Rossi v Living Choice Australia Limited t/as Living Choice

Leave to Amend is Granted 9I agree with the concession of the first and second respondents that the proposed amendments are sufficiently arguable that leave to amend could not be refused on the basis of futility. 10Dealing with the other grounds of objection, I also agree that the conduct of this litigation by Mr Rossi, particularly in relation to the claims made against the council, has been less than satisfactory. 11The allegations made against the council have waxed and waned throughout the proceedings. Notably, the very allegations now sought to be pleaded against the council were initially contained in a document entitled "Draft Amended Points of Claim" served on the parties 3 April 2012. For reasons that have not been disclosed to the Court, in the next iteration of the points of claim, these allegations were not present. Although the "Draft Amended Points of Claim" were never formally put before the Court for its endorsement, I nevertheless agree with the submission of the council that it has been compelled to constantly amend its position, with concomitant cost consequences, to meet the ever changing claims levelled against it. 12However, I disagree with the council's characterisation of Mr Rossi's conduct as the adoption of "two inconsistent attitudes". Subject to the question of prejudice to the council and the absence of any formal explanation for his late change in position, there is nothing that prevents Mr Rossi from reviving his desire to press claims against the council based on a breach of s 79C of the EPAA, which he had previously contemplated but not pursed. This is not, in my view, a case of approbation or reprobation in the sense in which that phrase is traditionally used (Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16; (2012) 287 ALR 403 at [199]-[202]). Although the affidavit of Ms Melissa Mallos sworn 22 June 2012, on behalf of the council, ably demonstrated the deficient way in which Mr Rossi has sought to crystallise his claims against the council to date, it disclosed no evidence of any binding election that would preclude Mr Rossi from seeking to agitate the claims against the council that he currently proposes. 13Turing to the issue of prejudice, Ms Mallos attests to the fact that the council has only filed evidence to date in respect of the allegation currently pleaded against it, namely, that it failed to lawfully notify Mr Rossi of the development application. But Ms Mallos does not disclose the harm, if any, that will flow to the council if the amendments are permitted. 14Plainly enough, as Mr Jason Lazarus, appearing on behalf of the council, submitted from the bar table, if the amendments are permitted, the council will be required to file and serve additional evidence to meet the new claims. In all likelihood this will include additional documentary material from the council and possibly affidavit evidence from council officers engaged in the decision-making process. 15At this stage the preparation of this evidence is unlikely to jeopardise the hearing dates on 6 and 7 August 2012, and no application to vacate the hearing dates consequent upon the amendments being granted has been foreshadowed to the Court. At worst, as the parties agreed, it will be unlikely that the hearing will conclude in the two days allocated to it and an additional one or two days of hearing time will be necessary. At no point did either the council or Living Choice indicate that it would not be possible between now and the hearing to prepare the additional evidence. 16The prejudice likely to be suffered by Living Choice, similarly not disclosed in the affidavit of Ms Roslyn McCulloch, the solicitor for Living Choice, sworn 22 June 2012, is more substantial than that likely to be visited upon the council. 17In particular, the proposed further amended points of claim raise the following allegations against Living Choice at paragraphs 41, 45, 46 and 47: 41. Beginning in about February 2012 Living Choice began to construct buildings and carry out works adjacent to the common boundary without development consent being work that requires development consent. Particulars (a) Timber posts have been erected within the 3 metre building setback to the Rossi land [images 3 to 8, 11, 13 to 15, 17 to 19, 22, 24 to 28, 30 to 36, 42 to 46, 47, 48, 50 to 53, 60, 63, 64, 66to 70, 80 to 86, 97 in the Exhibit "AR-Exhibit 1" referred to in the affidavit of Mr Anthony Rossi sworn 30 May 2012]. (b) Footings and brickwork curtain walls (below finished floor levels upon the approved plans) have been erected to the northern elevation to dwellings numbered 206, 207, 208, 209 and 210 which are not shown upon the approved plans. [Images 3 to 19, 21, 22, 24 to 39, 42 to 53, 55, 56, 60 to 71, 80 to 88, 91 to 92, 94, 96, 99 to 104, 109 t 113, 117 to 121, 123 to 131, 133 to 143] (c) The work identified in particular (b) and the key stone concrete block retaining wall erected upon the boundary are identified as the proposed works in development application 110/2012HA (the subject of Land and Environment Court proceedings 10100 of 2012 - Living Choice Australia Limited v The Hills Shire Council) and Section 82A application for review lodged by Living Choice to the Council on 17 April 2012). ... 45. Between July 2011 and May 2012 Living Choice entered upon the Rossi Land carried out development under the Act without: (a) Development consent granted under the Act; and (b) Without the consent of the Applicant. Particulars Living Choice: i. removed two lines of small pines growing parallet to the common boundary and upon the common boundary, ii. erected a temporary fence, iii. excavated a trench approximately 120mm wide and 300mm deep for length of the common boundary iv. placed crushed aggregate in the trench; v. erected a wall of variable height between 550mm and 700mm along the common boundary; vi. backfilled the trench on the Rossi land with gravel and soil. 46. Development consent under the Act was required for the works referred to in paragraph 46. 47. The consent of Mr Rossi as the owner of the land on which the works were done was required otherwise entry onto his land was trespass and work carried out upon it was not lawful. 18Living Choice is correct insofar as it submits that these are entirely new factual allegations. Plainly, these allegations will need to be responded to in an evidentiary manner. Specifically, the allegations will require the filing and serving of expert surveying evidence to establish the precise boundary between Mr Rossi's land and Living Choice's land and the location of the small pines alleged to have been unlawfully removed by Living Choice. 19Living Choice also objects to the amplification of the claim against the council to the extent that it will cause an expansion of the final hearing. 