Mundine v Forestry Corporation of NSW

Notice of Motion strike out

1. The Respondent has sought orders striking out par 6 in the relief section of the Summons and pars 9, 10, 16 and 17 in the detail section. Whilst there are slight differences in the wording in each Summons, the differences were not addressed by the Applicant as having any material substance. I utilise the wording relating to the 2021 HHP for the purposes of these reasons.
2. The paragraphs to which the Respondent's Notice of Motion was directed were in the following terms: 6 A declaration that the Applicant has been denied procedural fairness and natural justice by the Respondent approving the HHP on his traditional country without consultation or his consent that will likely cause significant adverse impact on the environment and Aboriginal cultural heritage. Ground 3 Significant Impact on Threatened Species 9 Operations under the HHP as approved will likely cause significant harm to the environment, threatened ecological communities and populations. Particulars: I) On the 3rd of October, 2018, the CIFOA Protocols were adopted by the EPA II) The Protocols set out additional enforceable actions and controls to support the effective implementation of the CIFOA conditions. Ill) Protocol 31 of the CIFOA sets out lists of speci s that fall under the various requirements set out in the conditions of the approval: a. Part 1 sets out threatened species and endangered populations considered to be 'adequately protected by... the approval'; b. Parts 2 and 3 set out endangered populations considered to be protected by species-specific conditions for fauna and flora respectively including the development of species management plans ('SMPs') under Protocol 21 for nominated species; and c. Part 4 sets out threatened species that require the development of site-specific biodiversity conditions. A large list of species covered by the CIFOA are included in Section 5 of the HHP as having a known or potential habit within the relevant compartments. This list includes, but is not limited to the affected species. Flora • Scrub Turpentine (Rhodamnia rubescens), and • Ripple-leaf Muttonwood (Myrsine richmondensis) • Onion Cedar (Owenia cepiodora) • Tall Knotweed (Persicaria elatior) • Rainforest Cassia (Senna acclinis) Fauna 2km • Powerful Owl (Ninox strenua) Nests/ Roosts • the Masked Owl (Tyto novaehollandiae), • Glossy Black-Cockatoo (Calyptorhynchus lathami) Nests / Roosts / Feed trees • Greater Glider (Petauroides volans) Dens • Yellow-bellied Glider (Petaurus australis) Sap feed trees • Squirrel Glider (Petaurus norfo/censis) Sap feed trees • Koala (Phascolarctos cinereus) • Spotted Tail Quoll (Dasyurus maculatus) Ground 4 - The Aboriginal Cultural Heritage Landscape 10 Operations under the HHP as approved will likely cause harm to the significant Aboriginal Cultural Heritage Landscape. Particulars i) The Applicant as a Traditional Owner, Elder and lead Native Title Applicant over the CTSF is aggrieved that the significant Aboriginal Cultural Heritage Landscape will be adversely impacted by the approved logging operations ii) The Ridgeline along the CTSF is a traditional track by which the Old People would travel from the Bundjalung country to undertake ceremony on the Bunya Mountains iii) The vegetation along the track have been subject to a process of traditional burning and other cultural features iv) The Applicant is aggrieved that he was not consulted or notified in accordance with Annexure 'N' of the Indigenous Land Use Agreement. 