The Application for Leave to Reopen Must be Refused
The respondents submitted that leave to reopen ought to be granted because:
1. first, the survey evidence was in response to a submission initially made by the Council in reply at the hearing. That is, the issue of the "positioning" of the channel arose without notice to the respondents in argument at the hearing;
2. second, without the survey evidence the Council, a public body, would not have the best available information in making any determination on the facts;
3. third, the joint tender bundle was prepared with haste due to the abbreviated timetable set down by the Court for the preparation of the hearing;
4. fourth, there would be no waste of judicial resources by the inclusion of the survey evidence;
5. fifth, the Council should have requested further survey evidence from the respondents and did not do so;
6. sixth, the admission of the survey evidence would not necessitate any cross-examination;
7. seventh, the Council has not adduced any survey evidence that drainage line A was not built in the location identified on the stage 3 roads and drainage CC;
8. eighth, the Court should have the best available evidence before it when making its decision; and
9. ninth, no additional submissions or evidence would be required by reason of the admission of the survey evidence and no further time would be wasted.
The respondents' submissions may be answered as follows:
1. first, as discussed earlier in the judgment, it was always part of the Council's case that the development was carried out in the wrong location insofar as it transected the watercourse on the western side. The respondents have, or ought to have, been aware of this since the points of claim were filed. The allegation is repeated in the Council's submissions. It is the subject of agreed facts (for example, paragraph 27 in Ex A). For the respondents to say that the contention takes them by surprise cannot in all seriousness be maintained;
2. second, the Council has already made a determination on the facts: it has determined that the development is without lawful authority. It never resiled from this position, including in the face of the survey evidence and further works as executed drawing by Mr Seng the subject of the application to reopen;
3. third, whatever urgency there was in the preparation of the matter for hearing was driven by the respondents, not the Council or the Court. In any event, the respondents consented to the truncated timetable and to the dates allocated for the hearing. They did so because while the undertaking is extant, no further development works can proceed and the delay adversely impacts third party purchasers of the lots (T127:40-128:41). Any omission of material demonstrating that no breach as asserted by the Council has occurred is the exclusive fault of the respondents. This is not to reverse the onus of proof in the proceedings − it is for the Council to establish breach. However, the Council maintains that it has done so on the material in evidence. If there is survey evidence available to the respondents that proves otherwise, it was the responsibility of the respondents, not the Council, to bring this evidence forward;
4. fourth, in circumstances where, if leave to reopen is granted, the unchallenged evidence of the Council was that it would need to engage a surveyor to review or respond to Mr Seng's evidence thereby resulting in the proceedings being adjourned part-heard, there is no doubt that further judicial resources will be incurred in the finalisation of the proceedings;
5. fifth, the burden of proof requires the Council to establish breach, not, as the respondents seem to suggest, to adduce evidence to establish an absence of breach;
6. sixth, as Ms Le Breton deposed, the granting of leave to reopen and the admission of the expert survey evidence may necessitate the Council adducing expert survey evidence in reply which may result in concurrent evidence being given, with attendant cross-examination of the expert surveyors;
7. seventh, the Council has adduced evidence that it says establishes breach in the manner contended. Were it otherwise, presumably there would be no necessity for the evidence the subject of the application for leave to reopen;
8. eighth, while is it plainly preferable for the Court to have the best available evidence before it in making its decision, the Court must also consider in the exercise of its discretion to grant leave to reopen the proportionality of costs if leave is permitted (s 60 of the CPA). In circumstances where this is the second application for leave to reopen by the respondents, where this is the fifth day of a two day matter, where a grant of leave would cause the proceedings to be adjourned part-heard in order to allow the Council to meet the evidence, and importantly, where Mr Doyle candidly admitted that Mr Seng's survey evidence was not strictly necessary (and thus its probative value was more equivocal) (T136:38-137:04 and 140:11-25), this tells against the grant of leave; and
9. ninth, to reiterate, it was Ms Le Breton's unchallenged evidence that it is entirely possible that additional evidence would be needed to meet Mr Seng's expert evidence.
There were several additional matters that weighed against the Court exercising its discretion to grant leave to reopen to the respondents. First, there was the form in which the evidence was put before the Court, namely, as an email annexed to Ms Pickerd's affidavit. Presented in this way the evidence was, as Mr Doyle correctly admitted (T137:13), inadmissible. Not only had no direction been sought from the Court to adduce the expert evidence (r 31.19 of the UCPR), the evidence did not comply with any of the requirements of an expert report (r 31.21 of the UCPR). Moreover, it was hearsay.
