Marshall Rural Pty Ltd v Basscave Pty Ltd

The Applicant's claim

1. The Applicant's claim that the Court should order the expedition of these proceedings was primarily focused on the part of its case concerning the allegedly unlawful earthworks. More specifically, the Applicant argued that there is "a clear public interest in having enforcement proceedings such as these determined expeditiously" because of the risk that the earthworks may have significant adverse environmental impacts. In support of this argument, the Applicant made the following arguments.
2. The Applicant submitted that the relevant earthworks on the land are very substantial and have involved significant ground disturbance, the clearing of vegetation and the importation of "massive quantities of fill of unknown source and content": citing the evidence of Mr Mitchell (Exhibit MAD-1 to Mr Doria's affidavit, pp 1-11).
3. Given the close proximity of the land to the Hawkesbury River, the Applicant relied upon the evidence of Mr Mitchell to assert that the earthworks could cause "increased erosion, sediment pollution of the river, increased local turbidity and increased flood risks". With respect to this last potential impact, the Applicant submitted that the land is affected by "extreme flood risk" and that it is, therefore, of considerable concern that it is unknown whether the fill material is contaminated. Similarly, the Applicant submitted that it is relevant that Hawkesbury City Council has issued the Respondent with a penalty notice for polluting waters on 16 December 2016 and a prevention notice under s 96 of the Protection of the Environment Operations Act 1997. The Applicant suggested that this indicates that Hawkesbury City Council believes that the earthworks are likely to cause a pollution incident.
4. The Applicant also submitted that it is significant that the Applicant has commenced these proceedings because Hawkesbury City Council has "prevaricated for months while it obtained legal advice and decided whether or not to commence proceedings" against the Respondent with respect to the earthworks. In contrast to this alleged failure to act - and contrary to the Respondent's allegation of delay - the Applicant submitted that it has been assiduous in both reporting the alleged breaches to Hawkesbury City Council and DPI Water and in taking legal action.
5. Finally, the Applicant contended that these proceedings should be expedited because the relevant land is to be used by the Respondent to host the World Polo Championships in late October 2017. The Applicant submitted that the allegedly unlawful earthworks were carried out, and the allegedly unlawful buildings erected, in order to host this event. Hence, the Applicant concluded that "[i]t would be wholly undesirable from the perspective of the public interest for a major international event … to proceed while the lawfulness of the buildings and earthworks remains undetermined".
6. In the event that the Court was not to grant the expedition of the proceedings, the Applicant suggested that the Court should list the matter for directions in early August 2017, following the service of the Applicant's evidence and the Respondent's Points of Defence, at which time the matter could be listed for hearing.

The Respondent's rebuttal

1. The Respondent claimed that, having regard to the evidence in support of the Notice of Motion, the Applicant has not established sufficient grounds for the Court to expedite the proceedings. The Respondent gave seven primary reasons to make good this claim that there are no special factors that warrant expedition.
2. First, the Respondent argued that the Applicant has not led any evidence to suggest that any witnesses would be lost if the proceedings are not expedited.
3. Secondly, the Respondent submitted that there is no aspect of the proceedings which justify these proceedings leap-frogging any other Class 4 proceedings. The Respondent argued that there are no matters of public importance that give rise to a need to expedite these proceedings. In response to the Applicant's allegation, the Respondent said that the proceedings do not relate to the World Polo Championships and that although a relevant development application had been lodged by the Respondent to host this event, it is not yet at a stage where Hawkesbury City Council is considering it as it awaits the submissions of further information. Rather, the proceedings relate to structures that have been on the land for at least a decade and allegedly unlawful earthworks carried out in November 2016. In fact, given that most of the structures are subject to pending building certificate applications, the Respondent suggested that, ordinarily, the Court might be inclined to adjourn the proceedings.
4. Thirdly, the Respondent submitted that there is no evidence that the allegedly unlawful earthworks are causing any ongoing environmental impacts that would warrant the expedition of the proceedings. With respect to the evidence of Mr Mitchell, the Respondent said that his covering letter only refers to potential environmental impacts and not actual environmental impacts. Additionally, the Respondent questioned whether any weight could be given to Mr Mitchell's evidence given that he is a qualified town planner; has potentially not attended the land; and has not undertaken any water or soil sampling.
5. Fourthly, the Respondent alleged that the litigation has been delayed by the Applicant. In particular, the Respondent submitted that the Applicant has failed to adduce any evidence explaining the delay in bringing proceedings relating to the allegedly unlawful buildings. Insofar as the Applicant linked this delay to the conduct of Hawkesbury City Council, the Respondent argued that this was not credible. For example, the Respondent reasoned that "[t]here is further no explanation as to why, if the matter was of such urgency the Applicant was prepared to wait for a third party to take action when it was within their power to do so at the time".
6. Fifthly, the Respondent submitted that there is no evidence that the Applicant would suffer any hardship if the proceedings were not expedited.
7. Sixthly, the Respondent contended that the Applicant has not proceeded with due speed in advancing the proceedings on an urgent basis. Relevantly, the Respondent claimed that the Applicant: filed the Amended Summons (which introduced the allegations concerning the buildings) almost 3 weeks after the commencement of the proceedings; filed the Notice of Motion presently in issue 4 weeks after commencing proceedings; successfully obtained a one week adjournment of this Notice of Motion at its return; failed to file any evidence leading up to the Notice of Motion hearing; seeks directions allowing it 6 weeks from the date of filing to prepare its evidence; and "failed to provide a proper response to particulars as to the amended claim".
8. Seventhly, the Respondent submitted that its ability to properly prepare its defence would be prejudiced by the expedition of the proceedings. The Respondent said that it will need to conduct significant investigations and cannot determine the necessary scope of these investigations until the Applicant has filed its evidence. Therefore, the Respondent cannot consent to the abridgment of the hearing time without prejudicing its ability to respond to the Applicant's case. In any event, the Respondent noted that the Applicant has not sought any abridgment of the hearing time.