16 In determining the HHP the Respondent failed to give due regard to the previous logging operation in 2015 i) National Recovery Plan: The logging operations had been undertaken within identified "Conserve" and "Repair" priority areas in contravention of the objectives and aims of the BRRMP which is the formal national recovery plan covering the area. ii) Threatened Plants: A track constructed through rainforest and adjacent wet sclerophyll forest affected over 26 vulnerable Onion Cedars, physically damaging at least 4 in the process, leaving debris around others, affecting the microclimate and leaving survivors vulnerable to weeds and burning iii) Rainforest:. Tracks were constructed along with logging within he Endangered Ecological Community 'Lowland Rainforest in the NSW North Coast and Sydney Basin Bioregions', iv) Numerous Breaches of Threatened Species Licence: a) Failure to identify EEC's and floristic structures, b) Improperly approved road and track work to allow logging in protected rainforests c) Excessive clearing outside road prisms d) Damage to retrained trees, degrading soil structure, and pushing debris into retained vegetation e) Inadequate Assessment and Misrepresentation of Past Disturbance: by failing to assess the impacts on threatened flora by reading through the vulnerable Onion Cedar in what should have been exclusion zones in accordance with the Threatened Species Licence (TSL) f) Failure to assess threatened fauna in accordance with Schedule 6 (d)(iii), (iv) and (v) of the TSL despite evidence of the presence of Koalas and the likely presence of other species; g) Failure to duly consider the likely impacts of creating road clearings on the fragmentation of threatened species habitat and the movements of animals in accordance with TSL Schedule 6 (d)(iv) and (vi); and, (h) h) Failure to duly consider the likely increases in lantana and predation by feral animals in accordance with TSL Schedule 6 (d)(vii).. i) The First Respondent had logged, dropped trees, pushed debris and driven machinery across boundaries of mapped exclusion areas j) Logging of 2,000 (44%) of the habitat trees required to be protected were in contravention of the TSL with 1,600 recorded breaches of habitat tree selection and retention requirements for retained trees across the logging area, k) 520 habitat trees likely to have suffered significant physical damage. I) Of the marked habitat (H&R) trees, 38% had debris left around them, with some 680 habitat trees likely to have had debris left around them, m) Construction and draining of snig tracks on excessive steep slopes and, using snig tracks when the soil was saturated, resulting in severe degradation of soil structure and rutting n) By removing overstorey, disturbing understories and creating bare ground, logging and reading has allowed the spread of lantana through the forest, aggravating Bell Miner Associated Dieback, degrading ecosystems and further threatening the survival of plants and animals o) vegetation, in contravention of the "site-specific" requirements for Black-striped Wallaby p) Numerous areas where more than 50% of the canopy cover have been removed, by extensive and intensive destruction of understorey rainforests. No searches by qualified persons were conducted for the Ye/low-bellied Gliders q) The boundary of the Squirrel Glider exclusion area had not been marked on the ground leading to numerous intrusions r) Numerous areas have been logged in excess of 40% basal area removal in contravention of IFOA clause 5.3. s) A Regional Forest Agreement Cultural Heritage site, in part constituting a visual buffer along Cherry Tree Road, had been significantly degraded 17 A further assessment in 2017 quantified 4.5 ha of the mapped Endangered Ecological Community (EEC) Lowland Subtropical Rainforest was affected by 33 reading and logging incursions, and that there was 90ha of the EEC Grey Box-Grey Gum Wet Sclerophy/1 Forest logged. Particulars i) The EPA's mapping with Google Earth landsat imagery taken post logging to assess gross disturbance to the mapped EECs. Identified 4.5 ha of Lowland Subtropical Rainforest was affected by 33 reading and logging incursions ii) Over 50ha of the EEC Grey Box-Grey Gum Wet Sclerophy/1 Forest was heavily logged (>50% canopy removal and bared ground) with up to another 40ha subject to logging operations. The Forestry Corporation logging mapping (FRED) identified that 91.3 ha of the Grey Box-Grey Gum Wet Sclerophy/1 Forest has been logged within this planning area.