That Mr Seng was in Queensland with only his mobile phone was not a legitimate excuse not to put his evidence in the correct form. If the evidence was, as the respondents submit, sufficiently important to warrant the application to reopen it is inconceivable that appropriate arrangements could not have been made. This is especially the case when the affidavit of Ms Pickerd discloses that Mr Seng prepared his survey evidence prior to his departure to Queensland. No cogent reason has been given as to why a compliant expert report could not have been prepared and served on the Council in advance of the application to reopen. And no cogent explanation has been proffered as to why this evidence was not put before the Court earlier by the respondents during their case.
For Mr Doyle to suggest, by way of a solution, that Mr Seng be made available to swear that the contents of his email and the further works as executed drawing were true and correct, was contradictory to the evidence given by Ms Pickerd, and for that matter Mr Seng, that he only had access to his phone, and therefore, could not properly prepare an expert report. It also gave no notice to the Council to prepare a cross-examination of Mr Seng.
At one point Mr Doyle applied to adjourn the application to reopen the respondents' case in order to allow Mr Seng's evidence to be prepared in an admissible form. However, in light of the further delay this would have caused to the finalisation of the application, and in turn to the proceedings, the diminished probative value of the evidence (occasioned by Mr Doyles's concession that other evidence existed to establish that the development was constructed in the approved location), and the absence of any reasonable explanation as to why the survey evidence was not obtained earlier by the respondents, the adjournment application was refused.
Second, if anyone was taken by surprise in the proceedings, it was the Council in being led to believe that it had to meet the foreshadowed application for leave to reopen rather than the actual application for leave to reopen. In this regard, the Council suffered prejudice in the form of wasted costs and a reduction in the time to prepare for the hearing of the actual application. The Council was also disadvantaged by the fact that it could not meet Mr Seng's evidence absent having the matter adjourned part-heard with attendant further delay and costs. Such delay is neither trivial nor wholly able to be remediated by costs. This is because if the Council is successful in its civil enforcement claim, remediation works to the watercourse will need to be carried out by the respondents.
In summary, having regard to the four classes of case in which a court may grant leave to reopen (although the categories are not closed), the survey evidence was available to the respondents prior to the making of the application; the affidavit of Ms Pickerd did not indicate that the failure to adduce it earlier was due to inadvertent error; and I categorically reject the assertion that there was any misapprehension as to the facts or law by the respondents having regard to the pleadings and submissions filed by the Council in advance of the hearing commencing.
Having regard to the circumstances of this application and applying the factors and principles referred to above, in my opinion, the application for leave to reopen must be refused.
[2]
Costs
Having been unsuccessful in their application, and these being Class 4 proceedings, costs ought to follow the event. Such an order is all the more appropriate in light of the unsatisfactory manner in which the application was brought.
In this regard, in addition to the Council's costs of the actual second application for leave to reopen, the respondents should also be liable for the Council's wasted costs of preparing for the foreshadowed application to reopen which was abandoned by the respondents.
[3]
Orders
For all these reasons, the Court made the following orders at the conclusion of the hearing of the second application for leave to reopen:
1. the notice of motion filed on 13 July 2020 is dismissed;
2. the respondents are to pay the applicant's costs of the motion, including the application to adjourn the motion; and
3. the respondents are to pay the applicant's costs thrown away preparing for the foreshadowed draft notice of motion attached to the email from Ms Katherine Pickerd to Ms Jane Hewitt and others dated 10 July 2020 at 1.33pm.
[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: 24 July 2020
Parties
Applicant/Plaintiff:
Penrith City Council
Respondent/Defendant:
Settlers Estate Pty Ltd
Cases Cited (19)
The First Application to Reopen
On 8 July 2020, that is, on the third day of the two day hearing, the respondents sought leave of the Court to reopen to rely on a further revised works as executed drawing 170112C1.23 Rev E that certified that certain works had been carried out. Relevantly, the further revised drawing indicated that drainage line A and the culvert had been constructed to the correct height, depth and length as approved by the stage 3 roads and drainage CC.
The application was not opposed by the Council.
Leave was therefore granted and the further revised drawing was received into evidence. Its effect was to narrow the issues for determination arising from the separate question, viz, the allegations that drainage line A and the culvert - and the height, depth and length of the channel works as a consequence - had been built to the wrong height, depth and length. These issues were resolved in favour of the respondents having regard to the decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; (2014) 206 LGERA 40 (see generally the exchange at T99:41-101:07 and 103:24-104:33).
This left only the issue of location. That is, that drainage line A and the culvert (and by logical corollary the associated channelling works) were not constructed as approved because they crossed the watercourse to the west whereas they ought to have terminated to the east of that watercourse and existing channel (T100:21-38).