Consideration

1. With respect to identifying the power of this Court to order the expedition of proceedings, I adopt the analysis of Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10], which was cited with approval by Pain J in Marshall Rural Pty Ltd v Basscave Ltd [2015] NSWLEC 86 at [12]: There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56 to 58 and ss 61 to 63 of the CPA.
2. As was observed by Pain J in Marshall Rural Pty Ltd v Basscave Ltd at [12] (again quoting Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council), the applicable principles in determining whether or not to exercise the Court's discretion to grant expedition were set out by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43. The principles stated by Young J (insofar as they are relevant to this case) are: (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted …

Outcome of the motion

1. Having regard to the evidence relied upon at the hearing of the Notice of Motion and after considering the submissions from the parties, the Court is not satisfied that there are sufficient grounds to expedite these proceedings. Accordingly, the Notice of Motion for expedition is dismissed with costs.

There are no special factors that warrant expedition

1. Following the guidance from the cases on expedition that I have cited, I provide my analysis seriatim

(a) No loss of witnesses

1. There is no evidence before the Court to suggest that any witnesses will be lost if the case is not fixed for hearing at an early date. At this stage, neither party is in a position to precisely identify the witnesses to be called, particularly the Respondent, who is yet to be fully appraised of the case it must meet.
2. On the contrary, given the seriousness of the assertions by the Applicant as to the alleged potential environmental impacts of the earthworks in the context of the orders that are sought (being the reinstatement of the land to the condition that it was in prior to the earthworks and, in relation to the buildings allegedly built without the requisite approvals, their demolition) the Court anticipates that there will need to be a substantial body of expert evidence called by both parties. This evidence will likely need to cover at least four, possibly five, disciplines, including planning, engineering and environmental evidence. The Court has serious concerns that an order for the expedition of these proceeding would prejudice the gathering of sufficient considered evidence for the Court to properly assess the alleged implications of the earthworks. Once the parameters of the case are fully understood, particularly by the Respondent, necessary time must be allowed for the experts to carry out the necessary investigations prior to finalising their evidence.
3. The Court accepts that the Respondent is not yet in a position to fully understand the case that it has to meet in the proceedings and, as such, could not do anything other than make preliminary investigations into the appropriate experts and lay witnesses that it may need to give evidence. In the present circumstances, expedition may prejudice a fair and just examination of the issues in dispute.