Applicable legal principles

1. Pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): 1. The Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: 1. discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or 2. has a tendency to cause prejudice, embarrassment or delay in the proceedings.
2. The principles to be applied in the determination of an application such as the present were identified and restated in Dolton v Eurobodalla Shire Council [2020] NSWLEC 141 at [19] to [22] by Pepper J, which I (again) gratefully adopt as follows: 19 The legal principles applicable in the exercise of the Court's power to summarily dismiss proceedings may be briefly stated as follows: (a) the power to dismiss proceedings without a substantive hearing should only be exercised in "plain and obvious" cases, that is, where the applicant's case is "so clearly untenable that it cannot possibly succeed" (General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129-130). There must be "a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way" (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]. This formulation was adopted in Batistados v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; (2006) 80 ALJR 1100 at [46], Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and Shaw v New South Wales [2012] NSWCA 102; (2012) 219 IR 87 at [30]); (b) the Court cannot dismiss an action "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it" (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 and Spencer at [54]-[55]); (c) allegation of fact contained in an application or pleading relevant to the causes of action should be assumed to be established. Great caution must be exercised in dismissing a case summarily "where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact" (Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 603); and (d) the Court is not precluded from hearing argument, even if extensive, in determining whether or not the plaintiff's case is untenable (General Steel at 130). 20 In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 Craig J relevantly said (at [14] - [18]): 14 The principles to be applied when determining the Minister's application are not in dispute. The power to strike out a pleading on the basis that it discloses no reasonable cause of action is a power to be exercised sparingly and only where the absence of a reasonable cause of action is "plain and obvious" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). 15 The strictures attending an application summarily to dismiss proceedings have recently been reiterated by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. Although the court was there concerned with the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth), authorising summary dismissal of proceedings where the court is satisfied that a party "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding", the caution necessary to be exercised before striking out a pleading was emphasised in the joint judgment of French CJ and Gummow J where their Honours said (at [24]): 24 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. 16 The principles applicable to the application of UCPR 13.4 and 14.28 were usefully summarised by Rein J in Hoxton Park Residents' Action Group Inc v Liverpool City Council (2010) 178 LGERA 275 at [14]. I will not repeat what his Honour there said. Relevantly, those principles include the propositions that: (i) allegations of fact contained in the pleading are assumed to be established for the purpose of considering the strike out application, and (ii) notwithstanding the caution to which I have earlier referred, applicable to the exercise of the power, a court is not precluded from entertaining extensive argument when determining whether the pleading discloses a reasonable cause of action (General Steel Industries at 130). 17 It will be remembered that the basis upon which the respondents seek to strike out the negligent misrepresentation claim is that this Court lacks jurisdiction to entertain it. An application so founded involves considerations of a different kind. 18 When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; 71 LGRA 286 at 297 per Kirby P. Moreover when that question is raised, it is incumbent upon the party invoking the Court's jurisdiction to demonstrate that such jurisdiction exists (Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police (1999) 47 NSWLR 284 at [4]). 21 Although his Honour's remarks were made in the context of an application to strike out pleadings, they are no less apposite to the present exercise by the Court of its power to summarily dismiss proceedings on the basis that it has no jurisdiction to entertain them. 22 More recently, in Ugur v Attorney General NSW [2019] NSWCA 86 White JA stated (at [70]-[71]): 70 One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications. 71 The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128-129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] ("Spencer v Commonwealth"); and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).
3. Further, as I observed in North Lismore Plateau Association Incorporated v Lismore City Council [2022] NSWLEC 85 at [41] to [43], 41 …I have further proceeded to consider the further amended summons as including the explanation and expansion given in oral submissions…. I do not make this determination on any strict point of pleading or imprecision of drafting but rather a consideration of the applicant's case put at its highest as a combination of the pleadings and the oral submissions made at the hearing of the notices of motion. This approach of focusing on substance rather than form on instances where there is inadequacy in the pleadings has recently been confirmed in the Court of Appeal, see Chalek v G and G McHale Pty Ltd [2022] NSWCA 116 at [18]. 42 In that context, however, it is not open to me to approach the matter by considering whether I consider that the applicant may have causes of action not pleaded. This notice of motion relates only to the causes of action articulated by the applicant. Further, in determining the application I am not expressing a view as to whether the applicant's cause of action as pleaded is likely to succeed but whether it is "so clearly untenable that it cannot possibly succeed". 43 As outlined in the relevant applicable principles, a finding that a proceeding should be summarily dismissed or a summons or part thereof should be struck out should only be exercised in plain and obvious cases where the applicant's case is so untenable that it cannot possibly succeed. However, as was observed in Spiliotopoulos at [7]: 7 However, notwithstanding the high bar that a defendant must meet the power summarily to dismiss a claim is an important power in facilitating the efficient administration of justice by removing unmeritorious proceedings from the court system and will be appropriate to make the order in the proper case, even if extensive legal argument is necessary in order to demonstrate the hopelessness of a claim." I consider those matters to be relevant in the determination of this matter.
4. In this case, the Respondent contends that the stated paragraphs of the summonses are embarrassing and do not disclose any reasonable ground of judicial review, or they do not disclose or form part of an arguable cause of action. For those reasons, the paragraphs should be struck out, and as no viable cause of action exists, leave to re-plead should not be granted.
5. Dealing particularly with r 14.28(1)(b) of the UCPR, I accept the Respondent's submissions at pars 47 to 49 of its written submissions that: 1. A pleading may be struck out as embarrassing where it is unintelligible, ambiguous, vague or too general so as to embarrass the opposite party who does not know what is alleged against it." McGuirk v University of New South Wales [2009] NSWSC 1424 at [30] (McGuirk); 2. A pleading may be embarrassing even if it contains allegations of material facts sufficient to constitute a cause of action if the material facts leave doubt about what is alleged: McGuirk at [32]; 3. Pleadings that are too general are also embarrassing. Although the pleading of a conclusion may, in some circumstances, constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: McGuirk at [33]; 4. In such a case of embarrassing pleading the appropriate remedy is to strike out the pleading rather that to order the provision of particulars. It is not the function of the Court to draw or settle a party's pleading: McGuirk at [35]; and 5. Whilst this Court is not a court of strict pleading, the importance of a party's claim being clear and properly founded has been recognised by the Court as a matter of fairness and efficiency. Elanor Investors Ltd v Sydney Zoo Pty Limited [2019] NSWLEC 80 at [22]."
6. For convenience I will deal with each paragraph to which objection is taken.

