Vincent Land Pty Ltd v Hyder Consulting Pty Limited

No order for dismissal or strike out made 12As will become clear in my consideration of the parties' arguments, both have some merit. Their arguments need to be considered in the context of the EPA Act which provides for the making of a modification application for a development consent by an agent of the owner of the land.

No cause of action against Hyder identified in the POC 13Hyder's notice of motion relies on r 13.4(1)(b) and r 14.28(1)(a). It argued that there is no cause of action against Hyder identified in the POC, that there are no triable issues of fact as between Hyder and Vincent, and that the case concerns the Council alone. Hyder does not, and cannot, oppose any of the relief sought against the Council. It also argued that there is no basis for making prayer 4 in the summons because Vincent has not alleged that Hyder engaged in or will engage in any conduct warranting an order pursuant to s 124 of the EPA Act to remedy or restrain a breach of that Act. Vincent submitted that orders for strike out and summary dismissal are reserved for exceptional cases, relying on Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 935. 14Rule 13.4(1)(b) refers to proceedings which disclose no reasonable cause of action being dismissed. Ritchie's at [13.14.15] states that the rule provides a discretionary power where an applicant's case is weak. A defect must be clearly established given the exceptional nature of the power: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 per Barwick CJ; Rocla at 945 - 946 per Cross J. In order to justify an order the offending pleading must be beyond saving by legitimate amendment: Mutual Life & Citizens Assurance Co Ltd v Evatt [1971] AC 793; (1970) 122 CLR 628 at 631; Rocla at 942. 15Hyder's counsel referred to Paul Earnest Simmons v Protective Commissioner of NSW (also known as NSW Trustee and Guardian) [2012] NSWSC 455 at [59], approved by Hallen AsJ in Eastmark Holdings Pty Ltd v Kabraji [2012] NSWSC 802 at [129], which held that r 13.4(1)(b) should be interpreted in light of s 56(1) and (2) of the Civil Procedure Act 2005. These recent cases suggest, according to Hyder's counsel, that the circumstances in which a dismissal order is made are likely to be broader than identified in Rocla in light of the overriding principles in the Civil Procedure Act to achieve the efficient dispatch of proceedings. Vincent's counsel submitted Simmons did not suggest that the high hurdles identified in Rocla had been diminished. Hyder's case is based on no cause of action against it being disclosed in the POC. 16In Simmons at [26] - [27] Hammerschlag J identified two different approaches to an application for dismissal of proceedings based on no cause of action being disclosed or no reasonable cause of action being disclosed. In relation to a failure to disclose a cause of action, his Honour considered that the respondent had to show that the plaintiff's proceedings were so untenable that they could not proceed, (the approach identified in Rocla). In relation to no reasonable cause of action being disclosed his Honour also considered whether the applicant's case had no reasonable prospects of success, and took into account s 56 of the Civil Procedure Act in that context. He considers this argument further at [56] - [67] and Hyder's submissions based on that analysis appear correct. Given Hyder's submission that Vincent has not identified a cause of action against it, the generally understood strict test in Rocla applies. Where there are issues of fact as well as law as between parties a court is unlikely to dismiss proceedings. 17The power to strike out pleadings under r 14.28(1)(a) because they disclose no reasonable cause of action should be exercised in plain and obvious cases only: General Steel, see Ritchie's at [14.28.40]. The same remarks made in the previous paragraph about a strict test being applied where no cause of action is identified also apply in relation to this rule. 18It was agreed that in an application for summary dismissal based on the pleadings "the applicant for summary disposal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in that pleading are reasonably capable of bearing": Ritchie's at [13.4.20]. 19The rules of strict pleading which operate in some other jurisdictions do not formally apply in this Court but the POC are important in indicating the nature of an applicant's case. The POC par 2 states that Hyder is a company which can be sued. Paragraphs 12, 14 and 15 refer to Hyder making the modification application. For this notice of motion Hyder accepts par 14 that, as Hyder made the modification application on behalf of the Council, in effect the Council made the modification application. Vincent asserted that par 16 - 17 are allegations against Hyder as these raise the circumstance that the modification application prepared by Hyder did not contain an undertaking as required by cl 115(1)(g). Paragraph 16 is denied in Hyder's defence. Paragraph 17 states that because the modification application was not valid, the Council did not have the power to determine it and the approval was invalid. No legal consequence for Hyder is identified. 20There is no allegation of a breach of the EPA Act as against Hyder or in relation to the Council's contravention of the EPA Act in the POC. Hyder is not alleged to have engaged in any activities in reliance on the modification consent. As submitted by Hyder there is no basis presented in the POC for the injunctive order sought against Hyder. These submissions can be accepted given the terms of the POC. It is correct to say that no cause of action against Hyder is identified in the POC. There is one possible issue of fact in dispute as between Hyder and Vincent based on the defence filed which denies par 16. 21Vincent emphasised that the filing of a defence by Hyder was indicative of an interest in the proceedings which suggests Hyder is a proper party and no order to dismiss or strike out the case should be made. I do not agree with Vincent's submission that the filing of a defence which does not admit or denies certain matters establishes additional interest beyond any a party might otherwise have or not have. Nor does it confirm there is a cause of action as against Hyder. Vincent argued that what is denied in the defence indicates that Hyder contests substantial issues. However, the filing of a defence in proceedings including where important matters are denied or not admitted does not deprive a party of an ability to press a dismissal or strike out application which is the effect of what Vincent submitted. 22Having said that, Vincent argued Hyder has an interest in the proceedings and is a proper party to the proceedings. This is a state of affairs that can exist separately from whether a cause of action is identified as I will now discuss.

