Save Wallum Incorporated v Clarence Property Corporation Limited

DISPOSITION OF THE APPLICATION 21 Section 43B of the Act provides that: (1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act. (2) However, subsection (1) does not apply to an action if: (a) before the commencement of this Act, the action was authorised by a specific environmental authorisation; and (b) at the time the action is taken, the specific environmental authorisation continues to be in force. Note: In that case, section 43A applies instead. (3) For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed: (a) an enlargement, expansion or intensification of use; (b) either: (i) any change in the location of where the use of the land, sea or seabed is occurring; or (ii) any change in the nature of the activities comprising the use; that results in a substantial increase in the impact of the use on the land, sea or seabed. 22 The Act commenced on 16 July 2000. It follows that the respondents would not be in breach of the Act by engaging in slashing works on the Land if that conduct was a lawful continuation of a use of land which was occurring immediately before 16 July 2000, notwithstanding that the respondents do not have an approval under Part 9 of the Act to engage in the slashing works. 23 As the applicants contend, factual matters relevant to the establishment of the s 43B Defence include: (a) the use of the Land that "was occurring immediately before the commencement" of the EPBC Act, the respondents having investigated records dating back "more than 30 years", as well as witnesses "no longer involved with the Land"; (b) whether there has been "an enlargement, expansion or intensification" of the use of the Land resulting "in a substantial increase in the impact of the use" on the land such that the use is not a "continuation" (s 43B(3)); and (c) whether continuity of use has been broken, such that the s 43B protection is lost (Huon Aquaculture Group Ltd v Minister for the Environment [2018] FCA 1011 at [185]). 24 In opposition to the application for leave to amend to include the s 43B Defence, the applicant contends that: (1) the evidence to be given by the three expert witnesses called by the applicant and the respondents' five expert witnesses are directly relevant to the question of whether the slashing works are a "lawful continuation" of a use of the Land for the purposes of s 43B of the EPBC Act; (2) as the triggering action in the Biodiversity Conservation Act 2016 (NSW) (BC Act) ("damage any habitat") is different from that under s 18 of the Act ("significant impact" on the relevant species), it will be necessary for the applicant to adduce additional evidence in chief and undertake additional cross-examination; (3) the Wallum Froglet, which is not listed under the Act but is present on the Land, is listed under the BC Act, and the applicant may also seek to adduce further expert evidence in relation to the question of whether the slashing works damage the Wallum Froglet habitat; (4) in order to establish a breach of s 2.4(1) of the BC Act, the applicant must also establish that the respondents knew that the allegedly damaged habitat was the habitat of the relevant species, which will require investigation and collation of evidence; (5) given that the respondents took two months to investigate and prepare their evidence with respect to the proposed defence, the applicant should be afforded at least an equivalent opportunity to collate the evidence on which it seeks to rely in opposition to the proposed defence; (6) while the respondents propose the setting aside of an additional day for cross-examination with respect to the s 43B Defence, "[i]t is impractical in the extreme" to require up to 8 expert witnesses to be recalled for further examination and cross-examination in April 2025. 25 As a consequence, the applicant contends that the grant of leave to amend will "unavoidably necessitate vacation of the trial date". Yet, as French CJ said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]: there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not been allowed. 26 The applicant further contends that no satisfactory explanation has been given for the delay in raising the s 43B Defence although, as the plurality in Aon stated at [102], such an explanation is "invariably" required where there is delay in seeking leave to amend. 27 For the reasons set out below, I consider that leave to amend to raise the s 43B Defence should be granted on the basis that 28 and 29 April 2025 are set aside for cross-examination on the s 43B Defence. While these days immediately precede closing submissions, it may well be that cross-examination on this issue will take only the first day, given the relatively discrete nature of the question, potentially allowing the parties a day before commencing closing submissions to factor the cross-examination on the s 43B Defence into those submissions. 28 First, the s 43B Defence directly responds to the applicant's pleaded case as amended on 29 July 2024, when the applicants first sought injunctive relief with respect to the slashing works, and as expanded by further amendments on 30 September 2024. It follows that, on any view, the earliest date at which the inquiries could have been commenced by the respondents into the s 43B Defence was 29 July 2024. Furthermore, those inquiries would have had to be expanded after 30 September 2024 to include at least a consideration of whether historical slashing works may have damaged the habitat of additional species. 29 Secondly, I accept the respondents' submission that the deferral of the hearing date on 10 October 2025 gave them "their first practical opportunity to carry out those investigations, which time did not permit earlier as the matter was moving quickly to final hearing." (RS at [8]) In this regard, it was not in issue on the interlocutory application that the respondents did not own the Land before 2021 and therefore did not have knowledge as to whether slashing works had taken place on the Land before that time. Nor was it in issue that the investigation required significant work to be undertaken in order to ascertain the facts and obtain the lay and expert evidence necessary to address the elements of s 43B before the respondents' legal representatives could be satisfied that it was appropriate to plead the s 43B Defence. It can readily be accepted that the question of whether slashing works had occurred before the Act came into force, the nature and extent of those slashing works, and the question of whether they were lawfully undertaken, required investigations to be undertaken into issues of some factual and legal complexity. I also accept the respondents' evidence that the historical evidence of slashing was not within their knowledge and it was necessary for them to make enquiries with previous owners of the land stretching back over 30 years which could not feasibly be undertaken in the context of preparations for an urgent trial listed for October 2024. 