Respondent's submissions

1. Paragraph 6 in the "Substantive Relief" section of the Summons seeks a declaration. However, the summonses (particularly the 2021 Proceedings) do not in any satisfactory way plead a case that the Applicant has been denied procedural fairness.
2. Whilst the Further Amended Summons in the 2021 proceedings makes a passing reference at (iv) to par 10 to the Applicant, being aggrieved that he was not consulted or notified in accordance with Annexure "N" of the Indigenous Land Use Agreement, it is not apparent that this is the foundation of the claim.

Applicant's submissions

1. The Applicant contended that the claim relating to the denial of procedural fairness related to an expectation that there would be meetings held pursuant to cl 12 of Annexure "N" of the Indigenous Land Use Agreement and that no such meeting had been held. This was the sole basis upon which the claim was to be based and was identified in par 10, particular (iv).

Findings on paragraph 6

1. In light of the more expanded explanation of par 6 of the relief sought, I am satisfied that subject to the inclusion of the particulars in that pleading, there is an arguable case relating to an asserted legitimate expectation of consultation such that I would, subject to amendment, not strike out this paragraph. If so amended I would not be satisfied that the pleading was embarrassing.

Respondent's submissions

1. The allegation Ground 3, par 9, involves an assertion of fact that the activity approved by each of the relevant operational plans will cause significant harm to the environment, threaten ecological communities and populations. That allegation does not disclose a valid or intelligible ground of judicial review.
2. The paragraph as drafted does not form any part of any reasonable cause of action: 1. There is not alleged to be any relevant jurisdictional fact requiring the Court to determine, as an aspect of invalidity of the approvals, whether the operations in question will in fact be likely to cause significant harm to the environment, threaten ecological communities or populations, nor is there any sound basis on which to say that establishing that proposition is an integer in demonstrating the invalidity of the approvals. Establishing such a contention would therefore be meaningless in terms of the attack on the approvals; and 2. The problem is exacerbated by the fact that the particulars are vague and non-specific. They do not set out the basis upon which the Applicant says the operational plans will likely cause significant harm. Instead, they simply recite conditions and protocols of the CIFOA without context.