20There is no doubt that the new claims against both Living Choice and the council will require the allocation of additional hearing days, however, in my view, this will not result in an unreasonable lengthening of the hearing. In any event, this is far preferable to the alternative, viz, a multiplicity of proceedings pursued by Mr Rossi against the first and second respondents. All of the real issues for determination in the dispute should be resolved within the one set of proceedings. To do so will result in greater efficiency and cost effectiveness to both the parties and the Court. 21Upon being pressed by the Court, Mr Peter Tomasetti SC, appearing for Mr Rossi, described the likely expert evidence required to prove the allegations contained in paragraphs 41, 45, 46 and 47 in the following way: (a) first, Mr Rossi will seek to tender a surveying certificate from Survey Plus, Barrie Green & Associates, indicating the location of small pines on Mr Rossi's property; and (b) second, a survey will be undertaken to demonstrate the precise location of the wall built on the common boundary between Mr Rossi's land and Living Choice's land. 22The necessity for evidence was also referred to in the affidavit of Mr Briggs and in two affidavits sworn by Mr Rossi on 21 and 22 June 2012 respectively. 23Mr Tomasetti SC further stated that, consistent with a letter sent by Mr Briggs on 21 June 2012 to the solicitors for Living Choice, an affidavit of Mr Murray Turnbull would be required deposing to discussions which took place at a meeting between Mr Rossi and representatives of Living Choice in about June or July 2012, wherein Living Choice is alleged to have made certain representations to Mr Rossi. Finally, Mr Tomasetti SC stated that a further affidavit from Mr Rossi would be required in respect of the removal of the trees and his communications with the council in relation to activities upon the Living Choice land. 24As stated above, provided that the additional evidence required in order to meet the proposed amended allegations is limited to that described by Mr Tomasetti SC, the current hearing dates ought to be preserved and the prejudice caused to Living Choice and the council ought not be irremediable. 25By contrast, it might be inferred that the prejudice likely to flow to Mr Rossi if the amendments are not permitted could be considerable. The bifurcation of responsibilities between the council and the third respondent, the Joint Regional Planning Panel - Sydney West Region ("the JRPP") pursuant to cl 13F of the State Environmental Planning Policy (Major Development) 2005, is presently not fully pleaded by Mr Rossi. That is to say, if in fact responsibility for the conduct about which Mr Rossi complains lies ultimately at the feet of the council, and not the JRPP, then as the points of claim are currently constituted, Mr Rossi has no mechanism pleaded permitting him to pursue his grievances and to seek relief. 26The absence of any adequate explanation for the delay in bringing this amendment application is troubling. Since the decision of Aon Risk Service Australia Ltd v Australian National University [2009] HCA 29; (2009) 239 CLR 175, where an application to amend pleadings is made otherwise than in a timely fashion, the reason for its lateness is a factor to which the Court ought to have regard in the exercise of its discretion. 27The explanation given by Mr Tomasetti SC, from the bar table, was that it was not until the first and second respondents had filed their points of defence in mid to late May 2012, in response to the amended points of claim filed by the applicant on 30 April 2012, that Mr Rossi became aware of the deficiencies in his pleadings thereby necessitating the proposed amendments. 28This explanation cannot be accepted. As the "Draft Amended Points of Claim" demonstrate, as early as 3 April 2012 Mr Rossi had contemplated the very action and relief against the impugned conduct of the council now sought to be agitated by him. 29But the absence of a satisfactory, or indeed any, explanation for the delay in bringing the amendment application is not, of itself, fatal to the application. This is particularly so where, as in the present circumstances, the application has been made in sufficient time that the vacation of the hearing dates should not be necessary. Moreover, and unlike Aon, this case is not particularly complex, and neither involves a multiplicity of witnesses nor the substantial allocation of hearing time likely to be wasted if the amendments are permitted. While a party seeking an indulgence of this kind is normally expected to provide an explanation to the Court, and to the other parties, as to why the indulgence has been sought late, in the circumstances of this application I do not find the absence of such a reason determinative. 30Furthermore, notwithstanding the absence of an adequate explanation for the lateness of the amendments, I do not consider that the prejudice flowing to the first and second respondents if the amendments are permitted is sufficient to, as an exercise of the Court's discretion, refuse the grant of leave. 31To refuse leave would not be consistent with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute between Mr Rossi and the first and second respondents (s 56 of the Civil Procedure Act 2005, as informed by ss 58, 59, 60 and 64 of that Act). 32Except in respect of paragraph 47 of the proposed further amended points of claim, I therefore grant leave to Mr Rossi to amend his summons and points of claim in the manner foreshadowed by the draft documents before me. 33Paragraph 47 of the proposed further amended points of claim suffers from a number of deficiencies. First, the basis of the consent required by Mr Rossi as pleaded is not particularised. This is important because in order to obtain the relief sought by Mr Rossi in respect of this claim, a breach of the EPAA must be demonstrated by him (s 124 of the EPAA). It is not enough to demonstrate a breach of some common law cause of action. 34Second, as drafted, the pleading assumes that this Court has jurisdiction in respect of the common law tort of trespass. Mr Tomasetti SC submitted that such jurisdiction arises pursuant to s 16(1A) of the Land and Environment Court Act 1979, which states that the Court "also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act". No authority was cited for this proposition. Without finally determining the question, I consider it unlikely that s 16(1A) operates in the manner contended by Mr Tomasetti SC. In any event, if Mr Rossi is successful in proving the allegations contained in proposed paragraphs 45 and 46, then subject to any issue of discretion, the relief he seeks is likely to be granted. Paragraph 47 is therefore otiose. Put another way, to refuse to grant leave to permit the amendment of the points of claim by including paragraph 47 would not cause Mr Rossi any prejudice. 35Leave to amend the points of claim in respect of this paragraph is therefore refused.