The respondents replied by contending that if drainage line A and the culvert were constructed to the approved length − and to build it to some other length would have been in breach of the approval − then it had, of necessity, to transect the watercourse on its western side.
The Council responded by arguing that all that the respondents had to do to avoid breach was to carry out the works constituting the development at a different angle which would have permitted drainage line A and the culvert to be constructed to the correct length and in the correct location, namely, terminating to the east of the watercourse (T102:04-103:22). The Council sought to illustrate its submission by reference to the hands of a clock (T102:13-17 and 103:15-20).
Objection was taken by Mr Tomasetti SC to this reply contention on the basis that "the submission is made for the first time" (T105:15), that the argument had "never been pleaded or alleged. It takes us by surprise" and would be "prejudicial" (T105:21-23). Somewhat inconsistently with the latter submission, Mr Tomasetti SC went on to submit that the Council's argument could nevertheless be rejected on the evidence before the Court (T105:25).
While the hand of a clock analogy may have been made for the first time in oral argument, the suggestion that the allegation that the development was constructed in the wrong location, namely, to the west of the watercourse, must be emphatically rejected. It remains the fact that the allegation about location was not only pleaded (see above at [31]) but was contained in the Council's written submissions (see above at [32]). Any argument to the contrary by the respondents was entirely disingenuous.
In any event, the Court permitted the parties to file further written submissions in reply and indicated that if required, the matter would be relisted for further oral argument.
It is in this context that the second application for leave to reopen was made by the respondents.
Legal Principles to be Applied in Applications for Leave to Reopen
The Uniform Civil Procedure Rules 2005 ("UCPR") do not contain a specific provision dealing with the reopening of a party's case. Instead a general discretion is conferred as to the conduct of the proceedings in r 2.1, which states that:
The court may, at any time and from time to time, 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.
Similarly, r 29.5 of the UCPR provides that, "the court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial".
These provisions, together with the principles set out in ss 56-60 of the Civil Procedure Act 2005 ("CPA"), are sufficient to give the Court the power to determine the application by the respondents to reopen their case.
To give effect to the overriding purpose contained in s 56 of the CPA proceedings must be managed having regard to the objects stated in s 57(1) of that Act. The Court is also obliged to act in accordance with the dictates of justice (s 58 of the CPA).
The principles governing an application for leave to reopen were set out in a summary way in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 (at [13]-[15]). They were articulated in more detail more recently in Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706 per Henry J, which I respectfully adopt (at [43]-[48]):
43 In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Clarke JA (with whom Mahoney and Meagher JJA agreed) stated at 478:
"The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reason why the evidence was not led in the first place…"
44 Although decided prior to the introduction of the CPA and the UCPR, Urban Transport Authority of New South Wales v Nweiser has been accepted as an appropriate authority to be applied in a case seeking leave to re-open, as has the principle of whether the interests of justice are better served by allowing or rejecting the application: see for example The Movie Network Channels Pty Limited v Optus Vision Pty Limited [2009] NSWSC 132 at [4]; Gaskin v Ollerenshaw [2010] NSWSC 788 at [22]; N M Rural Enterprises Pty Limited v Rimanui Farms Limited [2011] NSWSC 1561 at [26]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (Bradshaw) at [26]; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232 (Spotlight) at [26].
45 The Court approaches applications for leave to re-open differently depending on the time at which the application to re-open is made. Where an application is made to re-open to adduce new and additional evidence before judgment is delivered, it is relevant to consider whether there was a deliberate or tactical decision made not to call the evidence during the hearing. If such a decision was not made, a key consideration is whether the re-opening of the case would cause embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 266-267.
46 The authorities recognise four classes of case in which a court may grant leave to re-open, although the categories are not closed. The recognised categories are (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law: Bradshaw at [24]; Spotlight at [25] and [26].
47 Other factors that are relevant to consider on an application for leave to re-open to adduce further evidence and which bear on the interests of justice, include:
(a) the importance, relevance and probative value of the proposed new evidence to the issues in the case;
(b) the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs;
(c) the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing;
(d) the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense;
(e) whether the occasion for calling the further evidence ought reasonably to have been foreseen; and
(f) any delay in making the application.
See Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826 at [18]; Spotlight at [17]; FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [32].
48 Ultimately, the Court has a discretion whether to permit a party to re-open their case which must be exercised having regard to all the circumstances of the case and in a manner consistent with the public interest in a just, quick and cheap resolution of the real issues in the proceedings: Taouk v Louis (No 1) [2014] NSWSC 656 at [11]; The Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 at [43]; Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707 at [15].