Applicant's submissions

1. It was submitted that this paragraph detailed the harm that was alleged to arise as a consequence of the approval of the 2021 and 2022 HHPs.

Findings on paragraph 9

1. Paragraph 9 does no more than list various parts of a protocol without reference to the ground it is said to particularise, namely, the declaration in order 3 of the relief. Even taking this pleading at its highest in the Applicant's favour, it is pleaded at such a level of generality that it is likely to confuse rather than elucidate the nature of the claim in par 3 of the relief and does not assist the Respondent in understanding the case it is to meet.
2. For those reasons, I find that this paragraph is within the meaning of UCPR rule 14.28(1)(b), embarrassing such that it should be struck out or on the alternative does not disclose a reasonable cause of action and should be struck out pursuant to UCPR 14.28(1)(a).

Respondent's submissions

1. The allegation in par 10, Ground 4 is that the operations under the operational plan will likely cause harm to significant Aboriginal Cultural Heritage Landscape in the Cherry Tree State Forest.
2. That allegation does not disclose a proper basis for judicial review. The particulars to the paragraph are vague and unclear. On the face of the pleadings, it is not apparent how the matters particularised under par 10 are relevant to the approval of the operational plans the subject of the proceedings and the pleaded case.

Applicant's submissions

1. Paragraph 10 was said to detail the harm to Aboriginal cultural heritage that would arise if a consideration of the precautionary principle and the definition of environment as defined by reference to the Protection of the Environment Administration Act 1991 (NSW) was considered, having regard to the definition of ecologically sustainable forest management in s 69L(2)(e) of the Forestry Act.

Findings on paragraph 10

1. Paragraph 10 was unable to be related to any relevant cause of action. The attempt to justify the particulars as somehow relating to the application of precautionary principle is not made out in the drafting of par 10 or the relief sought.
2. As such, as framed by the Applicant and taking the Applicant's case at its highest, I accept the Respondent's submission above that the paragraph is vague, does not relate to a known cause of action and should be struck out.

Respondent's submissions

1. Paragraphs 16 and 17 of the summonses appear under the heading "Injunctive Relief". It is not clear the basis on which the paragraphs are included or what cause of action the paragraphs are intended to go to.
2. Neither paragraph discloses a proper basis for judicial review. The paragraphs appear to allege breaches of a former Integrated forestry operations approval under the Forestry Act and an unspecified licence simply referred to as the threatened species licence. These matters are not the subject of these proceedings. Nor is there any other pleaded linkage that would make these matters relevant to the validity of the approvals of the 2021 HHP and the 2022 HHP.
3. The allegations are apt to introduce a wide range of extraneous factual issues and hence have a tendency to cause real inefficiency, embarrassment and prejudice in the conduct of the proceedings.

Applicant's submissions

1. Paragraphs 16 and 17 were said to the relate to the past logging practices and other logging compartments and the potential for these practices either to evidence the likely outcome if the currently challenged compartments were logged or as a comparison to the "lesser" environmental safeguards in the CIFOA that is said to be provided as compared to earlier more strenuous environmental protections.

Findings on paragraphs 16 and 17

1. I accept the Respondent's submissions that the paragraphs as pleaded are unrelated to any identified cause of action. The Applicant was unable to identify any real connection to the pleaded causes of action so as to render the matters identified as either relevant as particulars to a pleaded cause of action or otherwise an assistance in understanding the Applicant's case.
2. I am not satisfied on the submissions made by the Applicant that these paragraphs plead material facts. However, even if I assume that they are relevantly material facts, the pleading is such that it warrants striking out pursuant to UCPR 14.28(1)(b) in that the material facts leave doubts about what is alleged.