Hyder is a proper party to proceedings 23It is accepted, and as submitted by Hyder's counsel, Hyder is not the owner of land where the waste facility is conducted, and has no economic or other right or interest in the development consent, or the operation of the waste facility. It acted as agent for the Council in making the modification application and stated that it has no interest in the outcome of these proceedings. Whether there is an interest in the proceedings is not directly raised by Hyder's notice of motion, as Hyder submitted. However, that is a circumstance that bears on whether I should make, for example, the strike out order which would effectively result in Hyder being regarded as never having been a party in these proceedings. 24Vincent and Hyder both refer in their arguments to Hyder having an interest in these proceedings but mean different interests. Hyder asserted it had no relevant interest in the proceedings. Vincent asserted a number of interests it considered Hyder had including as the applicant for the modification consent. Another was reputational interest should there be adverse findings that the assessment report prepared by Hyder to support the modification application is found to be misleading as identified in par 16 - 17 of the POC. Hyder does not share that concern about its reputational interest. A further interest identified was that Hyder is bound by the outcome of the proceedings given that the declaration made is one at large. That simply reflects the legal position that a declaration of invalidity applies to the public at large not just to the parties. 25I agree with Vincent that it is not necessary to plead in the POC an interest in the development consent given Hyder's role as the applicant for the modification consent as provided in the EPA Act and the Regulation. The applicant for the development consent, here a modification of development consent, is generally considered a proper party to proceedings of this type, as Vincent submitted. One reason is because it is presumed that an applicant, including an agent, has an interest in the outcome of a development consent. Hyder stated that it has no such interest. In this case the consent authority and the owner of the development consent are the same entity: the Council owns the land and operates the waste facility. Hyder was acting for the Council in relation to the modification of the Council's own development consent. Hyder asserted, and I accept, that it has no financial or other interest in the waste facility the subject of the consent. 26Nevertheless, had Hyder not been joined as a party it arguably could have successfully applied to be joined under r 6.24 of the UCPR as a proper party in the proceedings, as Vincent's counsel submitted. An applicant for development consent, including a modification consent, fulfils a statutory role. That role comes with the obligation under the EPA Act to provide truthful statements in documents prepared pursuant to the processes laid out in that Act. Failure to do so is an offence under cl 283 of the Regulation. Also by virtue of s 97AA of the EPA Act, Hyder has appeal rights in Class 1 merit review proceedings and that is a legal right it obtains as the applicant for the modification consent whether it wants to exercise that right or not. 27Whether an order is made under r 13.4(1)(b) or r 14.28(1)(a) of the UCPR is a discretionary matter for me to determine. In other words while I have found that there is no cause of action as against Hyder in the POC, it does not follow that in the exercise of my discretion I must make the orders sought by Hyder under either of these two rules. There are other circumstances relevant to how I should exercise my discretion in this way. Such orders are not made lightly, as the authorities referred to in par 14 - 17 above make clear. There is at least one potentially contested issue of fact as between Vincent and Hyder identified in the POC at par 16. I consider Hyder is a proper party given its statutory role as an applicant for the modification consent made on behalf of the Council, which gives rise to rights and responsibilities under the EPA Act. 28The only reason for pressing this notice of motion now when the matter will in all likelihood settle is because the question of costs is yet to be resolved. If successful in this motion, Hyder intends to seek its costs from Vincent. 29There is some force to Vincent's argument that in the circumstances it was more appropriate that a submitting appearance save as to costs be filed by Hyder at the earliest opportunity to protect its position without incurring costs. This was identified to Hyder's solicitor in a letter sent at the time the summons was served. 30I will not dismiss or strike out the case as against Hyder pursuant to the UCPR. Hyder is unsuccessful in its notice of motion.

Order 31The Court makes the following orders: (1)The First Respondent's amended notice of motion filed in Court on 15 November 2012 is dismissed. (2)Costs of the hearing of the First Respondent's amended notice of motion filed in Court on 15 November 2012 are reserved.

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: 18 December 2012