Leave is Granted to Adduce Expert Evidence 36Mr Rossi also applies for leave to adduce expert evidence in the form of the expert surveying evidence described above. 37The principles surrounding the granting of leave to adduce expert evidence in Class 4 judicial review proceedings were summarised by me in Rossi (No 1) (at [43]-[51]). They are applied to the present application without repeating them in full. 38Although this application was initially opposed by Living Choice (the only respondent which had an interest in the outcome of it), Ms Heather Irish, appearing for Living Choice, conceded that if the amendments contained in proposed paragraphs 41, 45 and 46 were permitted, it would be reasonable for expert evidence to be adduced in order to prove these allegations. 39This is correct. Indeed, it would be difficult for Mr Rossi to prove these claims absent such evidence. Given the confined nature of the proposed expert evidence (as described above), I therefore grant leave to Mr Rossi to adduce expert surveying evidence confined in the manner described by Mr Tomasetti SC.

Service of Documents by Electronic Means 40Mr Rossi seeks an order that Living Choice be directed to accept service of documents by electronic means pursuant to the broad power contained in r 2.1 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). That rule states: 2.1 Directions and orders 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 (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 41According to Mr Briggs, throughout the proceedings both Mr Rossi and Living Choice have been serving letters and Court processes by electronic transmission. However, on 15 June 2012, the solicitors for Living Choice advised that they would no longer accept service of documents by electronic transmission. This will, according to Mr Briggs, create hardship insofar as he is a sole practitioner whose practice is located at Pennant Hills. It will also increase the costs incurred by Mr Rossi. It is therefore more "cheap and quick" if he is permitted to serve documents upon Living Choice by electronic transmission rather than post, DX or personally upon Living Choice's solicitors' office located in the Sydney CBD. 42The application is opposed by Living Choice on the basis that it is contrary to firm policy. The reasons for this policy, according to the affidavit of Ms McCulloch, include: (a) the vagaries of electronic communication and computer systems; (b) the fact that some of their staff work part-time, including Ms McCulloch, who has carriage of the matter; and (c) the cost to Living Choice of printing material when this cost should properly be worn by the party serving the documents. 43Ms McCulloch additionally complains in her affidavit that in these particular proceedings there has been a high level of email correspondence and transmission of documents, some of which have been received well after the close of business hours and on weekends. Moreover, many of these documents have been voluminous affidavits and have included full colour photographs, which have involved an additional expense to Living Choice to print. 44The methods by which a document may be served on a person are relevantly contained in r 10.5 of the UCPR: 10.5 The various methods of service (1) Subject to these rules, a document may be served on a person: (a) by means of personal service, or (b) by posting a copy of the document, addressed to the person: (i) to the person's address for service, or (ii) if the person is not an active party, to the person's business or residential address, or (c) by leaving a copy of the document, addressed to the person: (i) at the person's address for service, or (ii) if the person is not an active party, at the person's business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or (d) in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation. (2) In the case of a person having an address for service that is a solicitor's office address, service of a document on the person may also be effected: (a) if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or (b) if the notice advising the address for service includes a fax number, by faxing a copy of the document to that number, or (c) if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address. 45If a person, in this case Living Choice, has an address for service that is a solicitor's office address, then service of a document on Living Choice can be effected by transmitting an electronic copy of the documents to that address if the notice advising the address for service includes an electronic service address (r 10.5(2)(c) of the UCPR). No such address has been included in the Notice of Appearance filed on behalf of Living Choice. This is presumably because of the policy referred to above. 