Conclusion on strike out motion

1. For the reasons outlined I propose to grant orders in accordance with pars 2(b) and 3(b) of the Respondent's motion as it relates to pars 9, 10, 16 and 17, and, subject to the opportunity to re-plead par 6 of the relief not strike out that pleading.

Applicant's Notice of Motion to adduce expert evidence

1. The Applicant seeks orders pursuant to rr 31.19 and 31.20 of the UCPR that he be granted leave to adduce expert evidence in the proceedings. 31.19 Parties to seek directions before calling expert witnesses (1) Any party - (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial - (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim. 31.20 Court may give directions regarding expert witnesses (1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings. (2) Directions under this rule may include any of the following - (a) a direction as to the time for service of experts' reports, (b) a direction that expert evidence may not be adduced on a specified issue, (c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court, (d) a direction that expert evidence may be adduced on specified issues only, (e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue, (f) a direction providing for the engagement and instruction of a parties' single expert in relation to a specified issue, (g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue, (h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts' reports in relation to a specified issue, (i) any other direction that may assist an expert in the exercise of the expert's functions, (j) a direction that an expert who has prepared more than one expert's report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.
2. The Applicant sought leave to adduce evidence from three experts, namely: 1. Mr Pugh - an ecologist; 2. Mr Morrison - an ecologist; and 3. Mr Moon - archaeologist.
3. Affidavits from Messrs Pugh and Morrison were read that outlined the evidence that they were prepared to give if leave was granted. Mr Oshlack in his affidavit of 30 August 2022 at pars 16 to 20 attested that: Aboriginal Cultural Heritage 16 The Applicant wishes to depose expert archaeologist William Moon MA in relation to paragraph 10 of the Further Amended Summons and Summons for compartments 5, 6 & 7. 17 Mr Moon is the Senior Consulting Archaeologist with Aboriginal Cultural Heritage Consultancy firm Tocomwall pty ltd. 18 I am advised Mr Moon has an MA in Archaeology and Heritage Management from Flinders University with experience as a consulting archaeologist and a lead assessor and designer of environmental, heritage and quality management systems. 19 Mr Moon's thesis was an archaeological analysis of rock shelters that were used by Aboriginal Australians for habitation and rock art. and he 20 Mr Moon has particular expertise as a Geo-spatial Analyst, Web maps and Web GIS with Django and Aerial drone photography.

Applicable legal principles

1. Where expert evidence in judicial review proceedings is not reasonably required to resolve the grounds of review, leave under rule 31.19 should not be given. In Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348 Giles JA said 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's possible to argue that it is relevant and admissible.
2. The general position in judicial review proceedings is against adducing expert evidence. The admissibility of expert evidence will depend upon the ground of review, the relevant issues raised and the nature of the evidence: Muswellbrook Shire Council v Hunter Valley Energy Coal [2017] NSWLEC 184.

Applicant's submissions

1. In his written submissions the Applicant set out in some detail the substance of the evidence sought to be adduced. However, as to the purpose such evidence was sought to serve, the only reference of substance was at par 16 of his written submissions where it was stated that: The applicant's expert evidence will prima facia be admissible as it would shed light on the existence or non-existence of whether the decision would achieve ESFM.
2. The Applicant was unable in oral submissions to identify any other or further purpose that the evidence would serve.
3. The Applicant indicated that there was a need for two ecological experts, as whilst Mr Pugh was able to address general issues of ecological impacts and the particular issue of bell miner associated dieback, Mr Morrison was more particularly experienced in the assessment of the bell miner issue. Accordingly, it was desirable that the two experts be granted leave to give evidence.