(b) No special matters of public importance

1. The Respondent submitted that there is no aspect of this case that makes it of any greater public importance than any other Class 4 matters currently before the Court. The Court accepts that it is conceivable in some circumstances that issues regarding the contamination of land (by reason of the alleged potential danger from the fill brought onto the land) or the pollution of the Hawkesbury River (by reason of increased sediment), might elevate the issues in the case to a level of higher public importance. Yet, on the basis of the material currently before the Court, I do not accept that such circumstances are apparent.
2. On the contrary, preliminary indications from authorities, such as Hawkesbury City Council, DPI Water and the Environment Protection Authority, all of which have been involved to varying degrees in reviewing the actions of the Respondent (after the Applicant "has been assiduous in reporting the alleged breaches") are that although there have been regulatory actions commenced seven months ago with the issuing of a penalty notice and a prevention notice, it is not apparent that any authority has yet considered it necessary to urgently follow through with prosecution, seek injunctive relief or expedite any other action. The Applicant submitted to the Court that it was the prevarication of Hawkesbury City Council that prompted the Applicant to take matters into its own hands and commence these proceedings. Although the final evidence may prove otherwise at a full hearing of this case, in the context of this application for expedition, the Court must surmise that the apparent lack of urgency with which any authority has treated the Applicant's concerns is indicative that the higher order of public importance has not yet been established to justify more expeditious action.
3. Although the Applicant asserted that it is highly relevant that the World Polo Championships are proposed to be held on the Respondent's land in October 2017, the Respondent says that these proceedings do not relate to that event. The Applicant argued that it "would be wholly undesirable from the perspective of the public interest for a major international event such as the polo tournament to proceed while the lawfulness of the buildings and earthworks remains undetermined". During oral argument, the Court heard that some 60,000 people are expected to attend these Championships to view international polo teams competing. Conceding that it was still to hear evidence on the matter, the Court put it to counsel for both parties that, should the Applicant be successful, it may be a relevant discretionary consideration to consider the implications of jeopardising an international event that may be of national pride to Australia. Would it matter to the attendees at the event that the buildings housing related facilities were legally or illegally constructed? The Court inquired: provided that the full force of the law was eventually brought to bear, might it be conceivable that such an event, as a matter of discretion in the public interest, be allowed to run its course.
4. It is conceivable that at the hearing of these proceedings another instance of unjust enrichment might have to be considered as Moore J found in Marshall Rural Pty Ltd v Hawkesbury City Council (No 2) [2015] NSWLEC 210. In that case, both "The Sunnybrook Barn" and "The Polo Barn" were in issue, with the same Respondent being found to gain from those buildings being utilised without the necessary consents in place for their use as a function centre. These proceedings relate to those two structures in addition to a number of others which the Respondent submitted have been on the land for at least a decade, some since the 1930s and alleged unlawful earthworks that were carried out in about November 2016.
5. With respect to the same Sunnybrook Barn and The Polo Barn, the Respondent submitted that they have the benefit of building certificates issued pursuant to section 149D of the EPA Act. Further, the Court heard that the Respondent has applied to Hawkesbury City Council for building certificates in relation to the balance of the relevant structures.
6. The Court agrees with the Respondent that the Court has been regularly inclined to await the outcome of such applications. In this instance, if this case proceeds in the normal course, without expedition being ordered, such applications may well have been determined by the time of the hearing. Additionally, although the Court was advised that the Respondent has attempted to lodge a development application to host the World Polo Championships on its land, there is no development application currently before the Hawkesbury City Council for consideration. The Court was advised that, on five occasions, Hawkesbury City Council has declined to proceed with its consideration due to insufficient information provided by the respondent.
7. The Court accepts that there is no evidence that the alleged unlawful earthworks are causing any ongoing environmental impacts to the Hawkesbury River or any surrounding properties that would warrant the Court ordering the expedition of the proceedings on the basis that the environmental harm is a matter of public importance. The highest that the Applicant could put its concern was that "the earthworks have the potential to cause adverse environmental impacts" based on the tentative conclusions of its consultant Mr Paul Mitchell. I note that Mr Mitchell did not carry out onsite inspections. Further, it was said that "it is not known what potential contaminants are contained within the fill forming part of the earthworks". These statements need to be considered in the context of the affidavit of Mr Phillip Couch (dated 6 July 2017), which referred to visits to the land by officers of the NSW Office of Water and the Environment Protection Authority (EPA) and correspondence from the EPA dated 19 June 2017. The Court is not satisfied that, as a matter of public importance, there is any indication that urgency is required arising out of the earth works. Evidence may eventually confirm that the works were unauthorised, at which point appropriate orders can be made, but the lack of urgency that is apparent from the action of regulatory authorities is instructive.
8. The Court observes that if the Applicant, or any of the regulatory authorities, considered that the alleged potential contamination or alleged potential pollution would give rise to imminent danger, then the appropriate proceedings would have been on to seek an interlocutory injunction at the time of the works in late 2016. Obviously such relief could only be made on the basis of evidence demonstrating the need for protective action. Without such relief being sought, the Court cannot simply assume that there will significant environmental impacts. Accordingly, the Court is of the opinion that this further justifies its conclusion that there is no basis for expediting the proceedings.

