners and should not be able to be relied upon.

7 The attachments to the affidavit of Ms Shannon, solicitor for the Applicant, sworn 7 May 2009 read for the Applicant identifies that the Registrar making the orders of 24 April 2009 was provided with a hearing information sheet prepared by the parties in accordance with Schedule E of the Court's Practice Note - Class 1 Development Appeals. The sheet stated that the experts required for the hearing were in the areas of town planning, economics, and traffic and parking. No mention of architectural evidence was made. Applicant's arguments 8 The additional town planning evidence beyond that of Ms McCabe is unnecessary and duplicates her evidence. There is no need for additional planning evidence in the matter. No issue is taken that Mr Robinson, a consultant with the Council three days a week, is not a council officer to which order 2 on 24 April 2009 was directed. His evidence is simply repetitive of what has otherwise been filed and is therefore unnecessary.

9 To the extent Mr Ingham is relied on by Mr Rumbold it is unnecessary that his report be read. Where Mr Rumbold relies on factual findings these can be agreed in discussion between the planners Ms McCabe and Ms Bindon.

10 Mr Jarrett, retail design architect, addresses only one aspect of the contentions raised by the Council. His report was served without notice, is not covered by the orders made by the Court on 24 April 2009 and is in a discipline not identified as necessary by the parties. The hearing is in four weeks and whether a suitable expert can be found is unknown. The issue he addresses in the contentions concerning the design of the proposed bulky goods facility is addressed by the planning experts Ms McCabe and Ms Bindon in any event. Council's argument 11 The Council states that the reports of Mr Ingham, Mr Jarrett and Mr Robinson are all necessary for all the issues in the matter to be properly considered. Mr Ingham's report is needed as Mr Rumbold relies on it. There is no prejudice to the Applicant as it can find an architectural expert or use its own to respond to Mr Jarrett in the time available before the hearing.

Finding 12 Section 56 of the Civil Procedure Act 2005 (the CP Act) describes the overriding purpose of the Act as follows: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. …

13 The Court has to give effect to that purpose (s 56(2) of the CP Act). Section 62(3) of the CP Act provides that the Court can limit the number of expert witnesses. Specific rules concerning the management of expert evidence are provided in the Uniform Civil Procedure Rules 2005 (the UCPR). What is noticeable in this matter is that the Council has not applied under r 31.19 of the UCPR seeking orders from the Court to enable it to rely on additional evidence, rather it has simply served and filed additional expert evidence on which it wishes to rely. Rule 31.19(3) states that unless a court orders, expert evidence cannot be relied upon. It has been the Applicant which has had to file a Notice of Motion seeking orders which essentially seek to uphold the order for the filing of expert evidence made by the Court on 24 April 2009. I note that the Council's solicitor sought to have the matter relisted by letter dated 5 May 2009 to the Court. The Applicant's Notice of Motion was filed in Court on Monday 11 May 2009.

14 The only basis on which Mr Ingham's report is pressed is because Mr Rumbold's report refers to and relies on factual information from Mr Ingham's report. To the extent there are factual matters which Mr Rumbold relies on, the relevant parts of Mr Ingham's report can be discussed by the town planning experts and agreed without the necessity of Mr Ingham becoming an additional planning expert in this matter. I do not consider his report should be read as part of the expert planning evidence in the proceedings.

15 Mr Jarrett's report raises different issues not least because he is providing evidence from a new discipline which the Council, and therefore the Applicant, until now had not identified as necessary in the proceedings. The Applicant does not have an expert at this stage which matches Mr Jarrett's expertise. Its counsel states that it is prejudiced in its case preparation as it has been denied the opportunity to obtain evidence in this matter and has only four weeks to find someone able to participate in pre- trial preparation. It is clear from Mr Speed's affidavit that Westfield has been aware all along of the proceedings and been discussing these with the Council. None of the issues discussed by Westfield with the Council were made known to the Applicant until the service of the reports on 1 May 2009. There was a letter dated 24 April 2009 annexed to Ms Shannon's affidavit which was sent by the Applicant's solicitors following the call over on that day. The letter notes the Council's advice that it may seek to rely on additional reports from Westfield and states that that course would be opposed by the Applicant. That does not satisfy any requirement of adequate notice to the Applicant.

16 In deciding whether Mr Jarrett's report should be admitted it is necessary to emphasise the nature of Class 1 proceedings in this Court and that a commissioner with appropriate expertise will be determining the matter and will be expected to apply that expertise. I need to balance the desire of the Council to put before the Court all the experts it considers necessary with the concern for timely preparation of the matter for hearing and the need to avoid duplication of expert evidence. It is not sufficient to argue as a principal reason for relying on additional expert evidence for which no order was sought before its service, served four weeks before the hearing that there is no prejudice to the Applicant. No doubt the Applicant is a relatively well resourced developer, as is Westfield who provided the reports to the Council. These reports have not been provided in a timely fashion pursuant to the required order under the UCPR. The contentions raised by the Council which Mr Jarrett is addressing are considered in the evidence of the town planners so that there is already evidence on the issue of retail design. Excluding Mr Jarrett's evidence will not result in the issue not being considered at all. It will be the subject of expert town planning evidence. Balancing all these factors I consider Mr Jarrett's report should not be able to be relied on in the proceedings. 17 Mr Robinson's evidence is intended, as I understand it, to identify how the Council approaches decisions under its planning instruments as relevant to the issues in these proceedings. His report does so. While there may be some overlap with what the expert town planners deal with, that is not the case for the whole report. It can be admitted and relied on. 18 My conclusions and the agreement of the parties in relation to evidence suggest the order sought in the Applicant's Notice of Motion needs to be amended to take into account that the evidence of Mr Robinson can be relied upon. Joinder application 19 As I have not allowed in all three reports provided by Westfield to the Council I need to consider Westfield's joinder motion. Westfield's counsel argues that it should be joined under s 39A(a) of the Court Act because this will enable an issue to be considered that would not be sufficiently addressed if the entity was not joined as a party and, under s 39A(b)(ii), that joinder is in the public interest because of the potential impact that the proposed development will have on numerous businesses in the Council area. The only possible issue the argument in relation to s 39A(a) can apply to is the report of Mr Jarrett which I have held above should not be read in these proceedings.

20 It is not in the public interest, nor necessary under s 39A(a) that, having refused the Council leave to rely on Mr Jarrett's report, Westfield be joined as a party solely for the purpose of seeking to rely on that same report. I have held above that the issue raised by Mr Jarrett is considered in other evidence before the Court. To do so would undermine the objectives of appropriate management of litigation in Class 1 proceedings in this Court provided by the CP Act and the UCPR concerning expert evidence. This application for joinder is also late, the first notice to the Applicant being when the Notice of Motion was handed to the Applicant's legal representatives in Court on 11 May 2009. I also note that the evidence of Mr Rumbold on economic impact is able to be relied upon in the Council's case and that addresses the economic impact of the proposed development in the area.

21 Westfield has no entitlement to be joined as a party to the proceedings. It can participate as an objector in the usual course of the hearing, for example I am told that Mr Ingham's report is likely to be presented to the Court as representing an objector. Whether it is joined is a discretionary decision for the Court to be determined in each case before it. The fact that Westfield was joined as a party in earlier separate proceedings concerning a different development application for the same premises is irrelevant. I do not consider I should exercise my discretion to allow Westfield to be joined as a party. 22 Westfield's Notice of Motion is dismissed. Costs are reserved.

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