Respondent's submissions

1. In submissions, the Respondent accepted that the pleading at par 7 of the Applicant's Summons was identifying a purported jurisdictional fact. There was no application to strike out that paragraph. The Respondent conceded that provided the evidence was limited to the "jurisdictional fact" asserted in that pleading that it could not oppose leave being granted to adduce evidence to assist the Court in determining such a fact.
2. By the concession above, however, the Respondent should not be taken as admitting that such a course of action is available in the present proceedings.
3. The balance of the pleadings, however, indicate no sound basis as to the requirement for expert evidence, and leave - if granted - should be limited to a single ecological expert dealing only with the limited question posed by par 7 of the Summons.

Findings

1. The Summons as pleaded is less than a clear statement with clear particulars of the claims of challenge. However, it is not for this Court to advise either the Applicant as to how to plead its case or the Respondent as to what challenges, if any, it should make to a case as pleaded. In this case, I am required to determine whether on the basis of the Summons as pleaded, and having regard to the rulings I have made in relation to the striking out of certain parts of the pleadings, leave should be granted to the application to adduce expert evidence.
2. In all matters such as the present application, I am bound to take into account the provisions of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW): 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 56 Overriding purpose (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. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
3. Taking those mandatory matters into account and having regard to the case as pleaded, it appears that the only matter raised by the Applicant that could genuinely give rise to the need for expert evidence is the matter as pleaded in par 7 of the Summons. Taking that pleading to be the raising of a matter that is said to be a jurisdictional fact (and whether such matter is to be construed as a jurisdictional fact is a matter that remains in dispute and will be determined by the Court at a final hearing of this matter), it appears that the evidence that the Applicant seeks to adduce, if so limited, would be necessary and relevant to the determination of the issues in dispute.
4. In managing efficiently Court resources and taking into account the dictates of justice and so as to ensure the just, cheap and quick resolution of the matter, evidence should not be permitted to be called at large or by multiple experts, where one expert is able to address all of the matters. From the submissions made and the evidence adduced from both Mr Pugh and Mr Morrison, I am not satisfied that the issue raised for which the evidence is said to relate cannot be adequately and sufficiently addressed by a single expert.
5. Accordingly, I will grant leave to only one ecological expert, the identity which will be a matter for the Applicant to determine, relating to the particular issue identified in the operative portion of par 7, which is said to be the issue relating to jurisdictional fact.
6. For the reasons outlined above in relation to the striking out of par 10 of the Summons, the case as pleaded does not identify the cause of action relating to the impacts on Aboriginal cultural heritage. I also note that the Respondent has indicated that in the event the Applicant in successful in its claims it will not be raising any issue of discretion in the proceedings. For those reasons, there is no basis that would justify granting leave to adduce expert evidence in an archaeologist such as Mr Moon. Accordingly, leave will not be granted to permit the Applicant to adduce expert evidence going to Aboriginal cultural values.

Conclusion and orders

1. In each of the proceedings 21/338920 and 22/156044, the Court orders that: 1. The Applicant is granted leave to adduce evidence from a single ecological expert relating to the question of: whether the 2021 HHP and the 2022 HHP is able to achieve the principles of ecologically sustainable forest management as defined in section 69L(2) of the Forestry Act 2012 (NSW); 2. The Applicant's Notices of Motion dated 30 May and 7 September 2022 are otherwise dismissed; 3. The Court makes orders 2(b) and 3(b) in the Respondent's Notices of Motion dated 24 August 2022; 4. The Applicant is given leave to further plead par 6 in the relief section of each Summons such that the claim relating to the procedural fairness is limited to an expectation arising from the operation of cl 12 of Annexure "N" of the Indigenous land use agreement as referenced in particular (iv) of former par 10 of the Summons in proceedings 21/338920; 5. The Applicant is directed to file and serve a Further Amended Summons in each matter, reflecting the orders made in pars 3 and 4 above within 14 days of the date of these orders; and 6. The costs of each of the Notices of Motion are to be costs in the cause.

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: 25 November 2022