SOLICITORS:
Minter Ellison (Applicant)
Department of Planning and Environment (First and Second Respondent)
File Number(s): 16/197023
[2]
EX TEMPORE Judgment
By Notice of Motion (NOM) filed 30 August 2016 the Applicant Wollongong Coal Ltd seeks leave to amend the Summons filed on 29 June 2016 to add an amended ground 2 and a new ground 3. The matter is set down for hearing on 22-23 September 2016 and the timetable for the filing of evidence is now complete. The matter was commenced on 29 June 2016 and the First Respondent the Minister for Planning (the Minister) agreed to an early hearing at the request of the Applicant. The matter was set down for hearing based on the Summons filed by the Applicant, following the first directions hearing.
In the substantive judicial review proceedings the Applicant seeks orders setting aside the report of the Second Respondent the Planning and Assessment Commission (the PAC) reviewing the Applicant's major project application for an expansion of its operations (the Project) at the Russell Vale Colliery (the Colliery). The Minister requested the PAC to prepare the report. The Applicant also seeks an order directing a differently constituted PAC to carry out a review of the Project in accordance with law, and costs.
The power to amend pleadings is contained in s 64 of the Civil Procedure Act 2005 (NSW):
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order:
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.
(5) This section does not apply to the amendment of a judgment, order or certificate.
The High Court considered the relevant principles to consider on such applications in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
The amendments sought to add an additional part to ground 2 and a new ground 3 as follows (with amendments underlined):
Ground 2: Prohibited considerations and unreasonableness
5 The Second Respondent:
a. took into account a prohibited consideration; and/or
b. otherwise acted unreasonably, illogically or irrationally.
Particulars
The prohibited consideration was planning approvals outside the scope of the application for the Project, including previous modifications to approved development at the NRE No. 1 Colliery at Russell Vale.
Further, it was unreasonable, illogical or irrational for the Second Respondent to give the weight it did to the fact that the applicant had obtained previous modifications to its planning approval.
Ground 3: procedural fairness
6 The Second Respondent breached a duty to afford the applicant procedural fairness in the preparation and communication of the PAC Report.
Particulars
(1) The PAC Report was, if valid, to be made publicly available and was to be provided to the Minister. The PAC Report, if valid, is also a mandatory consideration for the Minister in deciding whether to approve the Project: s 75J(2)(c) of the Act.
(2) The making of findings and recommendations by the PAC was apt to affect adversely sufficient interests of the applicant, including its economic and financial interests.
(3) The PAC was therefore obliged to afford the applicant a fair hearing in advance of the making of findings and recommendations and the provision of the PAC Report to the Minister.
(4) The PAC appears to have been of the erroneous view that it did not need to disclose adverse information to the applicant.
Consistently with that view, the PAC unlawfully failed to give the applicant a fair opportunity to make submissions on adverse information which was before it and/or on which it relied. That adverse information includes that identified in the last paragraph of page 44 of the PAC Report. Further particulars may be provided after compulsory production.
(5) Further, the PAC was obliged, both by general principles of procedural fairness and by reason of 1(e) of the Minister's request, to properly consider submissions made to it by the applicant.
The applicant submitted to the PAC that the Catchment SEPP was not binding in respect of the Project.
The PAC Report did not refer to that submission in circumstances where it can be inferred that it would have been referred to if it had been considered. Further, the PAC Report did not contain a summary of that submission: cf r 268V(2) of the Regulation.