(c) The subject matter of the litigation will not be lost

1. The Court agrees with the Respondent that there is no evidence that would support a finding that the proceedings requires expedition to preserve the subject matter of the litigation. If the alleged breaches have occurred, that will be a fact whenever the case is heard. In the meantime, if the Respondent has "profited" from unauthorized works, then the Court is not without options for dealing with such a finding appropriately, potentially taking into account considerations such as unjust enrichment.

(d) The litigation has been delayed by the Applicant

1. In these proceedings, the Applicant's Notice of Motion dated 3 July 2017 followed a Summons, by which the proceedings were commenced, dated 6 June 2017. That summons sought relief in response to the earthworks - those earthworks having been observed by the Applicant in November 2016. Subsequently, the Applicant filed its Amended Summons dated 22 June 2017 which added its claim concerning the allegedly unauthorised buildings which had been built a decade or more earlier. The Respondent submitted that the Applicant should have sought expedition from the outset, concurrent with its original Summons. Failing to do so meant that four weeks had passed, during which time there was no indication of a need for expedition. This delay, it was argued by the Respondent, was a relevant factor weighing against any grant of expedition. The Applicant would not have been vulnerable to this criticism had it concurrently sought expedition by filing its motion at the time it filed its initial Summons.
2. With respect to that component of the proceedings focused on the buildings, in circumstances where the Applicant brought proceedings before the Court in 2015 in relation to some of those same buildings (although the Court is cognisant of the fact that those proceedings related to a lack of consent for the use of those buildings), given the Applicant's efforts before the Court then to stop the events then proposed, the Court notes that the Applicant did not then allege illegal construction, nor seek the demolition of those same buildings which it now seeks to have demolished some years later.
3. With respect to the building works it was suggested by the Applicant that the delay in bringing the current proceedings can be explained by the discussions between the Applicant and Hawkesbury City Council. The Court agrees with the Respondent that it is noteworthy that those discussions lasted in excess of six months with periods of significant delay, for example the period between 12 January and 26 May 2017. In the context of an application for expedition, if the issues were of such urgency for the Applicant, the Court does believe there was considerable slippage of time when it was within the Applicant's power to take more expeditious action earlier.

(e) The Applicant is not suffering hardship

1. The Court accepts the Respondent's submission that there is no evidence that any hardship would be created in the event of the proceedings being heard in the usual course.

(f) The Applicant has not proceeded with due speed

1. As already stated, the Court accepts the Respondent's submissions that, further to the delay in the commencing the proceedings, the Applicant has also not proceeded with due speed in prosecuting the proceedings on an urgent basis. Notwithstanding the request for expedition the Applicant has: filed the Amended Summons on 26 June 2017 (almost 3 weeks after commencing proceedings) in which it raised, for the first time, the allegations about the unlawful works on the building structures; and filed the Notice of Motion for expedition on 3 July 2017 (some 4 weeks after commencing proceedings).
2. The Court does not agree with the Respondent that the Applicant ought to be criticised for being unable to proceed to the hearing of the Motion on its return on 7 July. It was the Court that drew the relevant history of the land, including two previous decisions of this Court, to the Applicant's counsel's attention and so it was appropriate, in those circumstances, that the matter was adjourned for a further 7 days to enable the Applicant's counsel to respond.

(g) The parties are not willing to abridge the hearing time

1. The Court agrees with the Respondent that, in the circumstances of the claims, the nature of the allegations in these proceedings and the very serious nature of the orders being sought, significant investigations will be required to be undertaken (the full scope of which will not be ascertained until such time as the Applicant files its evidence). I accept that the Respondent cannot, without prejudicing its ability to respond to the claim, consent to the abridgement of the hearing time. The Court notes that the Applicant assured the Court that it would facilitate expedition, however, the Court must ensure that the Respondent's ability to properly prepare its defence will not be prejudiced. I believe that the Respondent would be prejudiced if expedition was to be granted.

Conclusion

1. In the circumstances and for the reasons outlined above, the Notice of Motion for expedition is dismissed with costs. The Applicant will be directed to file and serve its evidence and the matter will be listed for further directions.

Orders

1. The Court orders that: 1. The Applicant's Notice of Motion filed 3 July 2017 is dismissed; and 2. The Applicant is to pay the Respondent's costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2017