46Mr Rossi is the moving party to these proceedings. While it may be inconvenient and more expensive for Mr Briggs to serve documents on the first and second respondents other than in a manner mandated by the UCPR, this does not excuse compliance with r 10.5. Even if it were accepted that r 2.1 of the UCPR contains a plenary power that permits the Court to dispense with r 10.5, I do not consider that, in this case, inconvenience and expense alone are sufficient to circumnavigate compliance with that rule. The application is therefore refused.

Service of Evidence by First Respondent 47Mr Rossi asserted that Living Choice had not served its evidence as required by 13 June 2012, in breach of previous orders of the Court. He sought an order compelling them to do so immediately. This was denied by Living Choice, who submitted that, if the amendments were refused, all that was required to be served by it was a supplementary tender bundle, the necessity for which had only been created because Mr Rossi had filed a purportedly agreed tender bundle absent any consultation with Living Choice. Alternatively, if the amendments were permitted, because additional evidence would be required by Mr Rossi, Living Choice submitted that the preferable course would be to close the pleadings and order a new timetable for the filing and serving of evidence by the parties. 48I agree with the course proposed by Living Choice and do not make the order sought by Mr Rossi.

Costs 49The first and second respondents submitted that Mr Rossi should pay their costs thrown away occasioned by the amendments. Such an order is unremarkable. 50Living Choice additionally submitted that Mr Rossi should be made to pay the costs assessable forthwith as compensation for the considerable costs it had expended so far resulting from the constantly evolving pleadings. These costs have been estimated by Ms McCulloch to be in excess of $100,000. 51Mr Rossi resists both courses. In his submission, the amendments are so intertwined with the ultimate relief that he has sought from the outset that the costs of both the application for leave to amend and, more generally, of the motion, should be either reserved or be costs in the cause. 52I disagree. Mr Rossi has sought an indulgence from the Court. There is nothing particular about his application that would cause the Court not to order that the costs borne by the first and second respondents consequent upon the amended pleadings be payable by him. If the first and second respondents have incurred costs as a result of the altered pleadings, they are entitled to be compensated for this loss. Having said this, no basis has been demonstrated by Living Choice upon which these costs should be assessed forthwith. 53In relation to the costs of the remainder of the motion, in my view, it is appropriate that these be the first and second respondents' costs in the cause.

Mediation 54During the course of the hearing of the notice of motion I enquired of the parties whether they would be amenable to an order that the proceedings undergo mediation before an appropriately qualified mediator. The reason for the Court doing so is its alarm at the increasing complexity, length of time and expense necessary to conclude these proceedings. That the points of claim have now been reformulated on three occasions (four, if the "Draft Amended Points of Claim" are included) does not engender any curial confidence as to the further efficient and frugal conduct of the proceedings.

55All parties consented to such a course being undertaken and, in the Court's opinion, mediation is sensible and should be ordered.

56In addition to leave being granted to Mr Rossi to further amend his points of claim and summons for relief (with the exception of the inclusion of proposed paragraph 47) and to adduce further expert surveying evidence as described above, it is appropriate that a new timetable be ordered to prepare the matter for final hearing on 6 and 7 August 2012. Such a timetable must include the provision for mediation and for at least one extra day of hearing time. 57Accordingly, the parties are directed to prepare short minutes giving effect to the reasons contained in this judgment and for the further preparation of the proceedings for final hearing. 58The proceedings are therefore listed at 11.00am on 28 June 2012 for this purpose.

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: 27 June 2012