[3]
Evidence
The Applicant read two affidavits affirmed by Mr Farrell the Applicant's solicitor in support of the NOM. The first affirmed 25 August 2016 attests to Mr Farrell's communications with the Department of Planning and Infrastructure (the Department) regarding the documents on the record that were before the PAC for the purposes of its review of the Applicant's project application for expansion of the Project at the Colliery. Mr Farrell in writing on 8 August 2016 sought confirmation from the Department that the documents on its website in relation to the Project included all those received by the PAC in connection with and for the purposes of its review. On 10 August 2016 Mr Farrell reviewed the PAC's website and realised that there were documents available for download regarding the Project that were not available on the Department's website. On 11 August 2016 Mr Farrell emailed to Ms Holm of the Department a Notice to Produce seeking a copy of communications, file notes, personal records and documents regarding the PAC's review of the project application. On 16 August 2016 Ms Holm replied to the Notice to Produce, objecting to it on a number of bases including its form, non-compliance with the rules and the overly broad categories of documents sought. The affidavit further detailed the subsequent communication between the Applicant's legal representatives and the Department regarding the Notice to Produce. Annexed to the affidavit were copies of the communications referred to by Mr Farrell.
The second affidavit of Mr Farrell affirmed 1 September 2016 outlines further communication between Mr Farrell and the Department regarding the Notice to Produce since the time of swearing his first affidavit. The second affidavit attested to the Applicant's explanation for the Amended Summons on the basis of the Minister's Response to Summons filed 10 August 2016 and response to the Notice to Produce, a further review by counsel of materials available on the Department's website and the discovery of additional material on the PAC's website. Counsel for the Applicant formed the view on these bases that it would be appropriate to amend the Summons to ensure that all necessary and appropriate issues would be before the Court. The affidavit also attests to the importance to the Applicant of maintaining the currently allocated hearing dates, being business reasons regarding the operation of the Colliery. Annexed to the affidavit were copies of communications between the solicitors for the Applicant and Department.
The Minister tendered as Exhibit 1 a bundle of three communications between the solicitors for the Applicant or the Applicant and the PAC. The first letter dated 17 June 2016 from the Applicant's chief executive officer to the Chair of the PAC, sought an urgent meeting to discuss the Project and the concerns raised in the PAC Report and in addition to discuss the pathway for determination of the project application. The letter indicated that the Applicant had a number of concerns regarding the PAC's conclusions and had obtained a senior counsel's opinion that indicated the PAC had materially erred in its conclusions. The second letter dated 27 June 2016 from the Applicant's solicitors to the Chair of the PAC reiterated the request for an urgent meeting made in the earlier letter and indicated that if a meeting were not held by 29 June 2016 proceedings would be commenced to challenge the PAC's Report. The letter stated that its purpose was to advise that an opinion obtained by senior counsel expressed the view that the PAC Report was materially affected by legal error and would be likely to be set aside. Attached to the letter was a copy of the advice from senior counsel. The third letter dated 11 July 2016 from the Applicant's solicitors to the Chair of the PAC stated that the Applicant was considering seeking expedition of the matter and requested that the PAC's position be provided to them by 15 July 2016 including advice as to whether the Department was willing to meet with the Applicant.
[4]
History of the matter
On 12 August 2009 an application in respect of the Project was lodged by the former owner of the Colliery pursuant to the former Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). On 23 October 2015 the Minister requested the PAC pursuant to s 23D(1)(b)(ii) of the EPA Act carry out a review of the project application. On 31 March 2016 the PAC completed its review and provided its report to the Minister. On 18 May 2016 the Applicant obtained from senior counsel an opinion in response to two questions posed by the Applicant. The first whether the PAC erred in preparing the PAC Report such that the preparation of the report and the making of findings and recommendations in it were not authorised by the EPA Act, and the second whether if the Minister delegates his power to decide whether to approve the Project it is desirable that the PAC be differently constituted. Both questions were answered in the affirmative by Counsel.
By Summons filed 29 June 2016 the Applicant commenced judicial review proceedings. The Minister's Response to Summons was filed on 10 August 2016, three working days after the extended date for filing of 5 August 2016. The NOM before me today was filed and served on 30 August 2016.
The events attested to in the Applicant's solicitor's affidavits filed in support of the NOM do not relate directly to the amended grounds in the summons sought but to a separate albeit related issue of whether a Notice to Produce issued to the PAC should be complied with. That notice seeks all the documents before the PAC at the time it prepared its report, which the Applicant is seeking to challenge in these judicial review proceedings. That is the subject of the first affidavit of the Applicant's solicitor sworn 25 August 2016 summarised above and has little role to play in my determination of this application. Whether orders in relation to the Notice to Produce were also sought was not clear.