30 Thirdly, that being so, I accept that the respondents acted promptly once that material had been ascertained to raise the defence with the applicants and seek their position with respect to the proposed amendments. In that correspondence, the respondents explained why the defence had not been pleaded earlier, consistently with their submissions on the interlocutory application. Further, the respondents could have filed the interlocutory application seeking leave to amend earlier in January before the applicants conveyed their opposition to the amendments at the end of January. However, I consider that it was reasonable for the respondents to take steps to avoid filing the interlocutory application by first seeking the applicant's agreement to the proposed amendments and consider that the respondents acted promptly to file the interlocutory application once the applicants indicated their opposition to the proposed amendments. 31 Fourthly, it is not in issue that the respondents' s 43B Defence is arguable. 32 Fifthly, if established, the s 43B Defence would be determinative of the application for a permanent injunction insofar as it is sought to permanently injunct the slashing works. It is not in issue that the application for a permanent injunction of the slashing works is an important aspect of the applicant's claim; nor that the s 43B Defence would constitute an important aspect of the respondents' defence. As such, I accept the respondents' contention that the prejudice which they would suffer by being precluded from relying on a statutory defence otherwise available to them under the Act would be significant. 33 In the sixth place, I raised with the parties the question of whether it would be possible for the February trial dates to be shifted to dates in April (were I to defer my variable leave) so as to afford the applicant the opportunity to investigate and prepare its evidence in response to the s 43B Defence, while also maintaining the closing trial dates. However, the parties did not have availability to accommodate a two-week trial in April. That being so, I do not consider that it would be in accordance with the overarching purpose in s 37M of the FCA Act and the principles in Aon Risk to adjourn the whole of the trial to a later date, given that it had already been adjourned once for a six-month period and the detriment that deferring a trial of almost three weeks in total would cause to other litigants in the Court. 34 Finally, the respondents contend that any prejudice to the applicant by reason of the pleading of the s 43B Defence would be ameliorated by setting aside one, or if need be two, days for cross-examination with respect to the s 43B Defence close to the date for final oral addresses. In this regard, the parties have confirmed their mutual availability on 28-29 April for a further hearing, immediately before closing addresses. 35 Against this, as earlier explained, the applicant contends that the evidence given by the applicant's three expert witnesses and the respondents' five expert witnesses directly bear on whether the slashing works are a "lawful continuation" of a use of the Land for the purposes of s 43B of the Act. As such, the applicant contends that it will be confronted by tremendous difficulties in cross-examining the respondents' experts on the s 43B Defence on the February trial dates before it has been able to investigate matters raised by the s 43B Defence. The applicant also rejects the respondents' suggestion of setting aside separate and later dates for evidence on the s 43B Defence, alleging that it would be "impractical in the extreme" to require up to eight expert witnesses to be recalled for further examination and cross-examination in April 2025. The applicant therefore contends that the grant of leave to amend the respondents' defence to raise the s 43B Defence will "unavoidably necessitate vacation of the trial date". 36 I accept that it is likely that the applicant will adduce additional evidence in chief and undertake additional cross-examination in the event that leave to amend to raise the s 43B Defence is granted. I also accept that, in order to investigate matters relevant to meeting the s 43B Defence and prepare additional evidence, the applicant should be afforded essentially the same amount of time as the respondent took with respect to this aspect of its proposed case. I do not, however, accept that it is likely that all of the parties' expert witnesses will need to be recalled if the s 43B Defence is raised because issues associated with the s 43B Defence are so closely intertwined with the issues otherwise addressed by the expert witnesses. As the applicant submitted, addressing the s 43B Defence involves "different Acts looking at different questions with different timeframes" (T18.3 (Mr Reynolds). Further, whether the applicant would be required to recall all of its experts to address that defence is largely speculative at this stage. Moreover, the respondents have sought to rely upon only one expert witness on the s 43B Defence, subject to whether a further expert might be required if the applicant leads evidence relating to damage to the Wallum Froglet's habitat (as foreshadowed by the applicant). However, were the applicant to suffer substantial prejudice because of the need to recall expert witnesses for cross-examination, that could be addressed by the fashioning of appropriate orders as to costs in due course. 37 Accordingly, I consider on balance that the factors favouring the grant of leave to amend the Further Amended Defence to raise the s 43B Defence outweigh those against the grant of leave.

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Judgment (7 paragraphs)

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Legislation Cited (5)

Cases Cited (13)