[1992] HCA 36
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1
Source
Original judgment source is linked above.
Catchwords
[1992] HCA 36
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1
Judgment (4 paragraphs)
[1]
Judgment
Before the Court is a notice of motion filed 11 August 2020 by Dincel Construction System Pty Limited ('Dincel') and Gaonor Pty Limited ('Gaonor') (collectively, 'respondents') seeking leave to reopen their case to rely upon an affidavit of Andrew Colin Cowan affirmed 31 July 2020.
I do not repeat the factual background of these proceedings which I have summarised in earlier judgments dealing with a notice of motion filed 25 November 2019 seeking leave to rely upon an expert report (Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited [2019] NSWLEC 197 at [3]-[5]) and a further notice of motion filed 6 April 2020 to reopen their case (Penrith City Council v Dincel Construction System Pty Limited (No 2) [2020] NSWLEC 58 at [2]-[3]).
Suffice it to say that, consequent upon an eight-day hearing, on 19 February 2020, I reserved my decision subject to receiving further written submissions. Thereafter, by notice of motion filed 6 April 2020, the respondents sought leave to reopen to rely upon further evidence. That motion was returnable before me on 24 April 2020, at which time I granted leave to rely upon further evidence comprising affidavits of Andrew Colin Cowan and Penelope Louise Murray each affirmed on 6 April 2020.
A second notice of motion to reopen was filed by the respondents on 7 July 2020 seeking leave to rely upon affidavits of Andrew Colin Cowan affirmed 17 July 2020 and Penelope Louise Murray affirmed 20 July 2020. Leave was granted to rely upon this updating evidence on 20 July 2020 in accordance with agreed short minutes of order provided by the parties, which also provided an opportunity for Council to make written submissions in relation to the further updating evidence.
In summary, the matter presently before the Court is the third occasion where the respondents have sought leave to reopen.
Without detailing further background to the matter, it is sufficient to note that consequent upon leave being granted to rely upon the affidavit of Mr Cowan affirmed 17 July 2020, Council provided written submissions making a number of criticisms of the material in Mr Cowan's affidavit, some of which were of a technical nature and some of which were more substantial. Attached to their further written submissions (pursuant to which leave had been granted) responding to Council's criticisms, the respondents annexed a further affidavit of Mr Cowan affirmed 31 July 2020, which provided detail and included some updating material addressing a number of the criticisms made in Council's submissions. It is this affidavit, along with the affidavit of Ms Murray affirmed 20 July 2020, and two relatively uncontentious documents being a consultation fee estimate and a banking remittance recording payment of consultation fees, that are now sought to be relied upon.
Time for service of the subject motion was abridged and, although the present motion was made returnable for directions only on Friday 14 August 2020, given the nature of the application, the parties were content (and prepared) for the notice of motion to proceed to final hearing on that day. Detailed submissions were made by Mr H Grace, counsel for the respondents, and Mr R White, counsel for Council.
Without disrespect to the careful submissions made, the gravamen of the submissions made by Mr Grace may be shortly stated. First, the further material responded to technical criticisms made by Council of the earlier affidavit material and clarified certain background matters, including a correction to time estimates for Council to consider a development application in relation to the use of the land the subject of the proceedings. Second, some of the material constituted fresh evidence which was not available at an earlier time. Third, the material related to matters properly for the consideration of the Court if it were, in determining the relief to be granted, to consider suspending any injunctive relief otherwise granted and, further, the timeframe for any such suspension. Fourth, it is in the interests of justice for the further updating evidence to be allowed.
In opposing the orders sought in the motion, Mr White primarily submits that this is the third occasion where leave has been sought by the respondents to provide further evidence in circumstances where the substantive hearing was completed in February 2020. He points to the history of the conduct of the matter, including the fact that the affidavit of Mr Cowan of 31 July 2020 was attached to the respondents' written submissions without leave of the Court. He submits that one of the primary principles in the Court's consideration of whether to grant leave to reopen is that there be finality to proceedings and this principle is particularly applicable to the present circumstances. He further submits that the respondents' continual applications to reopen place a significant burden on Council, particularly in relation to resources and costs otherwise spent in responding to the respondents' various applications.