The motion is opposed by the Minister because the amendments will cause disruption to the hearing timetable and forensic prejudice as identified in Australian Securities and Investments Commission v Rich [2005] NSWSC 706 at [69]-[70]. Allowing the amendment is also contrary to the principles in Aon as discussed in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 at 126-131:
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].
Obligation to prosecute proceedings diligently
129 A party may have a right to institute proceedings, but it has a duty to prosecute them diligently: Hong v Liew [2014] FCA 40 at [17]. This obligation is heightened where litigation is commenced at the end of a limitation period: cf Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Hoskins & Sells [1999] 3 VR 863 ("Bishopsgate") at [31] to [32] and [52] (Tadgell and Ormiston JJ; Brooking J agreeing).
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:
…Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
…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 focus of the overarching purpose is on the just resolution of disputes. In complex, novel and seriously contested litigation … a "just" resolution invariably involves resolving tension between the competing interests of and prejudices to the parties, and tension with the interests of other litigants in the Court whose proceedings depend to a greater or lesser extent on the current proceeding being heard and determined so as to "make room" for other proceedings.
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.)
These principles apply in this Court to same extent as in the Federal Court (see Tamaya at [125]) in light of the similar applicable New South Wales laws.
[5]
Notice of Motion dismissed
The Applicant bears the onus of persuading the Court that its amendments ought be made. The factual basis for the amendments was known to the Applicant's solicitors when the summons was filed on 29 June 2016. The correspondence in Exhibit 1 identifies that the Minister was provided with the Applicant's advice from senior counsel in June 2016 and the Applicant stated in July that a notice of motion for expedition was being considered. That the Applicant was seeking an early hearing date is the basis on which the parties have approached the preparation for hearing. The Minister was able to accommodate such an approach in light of the limited grounds in the summons filed by the Applicant.
I agree with the Minister that the Applicant has had sufficient opportunity to plead its case. The amendments are not minor and introduce a substantive amendment to an existing ground (2) and a substantial new ground (3) which requires investigation of PAC's processes. The amendments cannot be dealt with simply by considering the record of material before PAC, contrary to the Applicant's submissions. Further, the documents to be relied on in relation to ground 3 are yet to be fully identified as is clear from particular (4) of new ground 3, which expressly states that further particulars may be provided after the Notice to Produce is answered. The amendment to ground (2) is also not straightforward and would be likely to require more case preparation on the Minister's part than the original summons. The Minister will suffer forensic prejudice given the pleadings in particulars 4 and 5 of ground 3.
The parties took a certain approach in the proceedings to date resulting in an early hearing date. It is difficult to reconcile that approach with the view now taken by the Applicant that if the amended summons is allowed to proceed and prejudice is caused to the Minister by the imminent hearing dates that it may be necessary to vacate them. No formal application to vacate the hearing dates presumably to another later date was made, the matter was simply referred to in argument by the Applicant's counsel. That is not an appropriate way to consider vacation of hearing dates. Decisions to vacate dates must be carefully considered by the Court as confidence in the public administration of justice and the principle of certainty of administration of court processes requires that matters set down for hearing must generally proceed unless very good cause to postpone them is established. This is all the more so in this case given that the parties requested an early hearing date.
All these circumstances must be weighed against the Applicant's submission that it is in the interests of the public administration of justice that all matters in issue as between the parties should be ventilated. On balance, and in light of the principles articulated in Tamaya Resources at pars 127 (particularly the absence of explanation for the delay in making this application) and 130-131, the circumstances weigh against leave to amend the summons being given.
[6]
Orders
The Court makes the following orders:
1. The Applicant's Notice of Motion filed 30 August 2016 is dismissed.
2. The Applicant is to pay the First Respondent's costs of the Notice of Motion filed 30 August 2016.
[7]
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: 14 September 2016