Mackycorp Pty Ltd v Lismore City Council

Judgment (6 paragraphs)

[1]

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

By its Motion filed 6 August 2024, the applicant seeks vacation of the hearing dates for these class 1 proceedings, currently listed for hearing on 12-16 August 2024.
The first respondent adopted a neutral position while the second respondent objected to the motion.
I understood the essential argument of the second respondent to be that the applicant has been fully aware of the concerns raised by the second respondent for a long period. No new issues were raised. This application to vacate was a belated recognition of the significant impact on Aboriginal heritage values on the site and that vacation of the dates would allow the applicant to "patch up its case".
A key prejudice upon the second respondent was associated with further delay in resolution of the matter, in a setting where there had already been extensive delays in this, and related matters, in the local area.
The second respondent also emphasised the significant flow-on effects on other litigants associated with the vacation of a five day hearing in this busy court.

[2]

Legal principles

The principles relating to the vacation of hearing dates are well known. The parties took me to Jiang v Sydney Metro [2023] NSWLEC 126 (Jiang), which in turn referenced Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (Kenoss) at [13], where Ward JA summarised the appropriate approach to be adopted by Courts to adjourn or vacate hearings as follows: "[13] The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the Applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court."

Consideration

While there is certainly more to it than this, it seems to me that there are five key "circumstances" (see Kennoss [13]) which warrant attention in the consideration of the application to vacate. These are:

Circumstance 1: the filing of the amended statement of facts and contentions by the first respondent on 5 July 2024 which struck out reference to what had previously been nominated as Contention 11 and headed "Aboriginal Cultural Heritage".
Circumstance 2: the Court's granting of the now second respondent's joinder application on 15 July 2024, including revised orders on filing of evidence, after the reading of the affidavit of Michael Ryan filed 3 July 2024. Mr Ryan's affidavit included commentary to the effect that joinder would allow the Court to be made fully aware of the negative impact the development would have on the Aboriginal community and the wider environment.
Circumstance 3: the documentation and receipt of the second respondent's statement of facts and contentions dated 19 July 2024 which was included in the affidavit of Mr Mantei filed on 6 August 2024 (pp 7-13). As is usual practice, this document provided a direct list of contentions which the second respondent claimed warranted refusal of the application.
Circumstance 4: the filing of evidence by the second respondent, essentially in accordance with leave granted by the Court, in the form of three affidavits filed on 5 August 2024.
Circumstance 5: the material in the affidavit of Mr Mantei dated 6 August 2024 indicating that, having reviewed the material relating to Circumstance 4, and based on advice from its Aboriginal cultural heritage expert, it could no longer comply with the timetable for evidence:

Circumstance 1 can be seen as a turning point in the consideration of the issue at hand in these motion proceeding. The first respondent presents its contentions (or reasons for refusal) in this statement. With the striking out of the contention relating to Aboriginal cultural heritage, it was reasonable for the applicant to understand that it has responded adequately to the contention as raised by the first respondent.
The culmination of the granting of the joinder application, the second respondent's completion of its own SOFAC and the filing of its evidence (Circumstances 2-4), can be also understood together as a considerable turning point. I see this as a considerable turning point because I am not convinced by the second respondent's arguments that there is nothing new with the matters raised in the second respondent's SOFAC or evidence. There are two reasons for this conclusion. First is the fact of the affidavit evidence of Mr Mantei that Mr Robins, the applicant's Aboriginal archaeology expert, advises that the issues raised by the second respond require investigation by a person experienced in anthropology. The second respondent queried this evidence as second hand, however I am not persuaded by this view and think it reasonable to rely on Mr Mantei's sworn evidence.
The second reason is a little more abstract, but also reliant somewhat on the function of a consent authority to present its contentions in a reasoned way. It is that if Council has taken the view that its concerns relating to Aboriginal cultural heritage are addressed, I may take this as a reasonable conclusion for the Council to draw. This would suggest that considerations beyond the matters raised by Council, in its own contentions, are now the points of attention raised in the second respondent's SOFAC. This might also link to Mr Ryan's evidence that joinder would allow the Court to become "fully" aware of impact.
In relation to Hamod v State of New South Wales and Anor [2011] NSWCA 375, another authority to which I was referred, I do acknowledge the potential for unfair prejudice associated with unnecessarily delaying proceedings. However, in this instance I do not see the day as unnecessary. Rather it seems to me that the culmination of circumstances, establishes a setting where a particular case against the applicant has been now put by the second respondent and only very recently. It follows that for a just resolution of these proceedings, it is necessary for the applicant to be given a reasonable opportunity to respond. On the evidence, if the current listing dates were maintained, this reasonable opportunity would not be available.
In my considerations here I have been very conscious of the matter of the waste of public resources with the vacation of dates so close to hearing and the effect that may be occasioned on other litigants seeking listings in the Court's system But I do note that, unlike the proceedings referenced in Jiang, this is not a matter which has already been subject to considerable slippage. It does appear that all parties have been relatively diligent in the attention they have given to the Court's orders, since what I have referenced as the first turning point which occurred as recently as 5 July 2024. In relation to the potential pushing back of the Court's list, I did inquire whether there was any practicality in part hearing the matter in accordance with the current dates, but I accept the argument of the applicant that due to inter-relationship between Aboriginal cultural heritage and other matters, this was not a practical course.
I also accept that there will be dissatisfaction from further delays when the second respondent might have hoped that there could be a final resolution to their satisfaction in the proceedings more quickly. However, I think the most significant potential prejudice in this matter is that which would be afforded the applicant in all of the circumstances were the motion not to be granted.

(1) Short service of the applicant's notice of motion filed 6 August 2024 is granted.

(2) Order 1 of the directions made by the senior deputy registrar on 19 February 2024 listing the proceedings for hearing on 12 to 16 August is vacated.

(3) Order 3 of the directions of the senior deputy registrar on 22 July 2024 (requiring evidence in reply from the applicant) is vacated.

(4) The applicant's notice of motion filed on 30 July 2024 is not granted.

(5) The second respondent is directed to respond to the applicant's request for further and better particulars (dated 7 August 2024) by 4pm 26 August 2024.

(6) The applicant is to provide the first and second respondents with an outline of the work intended to be undertaken by the anthropological expert by 4pm 18 September 2024.

(7) The matter is listed for case management at 4pm on 26 September 2024, at or prior to which the parties are to indicate any requests for further orders. The first respondent is granted leave to attend via AVL.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (2)

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