In addition, and as a suggested resolution, Mr White submits that rather than granting the respondents the relief sought in the motion, the Court could simply indicate that it intended to proceed to the determination of the matter and the giving of judgment with a rider that, in relation to any suspension of orders, the judgment could provide for further submissions and/or updating material in relation to the "planning situation" at the time of judgment. He submits that this approach would address the concerns of both parties; would be a deterrent against possible further applications to reopen on behalf of the respondents; and would provide a practical option that would otherwise be available to the Court.
[2]
Consideration
The Court's power to make directions and orders in relation to the conduct of proceedings, as provided by rr 2.1 and 29.5 of the Uniform Civil Procedure Rules 2005 (NSW), is subject to the overriding purpose of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. This requires the Court to have regard to the objects of case management (s 57) and follow the dictates of justice (s 58).
Further, in relation to an application to reopen, the Court may also have regard to the following matters and principles espoused by the authorities (as recently summarised by Henry J in Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706 ('Goodman')):
1. Whether the interests of justice are better served by allowing or rejecting an application: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478;
2. The timing of any such application and whether a forensic decision to seek to reopen was deliberate or may otherwise cause embarrassment or prejudice to the other party: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 266-67;
3. The four recognised classes of case in which a court may grant leave to re-open, being fresh evidence; inadvertent error; and where there has been a mistaken apprehension of either the facts or the law: Goodman at [46] (citing Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232 at [25]-[26]);
4. Other relevant factors include probative value; the public interest in both the finality of litigation and the expeditious conduct of proceedings; whether the necessity of further evidence ought reasonably to have been foreseen; and whether the application was subject to any delay: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18], Goodman at [47].
I have considered the background material and have reconsidered the submissions and evidence before the Court at the time of the earlier applications to reopen. While I have significant sympathy for the position in which Council now finds itself (and has indeed found itself on two previous occasions), I am of the view, albeit with some reluctance, that it is appropriate to allow the further evidence. My reasons may be shortly stated.
First, I consider that the further evidence, although raising a number of new matters, primarily addresses proper criticisms made by Council in relation to the earlier evidence sought to be relied upon by the respondents, including matters which I consider should have been included in the earlier material and were not for reasons which are unclear. To the extent that some of the evidence now sought to be relied upon does not address those earlier oversights, that evidence would be properly considered as fresh evidence, in the proper sense of the word, and therefore should properly be before the Court.
Second, there is no evidence of any substantial prejudice flowing to Council that would result from this material coming before the Court, apart from the resulting delay in the Court's consideration and delivery of judgment. No submission was made that the evidence to be relied upon is not correct, in a technical or other sense, or that its admission into evidence would trigger any further evidence in response.
Third, the Court having now read the further material (in relation to likely timeframes for the consideration of the development application by Council and for the lodgement of any Class 1 appeal to this Court, consequent upon a refusal) would be cognisant of, and in possession of, information based upon the earlier affidavit of Mr Cowan which the Court now knows to be incorrect. In those circumstances, it could not be in the interests of justice for the Court to proceed to judgment based on information which it is aware is inaccurate or out of date.
As the Court has now read the affidavit of Mr Cowan affirmed 17 July 2020 (pursuant to earlier orders), I note that the exhibit to that affidavit (being a bundle of documents comprising 160 pages) will become Exhibit 26, and that two further documents, being a fee estimate from the NSW Planning Portal and a banking remittance advice from Westpac Banking Corporation dated 12 August 2020 referred to at [6] above, will become Exhibits 27 and 28 respectively.
Although in a technical sense the respondents have enjoyed success in the proceedings, I consider in all the circumstances that the respondents should pay Council's costs of the notice of motion.
[3]
Orders
The orders of the Court are:
1. The respondents be granted leave to reopen their case to rely upon the affidavit of Andrew Colin Cowan affirmed 31 July 2020.
2. The respondents are to pay Penrith City Council's costs of the notice of motion filed 11 August 2020.
[4]
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: 19 August 2020