S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North (ABN 56 291 496 553) v Northern Regional Planning Panel

Land and Environment Court (NSW)|2019-10-28|Before: Pain J

SOLICITORS: McCartney Young Lawyers (Applicant) Department of Planning (First Respondent) N/A (Second Respondent) File Number(s): 19/110708

Judgment

I heard judicial review proceedings in this matter on 26 August 2019 and reserved my judgment. At issue is the refusal by the Respondent Northern Regional Planning Panel (Panel) of a site compatibility certificate under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP) because the land in issue is identified under the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) as within the proximity area to the coastal wetlands area identified on the relevant map.
After the hearing concluded I caused an inquiry to be sent to the parties asking for clarification of two matters by the Respondent Panel on 11 September 2019. At a mention to discuss those queries on 18 October 2019 new counsel Mr Hemmings SC briefed by the Applicant sought to raise a new ground without notice and was refused.
The Applicant has filed a notice of motion dated 22 October 2019 seeking leave to re-open its case and to rely on an amended summons which identifies a new ground concerning the application of cl 4(7) of the Seniors Housing SEPP. The Panel opposes leave being granted.

Applicant's submissions

The new ground will enable all matters in issue between the parties to be resolved and concerns a fundamental question of whether the Panel has power to issue a site compatibility certificate in these circumstances. The issue raised is a threshold question which if answered in the Applicant's favour would render the other grounds already argued immaterial according to the Applicant's counsel.
In relation to the balance of convenience, the new ground raises a matter purely of statutory construction, no additional evidence is required and the issue fundamentally affects the utility of the proceedings. If not able to be argued, these proceedings will be inutile and will not resolve the dispute between the parties. Further proceedings will be necessary if the Applicant is unsuccessful in these proceedings. The Applicant can apply for a new site compatibility certificate and on being refused would seek to argue the ground the subject of the motion. The circumstances of this case are far removed from Wollongong Coal Ltd v Minister for Planning (2016) 219 LGERA 131; [2016] NSWLEC 113 (Wollongong Coal).

Panel's submissions

Leave should be refused. The Applicant faces a high bar given authority in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon); Wollongong Coal Ltd v Minister for Planning and Autodesk Inc v Dyason (No 2) (1993) 25 IPR 33.
The construction of cl 4(7) was fully argued in the hearing, as is apparent from the transcript. It is clear that Ms Duggan SC, as her Honour then was, did consider the issue now sought to be pressed and decided not to press it. Parties are generally bound by how a case has been run and the forensic decisions made at hearing.
Having new counsel and a new idea is not an adequate justification. That would create far too low a threshold and would not put an end to litigation. The Applicant can point to no authority where amendment has been allowed. In the interests of finality of litigation where parties are competently represented and have had full opportunity to put their case, amendment should not be allowed.
The Panel agreed to an early hearing date and that will be undermined by the application. No adequate explanation for why the issue was not argued at hearing has been provided by Mr Young in his affidavit. The application is irreconcilable with s 56 of the Civil Procedure Act 2005. The Applicant's focus on the real issues in dispute is a distortion of the principles in s 56.
Substantial costs have been incurred and the notice of motion can only lead to more costs.
The proceedings will not be inutile if the motion is not granted. If the Applicant is unsuccessful the decision of the Panel will stand. Whether there is prejudice is not the relevant question per Aon.

Consideration

I have broad discretion to determine whether this amendment of the Applicant's claim should be allowed. In Wollongong Coal at [12] I extracted Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 (Tamaya Resources) at [126]-[131] applying the principles in Aon as follows: 126 The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17]. 127 The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 ("Cement Australia") at [43]. Relevant matters the Court is to consider include: (1) The nature and importance of the amendment to the party applying for it: Aon at [102]; (2) The extent of the delay and the costs associated with the amendment: Aon at [102]; (3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102]; (4) The explanation for any delay in applying for that leave: Aon at [108]; and (5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ("Luck") at [44]; (6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]. 128 The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51]. ... Sufficient opportunity to plead the case 130 Parties must have a sufficient opportunity to identify the issues they seek to agitate: Aon at [94], [98] and [112]. At [94] and [98], the plurality said, relevantly: …what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. [Rule 21 of the Court Procedures Rules 2006 (ACT) (the equivalent to s 37M)'s] reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. 131 In Wotton v State of Queensland [2015] FCA 910 ("Wotton") at [56] and [57], Mortimer J said, relevantly: … The familiar passage in Aon … at [111]-[112] is an important aspect of resolving those tensions: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend… A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. (Emphasis in original.)
The principles concerning the giving of leave to amend pleadings in Aon at [111]-[112] cited above in Wotton v State of Queensland [2015] FCA 910 applied in Wollongong Coal were directed to trial preparation leading up to a hearing. Such principles which limit the ability to amend pleadings because of case management considerations, inter alia, apply all the more so where judgment is reserved on the parties' final arguments. As the Panel submitted there is an onus on parties to present their matter finally at the substantive hearing in the interests of finality of litigation overall. Too low a threshold to allow amendment after the final hearing will be contrary to such an important practical approach facilitating the efficiency and hence cost of litigation.
In particular the parties' choices in the litigation to date and the consequences of those choices are important in this regard. As the Panel submitted, it is clear from the transcript of the substantive hearing that the very argument now sought to be pressed in the notice of motion was considered by the Applicant's then counsel and not pressed. There has been no lack of opportunity afforded to the Applicant to present its case. The Applicant bears the onus of establishing why the Court should find in its favour. No explanation for why this ground was not pressed at the hearing has been provided. Essentially new counsel has brought a new perspective on the issues but that is not enough in light of the relevant principles to justify re-opening proceedings once judgment after a final hearing has been reserved.
The principles in Aon, articulated in Tamaya Resources and adopted by me in Wollongong Coal support the Panel's submissions, which I accept. No case supporting the Applicant's position has been referred to and as I have already stated the principles are otherwise against the Applicant. The arguments made by the Applicant about balance of convenience, the limited scope of the argument to be raised and the possibility of fresh proceedings are all circumstances which existed up to and during the substantive hearing. I make that point because I am only aware of cases where leave to re-open has been given in this Court where there is a relevant change after the final hearing which the trial judge should be aware of, such as a change in the applicable law or other material matter. This is not one of those cases. The Applicant's submissions are more suited to the amendment of pleadings before the final hearing.
The Applicant's notice of motion dated 22 October 2019 is dismissed.
Costs in Class 4 proceedings generally follow the event so that the Panel should receive a costs order in its favour, there being no disentitling conduct.

Order

The Court orders 1. The Applicant's notice of motion dated 22 October is dismissed. 2. The Applicant is to pay the Respondent's costs of the notice of motion dated 22 October 2019. 3. The exhibits are returned.

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: 31 October 2019

(2016) 219 LGERA 131

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